FEDERAL COURT OF AUSTRALIA

Condren v Secretary, Department of Family & Community Services

[2000] FCA 743

JAMES CONDREN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

N 927 OF 1999

LEHANE J

5 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The applicant pay the respondent’s 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                     On 9 March 2000 I ordered that Mr Condren’s appeal, under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.  I published reasons for that order on 14 March 2000.  The nature of the proceeding and the circumstances in which it arose are sufficiently described in those reasons.

2                     The Secretary sought an order that Mr Condren pay his costs of the proceeding.  I declined, on grounds mentioned in my reasons of 14 March, to make an order for costs at the time but reserved liberty to the Secretary, should he press his application for an order that Mr Condren pay his costs, to file and serve written submissions not later than 28 April.  The Secretary has filed written submissions and the Principal Solicitor of the Intellectual Disability Rights Service Inc has filed submissions, in response, on behalf of Mr Condren.

3                     The submissions on behalf of Mr Condren sought to draw my attention to a number of factual matters in addition to those actually in evidence.  For example, copies of a psychologist’s report, a medical certificate and some bank statements were attached to the submissions, and reference was made to the circumstances in which Mr Condren decided not to appeal from my decision and, perhaps more significantly, to matters said to be relevant to an understanding of Mr Condren’s likely reaction to worrying or disturbing events.  The evidence before me at the hearing did, certainly, establish that, despite his apparent competence in initiating and conducting administrative and legal proceedings, Mr Condren has an intellectual disability; and I accept, on the basis of that evidence, that Mr Condren genuinely believed that he had a grievance and that that grievance had not been directly addressed either by the Department or at any level of administrative review; and also that Mr Condren did not appreciate the limited nature of an “appeal” under s 44 of the Administrative Appeals Tribunal Act.  I accept also, on the basis of the evidence which was before me, that Mr Condren’s financial situation may at least be described as marginal and that the imposition of an additional substantial liability might cause him real difficulty.

4                     Nevertheless, the proceeding commenced by Mr Condren in this Court lacked legal merit and it failed.  It cannot be said that the Department acted unreasonably in resisting the proceeding.  Nor, I think, does any matter in evidence before me provide a proper basis for refusing an order for costs sought by a party – whether a private litigant or a department of government – which has successfully resisted unmeritorious proceedings brought against it.  Such orders are not uncommonly made in other situations where persons have instituted legal proceedings with little understanding of the legal principles by reference to which they will be determined and without the financial means to satisfy an order for costs.  In the circumstances revealed at the hearing, I thought it appropriate that the question of costs be deferred.  In addition to doubting that Mr Condren was in a position at the hearing to deal with an application for an order for costs, I thought also that this was a case where the Secretary might wish to consider whether, on reflection, this was an appropriate case in which to seek such an order.  The Secretary has now sought an order and in my view, having regard to the principles in accordance with which the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) is exercised, is entitled to it.  The particular matters raised in Mr Condren’s submissions may well be relevant to a decision by the Secretary, or by departmental officers, as to whether such an order should be enforced.  They do not, in accordance with established principle, make it appropriate for the Court to refuse to make an order.

5                     Accordingly, the order of the Court is that the applicant pay the respondent’s costs of the proceeding.

Associate:

Dated:              5 June 2000