CATCHWORDS
ADMINISTRATIVE LAW - Administrative Appeals - appeals from an AAT decision - concurrent AAT Act and ADJR Act applications - whether appeal against the assessment of costs competent.
ADMINISTRATIVE LAW - Administrative Appeals - AAT - power to award costs conferred by the Safety Rehabilitation and Compensation Act - ambit of the power - cannot be enlarged by Practice Direction.
COSTS - Jurisdiction - "costs of proceedings" and "costs of and incidental to proceedings" distinguished.
COSTS - AAT appeal - costs not available for original decision or for internal review - costs awarded for external review - meaning of "proceedings" - relevance of stage at which costs incurred - relevance of costs incurred before an appeal is filed - when preliminary expenses are costs of proceedings.
Administrative Appeals Tribunal Act 1975, s44
Administrative Decisions (Judicial Review) Act 1977
Safety Rehabilitation and Compensation Act 1988, s67(8)
Birmingham Citizens Permanent Building Society v Caunt [1962] 1 Ch 883, applied
Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115, distinguished
In re Gibson's Settlement, Mellors v Gibson [1981] 1 Ch 179, applied
Higgins v Nicol (No 2) (1972) 21 FLR 34, considered
McIntyre v Perkes (1987) 15 NSWLR 417, applied
Wright v Bennett [1948] 1 KB 601, considered
FINN J
CANBERRA
30 NOVEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G35 of 1994
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: CON LABATHAS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
)
DISTRICT REGISTRY ) No. ACT G36 of 1994
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: B J McMAHON in his capacity as Deputy President of the Administrative Appeals Tribunal
First Respondent
CON LABATHAS
Second Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 30 NOVEMBER 1995
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The application, numbered ACT G35 of 1994, is dismissed.
2. The decision of the first respondent in application number ACT G36 of 1994:
(i) be set aside; and
(ii)the question of the amount of costs required to be paid by the applicant to the second respondent be referred to the first respondent for consideration according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G35 of 1994
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: CON LABATHAS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
)
DISTRICT REGISTRY ) No. ACT G36 of 1994
)
GENERAL DIVISION )
BETWEEN: COMCARE
Applicant
AND: B J McMAHON in his capacity as Deputy President of the Administrative Appeals Tribunal
First Respondent
CON LABATHAS
Second Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 30 NOVEMBER 1995
REASONS FOR JUDGMENT
These two
proceedings relate to the same subject matter and, for practical purposes,
raise a common question for determination.
The first of the two is in the form of an
appeal under the Administrative Appeals
Tribunal Act 1975, s44 ("AAT Act") from a decision of the General
Division of the Administrative Appeals Tribunal ("the Tribunal") of 2
May 1994. The second is an application
for an order of review of the same decision under the Administrative Decisions (Judicial Review) Act 1977. A related application for relief under the Judiciary Act 1903, s39B was not pursued
at the hearing.
Before turning to each of these, it is appropriate first to outline the circumstances which have prompted the proceedings.
The Background to the Decision Impugned
On 10 December 1991 Comcare made a decision ("the reviewable decision") affirming a determination made on 2 July 1991 ("the original determination") which denied liability to pay compensation to Mr Labathas in respect of a back condition. On 18 March 1993 the Tribunal set aside the reviewable decision and decided that compensation was payable. It made a further decision which, as later revised (on 10 May 1993), required that:
The respondent shall pay the applicant's costs of this application. Such costs are to be determined in accordance with the Administrative Appeals Tribunal Practice Direction on Costs, dated 23 December 1992.
The Tribunal has no general power to award costs: see Allars, Introduction to Australian Administrative Law, para 7.12. In this instance the award was made in exercise of the particular power conferred by the Safety Rehabilitation and Compensation Act 1988, s67(8) ("the SRC Act"). That and related subsections of s67 can conveniently be noted at this point:
s67 (1) Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party.
...
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by [Comcare].
...
(13)Where the Administrative Appeals Tribunal orders [Comcare] to pay costs incurred by a claimant, the Tribunal may, in the absence of agreement between the parties as to the amount of the costs, tax or settle the amount of the costs or order that the costs be taxed by the Registrar or a Deputy Registrar of the Tribunal.
The matter of concern in these proceedings is the proper construction - and hence ambit - to be given to s67(8).
The Practice Direction referred to in the Tribunal's decision provides, relevantly, that:
Where the Tribunal orders that Comcare ... is to pay the costs ... of a claimant then, unless a contrary indication appears in the order, the order shall be read as meaning:
. that the payer is to pay the claimant's costs of the application for review ...;
. that the costs payable are to be:
- witness expenses at the rate prescribed by the Administrative Appeals Tribunal Regulations;
- all reasonable and proper disbursements incurred; and
- 75 percent of all costs, including counsel's fees but excluding witness expenses and disbursements, which would be allowable under the Federal Court Rules;
. the costs to be paid are to be assessed on a party and party basis;
. the amount of costs to be paid is to be as agreed between the claimant and the payer or, in the absence of such agreement, as taxed by the Tribunal, the Registrar or a Deputy Registrar of the Tribunal; and
. on any taxation by the Registrar or a Deputy Registrar:
- the Registrar or a Deputy Registrar has the powers of a taxing officer under the Federal Court Rules;
- the Registrar or a Deputy Registrar of the Tribunal may refer any question arising in the taxation for the direction of the Tribunal; and
- the claimant or the payer may apply to the Tribunal for direction on any question of costs.
No agreement was reached between the parties as to costs. Mr Labathas' solicitors prepared a bill of costs totalling $7,402.36. This bill was taxed before a deputy registrar at $7,073.86 and a "Certificate of Taxation" issued in that amount. Having objected unsuccessfully to the allowance of items 1-73 of the bill of costs (these were items of work performed prior to 10 December 1991, the date of the reviewable decision), Comcare applied to the Tribunal where it reiterated its objection.
The matter was argued before Deputy President McMahon who, on 2 May 1994, handed down a decision in which he:
directed that the certificate of taxation issued by the Deputy Registrar correctly states the extent of the liability of Comcare pursuant to the costs order: Reasons for Decision, para 19.
I would note that three members made up the Tribunal which made the original costs order in the proceedings brought by Mr Labathas. Deputy President McMahon was not one of those members.
A Preliminary Difficulty: the s44 Appeal
Though the point was not taken by the respondent, Mr Labathas, I raised with counsel for Comcare the question whether I in fact had jurisdiction to entertain this matter as an appeal under the AAT Act, s44(1). That subsection provides:
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
The submission of Comcare is that this appeal is competent. It is suggested that, because the original decision requiring the applicant to be paid did not order those "costs be taxed by the ... Deputy Registrar of the Tribunal" (SRC Act s67(13)), the Tribunal itself remained able to tax or settle the amount of costs. That was what Deputy President McMahon in effect did - although it was acknowledged that, insofar as the parties were concerned, the matter came to the Deputy President in the form of a reference "for the direction of the Tribunal" under the Practice Direction to which I have referred.
It is then submitted that the decision of the Deputy President, being itself a "final decision" of the Tribunal - as that term is used in Director-General of Social Services v Chaney (1980) 31 ALR 571 - is capable of sustaining an appeal to this Court under the AAT Act, s44(1): it is a "decision of the Tribunal in [the] proceeding" brought by Mr Labathas under the SRC Act, Part VI - and a decision expressly contemplated by the SRC Act, s67(8) and (13).
I was in consequence urged to adopt the course enjoined by Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, of dismissing the ADJR Act application "as of course" because the "specific procedure" of s44 was properly available.
There are some difficulties in this submission. First, I have already noted in passing that the Tribunal which made the costs order was quite differently constituted from that which settled the amount of costs to be paid. The Deputy President was not, in fact, a member of the former. I merely pose the question whether the SRC Act, s67(13) - which authorises the Tribunal to "tax or settle the amount of the costs" - also envisages such a metamorphosis of the Tribunal in exercising that authority as has occurred here? I would equally ask whether the AAT Act, s44(1) for its part envisages the possibility of a like metamorphosis: cf AAT Act, ss21 and 21A?
Secondly, there is the question whether a determination as to the amount of costs can properly be said for s44(1) purposes to be a "decision of the Tribunal in [the] proceeding". The costs order itself may well satisfy the s44(1) description. But given that the SRC Act, s67(13) contemplates that the determination as to amount consequent on that order need not be made by the Tribunal (it can, on the Tribunal's order, be made by a Registrar or Deputy Registrar) does this, of itself, tell against such a determination being a decision of the type that s44(1) countenances - even where, as here, it is in fact made by a Tribunal member acting as such?
Courts have long exercised a supervisory jurisdiction over the determinations of their own taxing officers: see in the case of this Court, Federal Court Rules, O62. There are clear reasons both of principle and of prudence for this. Furthermore it has been mooted whether, in the case of a court such as this which exercises the judicial power of the Commonwealth, such supervision may not be necessary for constitutional reasons: see Pacific Dunlop Ltd v Australian Rubber Gloves, an unreported decision of Olney J, 17 August 1993.
This, though, is not the place to explore the reasons why it may be thought desirable or necessary for this Court to exercise a like supervisory jurisdiction over such taxations of costs as are undertaken by the AAT and its officers. The present question, while it arises in the costs context, is simply one as to the competence of this appeal. And this does no more than raise issues of construction both of the AAT Act, s44(1) and the SRC Act, s67(13).
If the competence question had been fully ventilated before me I would of necessity have given a decision on it - the more so because of the considerations referred to by Davies J in Tuite v Administrative Appeals Tribunal, above. However, the respondent not taking the point and not making submissions on it once raised, I do not consider it desirable in this state of affairs to decide the point and for practical purposes it is not necessary to do so.
While there is this question mark over the s44(1) jurisdiction of this Court in the present matter, there is none in relation to the ADJR Act application. I propose in the circumstances to dismiss the s44 appeal and to consider only the application for an order of review.
The Deputy President's Decision
The decision challenged can be outlined largely in propositional form.
(1) At issue was whether the first 73 items of the bill of costs presented to the Deputy Registrar could properly be taken into account on the taxation. The only objection taken to those items by Comcare was that they were incurred prior to the date of the reviewable decision. The basis of the objection was the submission that the term "proceedings" in the SRC Act, s67(8) refers to all things done subsequent to the application for review to the Tribunal and did not extend back beyond the date of the reviewable decision.
(2) The Deputy President did not consider it necessary to decide what constitutes "proceedings" under s67(8). The Practice Direction referred to earlier in these reasons had the effect of "incorporating by reference" the provisions of the Federal Court Rules O62 r19. That rule makes allowable:
all such costs charges and expenses as appear to [the taxing officer] to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of [the parties].
The rule was applied by the Deputy Registrar who, the Deputy President found, correctly rejected the submission that preliminary costs were disallowable.
(3) Reference was made to the considerable body of case law which establishes that for the purposes of costs in civil proceedings, costs incurred prior to those proceedings and even prior to the cause of action arising, were not for that reason irrecoverable. Particular reliance was placed in this upon Schweppes' Limited v Archer (1934) 34 (NSW)SR 178; Higgins v Nicol (No 2) 21 FLR 34; and Societe Anonyme Pecheries Ostendaises v Merchants' Marine Insurance Company [1928] 1 KB 750.
(4) The Deputy President characterised the basis of Comcare's submission as being that, until there was a reviewable decision, there was no cause of action so that costs incurred prior to that event were not relevant to the proceedings. This was said to be unsupported by the "weight of authority" or "by considerations of general management of compensation claims".
(5) The overriding principle to be applied is that contained in the Federal Court Rule set out above. That principle can accommodate prior incurred costs ("preliminary costs"). And so the Deputy President concluded:
I agree with the Deputy Registrar that an order of the Tribunal made under s67 of the Safety Rehabilitation and Compensation Act 1988 may cover costs for work performed not only prior to the date on which the application was lodged in the Tribunal but also prior to the date of the reviewable decision, provided that the work performed was necessary or proper for the attainment of justice or for maintaining or defending the applicant's rights. The date when the work was performed is a factor to be taken into consideration, but it is by no means the exclusive determinant of relevance.
The ADJR Act Application
The question raised in this application is whether costs incurred prior to the making of a reviewable decision are capable, as a matter of law, of falling within an award of costs under the SRC Act, s67(8).
Before
turning to the parties' submissions, reference should be made to three matters
of general significance. The first
relates to the Practice Direction to which reference already has been
made. It is not open to doubt that that
Direction cannot confer a jurisdiction on the Tribunal, a Registrar or Deputy
Registrar which is of larger compass than that which is given the Tribunal by
the SRC Act, s67(8): see Birmingham Citizens Permanent Building
Society v Caunt [1962] 1 Ch 883
at 894. The consequence of this is that
to the extent that the Practice Direction purports to make allowable
under s67(8) such costs as are allowable under the Federal Court Rules - and in particular O62 r19 - this can only be
efficacious to the extent that s67(8) itself authorises the payment of those
costs.
Secondly, the formulae used in statutes and rules of court to authorise the award of costs are by no means uniform in their language. A consequence of this is that there can, in fact, be variations in the scope of the costs power given by different statutes and rules of court. A growing body of modern case law, for example, supports the view that a power to award costs "of and incidental to the proceedings" is of larger ambit than one to award costs "of the proceedings" see In re Gibson's Settlement, Mellors v Gibson [1981] 1 Ch 179 at 184; McIntyre v Perkes (1987) 15 NSWLR 417 esp per Samuels JA at 426; Council of City of South Sydney v Forte Enterprises Pty Limited, Land and Environment Court of NSW, 15 July 1993, per Bignold J. I would note in passing that the SRC Act, s67(8) uses the latter formula. Differences in the language in which the costs power is expressed may, then, have the effect that costs encompassed by one formula may not be allowable under another.
Thirdly, it
needs to be remembered that this particular costs power is not conferred upon a
court. Neither is the costs award itself
made as a sequel to a decision which itself involves the exercise of judicial
power. It doubtless is appropriate to
have particular regard to decisions concerned
with the award of costs in courts, when seeking to ascertain the scope of the
costs power given by the SRC Act,
s67(8). But care must be taken not to
lose sight of the distinctive nature and purpose of the "proceedings"
in which the s67(8) power can be enlivened.
And if those proceedings have an analogue in curial proceedings - and it
is an inexact one - it is with an appeal not a trial. I will return to this matter below.
Turning now to the substantive issue to be decided, i.e. the ambit of s67(8) power. I have been invited in effect to choose between two reasonably well established lines of judicial decision on court awarded, or court assessed, costs. The one, invoked by Comcare, presupposes a sequence of proceedings in which costs are incurred. Judicial decision here requires that, if costs are to be claimed and allowed in respect of a particular proceeding in that sequence, it must be shown that they were incurred in respect of that proceeding (i.e. they belong to it) and not some other proceeding in the sequence. The case law which most commonly illustrates this relates to the allocation of costs as between the trial of a matter and a subsequent appeal: see e.g. Wright v Bennett [1948] 1 KB 601.
The second line of authority concerns the allowance and disallowance of "preliminary costs", i.e. expenses incurred before proceedings have begun or even before a cause of action has arisen. The principle applied in such cases is that embodied in the Federal Court Rules, O62 r19: were the costs "necessary or proper for the attainment of justice"? And the case law applying it relates in the main to expenditure incurred either for the purpose of establishing the existence of a cause of action: see e.g. Schweppes' Limited v Archer (1934) 34 SR(NSW) 178; or in anticipation of apprehended legal proceedings: see e.g. Frankenburg v Famous Lasky Film Service Ltd [1931] 1 Ch 428.
Put more fully Comcare's submissions were premised upon what was said to be the exceptional nature of the power to award costs under the SRC Act and upon the fact that in the whole of the Commonwealth's administrative law regime no provision exists for a person to recover legal costs of internal decision-making. From both of these it was asserted that if the legislature had intended to allow a claimant to recover costs of internal decision-making, as opposed merely to proceedings of the Tribunal, it would have done so in clear and unambiguous terms.
Against this background it was submitted that:
(1) s67(8) meant what it said: the costs recoverable were only those which were "costs of the proceedings";
(2) costs, no matter how reasonably incurred, were not recoverable if they did not bear the character of costs of the particular proceedings;
(3) in the scheme of the SRC Act - which envisaged the sequence of an original determination (ss54 and 61), a reviewable decision (s62) and, finally, a Part VI proceedings in the Tribunal (see also s4(12)) - it was necessary to determine to which of these three any claimed item of costs was properly referable;
(4) if it was in fact referable to the original determination or the reviewable decision, it was not relevantly a cost of the proceedings no matter how useful it may have been in the Tribunal proceedings - reliance here was placed in particular upon the observations of Megarry VC in In re Gibson's Settlement Trusts, Mellors v Gibson [1981] Ch 179 at 186 that:
However reasonably incurred, costs which are neither costs "of" the proceedings nor costs "incidental to" them cannot be awarded under the order for costs. It is thus important to identify the proceedings...;
(5) an item of costs could only be referable to the proceedings (as distinct from the original determination or the reviewable decision) if it was incurred after the reviewable decision had been made, because a "proceeding" can only be brought into existence under Part VI once a reviewable decision is made - there is, in other words, a temporal limitation on the recoverable costs; and
(6) costs incurred after
that event, even if incurred before an appeal had been raised, were capable of
being
determined to be proper and necessary costs of the proceedings - to this extent
s67(8) allowed for "preliminary costs".
Buttressing these propositions was the plainly incontrovertible one that the legislation does not allow a claimant who is successful at the level of original determination or of reviewable decision to recover such costs as he or she "necessarily or properly" incurred to secure a favourable determination at either of those levels. So it was asked: Why then should costs incurred at these levels be recoverable on a successful appeal to the Tribunal? And I was invited to answer that they were no more recoverable than were the costs incurred at a trial recoverable as costs of an appeal: cf Masson, Templier & Co v De Fries [1910] 1 KB 535.
Save in one respect which I will indicate below, I am in broad agreement with these submissions.
The
submissions made for Mr Labathas were far less context specific in
character. Their premise seemed to be
that, in the absence of provision to the contrary, costs are costs no matter
the context in which they are awarded.
Provided a taxing officer, as a matter of discretion, could properly
conclude that they were "necessary or proper for the attainment of
justice" (cf Federal Court Rules
O62 r19 and Societe Anonyme Pecheries
Ostendaises v Merchants' Marine
Insurance Company [1928] 1 KB 750) - and this is said to be
the "common law" principle - their allowance cannot be
impeached. Reliance in this was placed
on the same body of authority as was invoked by the Deputy President in his
reasons; see also Phillips and Trebilco,
Bills of Costs, 76‑78 (1932).
If O62 r19 (which is picked up by the Practice Direction) is central to this submission, so also are the assumptions:
(1) that the s67(8) has a beneficial purpose and should in consequence not be construed narrowly; and
(2) that the legislative scheme of the SRC Act does not preclude the recovery of costs incurred at an earlier stage if they are useful in the proceedings.
As to the latter of these assumptions, it was suggested that to allow costs at the levels of original determination and of reviewable decision would be inconsistent with the informality, expedition and relative simplicity associated with those levels. But when one came to Tribunal appeals which are recognised as being likely to be more difficult and more complex, there is no reason to assume that the legislature intended to depart from the "common law" (i.e. O62 r19) principle when it conferred this power. And it was noted that Mr Labathas' success in the Tribunal was secured on the basis of medical reports obtained for the original determination and the reviewable decision. It was the costs incurred in relation to these that were in dispute here.
Counsel for Mr Labathas did not in the end go so far as to suggest that, where preliminary expenses are incurred and they later prove useful in the proceedings, it is irrelevant to consider for what purpose those expenses were incurred. Rather he submitted that if those proceedings "might have been reasonably anticipated" - cf Perpetual Executors and Trustees Association of Australia Limited v Colonial Mutual Fire Insurance Company Limited (1903) 29 VLR 427 at 432 - they are allowable expenses. That anticipation, it was submitted, had its justification not only in the decision-making scheme of the SRC Act which pointed ultimately to the Tribunal, but also, as the Deputy President observed in his Reasons for Decision (Appeal Book p80), in "considerations of general management of compensation claims": for an unfavourable decision to be reviewed costs may need to be incurred in taking steps (e.g. obtaining medical reports) which prove useful in the Tribunal.
The decision relied on as the one most hostile to Comcare's submissions was that of the High Court in Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115. The circumstances of that case can be put briefly. An order for costs was made by the High Court in respect of a successful appeal to it against a decision of the Commissioner of Taxation relating to land tax assessments. That appeal itself was triggered by legislation under which a taxpayer, who objected to an assessment and who was dissatisfied with the Commissioner's decision thereon, could require the Commissioner to treat the notice of objection as an appeal to be transmitted to the High Court. Items in the bill of costs presented and objected to consisted (inter alia) of notices of objection for various years, requests for transmission, letters refusing amended assessments and insisting on transmission instead, and attendances on the Commissioner and his officers. These items were disallowed by the taxing officer but were allowed by Rich J on appeal.
In the Full Court it was argued that, as there was no appeal until transmission, items incurred before that time could not be included. As to this the Court concluded (at 120):
As from [the moment of requiring the transmission of the objection] at the earliest, the objection acquires the character of an appeal, and the successful party may according to circumstances be justly allowed not only subsequent costs, but also costs of prior proceedings, which on taxation or review are considered sufficiently connected with the appeal as to be regarded as incidental to it.
I was asked to conclude by analogy that the costs associated with the notices of objections and the Commissioner's treatment thereof paralleled in the present context those incurred for the purposes of the original determination and the reviewable decision.
I would note, though, that the costs in Jowett were allowable as costs "incidental to" the appeal. A version of that formula (i.e. "incident to") was contained in the High Court Rules 1928, Order LIV r1 under which the taxation was conducted. The costs power contained in the SRC Act, s67(8) for its part does not make allowable such costs as are "incidental to" a proceedings. It only extends to costs "of" a proceedings. I have previously indicated that there is authority following from observations of Megarry VC in In re Gibson's Settlement, above at 184, which have treated the words "incidental to" as extending the ambit of an order for costs: see e.g. the decision of Samuels JA in McIntyre v Perkes (1987) 15 NSWLR 417 at 426.
I am of the view that Jowett's case can and should properly be distinguished on this basis. Costs of the original decision and of the reviewable decision may be able to be said to be "incidental to" the Part VI proceedings (I need express no concluded opinion on this). But they are not costs of those proceedings. They are, in the language of the High Court, "costs of prior proceedings". Such are not countenanced by s67(8).
More
generally, though, I would observe that caution needs to be exercised in the
case of analogues drawn from the arena of taxations conducted under rules of
court in consequence of curial proceedings, when, as here, one is concerned
with a legislatively structured hierarchy of administrative decision-making
with the Tribunal at its apex
and into which a limited cost power is intruded. I say "limited" both because a
general cost power is denied to the Tribunal and because s67 of the SRC Act, while providing for situations
in which costs orders may be made, itself reaffirms the primary rule that
parties ordinarily should bear their own costs:
s67(1).
I am unable to accept the respondent's submission. They do not in my view address the issue that confronts me. It is the case that "costs of the proceedings" can extend to expenses incurred before those proceedings were initiated: see e.g. Higgins v Nicol (No 2) (1972) 21 FLR 34 at 37. But what I am unable to accept is that they are allowable in those proceedings when they were incurred - necessarily and properly - for the attainment of justice in some other proceedings.
The particular language of s67(8) - "costs of those proceedings" - considered in the context of the three tiers of decision making enshrined in the SRC Act make this a necessary matter to address. Costs incurred for the purposes of the original determination or of the reviewable decision are in my view costs of "proceedings" other than the Part VI proceedings for which s67(8) costs are payable. To this extent I am in agreement with Comcare's submissions.
However, I did indicate that that agreement is subject to one qualification. It is this. It was submitted that no expense incurred before the reviewable decision was capable of being an allowable cost under s67(8). I am unable to agree with this temporal limitation. My reason is that the critical question is not: When were the costs incurred? but rather: What were the proceedings for which they were incurred?
There may be circumstances in which costs can be incurred well before a reviewable decision is given and can be incurred not for the reviewable decision or, for that matter, for the original determination, but for the purposes of a projected appeal to the Tribunal. I refrain from attempting to exemplify situations in which this may be so. It is only necessary to acknowledge the possibility of this. But having so concluded that preliminary expenses cannot be subjected to a temporal limitation, I must add that it would in my opinion require distinctive circumstances indeed before it could properly be said that expenses incurred (a) before the original determination, or (b) before the reviewable decision were not incurred for those proceedings but were incurred despite them for a projected Part VI proceedings. What in my view is not sufficient to attract the characterisation of "costs of the proceedings" for s67(8) purposes is the mere proof that the prior incurred costs were useful in the Part VI proceedings.
The flaw in the respondent's submissions is reflected in turn in the Deputy President's decision. The issue he was called upon to determine did not depend on the Federal Court Rules O62 r19 alone. Because of the SRC Act, s67(8), it depended vitally on identifying the proceedings in respect of which the claimed costs were incurred. I have given my reasons why this is so. The Deputy President did not consider he had to address that matter and did not do so. An error of law was made.
I propose then to make orders under the ADJR Act, s16 that the decision of the first respondent in proceedings ACT G36 of 1994 of 2 May 1994 be set aside and that the question of the amount of costs required to be paid by the applicant to the second respondent be referred to the first respondent for further consideration according to law.
In proceedings ACT G35 of 1994 I propose to order that the appeal be dismissed.
I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 29 November 1995
Counsel for the applicant : T. Howe
Solicitors for the applicant: Australian Government Solicitor
Counsel for the respondent : Dr A. Bell
Solicitors for the respondent : Scott, Sheils & Glover
Date of hearing : 20 October 1995
Date of judgment : 30 November 1995
