Appellant v Respondent

3 The appellant seeks its costs of, and incidental to, the appeal, to be taxed in default of agreement, on the basis of the general rule that costs should follow the event.[1]

4 The appellant notes that the Court's discretion in s 408 of the CPA to determine by whom and to what extent the costs of, and incidental to, an appeal under s 272 of the CPA are to be paid, is similar to its discretion in s 24 of the Supreme Court Act 1986, and the principles which apply are 'largely transferrable'.[2]

5 It is submitted that there is no reason to depart from the ordinary rule because there was no 'disentitling' conduct on the part of the appellant.

6 The respondent submits that this Court should not make any order as to costs and, if it decides to make an order in the appellant's favour, the respondent should only be required to pay a portion of the costs which are attributable to the 'public statutory body' point.

7 The respondent provides five reasons in support of its position:

(a) The hearing in the Magistrates' Court is incomplete and costs should be determined once it is complete.

(b) Although the characterisation of the respondent was an important issue on appeal, at issue was whether the respondent should be convicted of the charge and the question of whether the notice was valid and effective has been remitted to the Magistrates' Court for determination. Therefore, it would be premature to make an order as to costs at this juncture.

(c) The costs sought are disproportionate to the penalty that can be imposed in respect of the charge, which is 20 penalty units ($3,304.40).

(d) The appellant could have had the matter determined in accordance with the dispute resolution procedure specified in s 12 of the Construction Industry Long Service Leave Act 1997 (the 'Act') (arbitration) where the default position is that costs are borne equally by the parties, rather than through a criminal proceeding.

(e) There was a broader public interest in obtaining clarification as to the scope of the phrase 'public statutory body' such that a special order as to costs is appropriate.

8 I am not persuaded that the circumstances justify a departure from the general rule that costs should follow the event.

Section 408 of the [CPA] provides that the costs of, and incidental to, an appeal under s 272 are in the discretion of the Supreme Court, and the Supreme Court has full power to determine by whom and to what extent the costs are to be paid. The discretion is similar to the Court's broad, unfettered discretion in the awarding of costs in civil proceedings, pursuant to s 24 of the Supreme Court Act 1986, and it is my view that the principles that guide the exercise of that discretion are largely transferable.[3]

11 Second, despite the order for remittal, proceedings in this Court are now complete. I do not regard the fact that the criminal proceedings will continue in the Magistrates' Court as of significance for the purpose of determining the costs of the appeal. This Court does not have general jurisdiction with respect to the prosecution. Its jurisdiction is confined to an appeal on a question of law. That jurisdiction was regularly invoked and has now been discharged by the orders that have been made.

12 The fact that I decided not to substitute a finding of guilt under s 10(3) of the Act and saw it fit to remit the matter to the Magistrates' Court for determination does not detract from the appellant's success on the appeal.

13 The question of law for determination by this Court was whether or not the magistrate committed an error of law in his approach to the statutory definition of 'employer'. The appellant was successful in the resolution of that question. Its success in this Court was not provisional; the order of the magistrate dismissing the charge has been set aside. It is not premature to regard the appeal as having succeeded in this Court.

14 Third, although any penalty that might be imposed on the respondent in the event that it is found guilty of the offence might, by reference to the size and financial capacity of Citywide, be considered modest or small, the issue is one of broader importance. The potential application of the Act to Citywide is no doubt of importance to it and those persons who it engages in the relevant work. In other words, the importance of the subject matter of the proceeding is not simply reflected in the size of any prescribed penalty for the offence. I note, in that regard, that both parties retained Senior Counsel both before the magistrate and in this Court. That suggests that the parties saw the proceedings as raising issues of some importance, which justified that level of representation. That of course is a matter for the parties and not a matter for criticism, but it points to the importance of the litigation to the parties, which travels beyond the quantum of any penalty.

15 In any event, the purpose of the fine (should it arise) and a costs order are fundamentally different and cannot be compared. The purpose of an order for costs is to compensate a successful party for the expense of retaining lawyers to conduct the proceeding. The appellant would, on any costs order, be entitled to reasonable costs.

16 Fourth, there was no obligation on the appellant to adopt the dispute resolution procedure in the Act. It has brought a charge, which it was entitled to do under the statutory regime. It is not for this Court to determine the appropriateness of that prosecutorial decision. In any event it is, to my mind, irrelevant to the costs of the proceeding.

17 Fifth, while it is in the public interest for the meaning of statutory phrases to be clarified, I do not consider that this appeal entailed a public interest of the kind which would justify a special order as to costs.[4]

18 In the circumstances, I am of the view that the respondent should pay the appellant's costs of, and incidental to, the appeal, to be taxed in default of agreement, and I will make an order to that effect.

[1] See, eg, Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460, 477; [1956] HCA 48 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 86 [35]; [1998] HCA 11 (Gaudron and Gummow JJ); Chen v Chan [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA).

[2] Kartawidjaja v Rowe (Costs) [2016] VSC 234, [6] (T Forrest J) ('Kartawidjaja').

[3] Kartawidjaja [2016] VSC 234, [6] (citations omitted).

[4] Spear v Hallenstein (No 2) (Costs) [2018] VSC 207, [10] (Niall JA).