FEDERAL COURT OF AUSTRALIA

Paddon v Repatriation Commission (No 2) [2010] FCA 1161

REASONS FOR JUDGMENT

1                     Application has been made on behalf of the Repatriation Commission (Commission) for an order for costs.  [The application was a sequel to my dismissing Mr Paddon’s appeal in Paddon v Repatriation Commission [2010] FCA 1147.]

2                     The discretion as to costs is at large, but it must, of course, be exercised judicially.  In the ordinary course of events, a judicial exercise of discretion would tell in favour of an order that costs follow the event.

3                     The event in this case is the order ultimately made which is that the appeal be dismissed.  In the path to that event, the applicant, Mr Paddon, enjoyed a degree of forensic success.  Indeed, on the two construction issues which were argued, he succeeded in respect of both the interpretation of the word “chronic” and the word “concerns” in the relevant statements of principles.  He also succeeded in demonstrating that, in relation to the tribunal’s addressing of the word “chronic” for its finding of fact, the tribunal had failed adequately to expose its reasons.

4                     Those considerations, if costs were to be taxed on an issues basis, would suggest at the very least that some allowance ought to be made for his forensic success.  On the other hand, having initially agitated whether the tribunal had erred in law in relation to its finding as to clinical onset, Mr Paddon ultimately came to concede that there was no error in that regard.  That particular error, it might be said, necessarily carried with it, having regard to the requirement that all of the elements of a Statement of Principles be satisfied, the forensic consequence that the appeal was futile, and thus it was unnecessary to agitate the questions upon which Mr Paddon succeeded.

5                     As can be seen, then, there are factors which tell either way in relation to costs.  On balance, the view I have reached, having regard to those factors, is that there should be no order as to costs.

Associate:

Dated:         27 October 2010