Santamaria v Secretary to Department of Human Services [1998] VSC 122

2. Judgment was delivered in this matter on 15 October 1998, granting the application of the plaintiff for an order in the nature of certiorari to quash the decision of the Administrative Appeals Tribunal ("AAT") made on 17 March 1998 in proceeding number 1995/38833, on the ground that the AAT had denied him procedural fairness. Three other applications of the plaintiff were dismissed. On the request of counsel for the plaintiff the matter of costs was adjourned to 22 October.

5. Prior to the substantive hearing the firstnamed defendant, namely the AAT, having entered an appearance, informed the Court, by its solicitor, that in accordance with usual practice it would not take an active role in the hearing, but would abide the decision of the Court save any decision as to costs. An affidavit was filed by the solicitor for the secondnamed defendant to the effect that the thirdnamed defendant, namely the Director General to the Department of Human Services, no longer exists, and all of the functions and responsibilities of the Director General are carried out by the secondnamed defendant, namely the Secretary to the Department of Human Services. There was no appearance for the fourthnamed defendant. At the adjourned hearing on 22 October, Mr Masel of counsel announced his appearance for the Victorian Civil and Administrative Tribunal ("VCAT"), the successor to the firstnamed defendant since 1 July 1998 by virtue of sections 310 and 312 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 ("the Tribunals Act"). Mr Masel indicated that his client had been advised by the solicitors for the other parties that it would be desirable that it be represented at the hearing relating to costs.

8. All three counsel made submissions as to the payment of costs.

13. Mr Perkins for the plaintiff submitted that as the plaintiff had been successful on the principal issue, his costs of this proceeding should be borne equally by the firstnamed and secondnamed defendants. The claims on which the plaintiff failed took up a small proportion of the time of the Court. The fact that matters had been articulated which the Court had not found it necessary to decide should not be held against the plaintiff in the matter of costs.

16. Mr Perkins referred to an Order made by Smith J on 28 October 1996 in Willis v Magistrates Court of Victoria constituted by Mr Maurice Gurvich, Magistrate and Constable Adrian Buck. An order for costs was there made against the firstnamed defendant. Accordingly, Mr Perkins submitted that that Order indicated that it was possible to make an order for costs against VCAT, as successor to the AAT. However, the substantive order in that matter was a direction that certain notes made by the Magistrate be made available to the plaintiff, and it would appear from that that the Magistrate was in fact a party to the proceeding. That situation is to be distinguished from the situation in the present case, where on an application for judicial review an order was made quashing a decision of the AAT, but it was the individual protagonists other than the AAT who appeared and contested the substantive issue.

19. Mr Masel submitted that his client should not be ordered to pay the costs of any other party. In support of the contention that the course of action adopted by the AAT had been the proper course, he referred to R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 where the High Court, constituted by Gibbs, Stephen, Mason, Aickin and Wilson JJ said at 35-6:

Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

23. It was apparent from the judgment of the Court in this proceeding, Mr Masel submitted, that the secondnamed defendant had sought to resist the claim of the plaintiff, and the matter had been heard on that basis.

26. Mr Masel relied on R v Racing, Gaming and Liquor Commission & Anor; Ex parte Tangentyere Council Inc (No. 2) (1988) 91 FLR 62, in which Kearney J in the Supreme Court of the Northern Territory, on an application for certiorari and prohibition against the first respondent, adopted the principle established in R v Surrey Justices (1850) 19 LJ Rep MC 171. That principle was that a party who succeeds in the tribunal below on a legal proposition which turns out to be untenable, and resists an application for mandamus to correct the error, is ordered to pay the costs of the successful party. At page 65 His Honour went on:

I do not consider that there should be any award of costs against the Commission; there is nothing to suggest that it acted perversely, oppressively or mala fide and it did not seek to defend its decision.

He ordered that the costs be paid by the second respondent, which had been successful before the Commission and had been heard in opposition to the claim of the applicant Council.

31. Mr Masel submitted that the AAT in the present matter had not acted perversely, "oppressively, in the sense of `in bad faith' " or mala fide. The AAT had been placed in a difficult position, dealing with a lengthy application which had exceeded its estimated duration, and had a duty to the administration of justice to see the proceeding was despatched in a fair and efficient fashion. The conduct of counsel for the plaintiff put the AAT in a difficult position so far as the balance of the hearing was concerned_._

34. Mr Masel then referred to Kumar v Mitchell (1991) 32 FCR 190 in which Spender J was faced with the problem of how to award costs where a citizen, who necessarily had come to court seeking redress for an error, claimed costs against the organ of government which had initiated proceedings affected by the error, although it was not a party to the error. In those circumstances the court found the proper order to be that the organ of government, although blameless, should pay the costs of the innocent citizen.

37. He pointed out, by reference to section 5 of the Administrative Appeals Tribunal Act 1984 ("the AAT Act") and sections 8 and 9 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") that neither the AAT nor VCAT was a legal person; and by reference to sections 57 (1) of the AAT Act and section 143(1) of the VCAT Act that members of those two bodies had, in the performance of duties as a member, the same protection and immunity as a Judge of this Court.

40. Finally, Mr Masel submitted that his client's costs of and incidental to the hearing relating to costs should be borne by the plaintiff and the secondnamed defendant equally.

43. Mr Fanning, for the secondnamed defendant, submitted that his client should be granted a certificate under the Appeal Costs Act 1964 ("the Appeal Costs Act"); or failing that, his client's costs should be borne by VCAT. His client should not be required to pay any costs of the plaintiff, and if an order was made against his client for those costs, his client should be indemnified by VCAT.

46. I accept that it is open to me to grant a certificate under the Appeal Costs Act, noting that the secondnamed defendant is, by virtue of section 6 of the Health Act 1958, a statutory corporation, and therefore not affected by section 17(3) of the Appeal Costs Act. However, Mr Fanning said nothing by way of submission as to what were the circumstances which justified the granting of a certificate, rather than ordering payment of costs by his client.

49. The essential principles from which any discussion of costs must begin are that the Court has an absolute discretion as to the award of costs, but that, generally speaking, costs will follow the event. The events in this case were that the plaintiff was successful on the principal application, and unsuccessful on three other applications. The secondnamed defendant contested all four applications. The hearing occupied three days, and while the greater part of the time was taken up by the principal application, perhaps one third of the time was devoted to the other three applications.

52. That being so, and allowing for the unusual circumstances of this matter, or perhaps I should say, the unusual circumstances of the hearing before the AAT and surrounding matters, I consider the most appropriate resolution of the problem is that each of the plaintiff and the secondnamed defendant bear their own costs. As far as the secondnamed defendant is concerned, I would adopt the decision of R v Surrey Justices set out in paragraph 8 above.

55. With some hesitation, I find myself convinced by the arguments of Mr Masel that VCAT should not bear any part of the costs of either of the other parties. In so finding, I am not to be taken as either agreeing or disagreeing with his submissions as to the actions of the AAT which are set out in paragraph 9 above, or as expressing any opinion in relation to those actions beyond what I have already said in my judgment handed down on 15 October.

58. Further, I find that it was proper that the AAT should have been represented on the hearing of the question relating to costs, and accordingly that its costs of that hearing should be borne equally by the plaintiff and the secondnamed defendant.

62. Mr Perkins submitted further that the costs thrown away as a result of the AAT's proceeding to determine the matter before it should also be borne by the firstnamed and secondnamed defendants. That determination had been made after the issue in this Court of an application for an order in the nature of prohibition to prevent the AAT proceeding, but prior to the hearing of that application. Had the AAT not proceeded to determine the proceeding, the hearing could have been resumed, as a result of the order of this Court, at the point where the AAT refused to grant the plaintiff the adjournment which he sought, and proceeded to a close. Because the AAT had purported to determine the matter, it had been necessary to seek an order for certiorari quashing its decision, rather than an order for prohibition to prevent the AAT proceeding to determine the matter. That application having been successful, a complete rehearing would now be necessary. The plaintiff had been anxious to preserve the position where he merely had to proceed to call the remainder of his evidence, but this was now not possible.

65. However, I note that, in the originating motion the plaintiff also sought an order that the President of the AAT appoint to constitute the Tribunal a person who had knowledge or experience in child welfare matters, in accordance with the requirement of section 119(1) of the Children and Young Persons Act 1989 ("the Children Act") as it then stood. That order would, in effect, have involved the reconstitution of the AAT for the purpose of the hearing. Had that application been successful, and the hearing proceeded before 1 July 1998 when the Children Act was amended by the Tribunals Act to remove the requirement for the relevant tribunal to be constituted by such a person, a rehearing would have been necessary in any case.

68. As to this application, both Mr Masel and Mr Fanning submitted that the question as to whether and if so what costs had been thrown away would depend on what action was taken by VCAT on any rehearing of the matter, and that being so, it would not be possible for any order for costs thrown away to be quantified. Accordingly, no such order should be made. They also referred to the provisions limiting the power to award costs in both the AAT Act and the VCAT Act.

71. Section 109 of the VCAT Act provides that VCAT may at any time order that a party pay the costs of another party, but only if satisfied that it is fair to do so. The section sets out a number of matters which must be taken into account by VCAT in making such an order. That provision, while consistent with section 50 of the AAT Act, is considerably more specific. Many of the matters set out might be considered to have relevance to the proceeding before the AAT. As Mr Fanning pointed out, for the Court to make an order for costs relating to the proceeding before the AAT it would need to examine the whole course of that proceeding. I do not consider it appropriate that this Court undertake such an examination, or that it make any order as to the costs of the proceeding before the AAT. In saying so, I do not wish to be taken as finding that no such order should be made. Should the matter proceed to a rehearing before VCAT, the question of payment of costs thrown away is more appropriately dealt with there, when it will be possible for the amount of any such costs to be quantified, should there be any, and where the matters set out in section 109 of the VCAT Act can be taken into account.

75. As to the proceeding before this Court, there will be an order that each party bear its own costs, save that the costs of the successor to the firstnamed defendant of and incidental to the hearing on the question of costs be borne equally by the plaintiff and the secondnamed defendant.

78. There will be no order as to the costs of the proceeding before the AAT.