FEDERAL COURT OF AUSTRALIA

Page v Telstra Corporation Ltd [2004] FCAFC 157

Fischer v Commonwealth of Australia [1997] FCA 1029 Cons

SUZANNE LEE PAGE V TELSTRA CORPORATION LTD

Q85 of 2003

KIEFEL, RD NICHOLSON AND NORTH JJ

BRISBANE

15 JUNE 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The orders made on 30 March 2004 be varied by adding, at the end of par 5, the words ‘and the costs of the proceedings before the primary Judge’.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     On 30 March 2004, the Court ordered in the above appeal as follows:

‘1.        Leave is granted to the appellant to bring the appeal out of time.

2.         The appeal is allowed.

3.         The decision of the Administrative Appeals Tribunal, made on 29 May 2002, is set aside.

4.         The appellant’s application for compensation is remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons.

5.         The respondent is to pay the appellant’s costs of the appeal.’

2                     Thereafter, the appellant pointed out that there was no provision in the orders for the appellant’s costs of the proceedings before the primary judge.  The Court then asked for written submissions on the question.

3                     The appellant filed her submissions on 4 May 2004, and the respondent filed its submissions on 11 May 2004.

4                     The appellant contends that she should have the costs of the proceedings before the primary judge because she was successful in the appeal.

5                     The respondent opposes the claim for costs because there is no such claim in the notice of appeal, and such costs were not sought when judgment was delivered.  The respondent relied on the following statement of Branson J in Fischer v Commonwealth of Australia [1997] FCA 1029 (‘Fischer’):

‘It will not ordinarily be open to a party who does not at the conclusion of a proceeding seek an order for costs, to later have the proceeding relisted to allow an application for costs to be heard.’

6                     The respondent submitted that there was nothing out of the ordinary in the present circumstances to justify this late claim for an order for costs of the proceedings before the primary judge.

7                     The orders of the Court have not been entered.  Thus, there is power to vary the orders under O 35 r 7(1) of the Federal Court Rules.  The power to award costs is a wide discretionary power.  It must be exercised in order to advance the interests of justice.  It is not confined by rules or formulae, and the judgment in Fischer did not suggest an inflexible rule.  Taking into account the good sense of the judgment in Fischer we, nonetheless, regard the interests of justice as best served by an order in the appellant’s favour for the costs of the proceedings before the primary judge.  Consequently, the orders made on 30 March 2004 will be varied by adding, at the end of par 5, the words ‘and the costs of the proceedings before the primary judge.’

Associate:

Dated:              15 June 2004