WHW v Commissioner of Police

[2014] WASCA 153 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	WHW -v- COMMISSIONER OF POLICE [2014] WASCA 153 (S)

CORAM : MARTIN CJ

BUSS JA

MURPHY JA

HEARD	:	ON THE PAPERS
DELIVERED	:	12 NOVEMBER 2014
FILE NO/S	:	CACV 93 of 2013

BETWEEN : WHW

Appellant

AND

COMMISSIONER OF POLICE

Respondent

THE ATTORNEY-GENERAL OF WESTERN
AUSTRALIA

Amicus Curiae

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram	: SWEENEY DCJ
File No	:  CIVO 88 of 2013

[2014] WASCA 153 (S)

Catchwords:

Procedure - Costs - Persons not parties to proceedings - Attorney-General appearing as amicus curiae - Power to award costs against an amicus curiae - Whether applicant for spent conviction entitled to costs against Attorney-General acting as amicus curiae where no proper contradictor in proceedings - Not in interests of justice to order Attorney-General to pay costs in all the circumstances of the case.

Legislation:

Supreme Court Act 1937 (WA), s 37

Result:

Application for costs against Attorney-General dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr J Kitto
Respondent	:	No appearance
Amicus Curiae	:	Mr G T W Tannin SC

Solicitors:

Appellant	:	Kitto & Kitto
Respondent	:	No appearance
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (1987) 15

FCR 565

BHP Billiton Iron Ore Pty Ltd v Workers' Compensation and Rehabilitation

Commission [2002] WASCA 195 (S)

CAH v MJH [2003] WASC 272

[2014] WASCA 153 (S)

Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67

NSWLR 372

Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52
Franks v Franks [2012] NSWCA 209
Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579
MAV v ABA [2007] QCA 380

Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154 (2003) 27

WAR 242

United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
WHW v Commissioner of Police [2014] WASCA 153
X v Deputy State Coroner (NSW) [2001] NSWSC 46; (2001) 51 NSWLR 312

[2014] WASCA 153 (S)

REASONS OF THE COURT

1. REASONS OF THE COURT: These reasons deal only with the question of costs, and are supplementary to the court's primary reasons: WHW v Commissioner of Police [2014] WASCA 153.

2              In essence, the appellant seeks an order that the Attorney-General of

Western Australia (Attorney-General) pay the appellant's costs of the appeal to the extent that they were increased by reason of the Attorney-General's appearance in the matter.

3              By way of background, the respondent in the appeal, the

Commissioner of Police, had filed a notice of respondent's intention in the appeal, indicating that he did not intend to take part in the appeal. That was consistent with the position he had taken in the primary proceedings, where he did not oppose the application by the appellant for a spent conviction order.

4              On 13 September 2013, the Attorney-General made an application

for an order that he be granted leave to intervene in the appeal as amicus curiae. The application was granted by interlocutory order dated 17 October 2013. By that order the Attorney-General was granted leave 'to intervene as amicus curiae' and was ordered to file and serve submissions. There was also liberty to apply.

5              Despite the use of the word 'intervene' in the court's interlocutory

order of 17 October 2013, the effect of the order was that the Attorney-General would have the right to appear as amicus curiae. The effect of the order was not to make the Attorney-General a party to the appeal as an intervener.

6              Unlike interveners, an amicus curiae is not a party to the

proceedings: see, eg, United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, 534 - 536; Re Medical Assessment Panel; Ex parte Symons [2003] WASC 154; (2003) 27 WAR 242 [17] - [18].

7              There was no dispute that the court had the power, under s 37 of the

Supreme Court Act 1935 (WA) to order costs against a non-party, including, relevantly for present purposes, an amicus curiae.

1. The question for determination concerns the proper exercise of the power in the particular circumstances of this case.

2. In Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579, Brennan CJ observed:

[2014] WASCA 153 (S)

REASONS OF THE COURT

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.

…

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected (604 - 605). (footnotes omitted)

10            The appellant contends, in effect, that the court should order costs

against the Attorney-General by reason of the following matters. First, he submits that had the respondent contested the appeal, the appellant would have been entitled to his costs. It is said that it would be unjust if that result could be avoided by the Attorney-General acting as amicus (appellant's written submissions pars 6 - 8). Secondly, he says that the Attorney-General, in effect, became a party and 'took on completely the role of the respondent' (written submissions par 12). Thirdly, he said that if the court did not order costs, a 'dangerous precedent' would be set in that the State could 'immunise itself against future costs liability by simply acting through its Attorney-General as "amicus" instead of its appropriate executive department as respondent' (written submissions par 10).

11            The Attorney-General submits, in effect, that the 'established

practice' is not to order costs in favour of or against an amicus curiae, at least where the appearance of the amicus was of assistance to the court. Reference was made to Franks v Franks [2012] NSWCA 209 [24], [26], [27]; MAV v ABA [2007] QCA 380 [1] - [2], [4]; Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 [32] - [33], [64]; CAH v MJH [2003] WASC 272 [7]; BHP Billiton Iron Ore Pty Ltd v Workers' Compensation and Rehabilitation Commission [2002] WASCA 195 (S) [3]; Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52 [26]; X v Deputy State Coroner (NSW) [2001] NSWSC 46; (2001) 51 NSWLR 312 [68]; Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (1987) 15 FCR 565, 578.

[2014] WASCA 153 (S)

REASONS OF THE COURT

12            The Attorney-General also submits that the role he played in the

appeal did not involve 'any overreach' and that it ought not be concluded
that the role he assumed was, in substance, that of a partisan intervener.

13            It may be accepted that at least ordinarily, the court would not,

having granted leave to the amicus to appear in order to assist the court,
make an adverse costs order against the amicus.

14            In this case, the Attorney-General performed, but did not go beyond,

the proper role of amicus. It is true that submissions were made by the Attorney-General, inviting the court's consideration of a number of matters which the court might wish to take into account contrary to the submissions made by the appellant. However, the Attorney-General's submissions did not convey partisanship, but rather addressed matters which might properly be raised in the absence of a contradictor. Even the question of whether leave to appeal was required was a matter appropriately drawn to the court's attention, particularly as this appeal was, in effect, the first of its kind in this State.

15            Further, and more generally, this was a case which dealt with

important legislation of considerable significance to the wider community. The matters agitated on appeal had not been the subject of any judicial consideration by this court previously. This made it particularly important for the court to have the benefit of submissions, beyond that of the appellant, concerning the proper construction of the legislation, and the relevant considerations to be taken into account by a primary court in dealing with an application for a spent conviction order in these circumstances.

16            Further, there is no foundation in the appellant's submission to the

effect that it would be unfair, or set a dangerous precedent, for the appellant not to have his costs because the Attorney-General acted as amicus in the absence of any contest from the respondent. It was not unreasonable for the respondent not to have opposed the appellant's application at first instance. It was equally not unreasonable for the respondent not to contest the appeal. Indeed, it would have been more remarkable had the respondent contested the appeal having not opposed the application at first instance. In these circumstances, the court was left without a contradictor, through no fault of the Attorney-General. The order was then made to allow the Attorney-General to appear as amicus, in order to assist the court. In these circumstances, broader considerations concerning the proper administration of justice are involved beyond the private interest of the appellant in having his costs paid.

[2014] WASCA 153 (S)

REASONS OF THE COURT

17            In all the circumstances of this case, it is not in the interests of justice

to order the Attorney-General to pay the appellant's costs to the extent that they were increased by reason of the Attorney-General's appearance in the matter.

1. The appellant's application for costs is dismissed. Each party should pay his own costs of this application.