FEDERAL COURT OF AUSTRALIA

Australian Super Pty Ltd v Woodward (No 2) [2009] FCAFC 180

COSTS – Application – Costs certificate – Self-represented litigant - Whether appropriate to issue costs certificate – Held not appropriate to authorise payment in respect of costs incurred by self-represented litigant in relation to appeal – Held appropriate to authorise payment in respect of costs incurred by self-represented litigant in relation to appeal which appellant is obliged to pay to respondent in pursuance of an order of the Court

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 7

AUSTRALIAN SUPER PTY LTD (FORMERLY STA) and COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED v NIGEL WOODWARD and SUPERANNUATION COMPLAINTS TRIBUNAL

QUD 147 of 2008

FINKELSTEIN, GREENWOOD & LOGAN JJ

22 DECEmber 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  The District Registrar is to prepare a certificate reciting that, though in the opinion of the Court it would not be appropriate for the Attorney-General (Cth) to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal, because he appeared on his own behalf, the Court is of the opinion that it would be appropriate for the Attorney-General (Cth) to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the Respondent in respect of any costs incurred by an Appellant in relation to the appeal (but not in respect of the cross appeal) that have been, or are required to be, paid by the Respondent to the Appellant in pursuance of an order of the Court, not being costs to which a costs certificate granted under s 7 relates.

2.                  The District Registrar transmit the certificate to the Attorney-General for the Commonwealth and furnish copies of the same to the parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The Court has considered an application by Mr Woodward for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act).

2                     The error in the reasons of the learned trial judge was not one promoted by Mr Woodward. We consider that he is entitled to a certificate under s 6 of the Costs Act in respect of the appeal.  It is necessary to use “appeal” in a very specific way for there was also a cross-appeal instituted by Mr Woodward in which he did not succeed.

3                     As a litigant who appeared for himself on the appeal, Mr Woodward incurred no costs in relation to the appeal.  It is, however, appropriate that a certificate issue under s 6 of the Costs Act reciting that, though in the opinion of the Court it would not be appropriate for the Attorney-General (Cth) to authorise a payment under the Costs Act to the Respondent in respect of: the costs incurred by the Respondent in relation to the appeal, because he appeared on his own behalf, the Court is of the opinion that it would be appropriate for the Attorney‑General (Cth) to authorise a payment under the Costs Act to the Respondent in respect of: any costs incurred by the Appellant in relation to the appeal (but not in respect of the cross-appeal) that have been, or are required to be, paid by the Respondent to the Appellant in pursuance of an order of the Court, not being costs to which a costs certificate granted under s 7 relates.

Associate:

Dated:         22 December 2009