FEDERAL COURT OF AUSTRALIA

Sharley v Repatriation Commission (No 2) [2013] FCA 1232

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs incurred in connection with so much of the appeal from the Administrative Appeals Tribunal as related to the applicant’s claims under the Veterans’ Entitlements Act 1986 (Cth) in connection with alleged post traumatic stress disorder and generalised anxiety disorder.

2.    The proportion of the respondent’s costs of the hearing in this court on 3 September 2013 which are allowable under Order 1 above be fixed at 50%.

3.    Otherwise there be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 14 October 2013, I gave judgment in this proceeding: Sharley v Repatriation Commission [2013] FCA 1031. I have subsequently received written submissions on the question of costs, and it is that question with which the reasons below deal.

2    The applicant claims his costs, because of what he describes as his success generally in the proceeding. The Repatriation Commission (“the Commission”) seeks that the applicant pay 75% of its costs, because it succeeded on three of the four “questions” specified in the applicant’s appeal from the Administrative Appeals Tribunal (“the Tribunal”).

3    In my view, this is a suitable case for the taking of an issues-based approach to the awarding of costs. Although both the Tribunal and the court conducted a single hearing in this matter, the case fell naturally into two compartments, namely, one concerned with the applicant’s psychiatric condition and the other concerned with his osteoarthritis of the knees. With respect to the former, the applicant’s challenge to the Tribunal’s decision failed, and there is no reason why the Commission should not have its costs to that extent.

4    With respect to the osteoarthritis aspect of the case, the basis upon which the applicant succeeded in court corresponded neither with his Second Further Amended Notice of Appeal nor with submissions which were made on his behalf. The Court’s decision was based upon a concession made on behalf of the Commission, one which had been foreshadowed in its outline filed on 30 April 2013, some five months before the hearing of the appeal. Notwithstanding that circumstance, the applicant’s case was conducted conformably with his Notice of Appeal and with his written outline. In the circumstances, I do not think it would represent a just outcome for the applicant now to have the benefit of a costs award in relation to this aspect of his case.

5    In awarding the Commission its costs with respect to the first aspect of the case mentioned above, I would, to assist the taxing officer, fix the relevant proportion of the costs of the hearing on 3 September 2013 at 50%.

Associate:

Dated:    22 November 2013