FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Cornelius [2002] FCA 930

PRACTICE & PROCEDURE – costs – application for a costs certificate – whether war veterans entitled to costs certificate due to their “special contribution” – whether costs certificate an alternative to legal aid – relevant consideration

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 12

Veterans’ Entitlements Act 1986 (Cth)

IN THE MATTER OF AN APPLICATION FOR A COST CERTIFICATE UNDER S 6 OF THE FEDERAL PROCEEDINGS (COSTS) ACT 1981 (CTH)

REPATRIATION COMMISSION v TIMOTHY CORNELIUS

N 1555 OF 2001

BRANSON J

26 JULY 2002

SYDNEY

REASONS FOR DECISION

1                     The respondent has applied to the Court for a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).  Section 6 of the Act relevantly provides:

“(1)     Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

(2)               …

(3)               The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:

(a)               the costs incurred by the respondent in relation to the appeal; and

(b)               … .”

2                     Section 12 of the Act provides that the jurisdiction conferred on a court by the Act may be exercised by a member of the court sitting in chambers (see also Federal Court Practice Note No 6).

3                     The substantive proceeding to which this application relates was an “appeal” from a decision of the Administrative Appeals Tribunal which determined that the respondent’s condition of carpal tunnel syndrome was war‑caused.  My reasons for judgment in the substantive proceeding are published as Repatriation Commission v Cornelius [2002] FCA 750.

4                     In the substantive proceeding I ordered that the appeal be allowed, the decision of the Administrative Appeals Tribunal set aside and the decision of the applicant affirmed.  I concluded that although the exact process of reasoning adopted by the Tribunal was not made clear by its reasons for decision, it seemed likely that it did not follow the correct approach.  I further concluded that it was not open to the Tribunal on the material before it to reach the conclusion that it did.

5                     I am satisfied that the substantive proceeding was a “Federal appeal” within the meaning of the Act and that the appeal succeeded on a question of law.  The Court thus has a discretion to grant to the respondent the costs certificate that he seeks.

6                     In deciding whether to exercise the power to grant the costs certificate sought I proceed on the basis that there is no presumption in favour of granting the certificate sought and no presumption in favour of refusing to grant it.  The issue, having regard to the terms of the certificate that may be granted, is whether I am of the opinion that it would be appropriate for the Attorney‑General to authorise a payment under the Act to the respondent of his costs of the “appeal” to the Court.

7                     In support of the application, the respondent’s solicitor has sworn an affidavit which includes the following paragraphs:

“4.       Before the Tribunal, the respondent was refused legal aid because: ‘On the information available the application does not satisfy the merit test’.  The respondent appealed to the Legal Aid Review Committee and it resolved: ‘That the appeal be disallowed, as it is not satisfied, upon the material submitted in support of the appeal, that there are reasonable prospects of success in the subject proceedings’.

5.         The Tribunal on 26 October 2001 decided the appeal in favour of the respondent and subsequently the Repatriation Commission instructed the Australian Government Solicitor to institute an appeal to the Federal Court of Australia.

6.         The respondent has paid solicitor/client costs in the sum of $1,381.60 in respect of the Tribunal’s proceedings but I am informed by the respondent and verily believe that he would experience financial hardship if he had to pay the additional solicitor/client costs of the Federal Court proceedings.”

8                     When asked by letter for his comments on the proposition that it appeared that Mr Cornelius had been placed on notice that his proceeding before the Administrative Appeals Tribunal was of doubtful merit and was presumably advised of the danger that, were it to succeed, it would lead to the institution of an “appeal” in this Court, Mr Cornelius’ solicitor responded:

“The first point is that Mr Cornelius was not placed clearly on notice that his proceedings before the Administrative Appeals Tribunal was of doubtful merit.  The bureaucracy are regarded as oppressive and inflexible.  The Legal Aid Review Committee was not satisfied that there were reasonable prospects of success but Mr Cornelius decided otherwise, and won the AAT appeal with no order as to costs made against the Repatriation Commission (there is simply no power to award costs).

The second point is that Australian taxpayers provide legal assistance in war veteran’s matters ‘to acknowledge the special contribution made by war veterans to protecting Australian society in time of war’ (Guideline 5 of the Commonwealth guidelines).  Legal aid is a benefit funded by Australian taxpayers.  Legal Aid New South Wales has an agreement with the Commonwealth of Australia to determine grants of legal assistance in accordance with the Commonwealth guidelines … .

The third point is that Mr Cornelius could have been funded by Legal Aid New South Wales for the appeal to the Federal Court.  On fresh Application there [sic] reservation was simply that the information provided did not address the issue whether there was strong prospects that my client would gain a substantial benefit … .  Their letter was dated 30 April 2002 after the hearing took place in the Federal Court.  Whether Legal Aid New South Wales or the Repatriation Commission funded Mr Cornelius in the AAT matter or the Federal Court matter, it is the Australian taxpayer meeting the legal costs.  It is all Commonwealth money.  It makes no difference which government department pays the legal costs.  It could be argued that Mr Cornelius won his AAT appeal and should have been funded by Legal Aid New South Wales (obviously there was merit).  Instead it cost him $1,381.60 and his legal advisors are now forced to go begging to the Federal Court because Mr Cornelius cannot pay more.

What would have happened if Mr Cornelius did not appear in the appeal to the Federal Court?  Did the appearance of Mr Colbourne assist the Court?  Well, Legal Aid New South Wales have not assisted Mr Cornelius or his legal advisors.  Perhaps Her Honour will?”

9                     The above response may be understood to argue that it will be appropriate in every case in which a war veteran is a respondent to a Federal appeal which succeeds on a question of law for a certificate under s 6 of the Act to be granted.  If it is properly so understood I reject the argument.  I am unable to discern any such legislative intent in the Act.  Section 6 of the Act, in my view, requires that each application for a certificate, including each application made on behalf of a war veteran, be considered individually and on its merits.

10                  This is not to discount the significance of “the special contribution made by war veterans to protecting Australian society in time of war”.   Parliament has given recognition to this special contribution in the Veterans’ Entitlements Act 1986 (Cth) by, amongst other things, providing for a relatively low standard of proof to be applied in the determination of whether a veteran’s death, injury or disease is war‑caused.  The Executive Government has given recognition to the special contribution in the formulation of the Commonwealth guidelines for the administration of legal aid.  It seems to me that the status of a respondent as a war veteran is a factor which may be taken into account in the exercise of the discretion to grant a certificate under s 6 of the Act.  However, I am not persuaded that it is a factor which either compels, or necessarily suggests strongly in favour of, the grant of a certificate.  As indicated above, each application must be considered on its merits.

11                  Nor do I consider that the Act discloses an intention that costs certificates should be granted, in effect, as an alternative to legal aid on the basis that “[i]t makes no difference which government department pays the legal costs” (see [8] above).  The restricted circumstances in which costs certificates may be granted indicates that the Act is not intended to provide, in effect, an alternative source of legal aid but is intended to advance a more specific public interest.  That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful “appeal” on a question of law or as to the amount of damage awarded at first instance.

12                  This was not a case in which the “appeal” to the Court succeeded on a new or novel point of law or as a result of the clarification of principles earlier left unclear.  The appeal succeeded as a result of the application of well-established legal principles to the facts of the respondent’s case.  The conclusion of the Legal Aid Review Committee that it could not be

13                  satisfied that the respondent’s application to the Administrative Appeals Tribunal was attended by reasonable prospects of success was entirely understandable.  It was, in my view, somewhat cavalier for the respondent, or perhaps his advisors, to brush the committee’s conclusion aside on the basis that:

“[t]he bureaucracy are regarded as oppressive and inflexible.”

14                  Although the relevance of the question raised by the respondent’s solicitor of what would have happened if the respondent had not appeared before the Court is unclear, it is readily answered.  If the respondent had failed to appear before the Court on the directions hearing the Court could have made an appropriate direction such as a direction that the matter be listed for hearing on a date of which the respondent was to be given appropriate notice (see O 10 r 3(3) of the Federal Court Rules).  If when the matter was called on for hearing the respondent was again absent, the Court could have directed that the hearing proceed in the absence of the respondent (O 32 r 2(1)(d) of the Federal Court Rules).  However, it was, of course, always open to the respondent to consent to the applicant being granted the relief which it sought by the application to the Court.  The suggested dichotomy of choice between opposing the applicant’s claims and failing to appear before the Court is a false dichotomy.  It is also not to be overlooked that it was the respondent who initiated the proceeding before the Administrative Appeals Tribunal being, as it seems, dissatisfied with the determination of the Repatriation Commission.

15                  Having given careful consideration to the evidence upon which the respondent relies and the submissions made on his behalf by his solicitor, I have not formed the opinion that it would be appropriate for the Attorney‑General to authorise a payment under the Act to the respondent in respect of his costs in this matter.  The application for the grant of a costs certificate under s 6(1) of the Act therefore fails.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Branson.

Associate:

Dated:              26 July 2002