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[2007] VSCA 132
Court of Appeal (Vic)
2007-06-14
MAXWELL P, CHERNOV and NETTLE JJA
Original judgment source is linked above.
COSTS - Law Institute of Victoria as respondent to appeal against decision of Legal Profession Tribunal - Whether Institute appeared as amicus curiae or protagonist - Whether Institute participated in appeal in the public interest or as a party to the proceedings - Whether open to Institute to consent to order setting aside decision of Tribunal for error of law - Whether exceptional circumstances necessary to order costs of review proceedings against Institute - Relevance of whether error of law 'induced' by respondent Institute - Institute ordered to pay appellant's costs of appeal.
1 In our opinion, the usual costs order should be made. The appellant's costs of the appeal should be paid by the respondent.
2 The appellant, Mr Quinn, clearly identified in his outline of submissions the error of law on the basis of which the Court ultimately quashed the Tribunal's decision, namely, the Tribunal's failure to deal with the undertaking which he had proffered and, in particular, to explain why the undertaking had not been accepted. The Institute resisted the appeal, arguing that there was no error of law. The Institute had an interest in upholding the decision of the Tribunal and it argued strongly to that end. The Institute's role was that of protagonist. It was not in any sense appearing as amicus curiae.[1]
3 It was submitted that the Institute was simply assisting the Court by being a contradictor, and was thus acting in the public interest. We reject this submission. The Institute actively opposed the appeal and failed.
4 It was open to the Institute to take the view that the Tribunal did err in failing to address the question of the undertaking. This was certainly a matter to which the Institute should have turned its mind, in the light of what the Court said in granting a stay of the suspension pending the appeal.[2] Had the Institute formed that view, it could have consented to an order setting aside the Tribunal's decision on penalty and substituting the undertaking.
5 In its written submission, the Institute argues that it would have been "entirely inappropriate" for a professional body like the Institute to consent to an appeal being allowed in that way. We disagree. The Director of Public Prosecutions, who likewise discharges important public functions, takes precisely that course in a criminal appeal when he considers that there has been error below.
6 Where a tribunal's decision is appealed on a question of law, the respondent to the appeal must assess, in the usual way, whether error of law is likely to be made out. If the respondent decides to contest the appeal and seek to uphold the tribunal's decision, it runs the usual costs risk if the appeal succeeds.
7 The Institute's position in this respect is no different from that of any other regulatory agency which is a party to proceedings before a domestic tribunal. The Transport Accident Commission, the Victorian WorkCover Authority and the Environment Protection Authority Victoria regularly appear as respondents to review proceedings in the Victorian Civil and Administrative Tribunal in respect of decisions made in the exercise of their statutory powers. Decisions of that Tribunal are appellable on a question of law.[3] If the decision-making agency seeks unsuccessfully to defend such an appeal, it will be ordered to pay the appellant's costs.[4]
8 The Institute calls in aid what this Court has described as the:
"... very-well established line of authority which holds that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely."[5]
But this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal's costs, since the Tribunal did not appear.
9 Nor is the present costs question to be likened to the question which arises at the conclusion of disciplinary proceedings in which the Institute is prosecutor. As counsel for the Institute pointed out, s 162 of the Legal Practice Act 1996 provided that no order for costs is to be made against the Institute in such proceedings except in exceptional circumstances.[6] The evident policy of that provision is that the Institute should not be deterred by the risk of an adverse costs order from prosecuting charges of misconduct before the Tribunal. That is a very important function, carried out in the public interest.[7]
10 No such provision was made, and no such considerations apply, in relation to an appeal like the present. For the reasons already given, the Institute must decide, as any respondent to such an appeal must decide, whether the decision under appeal is likely to be affirmed or quashed. If it defends the appeal and loses, it should pay the appellant's costs.
11 Senior counsel for the Institute submitted that this was a special case because the Institute did not contend before the Tribunal for Mr Quinn's suspension. That is, the Institute did not lead the Tribunal into error. Counsel appeared to concede that, if the Institute had argued before the Tribunal that the correct penalty was suspension, then it would have been much more difficult for the Institute to resist an order for costs of this appeal.
12 That is not, in our view, a satisfactory basis for deciding whether costs are payable or not. It is often the case in an appeal on a question of law that the error of the tribunal has nothing to do with the submissions of the parties. As a general rule, the same costs result should follow whether or not the tribunal's error was induced by the respondent to the appeal.
13 In Oshlack v Richmond River Council,[8] McHugh J restated the -
"... important principle that, subject to certain exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party."
His Honour went on to say that "there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct."[9]
14 There are no disentitling circumstances in the present case.
[1] Contrast, for example, the limited role of the Board of Examiners in Board of Examiners v XY [2006] VSCA 190, [19]-[20] (Chernov JA).
[2] Quinn v Law Institute of Victoria Ltd [2005] VSCA 326, [6]-[10] (Maxwell P and Buchanan JA).
[3] Victorian Civil and Administrative Tribunal Act 1998, s 148.
[4] See, for example, Transport Accident Commission v Vanbenthem [2002] VSC 398, Transport Accident Commission v Lees [2002] VSC 397; (2002) 37 MVR 78, State Trustees v Transport Accident Commission [2002] VSC 428, Wight v Transport Accident Commission [2003] VSC 214.
[5] Psychologists' Registration Board of Victoria v The Herald & Weekly Times Ltd & Ors [2000] VSCA 118, [11] (Charles JA).
[6] See now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3).
[7] See New South Wales Bar Association v Thomas [No 2] (1989) 18 NSWLR 193, 210B (Kirby P).
[8] [1998] HCA 11; (1998) 193 CLR 72, 97.
[9] Ibid 98.
Quinn
Law Institute of Victoria Limited
(2002) 37 MVR 78
(1989) 18 NSWLR 193
(1998) 193 CLR 72