FEDERAL COURT OF AUSTRALIA

Norton v Comcare [2000] FCA 1446

JAMES LESLIE NORTON v COMCARE

QG 182 OF 1998

DRUMMOND J

13 OCTOBER 2000

BRISBANE

THE COURT ORDERS THAT:

1.                  The respondent pay the applicant’s costs to be taxed of the appeal to the Federal Court of Australia, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 4 August 2000 I allowed the applicant’s appeal from a decision of the Administrative Appeals Tribunal dismissing his claim and affirming the decision of a reconsideration’s delegate of the respondent which had affirmed a decision of a delegate of the respondent of January 1995 that deemed the applicant able to earn full income in suitable employment.  I also ordered that the matter be remitted to the Tribunal, differently constituted, for redetermination, with liberty to receive further evidence.

2                     Although I did not then deal either with the costs of the appeal or the costs of the proceedings in the Tribunal, the applicant now seeks all those costs.  Brief written submissions have been delivered by each party.

3                     The respondent assumes, wrongly, that when I allowed the appeal I ordered that it pay the applicant’s costs of the appeal.  The applicant now asks for those costs.  There will be an order that the respondent pay the applicant’s costs to be taxed of the appeal to this Court, including reserved costs.

4                     The applicant also asks for an order that the respondent pay the applicant’s costs of the proceeding in the Tribunal which culminated in the dismissal of the applicant’s challenge to the decision of the respondent’s reconsiderations’ delegate.  The general rule contained in s 67(1) the Safety, Rehabilitation and Compensation Act 1988 (Cth) is that the costs incurred by a party to proceedings of the kind here in question instituted in the Tribunal shall be borne by that party.  This is qualified in a number of respects including by s 67(8), which provides:

“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 the responsible authority.”

5                     It is s 67(8) upon which the applicant relies.  Neither this provision nor s 44(4) the Administrative Appeals Tribunal Act 1975 (Cth), upon which the applicant also relies, gives this Court any power to make the costs order sought by the applicant.  The Tribunal has never made a decision varying the decision of the respondent’s reconsiderations’ delegate in a manner favourable to the applicant so as to enliven in the Tribunal the power with respect to costs conferred on it by s 67(8) the Safety, Rehabilitation and Compensation Act.  The orders I made allowing the applicant’s appeal from the Tribunal’s decision and remitting the matter for redetermination by the Tribunal do not, on any view, put the applicant in the position he would be in if the Tribunal had made a decision of the kind referred to in s 67(8).  The applicant will never have such a decision from the Tribunal if, on redetermination, his claim ultimately fails.

6                     Section 67(1), read in the context of the entire section, stands in the way of reading s 44(4) the Administrative Appeals Tribunal Act as empowering this Court to give the applicant his costs of the hearing before the Tribunal:  though the proceeding in this Court is instituted by way of appeal under s 44(1) the Administrative Appeals Tribunal Act, what the applicant seeks in relation to the hearing that took place in the Tribunal is an order from this Court for the costs he incurred as a party to “proceedings instituted under this Part”, ie, Part VI the Safety, Rehabilitation and Compensation Act.

7                     However, the proceedings initiated by the applicant, which were initially dismissed by the Tribunal, remain on foot in view of the orders made by me on the appeal.  If, on redetermination, the Tribunal finds in favour of the applicant and makes an order within s 67(8)(a) or (b) the Safety, Rehabilitation and Compensation Act, then the discretion conferred by that provision on the Tribunal will be enlivened and it will then be for the Tribunal to decide whether to order “that the costs of those proceedings” - ie, the proceedings originally commenced by the applicant - “incurred by the claimant, or a part of those costs, shall be paid by” the respondent.  In that event, it will be for the Tribunal to decide whether the applicant should recover the whole of his costs of the entire proceedings in the Tribunal or whether he should only have his costs of the rehearing or some other part of his costs of the entire proceedings in the Tribunal.

Associate:

Dated:              13 October 2000