Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 3)

In the case of Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 3), the court considered the issue of costs following the judgment in Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 2). The Applicant, Wilson Transformer Company Pty Ltd, sought to challenge an order that would require it to pay the costs of the Second and Third Respondents, who were entities associated with ABB. The First Respondent, the Anti-dumping Review Panel, opposed any variation to the existing order that would require the Applicant to pay its costs.

The court was required to decide whether the Anti-dumping Review Panel's conduct warranted an order for the Applicant to pay the costs of the Second and Third Respondents. The Panel's submissions were limited to matters affecting the proper construction and future administration of the relevant provisions of the Customs Tariff (Anti-Dumping) Act 1975 (Cth). The Panel did not become a partisan in the proceedings, and its role in the case did not endanger the impartiality it was expected to maintain in subsequent proceedings.

The court found that there was no reason to vary the existing order that required the Applicant to pay the First Respondent's costs. The Panel's conduct did not warrant disapprobation, and the court declined to order the Applicant to pay the costs of the Second and Third Respondents. The court emphasised that the judicial exercise of discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) must be exercised judicially, and that a successful party is not necessarily entitled to have its costs paid by an unsuccessful party that was joined in the proceeding.

The court's decision was based on the principle established by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13, which disapproved of a tribunal becoming a protagonist in proceedings before the court. The court found that the Panel's submissions were limited to matters that went to its understanding of its statutory role, and that it did not descend into the arena so as to become a partisan in the proceedings.

In conclusion, the court declined to order the Applicant to pay the costs of the Second and Third Respondents, and the existing order that required the Applicant to pay the First Respondent's costs remained in place. The Applicant was required to pay the First Respondent's costs as agreed, or in default of agreement, as may be taxed.