PEARLMAN -v- WA INFORMATION COMMISSIONER [2025] WASC 167 (8 May 2025)

1. The appeal was brought under s 85 of the Act. Such an appeal falls within the definition of review proceedings for the purposes of s 89 that provides:
   1. Terms etc., Court may impose; costs

(1) Subject to subsections (2) and (3), an order or decision made by the Supreme Court in review proceedings may be made on such terms and conditions (including terms and conditions as to costs) as the Supreme Court thinks fit.

(2) If the agency is the appellant under section 85 it bears its own costs.

(3) The Commissioner is liable for his or her own costs in relation to a reference under section 78 but otherwise is not liable for any costs in respect of his or her decisions or review proceedings.

1. The Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2022 (WA) governs costs up to and including 30 June 2024 and the 2024 Determination governs costs thereafter. Item 26 of Table B of the 2024 Determination specifies the costs recoverable in respect of Single Judge Appeals in this court. Items 26(d) and 26(e) are as follows:

1. The general principles governing the exercise of the court's discretion as to costs are well known and do not need to be recited.
2. Likewise, the principles governing the making of a special costs order pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) are well known. It is sufficient to state that there are two key issues:

(a) Is the maximum amount allowable under the applicable costs determination inadequate, in the sense there is a fairly arguable case that, on a taxation of costs, costs may properly be allowed in an amount greater than the maximum amount?

(b) Does the inadequacy of the costs allowable under the costs determination arise because of the 'unusual difficulty, complexity, or importance of the matter'?

1. The discretion as to costs conferred by s 89 of the Act must be exercised judicially. It may be accepted that the wider statutory context may bear upon the exercise of the discretion but that is only one of several considerations. I do not accept the existence of the statutory scheme created by the Act constitutes a reason in and of itself to depart from the general principle that costs should follow the event.
2. Further, I do not accept that the appeal should be characterised as public interest litigation. The appeal raised issues concerning the construction of the Act but any incidental benefit that might be derived by the wider community does not distinguish the appeal from many cases determined by the court. The overwhelming impression I formed from reading the voluminous materials relied on by the appellant is that he brought the appeal to further his private interests in the context of the termination of his employment as the Principal Solicitor of the Environmental Defender's Office of Western Australia.
3. I do not accept there was any conduct on the part of the second and fourth respondents that militates in favour of a departure from the usual order as to costs.
4. Turning to the application for special costs orders. As may be apparent from the length of my reasons for dismissing the appeal the appellant's grounds of appeal and his submissions in support of them 'left no stone unturned'. The volume of material relied on by the appellant and the detail into which his submissions descended was out of the ordinary. The appellant's submissions were approximately 50 pages long and were heavily footnoted. The appeal book comprised 2424 pages. I am satisfied that it is fairly arguable that on taxation costs for solicitor and counsel preparing for the appeal and appearing at the hearing may properly be allowed in an amount greater than the maximum amount. This inadequacy is because of complexity of the matter.
5. I will order the appellant pay the costs of the second and fourth respondents of the appeal and that those costs be assessed without regard to the time limits in items 26(d) and 26(e) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Pearlman v WA Information Commissioner [2025] WASC 167.

[2] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.