FEDERAL COURT OF AUSTRALIA

ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 121

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Judiciary Act 1903 (Cth) s 39B

Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 91

CSR Ltd v Eddy (2005) 80 ALJR 59 discussed

ASP SHIP MANAGEMENT PTY LIMITED v ADMINISTRATIVE APPEALS TRIBUNAL AND ANOR

NSD 997 of 2005

MERMAID LABOUR & MANAGEMENT LIMITED v ADMINISTRATIVE APPEALS TRIBUNAL AND ANOR

NSD 998 of 2005

ASP SHIP MANAGEMENT PTY LIMITED v GERT BERGVALL

NSD 706 of 2005

MERMAID LABOUR & MANAGEMENT LIMITED v SHANE ANTHONY KELK

NSD 708 of 2005

BLACK CJ, EMMETT & ALLSOP JJ

27 July 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  Each party pay its own costs of the proceeding.

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

THE COURT ORDERS THAT:

1. Each party pay its own costs of the proceeding.

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

THE COURT ORDERS THAT:

1.                  Each party pay its own costs of the proceeding.

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

THE COURT ORDERS THAT:

1.                  Each party pay its own costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     The parties have filed submissions as to costs. The seamen, Messrs Kelk and Bergvall, seek the costs of the appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and the proceedings under s 39B of the Judiciary Act 1903 (Cth). For the purposes of assessing costs, the Employers seek to have the respective AAT appeals and s 39B proceedings taken as one proceeding for each of Mr Kelk and Mr Bergvall. The Employers submit that they should have their costs or 90 per cent of them.

2                     Section 91 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) provides for each party to bear its costs of the proceedings before the AAT, subject to the operation of the section as a whole. That provision does not affect this Court’s power and discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth).

3                     In the s 39B proceedings this Court made an order in favour of the Employers. In doing so, however, we rejected their argument on the issue of law that was central to the decision. It is reasonable to assume that the Employers’ fundamental approach to that issue, rejected by this Court, contributed to the error in the approach taken by the AAT.

4                     It was submitted on behalf of the seamen that the Employers should bear the costs of all of the proceedings because they have a clear interest in the correct application of the law in the AAT subsequent to this litigation, while the seamen do not. The Court was invited to apply CSR Ltd v Eddy (2005) 80 ALJR 59; 222 ALR 1, a case where the successful appellants were recurrent litigants before the Dust Diseases Tribunal. In that case the resolution of the appeal served the appellants’ long-term commercial interests because the application of the resulting principle would tend to reduce the quantum of damages awarded in future asbestos-related litigation. Although it appears that the Employers are in the business of providing labour to ships, there is nothing in the material before the Court that indicates that they are likely to be “recurrent litigants” in anything like the position of the appellants in CSR Ltd v Eddy, or that they otherwise have such a special interest in the outcome of our decision as to justify an order that they pay the respondents’ costs.

5                     The AAT appeals and s 39B proceedings arose from the same decision, raised substantially the same issues and were heard together. The Employers formally abandoned their AAT appeals in order to simplify the litigation and focus on the essential legal issues. They should not be penalised for that.

6                     In all the circumstances and given the arguments of the parties, we think it appropriate that each party pay their own costs of each of the proceedings.

Associate:

Dated: 27 July 2006