Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs)

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 22 March 2022
• Neutral Citation: [2022] FCAFC 43
• Date: 22 March 2022

Federal Court of Australia

Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43

File number(s):	QUD 401 of 2020
Judgment of:	LOGAN, GRIFFITHS AND PERRY JJ
Date of judgment:	22 March 2022
Catchwords:	COSTS – whether costs should be paid on an indemnity rather than a party/party basis – where Chief Executive of the Australian Skills Quality Authority (ASQA) made an offer of compromise – where ASQA seeks costs of and incidental to appeal on an indemnity basis under r 25.14(2) of the Federal Court Rules 2011 (Cth), or alternatively costs paid on an indemnity basis consistent with the principles in Calderbank v Calderbank – where ultimate question is whether the failure to accept an offer in all the circumstances warrants departure from the ordinary rules as to costs – whether an offer of compromise on the basis simply that there be no order as to costs is a genuine compromise for the purposes of rule 25.01(1) or the Calderbank principle – where applicant’s rejection of the offer of compromise was not unreasonable in the circumstances – application for indemnity costs dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 National Vocational Education and Training Regulator Act 2011 (Cth) Federal Court Rules 1979 (Cth) (repealed) O 23 Federal Court Rules 2011 (Cth) rr 25.01, 25.14(2)
Cases cited:	Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Australian Competition and Consumer Commission v Black on White [2002] FCA 1605 Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; (2002) 201 ALR 618 Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 NMFM Property Pty Ltd v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) [2001] FCA 480; (2001) 109 FCR 77 Nutrientwater Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304 University of Western Australia v Gray (No 21) [2008] FCA 1056; (2008) 249 ALR 360 Vasram v AMP Life Ltd [2002] FCA 1286 Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	38
Date of last submission/s:	1 March 2022
Date of hearing:	Determined on the papers
Counsel for the applicant	Mr J Giles SC with Mr P Knowles
Solicitor for the applicant	MinterEllison
Counsel for the first respondent	Submissions settled by Ms M Brennan QC
Solicitor for the first respondent	Australian Government Solicitor
Counsel for the second respondent	The second respondent filed a submitting notice save as to costs

ORDERS

		QUD 401 of 2020
BETWEEN:	VERNON WILLS Applicant
AND:	CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SKILLS QUALITY AUTHORITY First respondent ; SITE SKILLS GROUP PTY LTD ACN 153 744 417 Second respondent

order made by:	LOGAN, GRIFFITHS AND PERRY JJ
DATE OF ORDER:	22 March 2022

THE COURT ORDERS THAT:

1. The application by the first respondent for the applicant to pay the first respondent’s costs of the appeal on an indemnity basis is refused.

2. Subject to orders 2 and 3 below, the applicant is to pay the first respondent’s party/party costs on the appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), as agreed or taxed.

3. The costs awarded to the first respondent under order 2 above do not include the first respondent’s costs of and incidental to the first respondent’s application for indemnity costs.

4. The costs payable to the first respondent under order 2 are to be reduced by the applicant’s costs, as agreed or taxed, in defending the first respondent’s application for indemnity costs.

THE COURT NOTES THAT:

5. The parties are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

THE COURT:

1. INTRODUCTION

1. This is an application for indemnity costs against the applicant, Mr Vernon Wills, by the first respondent, the Chief Executive Officer of the Australian Skills Quality Authority (ASQA), following judgment on the substantive issues delivered on 9 February 2022 (Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10 (Wills (No. 1)). In Wills (No. 1), this Court unanimously dismissed the appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the decision of the Administrative Appeals Tribunal (Tribunal) given on 30 November 2020 affirming ASQA’s decision relevantly rejecting the application by the second respondent, Site Skills Group Pty Ltd (SSG), for renewal of its registration as a registered training organisation (RTO). Mr Wills was the sole director and Chief Executive Officer of SSG.

2. Specifically, having regard to an offer of compromise made by ASQA on 23 February 2021 under r 25.01 of the Federal Court Rules 2011 (Cth) (FCR), ASQA seeks orders that Mr Wills pay its costs of and incidental to the appeal on an indemnity basis from 11am on 25 February 2021 pursuant to r 25.14(2) of the FCR. In the alternative, ASQA seeks an order that its costs be paid on an indemnity basis from 10 March 2021, consistent with the principles in Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank).

3. The application for indemnity costs was heard on the papers pursuant to the orders of Justice Perry dated 18 February 2022. In support of the indemnity costs application, ASQA relied upon the affidavit of Jessica MacDonald affirmed 22 February 2022 (MacDonald affidavit).

4. For the reasons set out below, the application for indemnity costs is refused.

2. BACKGROUND

   1. The s 44 appeal and ASQA’s offer of compromise

5. Mr Wills filed a notice of appeal under s 44 of the AAT Act on 24 December 2020 (the Wills appeal) initially against part of the Tribunal’s decision, being its finding that Mr Wills did not satisfy the fit and proper person requirements in subparagraph (i) of Schedule 3 of the Standards for Registered Training Organisations (RTOs) 2015 (2015 RTO Standards) made under the National Vocational Education and Training Regulator Act 2011 (Cth). At that time, Mr Wills was also named as the second respondent in Federal Court proceeding QUD 400 of 2020, being an appeal under s 44 of the AAT Act instituted by SSG against the same Tribunal decision (the SSG appeal).

6. Two grounds were identified in the notice of appeal in the Wills appeal as originally filed, namely:

1. the...