FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission (No 3) [2015] FCAFC 85

THE COURT ORDERS THAT:

1.    The solicitors for the Appellant shall not seek or obtain payment of professional fees by Mr Summers for the legal work in this appeal or the proceeding before the primary judge.

2.    The solicitors for the Appellant provide to Legal Aid Victoria:

(a)    a copy of these orders and reasons for judgment; and

(b)    the orders and reasons for judgment of this Court in Summers v Repatriation Commission [2015] FCAFC 36 and Summers v Repatriation Commission (No 2) [2015] FCAFC 64.

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

REASONS FOR JUDGMENT

1    On 14 May 2015 we handed down judgment in relation to costs in this matter (“the costs judgment”) (Summers v Repatriation Commission (No 2) [2015] FCAFC 64). We ordered that each party bear their own costs of the proceeding before Mortimer J and of this appeal.

2    We also gave leave for the solicitors for the appellant, De Marchi and Associates, to file further submissions as to whether or not an order should be made that those solicitors not seek or obtain payment of their professional fees by Mr Summers or by any other person or body for the legal work in the proceeding before Mortimer J or in this appeal but, subject to any fee and retainer agreement between the solicitors and Mr Summers, may recover the disbursements incurred.

3    On 21 May 2015 De Marchi and Associates filed further submissions in relation to costs. The firm broadly explained the failure to properly direct the evidence and submissions to the diagnostic criteria for alcohol dependence in clause 3(b) of the applicable Statement of Principles (“SoP”) on the basis that, before the Tribunal, its attention was not focused on that issue because:

(a)    it was not contested by the respondent and Mr Summers’ alcohol dependence was supported by medical witnesses called for both sides. Essentially the solicitors submitted that they took it as a given that the criteria would be found to be satisfied; and

(b)    before the Tribunal that firm’s efforts were primarily directed at whether Mr Summers met the diagnostic criteria for PTSD and whether he experienced a relevant stressor under the applicable SoP’s for PTSD and Alcohol Dependence. De Marchi and Associates submitted that it had this focus because, unless the Tribunal found that Mr Summers suffered from war caused PTSD, he would not receive a special rate of pension in any event as Mr Summers would not satisfy the “alone prevented” test in ss 23(1)(c) or 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

4    In relation to the appeal before us De Marchi and Associates submitted that:

(a)    while the appeal was unsuccessful on grounds of appeal 1, 2, 2A and 3, those grounds were fairly raised by that firm, reasonably arguable and clearly put forward, and the appellant’s costs were reasonably incurred;

(b)    the successful ground of appeal 4D, which was raised by the Court, was reasonably dealt with by that firm in written submissions and the appellant’s costs were reasonably incurred;

(c)    the successful grounds of appeal 4, 4A, 4B and 4C of the appeal, while inadequately framed, were reasonably arguable and broadly addressed by that firm in their submissions and the appellant’s costs were reasonably incurred.

They contended that the bulk of the costs incurred in the appeal and in the Court below were reasonably incurred.

5    For the reasons we gave in the costs judgment we consider the respondent should not be required to meet Mr Summers’ costs even though he was successful in the appeal. We did not invite further submissions in relation to that issue.

6    The question is whether De Marchi and Associates should be able to recover the costs incurred in the appeal and in the Court below from Mr Summers or from some other person or body.

7    As we said in the cost judgment, costs usually follow the event. Consequent upon his success in the appeal the respondent would ordinarily have been required to pay Mr Summers’ party/party costs, in reimbursement of his costs incurred with De Marchi and Associates. However, De Marchi and Associates’ failure to adduce evidence and put on submissions before the Tribunal specifically directed at the requirements of the applicable SoP, to put on submissions before the Court below properly directed at the requirements of the applicable SoP, and to sufficiently assist us in the grounds of appeal and submissions, meant that we refused to make an order for party/party costs in Mr Summers’ favour.

8    The order we proposed at paragraph 32 of the costs judgment arose in large part out of our concern that the costs incurred by De Marchi and Associates (that in the ordinary course would have been borne by the unsuccessful respondent) should not fall for payment by Mr Summers personally. De Marchi and Associates did not submit that the various failures we identified were failures by Mr Summers rather than failures by that firm.

9    We have no real difficulty in accepting De Marchi and Associates’ submission that some of the costs that firm incurred in undertaking legal work on behalf of Mr Summers before us and in the Court below were reasonably incurred. The more difficult question for us is the quantum of the costs reasonably incurred, which involves questions such as how much extra hearing time was necessary and how much legal work was unnecessarily repeated because of that firm’s failure to put on evidence and submissions specifically directed to the applicable SoP.

10    Although deciding such a question would be cumbersome and inappropriate for an appellate court, the question could be referred back to the primary judge or to a registrar of the Court for decision.

11    However, in submissions De Marchi and Associates informed us that Mr Summers’ case is the subject of a grant of aid from Legal Aid Victoria. We take judicial notice of two matters which we regard as uncontroversial. First, that the rates charged by solicitors for legally aided work are significantly lower than the rates charged to “private” clients. Second, that Legal Aid Victoria has extensive experience in assessing and determining questions surrounding the costs and disbursements claimed by solicitors acting for legally aided persons.

12    While we do not permit De Marchi and Associates to seek or obtain payment of its professional fees from Mr Summers himself, we do not express a concluded view in respect of De Marchi and Associates’ entitlement to payment of its fees by Legal Aid Victoria. The question as to whether that firm should be paid its fees, and if so in what quantum, is best left to Legal Aid Victoria. We have directed that De Marchi and Associates provide the substantive judgment, the costs judgment and this judgment to that body.

13    For the reasons we have stated we do not make an order in the terms proposed in paragraph 32 of the cost judgment. We have, however, ordered that De Marchi and Associates is not permitted to seek or obtain costs of the hearing before us or in the Court below from Mr Summers personally.

Associate:

Dated:    16 June 2015