FEDERAL COURT OF AUSTRALIA

Tisdall v Webber (No 2) [2010] FCA 650

THE COURT ORDERS THAT:

1.         The applicant pay the respondents’ costs of the application herein, such costs to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 26 May 2010, I delivered the substantive judgment in these proceedings: Tisdall v Webber [2010] FCA 501.  Having ordered, on that date, that the amended application be dismissed, I indicated that I would hear each party on the question of costs, and provided a timetable for the filing and exchange of submissions on the question.  Each party has made submissions as to the costs order which that party contends should be made, and it is to that issue that these reasons are directed.

2                     It is contended on behalf of the applicant, Dr Tisdall, that there are special circumstances in the case which justify a departure from the ordinary rule as to costs, i.e. that costs should follow the event.  The basis for that contention is not easy to discern from the applicant’s written outline, which is in the following terms:

As outlined during submissions, this is an unusual case in that the conduct of the applicant under review occurred in the year 2000.  It is undesirable and unfortunate that judgments which entail punitive consequences should be made in respect of the conduct of a person, by a court of law, a decade after that conduct occurred.  It is true that for much of the delay neither party is to blame.  However, after the orders of Gray J were set aside by consent, and the matter remitted, in January 2006 to the second Committee to make a determination, there has been unconscionable delay.

The present Committee, having received the Adjudicative Referral in early 2006, produced a draft report on the 16^th June 2008 and a final report on the 9^th July 2009, more than three years after the matter of the applicant’s conduct in 2000 had been referred to them.

It is submitted that it is clear legislative policy that the functions of a Professional Services Review Committee be carried out expeditiously.  By s 106G(2) of the Act, the legislature stated that it is the duty of a Committee to carry out its functions so that its final report is given to the Determining Authority within six months after the day on which the Adjudicative Referral is received.  Sub-paragraph (b) of that section provides for extensions of time, upon the request of the Chairperson of the Committee, for further periods not exceeding one month.  In the present case, there is no evidence of any applications for extension; and the number of extensions required to accommodate a period of over three years necessarily entails conduct which is egregiously inconsistent with the legislative purpose and intention at the relevant time.

Secondly, in [13] of the reasons of the court… His Honour referred to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and the passage at 271-2.  The observations of the court there referred to by his Honour was relied upon in making determinations that “infelicities of expression” or “less than ideal structure” in formulating the Second Committee’s final report, or “any other formal defect” did not amount to errors of law justifying the setting aside of the determinations of the second Committee.  In a sense, however, those matters should be seen for what they are so as to become relevant, in combination with other matters, in determining a proper outcome as to costs.

In conclusion, the applicant respectfully submits that no order as to costs should be made in this application.

3                     Taken at its highest, the submission appears to me to be two-fold: first, the Committee did not complete its adjudicative process as expeditiously as the applicant believes it should have.  That degree of delay is said to have been contrary to the policy evinced by the Health Insurance Act 1973 (Cth) (“the Act”).  Secondly, the use by the Second Committee, in its final report, of what I said might have been characterised as “infelicities of expression”, or “less than ideal structure” was said to be relevant, in combination with “other matters”, presumably the delay in finalising the adjudicative process, to according Dr Tisdall a favourable exercise of the Court’s discretion as to costs.

4                     In the first place, as I outlined at [5]-[8] of the substantive judgment, any perceived delay in the adjudicative process which took place in relation to Dr Tisdall’s practice is explicable, in part, by the pace at which the preliminary investigation proceeded, the deliberations of the Committee, and various steps which had to be taken when application for judicial review was made to this Court.  I do not accept the submission, which was made faintly at the substantive hearing and which is, in essence, repeated now, that any perceived delay in the adjudicative process has affected the legality of the actions which the Second Committee took, or that those actions have been contrary to what may be discerned of the legislative policy underlying the Act.  In any event, delay in the adjudicative process undertaken by either Committee is not a matter which bears upon the exercise of the Court’s discretion as to the costs of an application which Dr Tisdall elected to make to this Court for review of the Second Committee’s decision.

5                     Similarly, I do not consider the mode of expression or structure adopted by the Second Committee in formulating the reasons for its decisions to be relevant to the exercise of discretion as to the costs of judicial review.  My observations on the formal aspects of the Second Committee’s reasons were expressed as follows, at [14] of the substantive judgment:

Any error upon which this Court may fix in granting relief of the type sought in Dr Tisdall’s amended application will therefore not be constituted by a mere infelicity of expression, or less than ideal structure in formulating the Second Committee’s final report, or upon any other formal defect, however perceived, in what, it is to be remembered, is the result of the deliberations of a committee the members of which are medical, not legal, practitioners.

That passage makes it clear that any arguable shortcomings in the way in which the Second Committee’s reasons were expressed or structured did not expose, or conceal, an error of law of the kind for which the applicant contended in his application for judicial review.  It follows that those matters of form are not available to be relied upon by the applicant in seeking a favourable exercise of discretion in relation to the costs of the application for judicial review.

6                     On behalf of the Minister, it was pointed out that Courts have recognised a number of factors going to the existence or otherwise of special circumstances sufficient to warrant departure from the usual rule as to costs.  These include, it was said, that the litigation has been brought in the public interest, rather than for the personal gain of the plaintiff (see Physical Disability Council of New South Wales v Sydney City Council [1999] FCA 815), or that the proceedings raised novel or important questions of law, or matters over which there was divided judicial opinion (on which I was referred to Ruddock v Vardarlis (No 2) (2001) 115 FCR 229;  see now, as well, Culley v Australian Securities and Investments Commission [2010] FCAFC 43).  This was not, it was said, a case falling into either of those categories, or, indeed, into any of the other categories of case in which a departure from the usual rule has been regarded as at least arguably justified.

7                     I take a similar view in the present case.  Although Dr Tisdall’s application was reasonably instituted and conducted, as appears from the reasons published on 26 May 2010, he failed in each of his challenges to the Second Committee’s findings.  His case did not concern, let alone decide, any point of general legal interest or travel beyond its own factual circumstances.  Indeed, I regard the result as having flowed naturally and predictably from Oreb v Willcock (2005) 146 FCR 237, to which I referred extensively in the substantive judgment.  Neither of the arguments advanced in the applicant’s written submissions disputes that view, and, as already indicated, I do not regard them as bearing on the present question of costs.

8                     I therefore consider it to be an appropriate exercise of the discretion reposed in me by s 43 of the Federal Court of Australia Act 1976 (Cth) to order that the applicant pay the respondents’ costs of the application herein, such costs to be taxed in default of agreement.

Associate:

Dated:         25 June 2010