CLISDELL vy COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and CRIPPS JJA 14 September 1993, 1 October 1993 [1993] NSWCA 63 COSTS Handley Jajudgment ON COSTS I agree with Sheller JA. Sheller JA On 14 September 1993 the Court gave judgment on this appeal. The Court allowed the appeal and ordered the respondent Commissioner of Police to pay the appellant's costs. Immediately after our decision was announced counsel for the respondent informed the Court that he wished to put submissions on costs. The Court directed that these submissions be put in writing, which has been done. The respondent submitted that costs should not follow the event for two reasons. First it was said that the recommendation made by the Tribunal was not made on the application of the respondent who was put in the position, on appeal to this Court, of resisting the appeal in the role of a proper contradictor and in respect of a novel point which the respondent did not raise before the Tribunal. Accordingly it was said that as a matter of discretion costs ought not to follow the event. While it is true, so far as the material before us goes, that the respondent did not ask the Tribunal to make the recommendation it did, the respondent enthusiastically undertook the defence of it to the point of filing a notice of motion challenging the competency of the appeal. In my opinion the first ground relied upon is no basis for the Court not exercising its discretion in favour of ordering the unsuccessful respondent to pay the successful appellant's costs. The second reason advanced for the central proposition relies upon the fact that shortly prior to the hearing of the appeal the appellant gave notice that she wished to amend her notice of appeal to raise what was called the "hurt on duty" point involving interpretation of that phrase in the Police Regulation (Superannuation) Act 1906 and the conduct of the hearing before the Tribunal. The respondent argued that this amendment raised substantial issues involving considerable work by the respondent's counsel and solicitor. The amendment was abandoned on the morning when the hearing of the appeal commenced. In her written submissions the appellant did not oppose an order that she pay such costs as were thrown away by reason of the proposal to amend the notice of appeal to include the grounds concerning the construction of the phrase "hurt on duty". The appellant's concession is I think best disposed of by making an order that the respondent pay part only of the appellant's costs of the appeal. I would propose that the order should be that the respondent pay two thirds of the appellant's costs of the appeal. The respondent applies for a certificate in respect of the appeal under the s6(1) of the Suitors' Fund Act 1951. The Court is empowered to grant such a certificate if an appeal against the decision of "a Court" to it on a question of law or fact succeeds. Since the amendment of the Act by Act No 249 of 1987 "Court" is 2 UNREPORTED JUDGMENTS defined in s2 as including "such Tribunals or other bodies as are prescribed". S7 enables the Governor to make regulations prescribing all matters required or permitted to be prescribed for carrying out or giving effect to the Act. Apparently no regulation has been made prescribing Tribunals or other bodies as contemplated by s2. The Suitors' Fund Act in the form in which it was considered in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 was different in at least two important respects. First the definition of "Court" was confined to saying that it included "the Workers Compensation Commission of New South Wales'. Second entitlement to a certificate under s6 (1) was limited to appeals "on a question of law'. In his Second Reading Speech on the amending Bill the then Attorney General described the reform embodied in the amendment of the definition of "Court" as recognising "the growth in recent years in the number of tribunals and bodies possessing the characteristics of a court". There would be force in an argument that the legislation was intended to restrict the grant of indemnity certificates to appeals from tribunals which were prescribed tribunals rather than non prescribed tribunals which may have the characteristics of courts described in Dao's case by the President at 511 to 514 and McHugh JA, as he then was, at 515 to 516. In Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 the Court refused to grant a certificate when making orders disposing of an appeal from the Government and Related Employees Appeal Tribunal. It gave the respondent liberty to apply for the grant of such a certificate if so advised. I think we should follow the same course in this case. The constitution and function of the Tribunal differs significantly from the Equal Opportunity Tribunal an appeal from which was being determined in Dao's case. Further relevant parts of the Act have been amended since that decision. The respondent referred to Smith v Allan (unreported) Court of Appeal 25 June 1993, which concerned the jurisdiction of the Tribunal. In that case a certificate under the Suitors' Fund Act was granted to the unsuccessful respondent "if otherwise so qualified". This was done without argument being directed to the point. I do not think we should follow the same course. If the application for the grant of a certificate is to be pursued it should be on the basis of a complete argument and with the benefit of submissions from those responsible for the administration of the Fund. I would propose the following orders: 1. O.4 made by the Court on 14 September 1993 vacated; 2. The respondent be ordered to pay two thirds of the appellant's costs of the appeal; 3. The respondent be at liberty if so advised and upon fourteen (14) days' notice to the Secretary of the Attorney General's Department to apply for an indemnity certificate under the Suitors' Fund Act 1951 in respect of this appeal. Cripps JA I agree with Sheller JA. 1. O4 made by the Court on 14 September 1993 vacated; 2. The respondent is ordered to pay two thirds of the appellant's costs of the appeal; 3. The respondent is at liberty if so advised and upon fourteen (14) days' notice to the Secretary of the Attorney General's Department to apply for an indemnity certificate under the Suitors' Fund Act 1951 in respect of this appeal. Counsel for the Appellant: GA Flick/ R Nicholls URJ CLISDELL v COMMISSIONER OF POLICE (Cripps JA) Instructed by: Cohen Ajaka Walter Counsel for the Respondent: GR Petty Instructed by: Frank Hutchison