Federal Court of Australia

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 3) [2022] FCAFC 46

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders dated 4 June 2021 and order 1 of the orders dated 21 June 2021 be set aside, and in their place order that:

(a)    The first respondent’s decision dated 18 May 2020 be set aside.

(b)    The matter be remitted to the first respondent for reconsideration according to law.

(c)    The first respondent pay 50% of the appellant’s costs of the proceeding at first instance, as agreed or taxed.

3.    The first respondent pay 50% of the costs on the appeal of the appellant, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS AND O’CALLAGHAN JJ:

1    The Court is required to determine orders as to costs of both the trial and the appeal in circumstances where the parties have been unable to agree on those matters. The parties were afforded an opportunity to provide brief written submissions in support of their respective proposed orders.

2    For the following reasons we consider that the following orders should be made:

(1)    The appeal be allowed.

(2)    Orders 1 and 2 of the orders dated 4 June 2021 and order 1 of the orders dated 21 June 2021 be set aside, and in their place order that:

(a)    The first respondent’s decision dated 18 May 2020 be set aside.

(b)    The matter be remitted to the first respondent for reconsideration according to law.

(c)    The first respondent pay 50% of the applicant’s costs of the proceeding at first instance, as agreed or taxed.

(3)    The first respondent pay 50% of the appellant’s costs on the appeal, as agreed or taxed.

3    The background to the matters are adequately described in Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2021] FCAFC 4 and Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2) [2022] FCAFC 30.

4    In brief, for reasons provided in the second Full Court decision, the appellant was ultimately successful in relation to one of its three grounds of appeal, which ground concerned procedural unfairness. The other two grounds raised substantive legal issues upon which the appellant failed both on appeal and at first instance.

5    The first respondent, the Anti-Dumping Review Panel (Panel) was originally the only respondent in the proceeding below. The second and third respondents (the ABB parties) and the fourth to sixth respondents (the Siemens parties) were subsequently joined as additional respondents on their application.

6    The primary judge ordered that the applicant (now the appellant) should pay the Panel’s costs. His Honour declined to make any order for costs regarding the other respondents.

Relevant legal principles summarised

7    Unsurprisingly, the parties were substantially agreed concerning the relevant principles to apply regarding costs in circumstances such as this. The usual position is that costs follow the event with the normal consequence that the successful party on an appeal is entitled to recover the costs of the appeal and in the Court below.

8    It is well settled, however, that this usual position may not be appropriate in some circumstances. One such circumstance is where a party has succeeded in obtaining the relief it sought, but has not succeeded on all bases, either factual or legal, upon which such relief was sought. The relevant principles were helpfully summarised in Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158 at [9]-[11] per Greenwood, Rares and Moshinsky JJ, which were recently reaffirmed in Fuch Lubricants (Australasia) Pty Ltd v Quaker Chemical (Australasia) Pty Ltd (No 2) [2021] FCAFC 114 at [15] per Beach, Moshinsky and Thawley JJ:

15    There is no issue between the parties as to the applicable principles, which were sufficiently summarised for present purposes in the judgment of the Full Court in Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158 at [9]-[11]:

9    Section 43(3)(e) of the Federal Court of Australia Act 1976 (Cth) provides that an award of costs may be made in favour of, or against, a party whether or not that party is successful in the proceeding. The approach usually taken is that costs follow the outcome of an appeal: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [6] per French CJ, Kiefel, Nettle and Gordon JJ; see also Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 at [303]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [66]-[68].

10    In Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370, Dowsett, Middleton and Gilmour JJ, after referring to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 and State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174, said at [11] that these decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs, but contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. These were identified as follows:

One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.

11    After referring to the decision of Finkelstein and Gordon JJ in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107, Dowsett, Middleton and Gilmour JJ in Queensland North Australia then said at [18]:

[Section 43 of the Federal Court of Australia Act] does not mention costs following the event. In Ruddock, Bowen Investments and Sportsbet, the Court proceeded on the basis that ordinarily, the successful party may reasonably expect to receive its costs, whether that outcome be described as costs following the “event” or otherwise. The question of costs is within the Court’s discretion. As we have said, relevant factors include the extent of a party’s success, the extent of its success or failure on individual issues and its conduct of the proceedings.

Consideration and determination

9    The parties were able to agree that orders for costs in the appellant’s favour should be made in respect of both the trial and the appeal. They disagree, however, on whether all or only some of those costs should be paid and also whether the Panel alone should bear those costs. It may be noted that the ABB parties and the Siemens parties did not seek an order for costs in their favour in relation to the appeal.

10    For the following reasons, the issues in dispute as to costs should be resolved as follows. First, we consider that it is appropriate that the appellant receive only 50% of its costs both of the trial and of the appeal. This reflects the fact that it was unsuccessful in two of the three grounds raised both below and on the appeal. Ground 1 (both below and on appeal) raised a substantive issue, namely the proper construction of s 269TAA(1)(b) of the Customs Act 1901 (Cth), which occupied a significant amount of time both at first instance and on appeal. The appellant failed both below and on appeal in respect of this ground.

11    Ground 2 on appeal was different from that asserted at first instance, but both raised substantive issues concerning the information before the Commissioner of the Anti-Dumping Commission and the Panel. The appellant was unsuccessful in relation to ground 2 on appeal and ground 2 as asserted at first instance because each was dependent on success in relation to ground 1.

12    The question of procedural fairness was raised both by ground 3 below and on appeal (together with the notice of contention) and it was only respect of this matter that the appellant was successful.

13    Applying a “rough and ready” approach to apportionment (as approved by Finkelstein and Gordon JJ in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5]), and taking into account the time and resources applied in oral and written submissions both at first instance and on appeal, as well as the evidence which was adduced in support of the three separate grounds, we consider that the appellant should receive 50% of its total costs on a party-party basis.

14    The second issue is whether all the respondents should be liable for the appellant’s costs, both below and on appeal. The Panel argued that they should, a position which was firmly opposed by the other respondents, as well as the appellant.

15    We consider that this is an appropriate case to confine the liability to pay the successful party’s costs to the Panel alone. This reflects the fact that the successful procedural unfairness ground, as identified in the second Full Court decision, arose from the conduct of the Panel alone. It is true that the ABB parties and Siemens parties were not necessary parties to the proceeding below or on appeal, but rather entered the litigation voluntarily. However, their intervention was limited to brief supplementary submissions on existing issues and the appellant did not claim their intervention caused undue expense or prolonged the hearing at first instance or on appeal. Moreover, it is not without significance that these respondents limited their involvement in the proceedings, both below and on appeal, predominantly to grounds 1 and 2 upon which the appellant failed. The Siemens parties did not seek to be heard on ground 3 at first instance or on appeal, and although the ABB parties did join with the ADRP in contesting ground 3 at first instance (but not on appeal), this was merely by adopting the ADRP’s submissions and its only oral submissions concerning procedural fairness were responsive to a question asked by the primary judge. Accordingly, we do not consider it just or appropriate for them to bear any liability for the appellant’s costs

16    Finally, reference should be made to the regrettable non-compliance with the Court’s orders dated 8 March 2022 in which a timetable of 10 days (18 March 2022) and page limit (three pages) were set for making brief submissions on costs. Both the ABB parties and Siemens parties belatedly informed the Court that they intended to file submissions but would not be in a position to do so within the timetable provided in the orders. No formal request to the Court for an extension was made, as is proper practice. Notably, the solicitor for the Siemens parties stated he would not be able to file submissions for five days (including over a weekend) due to other “work commitments”. While this initial non-compliance may have been partly attributable to ongoing negotiations between the parties as to costs, after granting an extension of three days (including over a weekend) until 21 March 2022, the submissions ultimately provided by the Siemens parties totalled five pages, exceeding the three page limit. The Court expects legal practitioners and the parties to comply with its orders.

Conclusion

17    Appropriate orders should be made accordingly.

Associate:

Dated:    28 March 2022

REASONS FOR JUDGMENT

THAWLEY J:

18    Noting that I would have made different orders as to costs than those proposed by Griffiths and O’Callaghan JJ because I would have allowed the appeal on all grounds, I agree with the orders proposed by Griffiths and O’Callaghan JJ and with their Honours’ reasons for making those orders. 

Associate:

Dated:    28 March 2022

SCHEDULE OF PARTIES