FEDERAL COURT OF AUSTRALIA

Roncevich v Repatriation Commission [2003] FCA 1241

JURE JACK RONCEVICH v REPATRIATION COMMISSION

D 12 OF 2002

MANSFIELD J

28 OCTOBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The applicant pay to the respondent costs of the application finalised by judgment given on 2 December 2002.

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

REASONS FOR JUDGMENT

1                     This application was heard on 21 October 2002.  Judgment was given on 2 December 2002.  At the time judgment was given there was no appearance by the respondent.  It now appears that the explanation for its non-appearance was that it had been notified that judgment was to be given at 10 am on 2 December 2002 when judgment was in fact given at 9 am on 2 December 2002.  That may have been the consequence of the Northern Territory not having daylight saving, and the notification having been given from Adelaide as to the proposed judgment time.  Whatever the explanation, it is plain that the respondent did not attend when judgment was delivered, in circumstances which are entirely understandable.

2                     It is my practice, where possible, not to make an order for costs as part of a published judgment without giving the parties the opportunity to make submissions as to costs.  The respondent had foreshadowed an application for costs of the application, if it were to be dismissed (as it was) in its written submission of 17 October 2002.  Because the respondent did not attend when judgment was delivered, that application was not pursued.  No order for costs was made.  That was not the consequence of a judicial determination that there should be no order for costs but simply because, following my normal procedure, I intended to deal with costs when the judgment was delivered.  It now transpires, as counsel for the applicant has indicated, that there were matters which the applicant would have put on the issue of costs, had costs been debated when judgment was delivered.

3                     In those circumstances I do not regard myself as having dealt with the issue of costs of the application in any formal sense and I feel free to entertain the present motion for an order that the applicant pay to the respondent the costs of the application following its having been dismissed.  Counsel for the applicant opposes the motion in effect for two reasons:  the first is that the Court, even if an application for costs had been made when judgment was delivered, or later in that day, would not have made the order for costs; the second is that, given the elapse of time between the judgment on 2 December 2002 and the present time, the Court should not now make an order for costs because it may involve prejudice to the applicant.

4                     As to the first issue, it was argued that the costs of the application should not be made in any event because the application itself was not frivolous.  I accept that.  The fact that an application by way of appeal from a decision of the Administrative Appeals Tribunal is not frivolous is, however, commonplace.  I do not consider of itself that it is a reason why the normal rule as to costs should not apply in a matter such as the present.  It was further put that the application raised issues which are of significant public interest, namely as to the point at which what was described as ‘defence service’ begins and ends. 

5                     I accept that there are many service personnel who are interested in that issue.  In that sense the application did involve a matter which may have been of interest beyond that of the parties.  However, the case involved particular facts and particular findings of the Tribunal.  Although there may have been an element of public interest in the sense I have described, I do not think in the circumstances that that is a sufficient reason to not make an order for costs on the usual grounds.  It is not a case which, at any time, was identified or appropriately described as a test case, as to the meaning of legislation.  As the reasons for judgment indicate, what constitutes ‘defence service’ will depend upon the particular facts of each case.

6                     Either taken alone or taken together, I do not think those reasons would be sufficient in the normal course to decline to make an order that the costs of the respondent of the application should be paid by the applicant, because that would be the normal order of costs following the event. 

7                     I turn to consider the issue of delay.  An appeal was brought from the judgment.  The appeal was unsuccessful, albeit by a majority of the members of the Full Court:  Roncevich v Repatriation Commission [2003] FCAFC 146.  When the appeal was dismissed costs of the appeal were ordered against the applicant, then the appellant.  The applicant, then the appellant, has now sought special leave to appeal to the High Court from the decision of the Full Court.  That application has not yet been determined.  The applicant therefore asserts that he was under the belief at material times in deciding whether to appeal to the Full Court, and whether to seek special leave to appeal to the High Court, that he would not be liable for costs of this application.  He claims that he was entitled to expect that he would not be exposed to the risks of a costs order on this application because the respondent did not seek costs.  Notwithstanding the appeal to the Full Court or the application for special leave to appeal to the High Court, I accept that he had that view. 

8                     The applicant does not take the additional step of saying that he would, in fact, not have pursued an appeal to the Full Court had an order for costs been made against him in the first instance on this application. Nor does he say that he would not have sought special leave to appeal from the decision of the Full Court, which decision itself made a costs order against him, if he had an order for costs against him of this application.

9                     Accordingly, whilst I accept that he was under the belief - and the understandable belief, given the elapse of time - that the respondent would not seek costs against him of this application, I do not think that the prejudice which he asserts goes so far as to demonstrate that by reason of his belief he has acted in a way different from that which he would have acted had the order for costs been made when judgment was delivered, or soon thereafter. 

10                  In considering the question of prejudice and balancing the applicant's position against that of the respondent, in the interests of justice, I have also had regard to the fact that the applicant has not deposed to his financial circumstance.  I do not assume that he is a man of unlimited assets but, on the other hand, I do not assume that his assets are such that had an order for costs been made against him on 2 December 2002, he would not have proceeded with his appeal or with his application for special leave to appeal to the High Court. 

11                  I bear in mind his counsel's submission that the matter had an element of public interest because it raised an issue as to what might constitute ‘defence service’ in circumstances such as the present.  There is nothing to indicate that the applicant, given that element of public interest, is or is not supported by some organisation which on behalf of service personnel generally shares that interest.  I do not infer that there was such support, but there is no direct evidence to controvert it. 

12                  Finally, I note that the decision of the Full Court was to dismiss the appeal from the decision of 2 December 2002 and to make an order for costs against the applicant, the appellant in that proceeding.  Notwithstanding that order for costs he has sought special leave to appeal to the High Court.  In those circumstances, whilst I accept that his belief was as he asserts, and that it may have played a part in this decision to appeal to the Full Court, I am not persuaded that it played much of a part at all, or that if an order for costs had been made on 2 December 2002, or shortly thereafter, the course of the matter by way of appeal or application for leave to appeal to the High Court would have been any different.

13                  On the other hand, the interests of justice in favour of the respondent are that it was a successful party on this application and, in the normal course, would be entitled, for the reasons I have given, to the costs of the application.  I do not think its delay, given the explanation for the delay which is contained in the affidavit of Mr Brohier - sworn on 17 September 2003, in support of the present motion - is such as to disentitle it to the costs to which it would otherwise have been entitled.

14                  I therefore make an order on the motion that the applicant Jure Jack Roncevich pay costs of the application dealt with by judgment on 2 December 2002, when the application was dismissed, to the respondent the Repatriation Commission.

Associate:

Dated:              4 November 2003