FEDERAL COURT OF AUSTRALIA

Siminton v Australian Prudential Regulation Authority (No 2)

[2008] FCAFC 113

ACCC v Daniels Corporations Pty Ltd [2001] FCA 936

Grygiel v Baine (No 2) [2005] NSWCA 434

Hewlett Packard Pty Ltd v G E Capital Finance Pty Ltd [2003] FCAFC 278

Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98

Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89

Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90

Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274

DAVID ROBERT SIMINTON v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

VID 1152 OF 2007

SPENDER ACJ, LANDER AND BUCHANAN JJ

19 JUNE 2008

SYDNEY (VIA VIDEOLINK TO MELBOURNE)

THE COURT ORDERS THAT:

1.         There be no order as to the costs of the appeal, or of the costs of and incidental to the hearing and determination of the District Registrar’s notice of motion dated 15 December 2006.

2.         The appellant pay the costs of both APRA and the District Registrar, being the costs of and incidental to so much of the further proceedings on the appeal as concern the question of costs.

3.         The costs are to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                          On 30 May 2008, the Full Court as presently constituted upheld an appeal against a finding of contempt based on a failure to pay a fine imposed by a Full Court.  The Full Court set aside orders made by the primary judge on 28 November 2007 including an order that the appellant be committed to prison for a period of four months (see Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89) (‘the appeal judgment’).  The appeal was upheld upon a ground which was not argued by the appellant and which, indeed, was contradicted by a concession made before the primary judge.  As we point out in the appeal judgment the concession was not withdrawn on the appeal.  The concession reflected an assertion about the appellant’s rights.  The Full Court rejected that assertion (which proposed a narrow construction of orders made in related proceedings by Gray J) in a judgment delivered on the same day in Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90.

2                          In the appeal judgment the Full Court expressed the view that there should be no order as to costs of the appeal or at first instance, saying (at [46]):

The point upon which the appellant has been successful was not advanced by the appellant on the appeal or at first instance and, in those circumstances, there should be no order as to costs of the appeal or at first instance.

3                          When the appeal judgment was published counsel for the appellant complained that there had been no argument on the question of costs.  He said that he had assumed that costs would follow the event.  Spender ACJ then made orders permitting submissions to be filed on the question of costs.

4                          Before we deal with those submissions it is appropriate to say something about the procedural history of this issue.  In the notice of appeal the appellant sought an order that a notice of motion brought by the District Registrar of the Court, which provided the foundation for the orders made by the primary judge, ‘be dismissed with costs’.  In written submissions filed in support of the appeal nothing at all was said about the issue of costs.  Normally the Court would assume that a successful litigant desired that costs would follow the event.  If some different course was to be urged then it should be foreshadowed (see Hewlett Packard Pty Ltd v G E Capital Finance Pty Ltd [2003] FCAFC 278 at 13 and Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 at [11]).  Moreover, where possible, the Court should be put in a position to deal with the question of costs in its initial judgment unless there is a particular reason to reserve that question for later, and separate, consideration (see Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 at [26] referring to ACCC v Daniels Corporations Pty Ltd [2001] FCA 936 and Grygiel v Baine (No 2) [2005] NSWCA 434).

5                          The submissions filed by the appellant on the question of costs made no more salient point than that costs should follow the result.  It was contended on his behalf that:

The fact that the Appellant did not in the event argue the point, which the Full Court accepted as its basis for allowing the Appeal hearing, is essentially irrelevant.

6                          We do not agree.  We regard it as highly relevant that each of the contentions advanced by the appellant in support of his appeal was rejected as being without substance and that, despite the discussion which occurred at the hearing of the appeal, the case for the appellant never embraced the single ground upon which the appeal succeeded.  Furthermore, had it not been for the fact that the appellant could not at law be held to the concession which he had made before the primary judge, and not withdrawn on appeal, the appellant would have been estopped from any reliance, even vicarious, upon the point sustaining the order made on the appeal.  We see no reason, therefore, not to give effect to the view expressed about costs in the appeal judgment.  We note that the course we propose to take is consistent with the approach taken by an earlier Full Court when the appellant succeeded on a point raised by the Court (see Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 at [82]).

7                          In those circumstances it is strictly not necessary to deal with the further submissions made by the appellant about who should pay any costs order in his favour but we will briefly mention his contentions.  He argued that any costs order should be made against the Australian Prudential Regulatory Authority (‘APRA’) or, but effectively in the alternative, against the District Registrar.  The suggestion that a costs order should be made against APRA is completely unsustainable.  As we pointed out in the appeal judgment, APRA took no part in the proceedings which led to the order for imprisonment and the appeal against that order.  Neither is there any substance in an alternative claim for costs against the District Registrar.  For the reasons which we have already given the appellant is not entitled to a costs order in his favour. 

8                          The appellant’s submission on costs in this appeal has caused both APRA and the District Registrar, to incur further costs.  It is therefore right to order that the appellant pay the costs thereby incurred. 

9                          The orders which we will make are that there be no order as to the costs of the appeal, or of the costs of and incidental to the hearing and determination of the District Registrar’s notice of motion dated 15 December 2006, but that the appellant pay the costs of both APRA and the District Registrar, being the costs of and incidental to so much of the further proceedings on the appeal as concern the question of costs.  Those costs are to be taxed if not agreed.

Associate:

Dated:         19 June 2008