Australian Trade Commission v Isaac Jewellery Pty Ltd

Australian Trade Commission v Isaac Jewellery Pty Ltd - [2009] FCA 218 - FCA 1998 case summary — Zoe

SUBMISSIONS OF ISAAC JEWELLERY 3 Isaac Jewellery submits that the Court should order that Austrade pay its costs or alternatively that no order for costs be made. If an order is to be made against Isaac Jewellery, then it submits that it should be entitled to a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) ('the Costs Act'). 4 Isaac Jewellery claims that there are special circumstances which should lead to Austrade's application for costs being refused. Isaac Jewellery refers to the fact that the Court found that s 94(1)(b)(i) of the Export Market Development Grants Act 1997 (Cth) ('the EMDG Act') was inapplicable because the former business had ceased to operate. Isaac Jewellery submits that Austrade made no submissions pertaining to that finding and accordingly it was responsible for the error in the Tribunal's interpretation of s 94(1)(b)(i) of the EMDG Act. For its part, Isaac Jewellery submits that it was in no way responsible for the error of the Tribunal and that its submissions before this Court in relation to the appeal were at least arguable. 5 Isaac Jewellery further submits that Austrade's success in the Federal Court was a minor one made on a ground that did not impeach the thrust of the Tribunal's decision to approve a grant to Isaac Jewellery under s 94(1)(b)(ii). 6 Additionally, Isaac Jewellery submits that, as a matter for the exercise of the Court's discretion, the Court should take into consideration the fact that Austrade had suggested that, in an exchange of emails between Garry Dennis, a consultant acting on behalf of Isaac Jewellery, and David Tonkin, a representative of Austrade, the Court's decision would be useful in future assessments made by it under the EMDG Act. Isaac Jewellery submits that the appeal was in the nature of a test case, and that Austrade prosecuted the appeal in the public interest. 7 Isaac Jewellery refers to the decision of Attrill and Others v Richmond River Shire Council (1995) 38 NSWLR 545 in which the Court, having resolved a difference of judicial opinion concerning the interpretation of a provision in the Local Government Act 1919, ordered each party to pay its own costs of the appeal because the Court found the resolution of the issue to be in the public interest. 8 Isaac Jewellery also relies upon the decision of Acerose Pty Ltd v Workcover Authority of New South Wales (unreported, Sup Ct, NSW, Carruthers AJ, 30 July 1998) in which the successful defendant sought an order that the unsuccessful plaintiff pay its costs. Carruthers AJ, refusing such order and instead ordering that each party pay its own costs, said as follows: Also these proceedings are, as I have already indicated, by their nature a test case as far as other Spinner's franchisees are concerned, and I take into consideration the line of authority applied in decisions such as that of Cummins J in Lyser v Camberwell City Council (1989) 69 LGRA 250, where his Honour was dealing with the construction of certain Local Government by-laws. His Honour there deviated from the general rule that costs should follow the event because the matters which were debated before him were matters of much general interest in so far as Local Government administration was concerned.

[5]

AUSTRADE'S SUBMISSIONs IN REPLY 10 Austrade rejects the implication that its submissions before the Tribunal were in any way responsible for the Tribunal's erroneous conclusions concerning the operation of s 94(1)(b)(i) and s 94(1)(b)(ii) of the EMDG Act. Its submissions before the Tribunal addressed both sub-sections for the Tribunal's consideration but neither party suggested that the Export Market Development Grants (Change in Ownership of Business) Guidelines 2006 ('the Guidelines') applied to s 94(1)(b)(i). Austrade submits that it was the Tribunal's error to erroneously apply the Guidelines to such subsection. 11 Austrade also submits that there is no major public interest in the Court's decision which should lead the Court to depart from the usual practice of ordering that the successful party receive a costs order in its favour. Further, Austrade emphasises that the suggestion that the public interest was to be served by the appeal first arose from a comment by Gary Dennis, Isaac Jewellery's consultant, and that Mr Tonkin's response clearly stated that Austrade would not pay Isaac Jewellery's costs. 12 Austrade submits that the appeal was argued on a narrow ground, namely whether there had been an erroneous application of the Guidelines by the Tribunal. No question of public interest was involved. The only question for determination was whether a grant was payable to Isaac Jewellery under the EMDG Act. 13 Austrade submits that the decisions of State Courts relied upon by Isaac Jewellery should be treated with caution. In Attrill the Court was faced with a difference of judicial opinion relating to a local government statute and such factor clearly demonstrated a distinct public interest. No such consideration arises in the present appeal. 14 Similarly, the decision of Acerose is distinguishable since the Court in that matter was clearly of the opinion that the case before it constituted a test case. As to the decision in Cripps, Austrade submits that it does not stand for the principle that non-indigent public authorities cannot be awarded costs.

[7]

19 The Tribunal's decision resulted from its own deliberation on the evidence and submissions before it, and the Court is not in a position to discern that the submissions of either party necessarily resulted in the Tribunal being deflected from the correct finding relating to the application of the Guidelines to the case before it. The Court therefore rejects the submission that Austrade was responsible, in whole or in part, for not submitting that the Guidelines had no application to s 94(1)(b)(i) and that s 94(1)(b)(i) had no application on the facts before the Tribunal. 20 In Attrill there had already been a division of judicial opinion within the Supreme Court and the New South Wales Court of Appeal found that the determination of that dispute in the Court was a matter in the public interest. For this reason it ordered that each party pay its own costs. In Acerose and Cripps public interest was found to be involved in the decision. 21 The Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council (1998) 193 CLR 72. If an appeal raises a novel question of 'much general importance and some difficulty' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal. 22 The suggestion that Austrade in some way regarded the appeal as a test case is not supported by the emails relied upon by Isaac Jewellery. In the exchange a request was made by Mr Dennis whether there was any provision for Austrade to bear Isaac Jewellery's costs in the forthcoming appeal, stating as follows: If possible, Isaac Jewellery would also like to see the justification for appealing the AAT decision to the Federal Court. It is unclear as to how the public interest is being served by further appealing this matter. Isaac Jewellery can not obtain EMDG benefits unless it spends its own money. If it spends its own money it will further the objectives of the EMDG Act and benefit the Australian community generally and the public interest. Also, the AAT decision appears unlikely to establish a precedent as the circumstances in this case are unique to Isaac Jewellery.

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