The Court of Appeal has directed that the Workplace Relations Commission and Arthur Cox LLP receive their costs of an appeal brought by Ammi Burke, after dismissing his appeal in an earlier judgment.
In a costs ruling delivered on 4 June 2024, the court said the two parties had been entirely successful in the appeal and were entitled to their costs on the normal party and party basis. The costs are to be adjudicated if the parties cannot agree.
The ruling followed a provisional view in the principal judgment that the second respondent and notice party should receive their appeal costs. Burke was invited to make written submissions on an alternative order. The court said he did so, and the other parties responded.
The court described Burke’s submissions as complaints about how the hearing was conducted and criticisms of the judgment. It rejected the argument that these were substantial reasons to depart from the general principle governing costs, saying an unsuccessful appellant could not avoid a costs order by complaining that the judgment was wrong.
Citing section 169 of the Legal Services Regulation Act 2015, the court said an entirely successful party has a prima facie right to costs unless the circumstances or conduct of the proceedings justify a different order. It found Burke had identified no relevant factor affecting the other parties’ entitlement.
Arthur Cox separately sought costs on a legal practitioner and client basis under the Rules of the Superior Courts. The court declined to make that additional order. It said its disapproval of Burke’s conduct was already evident in the principal judgment and noted that an order on that basis had already been made for High Court costs and was likely to be significantly more substantial.
The High Court’s legal practitioner and client costs order had been upheld in the principal appeal judgment. This ruling addresses the costs of the appeal itself.