Federal Court of Australia

Harris v Military Rehabilitation and Compensation Commission [2025] FCAFC 198

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs in respect of the appeal, fixed in the amount of 5 cents in accordance with the Court’s order of 28 October 2025.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Matthew Harris is a sometime member of the Australian Defence Force (ADF). As a sequel to his ADF service, he applied for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act). A decade ago, the respondent Military Rehabilitation and Compensation Commission determined, on 9 December 2015, that his rehabilitation program under the MRC Act was closed and deemed him to be able to earn an amount of $748.80 per week. That decision affirmed an earlier decision of the Commission to that effect dated 19 June 2015.

2    As was his right, Mr Harris sought the review by the then Administrative Appeals Tribunal of the Commission’s decision as so affirmed. That review application remained undetermined in the Tribunal for a very long time indeed, and still has not finally been determined on the merits. What has, however, occurred is that the Tribunal was persuaded to determine as a separate question, the meaning and effect of s 132 and s 181 of the MRC Act. The result was that the Tribunal decided that it fell within the scope of the review sought by Mr Harris of the Commission’s decision for the Tribunal to determine on the factual merits, and having regard to s 132 and s 181 of the MRC Act, what Mr Harris was able to earn in suitable employment: Harris and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 483. In so doing, the Tribunal observed (AAT reasons, at [15]) of s 181(1) of the MRC Act that it, “enables a broad discretion to address a case such as the present which involves a very specific set of circumstances in a flexible manner consistent with an appropriate application of beneficial legislation”.

3    Mr Harris had, and still has, a different view of the meaning and effect of s 181 of the MRC Act. The essence of his view is that, on its true construction, the effect of s 181 of the MRC Act is that, if he is in “suitable work”, as defined, the Commission and the Tribunal in its place, is bound to accept that the income he is deriving from that employment constitutes his “actual earnings”.

4    Mr Harris sought to challenge the Tribunal’s decision in the original jurisdiction of this Court. Initially, the means of challenge he adopted was to purport to institute an appeal against the decision under the then s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

5    Unsurprisingly, Mr Harris’ selection of that means of challenge generated a controversy as to whether, having regard to Director-General of Social Services v Chaney (1980) 47 FLR 80, his appeal was competent. That was on the basis that the Tribunal’s decision being interlocutory, it did not have the quality of finality necessary for an invocation of the statutory right of appeal on a question of law conferred by s 44 of the AAT Act. Reacting to this, Mr Harris alternatively sought to invoke the original jurisdiction conferred on the Court by either or each of: s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth); and s 39B(1) of the Judiciary Act 1903 (Cth).

6    For reasons which will become apparent, it is necessary to observe that it was a feature of each of the originating processes that Mr Harris came to file in the Court that, in addition to putting in issue the correctness in law of the construction of s 181 of the MRC Act adopted by the Tribunal, he also sought to have the benefit in the original jurisdiction of a protective costs order under r 40.51 of the Federal Court Rules 2011 (Cth).

7    In relation to the construction of s 181 of the MRC Act, the learned primary judge, in effect, approved the construction of that provision favoured by the Tribunal: Harris v Military Rehabilitation and Compensation Commission [2025] FCA 381. The essence of his Honour’s reasons for so doing is found at [38] of his reasons for judgment, which responded to and took up as correct a submission made by the Commission and, correspondingly, rejected a submission made by Mr Harris:

There is no error disclosed in the Tribunal’s conclusion that the deeming decision of actual earnings is within scope of review for the reasons that it gave. The text of s 181(1) and the context and purpose of the MRC Act do not support a conclusion that as a matter of statutory construction there can be no deeming of actual earnings where a person is already engaged in suitable work. Indeed I am satisfied, as the Commission submits, that to deem in such circumstances may be a course open to the decision maker in the exercise of the discretion reposed in it. I do not accept that there is anything in the MRC Act or elsewhere which expressly or impliedly “bars” a decision maker from doing so. These were the findings of the Tribunal. The question of how s 181(1) was applied to Mr Harris, including as to how any applicable discretion is to be exercised, constitute the substantive issues before the Tribunal, which for the reasons submitted by the Commission ought be left to the Tribunal in the usual course of its merits review.

8    All that the primary judge stated in respect of costs was (at [42]):

42    Mr Harris’ applications having been dismissed, there is no obvious reason why costs should not follow the event. There will therefore be an order that Mr Harris pay the Commission’s costs as agreed or assessed.

9    Mr Harris has now appealed to the Full Court against the orders dismissing his judicial review applications and ordering that he pay costs in the original jurisdiction. Insofar as it might be thought that the latter required a grant of leave, he was given such leave at an interlocutory stage: Harris v Military Rehabilitation and Compensation Commission [2025] FCA 1415 (interlocutory judgment).

10    In relation to the dismissal of his judicial review applications, the issue raised by Mr Harris is one of substantive law in relation to the construction of s 181 of the MRC Act. The correctness of the order of dismissal insofar as it dismissed as incompetent his purported invocation of the jurisdiction conferred by s 44 of the AAT Act is not at issue. In relation to costs, the essence of Mr Harris’ challenge is that he was denied procedural fairness, because, as he alleges, the primary judge failed to consider his application for a protective costs order.

11    We shall address each of these issues in turn.

The meaning of s 181 of the MRC Act

12    Addressing this issue first requires that the relevant provisions of the MRC Act be set out. The learned primary judge helpfully offered a summary of them in his reasons for judgment. The following borrows from that summary.

13    Part 4 of the MRC Act provides for compensation for incapacity for work for former members of the ADF.

14    Section 117 of the MRC Act contains what is referred to as a “simplified outline” of Part 4. Amongst other things it states:

The amount of compensation a person receives for a week depends on the difference between the person’s normal and actual earnings for the week. The person’s normal earnings are a notional amount. The person’s actual earnings are based on how much the person actually earns for the week.

(Emphasis added by primary judge, and us)

15    We agree with the accuracy of an observation made by the primary judge at [15] about Part 4 of the MRC Act, as revealed by s 117, “the incapacity payment a member receives is calculated by subtracting their actual earnings (being their post injury earnings) form their normal earnings (being their pre-injury earnings)”.

16    Section 132 provides the relevant definitions:

132    Definitions of actual earnings, normal earnings and normal weekly hours

(1)    In this Part:

actual earnings for a person for a week means the greater of the following amounts:

(a)     the weekly amount (if any) that the person is able to earn in suitable work;

(b)     the amount (if any) that the person earns for the week (including from allowances other than expense allowances) from any work that is undertaken by the person during the week.

Note 1:    Bonuses are excluded from the calculation of actual earnings under section 180.

Note 2:     Section 181 sets out some matters that the Commission must have regard to in determining the amount that the person is able to earn under paragraph (a).

17    Section 181 is in the following terms:

181    Matters to be considered in determining actual earnings

(1)     This section sets out those matters that the Commission must have regard to in determining the weekly amount that a person is able to earn in suitable work for the purposes of:

(a)     paragraphs 101(4)(a), 105(4)(a) and 115(4)(a) (definition of actual civilian earnings); and

(b)     paragraph (a) of the definition of actual earnings in subsection 132(1).

In addition, the Commission may have regard to any other matter it considers relevant.

(2)     If the person is working in suitable work, the Commission must have regard to the weekly amount that the person is earning in that work.

(3)     If any of the following applies after the person becomes incapacitated for work, the Commission must have regard to the matters set out in subsection (4):

(a)    the person fails to accept an offer of suitable work that is made to the person;

(b)     an offer of suitable work is made to the person and accepted but the person fails to begin, or fails to continue, the work;

(c)     an offer of suitable work is made to the person on the condition that the person complete a reasonable rehabilitation or vocational retraining program but the person fails to do so.

(4)     If subsection (3) applies, the Commission must have regard to:

(a)     the weekly amount that the person would be earning in that work if the person had not failed as described in subsection (3); and

(b)     whether that failure was reasonable in all the circumstances.

(5)     If the person has failed to seek suitable work after becoming incapacitated for work, the Commission must have regard to:

(a)     the weekly amount that the person could reasonably be expected to earn in suitable work, having regard to the state of the labour market at the relevant time; and

(b)     whether that failure was reasonable in all the circumstances.

(Emphasis added. By primary judge, and us)

18    Section 5 of the MRC Act is the definitions section. In that section, “suitable work” is defined as follows:

suitable work for a person means work for which the person is suited having regard to the following:

(a)     the person’s age, experience, training, language and other skills;

(b)     the person’s suitability for rehabilitation or vocational retraining;

(c)     if work is available in a place that would require the person to change his or her place of residence—whether it is reasonable to expect the person to change his or her place of residence;

(d)     any other relevant matter.

19    The primary judge observed at [14] of the definition of “suitable work” that it is, “limited to identifying the type or kinds of work a person could perform”. We agree. In so doing, the primary judge expressly agreed with the accuracy of a submission made to him by the Commission about this definition, which was, at [19], that it does not have regard to considerations such as the number of hours per day or days per week that work would involve, or whether it is seasonal or casual work. We agree that this is a feature of the definition of “suitable work” in s 5 of the MRC Act.

20    The modern approach to statutory construction is to commence with the text of the statutory provision concerned and to derive its meaning by reference to that text, as read in context and in light of the evident statutory purpose. That approach was recently summarised by Gageler CJ, Gordon, Jagot and Beech-Jones JJ, citing pertinent earlier authority, in their joint judgment in Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362, at [4]:

Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

[Footnote references omitted]

21    The Commission embraced the meaning of s 181 derived by the Tribunal and the primary judge.

22    Mr Harris placed much store on s 181(2) in support of his preferred construction of s 181. However, in context, “have regard to” cannot mean, in effect, “adopt”. That would leave no work to be done by the last sentence in s 181(1).

23    In construing a statute, one does not assume that text approved by Parliament is superfluous. In High Court jurisprudence, the origins of that proposition may be traced to The Commonwealth v Baume (1905) 2 CLR 405, at 414, but as is there exposed its provenance in English law is much older, being evident in R v Berchet (1690) 89 ER 480. As Edelman J recently highlighted in his separate, concurring judgment in Palmanova, at [71], that proposition is sometimes put more strongly in an exhortation that a court is “not at liberty to consider any word or sentence as superfluous or insignificant”, citing Pearce, Statutory Interpretation in Australia, 10th ed (2024) at 69 [2.44]. However, as his Honour persuasively expounds in Palmanova, at [72] to [76], that puts the proposition too rigidly, it being better viewed as a loose aid which must yield to context and purpose. Perhaps a rationale for an inclination for the rigid view of the proposition might lie in acceptance that, within the limits of legislative competence, Parliament is supreme. But once it is appreciated that Parliament may have approved text which, as a matter of ordinary English language comprehension, appears to include superfluous words, the Parliamentary supremacy rationale necessarily includes accepting that sometimes Parliament might approve the superfluous.

24    A basal flaw in Mr Harris’ submission about s 181(2) is that the more natural meaning of “have regard to” in s 181(2) of the MRC Act is that it specifies a relevant but not determinative consideration. That being so, it does not have a prescriptive quality, establishing a specific class carved out of the embrace of the generality present in the last sentence of s 181(1) of the MRC Act.

25    The placement of the last sentence of s 181(1) is awkward, but its evident purpose is to allow a decision-maker to take into account other matters, limited only by the subject matter, scope and the purpose of compensating under the MRC Act for incapacity to work. For example, a person might be working in suitable work but earning less than they were able to earn in other suitable work. Or, in undertaking suitable work, they might have ordered their affairs such that the amount they earn personally is reduced. Given that the purpose is to compensate in respect of a given incapacity to work in suitable employment, it would be antithetical to that purpose to adopt a construction of s 181 which would yield a compensatory payment not on the basis of a given incapacity but rather on the basis of a given structuring of affairs. Sometimes, too, particularly with a self-employed person, just looking to what that person is earning in suitable employment at a particular time might, if viewed in a wider temporal context be abnormally high and not truly indicative of the impact of a given incapacity to work.

26    It is to be remembered that s 181 specifies matters to which a decision-maker must have regard for, relevantly, s 132 of the MRC Act. And that subsection is directed to ability to earn. As read with s 181, the definition of “actual earnings” in s 132 has Orwellian qualities in that “actual earnings” may (not must) be other than what a person actually earns.

27    The very language of the last sentence of s 181(1) means that it is not possible exhaustively to detail matters which might fall within its legitimate purview. The Tribunal, and also the learned primary judge described this feature of that provision as conferring a discretion on the decision-maker. While we understand the sentiment in this description, and with respect, a better description, in our view, is that the effect of this provision is to permit the decision-maker additionally to “have regard to” inherently case specific matters in determining what a person is “able to earn in suitable work”, providing these are not inconsistent with the statutory purpose. In this way, the sentence supplies additional relevant considerations rather than conferring a discretion. Having regard to such matters, if any, as revealed on the material before the decision-maker, and to the other matters specified in s 181, it is then for the decision-maker to make a case specific evaluative judgement on what the person is able to earn in suitable employment.

28    Nothing in the foregoing is inconsistent with the overview description of Part 4 found in s 117 of the MRC Act. The determination of “actual earnings” is indeed “based on” what a person actually earns in suitable employment. That is the effect of s 181(2). But “based on” is not to be equated in every case with “is”, as the whole of s 181, including relevantly the last sentence of s 181(1), makes clear.

29    Mr Harris submitted that support for his construction was to be found in the Explanatory Memorandum (EM) for the Bill which became the MRC Act. This is the pertinent part of the EM:

Clause 131 – Amount of compensation after 45 weeks

After the maximum rate week period a person will receive a reduced rate of incapacity payments. The amount the incapacity payments are reduced by will depend on the number of hours the person is working in relation to the normal weekly hours of that person. The formula by which the Commission can determine a person’s normal weekly hours is at clause 132.

If the person is not working at all, the incapacity amount will be reduced to 75 per cent of normal earnings. This is called the adjustment percentage... The above adjustment percentages will be used to calculate the reduced compensation amount by multiplying the person’s normal earnings for the week by the adjustment percentage. The person’s actual earnings will then be subtracted from this figure to determine the compensation amount.

Clause 132 - Definitions of actual earnings, normal earnings and normal weekly hours

A person’s actual earnings for a week is the weekly amount a person actually earns from employment during that week of incapacity, or the amount the Commission deems the person is able to earn. A person can be deemed to be ‘able to earn’ a certain amount from suitable employment after taking into account a number of factors. This will affect those people the Commission considers have an ability to earn income from suitable employment, but who do not do so for a number of reasons outside the control of the Commission. The provision is explained at clause 181…

Clause 181 – Matters to be considered in determining actual earnings

This clause details the circumstances where the Commission can deem a person ‘able to earn’. This is a tool that will ensure that the focus remains on returning the injured or ill person to the workplace.

Where a person is actually engaged in suitable work, any earnings from that employment will be used when calculating actual earnings.

If, however, the person fails to accept, begin or continue a reasonable offer of suitable work, then the Commission can deem the person to be ‘able to earn’. The Commission can also deem a person ‘able to earn’ where the person fails to comply with an offer of suitable work contingent upon completion of a reasonable rehabilitation program. In these instances the Commission must establish the amount it deems the person is ‘able to earn’ by having regard to the weekly amount that the person would be earning in the suitable work if he or she had continued in that suitable work.

The Commission can also deem a person ‘able to earn’ where the person fails to seek suitable work after becoming incapacitated. In this instance the Commission must establish the amount it deems the person is ‘able to earn’ having regard to the state of the labour market at the relevant time.

The Commission cannot, however, deem the person ‘able to earn’ where the failure to search, accept, begin or continue employment is reasonable. This will ensure that the person who can show, through genuine and unsuccessful attempts to obtain employment, that he/she lacks the ability to find employment because of the injury, is not deemed as ‘able to earn’ when suitable employment is not possible (emphasis added).

[Emphasis by Mr Harris]

30    Particularly having regard to the sentence, “Where a person is actually engaged in suitable work, any earnings from that employment will be used when calculating actual earnings” in the EM, it is not hard to see how Mr Harris came to the view he did. However, the EM also states:

A person can be deemed to be ‘able to earn’ a certain amount from suitable employment after taking into account a number of factors. This will affect those people the Commission considers have an ability to earn income from suitable employment, but who do not do so for a number of reasons outside the control of the Commission. The provision is explained at clause 181…

31    When all is said and done, the task is to construe the text approved by Parliament, not that found in an EM. An EM forms part of a class of materials to which reference can be made to resolve ambiguity in, or confirm the meaning of, that text: s 15AB(2)(e), Acts Interpretation Act 1901 (Cth). Here, we do not consider that the text of s 181 is ambiguous. Rather, the EM conveys an imperfect understanding of that text. If, truly, Parliament intended that, “Where a person is actually engaged in suitable work, any earnings from that employment will be used when calculating actual earnings.”, it would have been very easy for that to have been stated in the MRC Act. The closest approximation of this is in s 181(2) of the MRC Act. But, as already noted, that section also contains the last sentence of s 181(1).

32    There was reference in the course of the submissions of the parties to three judgments given in earlier cases in the original jurisdiction concerning analogous provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), especially s 19(4)(g) of that Act: Commission for Safety Rehabilitation & Compensation of Commonwealth Employees v Rawling (1993) 42 FCR 421 (O’Loughlin J), Woodbridge v Comcare (1994) 20 AAR 196 (Hill J) and Bis Industries Limited v Dale (2017) 72 AAR 312 (Rangiah J). None of these decisions is binding on us. Further, as Mr Harris submitted, although the language of the SRC Act may be analogous, it is not identical. Although the meaning we have given to s 181 of the MRC Act is consistent with the meaning given to the analogous provisions of the SRC Act in these three cases, we prefer to base our judgment on the text of s 181 of the MRC Act, having regard to context and purpose.

33    For these reasons, we reject the construction of s 181 of the MRC Act promoted by Mr Harris.

Was Mr Harris denied procedural fairness in relation to his application for a protective costs order?

34    It may be accepted, as the Commission submitted, that reasons in respect of costs may permissibly be quite abbreviated. However, and with respect to the primary judge, the omission of any reference in his Honour’s reasons for judgment to the very particular type of costs order sought by Mr Harris is both stark and eloquent.

35    It is difficult not to have sympathy for the position in which the primary judge found himself. This is not just because Mr Harris appeared on his own behalf. That was entirely permissible. Rather, in the original jurisdiction, Mr Harris filed written submissions in chief of no less than 136 pages. A case for the making of a protective costs order was not developed in these. But neither was the application for such an order ever abandoned.

36    Hindsight can be a great teacher.

37    Ideally, any application for a protective costs order ought to have been dealt with at an interlocutory stage. The outcome of such an application would have enabled Mr Harris to make an informed decision as to whether it was worth the risk of prosecuting his applications. It is the responsibility of a party to prosecute a case for all the orders sought. There is no different set of rules of court applicable to litigants in person. Equally though, the interests of justice can require, especially in a case managed court, a thorough exploration at an interlocutory stage of the relief sought and whether any of that is apt for interlocutory determination. A judge constituting the Court in the original jurisdiction where one party is unrepresented and the other is a represented emanation of the Commonwealth is entitled to expect discerning assistance from that Commonwealth party. That is but one aspect of model litigant behaviour. Here, there was only silence.

38    Equally, the judge is entitled to expect that he or she will have the benefit of a proactive engagement by a registrar with each of the parties, especially an unrepresented one, to ensure that the interests of justice are served. One way that is achieved in a case like the present is by a vetting of the relief claimed in an originating application and drawing any unusual feature of that to the attention of the allocated docket judge. That, too, seems not to have occurred in this case. The adoption by the Court of an electronic filing system does not obviate the registry from the task which used to be performed when a hard copy document was presented for filing across the registry counter, which was to cast an experienced eye over the document.

39    Yet further, and with respect, it is always fraught to permit any party to file written submissions of unrestricted length.

40    It is not necessary to try and assign weight to which, if any, of these factors may have intruded here. It is only necessary to conclude, as we do, that Mr Harris has, on the face of the reasons of the primary judge, discharged an onus that falls on him to show that the exercise of the discretionary power with respect to costs miscarried. One way of describing the error is, undoubtedly, that the very particular application was not addressed prior to the making of the order in relation to costs. That constituted a denial of an opportunity to be heard and thus a denial of procedural fairness. Another way is that a relevant consideration, namely, that Mr Harris sought a protective costs order, was not taken into account. The outcome is the same. The costs discretion miscarried.

41    That being so, it falls to us to exercise that discretion, taking into account the application which Mr Harris made for a protective costs order.

42    Mr Harris already has, as a result of the interlocutory judgment, the benefit of a protective costs order in respect of the appeal. It does not follow that a like order should be made in respect of costs in the original jurisdiction.

43    There is an element of artificiality in approaching in the exercise afresh at appellate level whether a protective order should be made in the original jurisdiction. But that same artificiality would attend that task even were this aspect of the case to be remitted to the original jurisdiction. Neither party pressed for this and it would only add an unnecessary step to an already long saga to order that.

44    As Logan J observed in the interlocutory judgment, the power to make a protective costs order found in r 40.51 of the Federal Court Rules must be read with the relevantly unfettered discretionary power in relation to costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). In this Court, in relation to such applications, reference is often made to the judgment of Bennett J in Corcoran v Virgin Blue Airlines Proprietary Limited [2008] FCA 864, especially at [6] to [13]. Her Honour’s analysis later commended itself to the Victorian Court of Appeal in relation to a similar costs power in Bare v Small (2013) 47 VR 255; VSCA 204, at [36] and [37]. Subject to what follows, so it does to us.

45    Flowing from these cases, and without being exhaustive, the following matters have been regarded as relevant:

(a)    the timing of the application;

(b)    the complexity of the factual or legal issues raised in the proceeding;

(c)    whether the party seeking the order claims damages or any other form of financial compensation;

(d)    whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious;

(e)    the undesirability of the party seeking the order abandoning the proceeding if the order is not made;

(f)    whether there is a public interest element to the proceeding;

(g)    the costs likely to be incurred by the parties;

(h)    whether the other party has been uncooperative or delayed the proceeding;

(i)    the ability of the party seeking the order to pay costs;

(j)    whether a significant number of members of the public may be affected by the outcome of the proceeding; and

(k)    whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions.

46    However, as did Logan J in the interlocutory judgment, we emphasise that the foregoing is not a checklist to be applied uncritically. Whether to make such an order is inherently case specific.

47    In this case, Mr Harris had the benefit of a considered, well-reasoned decision of the Tribunal which was adverse to the construction he promoted. In those reasons, the Tribunal expressly referred to and applied by analogy observations made concerning the analogue of s 181 in Woodbridge v Comcare. That said, there was an element of novelty in the case in that there had not been an earlier judicial pronouncement in relation to the meaning of s 181 of the MRC Act.

48    As Mr Harris submitted, the construction he promoted had some support in the EM, at least on one reading of it. Further, as he also submitted, the text of the MRC Act was not identical to that found in analogous provisions of the SRC Act. Indeed, as he also submitted, the very enactment of the MRC Act, rather than merely continuing to apply the SRC Act to members and former members of the ADF, reflected a deliberate choice by Parliament. Yet further, and as he also submitted, the meaning to be given to s 181 and s 132 of the MRC Act was not just of relevance and importance to him. It was of importance and potentially at least, relevant to members of the ADF generally.

49    To us, these considerations mean that Mr Harris’ application for a protective costs order in the original jurisdiction was not a frivolous one. Each of them is relevant but none, even taken together, is determinative. A pervasive application of a provision of a Commonwealth statute is hardly unique to this case.

50    Sometimes, novelty and pervasive application will motivate the Commonwealth or an emanation such as the Commission not to seek an order for costs. Whether to do so entails a public policy value judgement which is not for the Court to make. That the Commonwealth or an emanation is a party to litigation is not a bar to the seeking of a costs order. Further, it is important that any individual judicial dissatisfaction with a decision to seek costs not be a surrogate for the making of a protective costs order.

51    In our view, this is just one of those cases where a party with an arguable (instance the poorly worded EM) case for a preferred construction of a statutory provision has failed in a challenge to a contrary construction adopted by the Tribunal. That the case was arguable does not in our view mean that Mr Harris should be entitled to a protective costs order in the original jurisdiction. Instead, costs should just follow the event.

52    For completeness, we record that we have expressly considered whether to order that costs should not run after the last case management hearing in the original jurisdiction, given that one might have expected that the application would have been dealt with at an interlocutory stage, to enable Mr Harris to decide whether to prosecute the case further. However, a litigant must take some responsibility for the way in which he or she conducts a case he or she has initiated. It was Mr Harris who sought the protective costs order and it was Mr Harris who chose to prosecute the case to a final hearing in the original jurisdiction without the prior hearing of his protective costs order application. So we see no basis for a temporal limit in relation to costs in the original jurisdiction.

53    As to costs in the original jurisdiction, and although the discretion as to costs has been exercised afresh by us, the result is no different to the order as to costs made by the primary judge.

Disposition

54    For these reasons, the appeal must be dismissed. In keeping with the protective order as to costs made by the interlocutory judgment, the Commission’s costs in respect of the appeal are limited to 5 cents.

Associate:    

Dated:    22 December 2025