Federal Court of Australia

Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 3) [2021] FCA 672

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant pay the First Respondents costs as agreed, or in default of agreement, as may be taxed.

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

REASONS FOR JUDGMENT

KERR J:

1    On 4 June 2021 the Court published reasons for dismissing Wilson Transformer Company Pty Ltd’s (Wilson) application for judicial review of a determination of the Anti-Dumping Review Panel (the Panel); Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 2) [2021] FCA 591 (Wilson No 2). The Panel had affirmed certain decisions of the Commissioner of the Anti-Dumping Commission (the Commissioner) to terminate anti-dumping investigations in so far as they had related to particular entities.

2    These reasons address the costs of that proceeding. The Court proceeds on the basis that its reasons in Wilson No 2 are incorporated in these reasons.

3    The Panel originally had been the sole Respondent. However upon their several applications the Court made orders on 20 October 2020 joining a number of Australian commercial entities as parties (respondents) on the basis that they each had a sufficient interest in resisting the relief the Applicant had sought. The Court was pressed to make various anticipatory costs orders at that time but declined to do so on the basis that its discretion as to costs should not be exercised until the outcome of the proceeding was known and when all relevant factors might be taken into account. One of the then unresolved issues was whether the Panel, after that joinder, would take more confined part in the further hearing of the review.

4    However as events transpired I take it as uncontentious that throughout the proceeding the Panel continued to take a leading part in contesting Wilson’s application.

5    At the conclusion of my reasons dismissing the Applicant’s application for judicial review I observed:

114     The parties should be heard as to costs.

115     In that regard the Court is provisionally of the view the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 ought not disentitle the First Respondent to its costs. The Court is provisionally of the view that the Panel was entitled by nature of its singular role and expertise, to take an active part in contesting the submissions advanced by the Applicant.

116     However, the Court is also provisionally of the view that the unsuccessful Applicant ought not to be required to pay more than one set of costs.

117     Unless any party seeks a different order the Court will order that the Applicant pay the First Respondents costs as agreed, or in default of agreement, as may be taxed.

118     A party seeking a different order must file and serve written submissions limited to 3 pages with its application within 7 days of the publication of these reasons. Any responsive written submissions limited to 3 pages must be filed and served within 7 days thereafter. Any reply submissions limited to 1 page must be filed and served within 7 days of the filing of any responsive submissions.

6    The Court made orders accordingly.

7    On 11 June 2021 the second and third respondents (the ABB entities) filed written submissions seeking an order that the Applicant pay their costs—or in the alternative a percentage proportion of their costs as agreed or taxed. I do not understand those submissions to challenge the Panel’s entitlement to costs on the usual basis. I apprehend the ABB entities submission to be that in addition to the Panel’s accepted entitlement it should also have all or part of their costs met by the unsuccessful Applicant.

8    On behalf of the ABB entities Mr Tran submits:

4.     The second and third respondents took considerable care not to duplicate the submissions of the first respondent either in writing or in oral address. The Court will recall that counsel for the second and third respondents presented very brief oral submissions. An award of costs would not result in the applicant paying more than one set of costs in a sense relevant to the costs discretion (cf the provisional view expressed in J[116]).1 Nor was it inappropriate for the second and third respondents to intervene. By definition, their rights and obligations were affected by the proceeding. And the first respondent, with “its singular role and expertise” (J[115]), could not necessarily be counted upon to make the same arguments as private parties such as the second and third respondents.

5.     So it transpired. As is apparent from this Court’s judgment, the submissions of the second and third respondents were different from those presented by the first respondent, and of some assistance in the proper determination of the proceeding.

6.     Four other matters are relevant.

7.     First, the applicant did not succeed in this proceeding, and costs ordinarily follow the event.

8.     Second, the applicant was on notice of the second and third respondents’ position as to costs at all times. They have not changed course; at all times the second and third respondents have contended that costs orders should be available.

9.     Third, the second and third respondents have been even-handed. They have not resisted the notion that costs could have been ordered against them had the applicant succeeded. They have accepted that they take the bitter with the sweet.

10.     Fourth, the Court will recall a side agreement of some kind between the applicant and the fourth to sixth respondents that there be no order as to costs between them. The applicant is thus only liable for one additional set of costs, in respect of submissions that were ultimately different from those advanced by the first respondent and seemingly of some assistance in so far as they were different.

9    On behalf of the unsuccessful Applicant, Mr Ciolek has responded as follows:

4.     First, contrary to the ABB entities’ submission, an award of costs in favour of the ABB entities would result in Wilson paying more than one set of costs “in a sense relevant to the costs discretion” (cf 2-3RCS[4]). The Review Panel participated in the proceeding, in full, as a contradictor. So too did, relevantly, the ABB entities. As to which, see the discussion of a broadly analogous situation in AIT18 v Australian Information Commissioner [2018] FCAFC 192; 267 FCR 93 at [130]-[131] (Logan, Griffiths and Farrell JJ), cited in Huon Aquaculture Group Limited v Minister for the Environment (No 2) [2018] FCA 1938 at [25] (Kerr J).

5.     Secondly, as the ABB entities have previously recognised,1 they had no right to participate in this proceeding. They were not necessary parties.2 Their participation was voluntary.

6.     In similar circumstances, this Court has permitted the participation of additional parties in proceedings for judicial review on the condition that those parties — who were not necessary parties — bear their own costs (or an equivalent condition).3 That the additional parties in the cited cases were bodies politic is neither here nor there. It is consistent with the Court’s earlier decisions that Wilson should not be prejudiced, as to costs, by reason of the ABB entities’ voluntary forensic decision to be joined.

7.     Thirdly, Wilson understands that the principal reason why the Court did not impose a costs condition on the ABB entities’ joinder4 (of the kind for which Wilson had contended) was because it was uncertain, at the time of that joinder, whether and to what extent the Review Panel would take an active role in the proceeding. The Court appeared thereby to accede to the Review Panel’s suggestion that it was preferable, in light of that uncertainty, “not to impose any costs condition on joinder” and “to address the question of costs at the end of the proceeding”.5 Of course, the reason for that uncertainty was the voluntary forensic decision of each of the ABB entities and the Siemens entities to seek to be joined.

8.     The proceeding having concluded, it is now clear that, at all times, the Review Panel has taken an “active part in contesting the submissions advanced” by Wilson (J[115]). No party has sought to contend that any aspect of that participation was inappropriate in light of the principle R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.6 At no point did the ABB entities (or the Siemens entities) become “the primary contradictors in the proceeding”.

9.     The Court’s orders as to costs should reflect the fact that Wilson’s application for judicial review was fully and competently resisted by the original respondent to the proceeding, which at all times took an active role in defending the proceeding.

10.     Finally, the “[f]our other” matters adverted to by the ABB entities as being relevant to the Court’s decision on costs ought not be given any weight (2-3RCS[6]-[10]).

(a)     Reference is made to the principle that costs ordinarily follow the event (2-3RCS[7]). Presumably, the very reason that the Court has invited submissions on the issue of costs is that these are not ordinary circumstances that would call for the application of that principle.

(b)     Wilson accepts that the ABB entities have not vacillated on the question whether they should have their costs (cf 2-3RCS[8]). Equally, Wilson has never departed from its submission that it ought not bear the costs of more than one respondent.

(c)     The ABB entities appear to contend that Wilson should pay their costs, because they would not have resisted a costs order against them, if had Wilson succeeded. It is somewhat curious to describe that posture as “even-handed” (cf 2-3RCS[9]), in circumstances where, if Wilson had succeeded, it would presumptively have been entitled to recover only a single set of costs — its own — against the various respondents, who would have been jointly and severally liable for those costs. On the other hand, the ABB entities seek to have a single unsuccessful applicant pay the costs of multiple, separately represented, respondents.

(d)     The final matter to which the ABB entities point is the “side agreement of some kind” as to costs between Wilson and the Siemens entities (2-3RCS[10]). They seem to submit that they should have their costs, because Wilson “is thus only liable for one additional set of costs”. That appears, in essence, to be a submission that, because Wilson could conceivably have been in a worse position, the Court should be more comfortable (than it otherwise would be) in ordering Wilson to pay more than one set of costs. If that is the submission, it makes little sense and should be rejected.

(footnotes omitted)

10    Mr Horan QC and Ms Amamoo on behalf of the First Respondent responded to the submissions of the Applicant and the Second and Third Respondents as follows:

1.     The First Respondent (the Panel) refers to the submissions of the Second and Third Respondents (ABB entities), dated 11 June 2021, in which they seek an order that the Applicant pay their costs. The Panel also refers to the submissions of the Applicant dated 17 June 2021, opposing the ABB entities submissions.

2.     The Panel notes that no party has sought any variation to Order 2 of the Order of Kerr J dated 4 June 2021 that “the Applicant pay the First Respondent’s costs as agreed, or in default of agreement, as may be taxed”.

3.     For the avoidance of any doubt, the Panel opposes any variation to Order 2, or any order that would otherwise affect the Panel’s entitlement to costs.

Consideration

11    The discretionary power conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, save that it must be exercised judicially. In George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 (George) it was established that the judicial exercise of the Court’s discretion will ordinarily be in favour of a successful party. However George is not authority for the proposition that every successful party that has been joined in a proceeding must have their costs in full or in part. There are many instances, of which AIT18 v Australian Information Commissioner [2018] FCAFC 192; 267 FCR 93 is but one, in which the Court has declined to require an unsuccessful party to pay more than one set of costs.

12    The starting position in this case requires consideration of the principle established by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. In that case (Gibbs, Stephen, Mason, Aickin and Wilson JJ stated at 35-36):

… 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 limited to submissions going to the powers and procedures of the Tribunal.

13    The disapproval of the High Court in that instance was given effect to by refusing to award the Tribunal its costs.

14    That no party has suggested that the Panel’s role in this proceeding was inappropriate having regard to the Hardiman principle is a potent consideration but is not decisive. Subject to procedural fairness considerations it would be the duty of the Court to refuse to award the first respondent its costs if it was of the opinion that the Panel had conducted itself in the manner disapproved of by the High Court.

15    However I am satisfied, nothing being put against the proposition I indicated to my preliminary thinking at [115] in Wilson No 2, that the Panel’s conduct in these proceedings warrants no such disapprobation. The Panel’s submissions were at all times limited to those which had the potential to affect the proper construction and future administration of the relevant provisions of Part XVB of the Customs Tariff (Anti-Dumping) Act 1975 (Cth). Those were matters which went to its understanding of its statutory role and in which regard it was fully entitled to make submissions. Those were the central questions before the Court. The Panel did not otherwise descend into the arena so as to become a partisan in the proceedings.

16    Of course that provides a perfectly sound reason why the ABB entities (and the fourth to sixth respondents) wanted to join the proceedings having regard to their own particular interests as the Panel might not speak for but none of those parties took any steps as might have been understood as manifesting their intention to substitute themselves as the principal defender of the proceeding: cf Huon Aquaculture Group Limited v Minister for the Environment (No 2) [2018] FCA 1938.

17    In that circumstance I think it sufficient for the Court to indicate that it accepts the submission pressed by Mr Ciolek at [5] above. The ABB parties were not necessary parties, they were volunteers. I do not dismiss that having been joined as respondents, Mr Tran as counsel for the ABB entities then advanced submissions which the Court found to be of assistance. Some are referred to in its principal judgment. Nonetheless, having regard to that background, I am not persuaded that the discretion the Court has as to costs should be exercised as to require the unsuccessful Applicant to pay costs on top of those they accept the First Respondent is entitled to.

18    I should add that I also accept each of the responsive submissions advanced by Mr Ciolek at paragraph 10 (a)-(d) inclusive as to the “four other matters” relied on by the ABB entities. Those responses are compelling.

19    I will make orders for costs in terms consistent with those the Court foreshadowed in Wilson No 2 at [115]-[117].

Associate:

Dated:    21 June 2021

SCHEDULE OF PARTIES