Morton v Sydney Ferries Corporation

JUDGMENT 1 HIS HONOUR: This judgment deals with the cost of these proceedings. The justiciable controversy between the parties was the subject of a principal judgment on 4 August 2009: Morton v Sydney Ferries Corporation [2009] NSWSC 341. The Court quashed the second decision of the Transport Appeal Board of 25 June 2008 and, once more, remitted Mr Morton's appeal to a differently constituted Board for determination in accordance with law. On the issuing of the principal judgment, leave was granted for the parties to provide written submissions on costs, in default of which an order would be made that Sydney Ferries Corporation pay Mr Morton's costs of the proceedings. Submissions were filed by Sydney Ferries Corporation submitting that an order in different terms be made. The application by Sydney Ferries Corporation was opposed and there were submissions in reply. 2 Ordinarily, costs follow the event. While the wording of s 98 of the Civil Procedure Act 2005 seems to grant to the Court a discretion to award costs in unqualified terms, the Court's discretion must be exercised judicially. The provisions of UCPR 42.1 of the Uniform Civil Procedure Rules 2005 make clear that a party seeking an order different from one which reflects costs following the event, bears an onus to convince the Court that the usual order ought not be made: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 542-543, per Mason CJ and 564, 566-567, per McHugh J. 3 The principles have been succinctly summarised in the following citation from the Court of Appeal: "[38] The Court's power as to costs is found, relevantly, in s 98 of the Civil Procedure Act 2005 and Pt 42 of the UCPR. In essence, the power is discretionary subject to the rules of court: see s 98(1)(a). The general rule is that costs follow the event (see UCPR r 42.1) and are assessed on the ordinary basis: UCPR r 42.2 (the phrase ' the ordinary basis ' has replaced the previously used expression of ' party/party costs '). The court, in its discretion, may make an order other than that costs follow the event, or other than that costs be assessed on the ordinary basis: UCPR rr 42.1 and 2." ( Commonwealth of Australia v Gretton [2008] NSWCA 117, per Beazley JA.) The Federal Court of Australia has expressed the principle in the same way: "[11] Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order." (Ruddock v Vadarlis [2001] FCA 1865; (2001) 115 FCR 234, per Black CJ and French J.) 4 Sydney Ferries Corporation submits that the Court is faced with circumstances that should lead to a different result than an order that costs follow the event. It relies upon the observations of the Court relating to various deficiencies in Mr Morton's summons (see paragraphs [22]-[23] of the principal judgment) and written submissions (see paragraph [24] of the principal judgment). Further, Sydney Ferries Corporation rely upon the fact that the Court dealt with the specification of the questions for resolution contained in Sydney Ferries Corporation's submissions, rather than any contained in the submissions of Mr Morton. 5 Moreover, Sydney Ferries Corporation submits that material was filed (in excess of four volumes), which went beyond the record, which the Court could examine for the purpose of determining whether error of law existed. 6 As the Court pointed out, while it would have been convenient and helpful to have specified in the originating process the precise errors of law upon which Mr Morton relied, such specification was not, at that time, a requirement of the rules. It should be noted that it now is a requirement of the Uniform Civil Procedure Rules 2005: see UCPR 6.12A. 7 Further, the written submissions, the deficiencies in which are relied upon by Sydney Ferries Corporation, nevertheless contained each of the matters upon which Mr Morton relied. Indeed, Sydney Ferries Corporation's specification of the errors alleged and the arguments in support were expressly said to be a summary of the submissions of Mr Morton. The mere fact that Mr Morton's written submissions could have better (or more succinctly) specified the errors of law upon which Mr Morton relied, and/or the arguments in support thereof, does not provide a sufficient reason to depart from the ordinary rule that costs should follow the event. 8 As to the volumes of folders, the errors alleged included a denial of natural justice. The issue of orders in the nature of certiorari depends upon error of jurisdiction, error of law on the face of the record, fraud or denial of natural justice. Pursuant to the terms of s 69 of the Supreme Court Act 1970, the face of the record includes the reasons for judgment and error of law includes any error of law in the reasons for judgment determinative of the proceedings. Where, as here, denial of natural justice is alleged, the Court is entitled, if not required, to examine material beyond "the record" from which an error of law or jurisdiction may arise. In the instant proceedings, one of the bases for the allegation of a denial of natural justice, which basis was ultimately successful, was the failure of Sydney Ferries Corporation to give notice, or adequate notice, of the allegation of inappropriate conduct that gave rise to the dismissal. Sydney Ferries Corporation answered the allegation by reference to the cross-examination of Mr Morton by counsel appearing for the Corporation. That cross-examination, it was said, raised the inappropriateness of the conduct of Mr Morton in confronting his subordinate for the subordinate's "insubordination". The Court found that insufficient notice of the allegation, as a basis for the dismissal, had been given. 9 It would have been impossible for the Court to have dealt with the allegation of denial of natural justice, and the response by Sydney Ferries Corporation, without access to the transcript before the Tribunal and some if not all of the exhibits. While it is true that not all of the material was the subject of reference by either party (or both parties), absent agreement between the parties on the precise pages and exhibits to which reference would be made, it was necessary for the transcript and exhibits to be before the Court. 10 Lastly, reference has been made in the submissions of Mr Morton to the finding of the Court, namely, that the finding of the Tribunal that Mr Morton was not a witness of truth, was not open to it, in light of the determination of Berman AJ, in the first set of proceedings: Morton v The Transport Appeal Board (No 1) [2007] NSWSC 1454; (2007) 168 IR 403. The judgment of the Court, in those earlier proceedings, is not subject, and has not been subject, to appeal. Nevertheless, it is not clear why this reference and submission is relevant to the question of costs. The principal judgment depended upon a finding by the Court of a denial of natural justice (including a failure to comply with the provisions of the statutory scheme), the failure to disclose adequate reasons for the findings and the failure to consider whether, even on the findings of fact of the Tribunal, there were sufficient grounds for a dismissal: see principal judgment at [74]. 11 The decision of the Tribunal did not, it seems, depend upon its finding that Mr Morton was not a witness of truth. Indeed, as the Court sought to make clear in the principal judgment, the charge of assault and/or harassment was not the basis of the dismissal. Rather, it seems, the dismissal was based upon "reckless behaviour" and/or "inappropriate behaviour", neither of which was the subject of charge nor a consideration, by the Tribunal, as to whether either would give rise to a dismissal. 12 It seems that Mr Morton seeks to use the re-agitation of the evidence relating to the assault either as a basis for the Court exercising its jurisdiction in favour of awarding Mr Morton costs in these proceedings, or in favour of awarding Mr Morton costs on a basis other than party/party costs. In my view, this issue is irrelevant to both issues. While the finding on credit by the Tribunal may not have been open to it, its decision did not depend upon that finding. More importantly, the judgment of the Court did not depend upon the inability of the Tribunal to deal with that issue inconsistently with the judgment of the Court issued by Berman AJ. Were the Court otherwise of a mind that costs ought not follow the event, the credit issue would not be such as to alter that view. And the Court is not of the view that costs ought to be paid otherwise than on a party/party basis. 13 For the foregoing reasons, the Court makes the following order supplementary to the orders issued on 4 August 2009:

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