Bromet v Oddie

[2002] FCA 1574

FEDERAL COURT OF AUSTRALIA

Bromet v Oddie [2002] FCA 1574

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET v GROUP CAPTAIN STEPHEN JOHN ODDIE, WING COMMANDER DIANE JENSEN, AIR MARSHAL ALLAN GRANT HOUSTON
A3 of 2002

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET v GROUP CAPTAIN I J MEYN
A16 of 2002

FINN J
18 DECEMBER 2002
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY		A3 OF 2002

BETWEEN:

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
APPLICANT

AND:

GROUP CAPTAIN STEPHEN JOHN ODDIE
FIRST RESPONDENT

WING COMMANDER DIANE JENSEN
SECOND RESPONDENT

AIR MARSHAL ALLAN GRANT HOUSTON
THIRD RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

18 DECEMBER 2002

WHERE MADE:

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY		A3 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers – Air Force RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	18 DECEMBER 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

There be no order as to costs in either application.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY		A3 OF 2002

BETWEEN:

FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
APPLICANT

AND:

GROUP CAPTAIN STEPHEN JOHN ODDIE
FIRST RESPONDENT

WING COMMANDER DIANE JENSEN
SECOND RESPONDENT

AIR MARSHAL ALLAN GRANT HOUSTON
THIRD RESPONDENT

JUDGE:	FINN J
DATE:	18 DECEMBER 2002
PLACE:	CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY			A3 OF 2002

BETWEEN:	FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET APPLICANT
AND:	GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers – Air Force RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	18 DECEMBER 2002
WHERE MADE:	CANBERRA

REASONS FOR JUDGMENT

1. In giving my decision in this matter on 16 September 2002 dismissing both applications I made no order as to costs, though I reserved the right of the respondents to make a costs application.  I did indicate at the time that, notwithstanding the ordinary practice followed in this Court of awarding costs to the successful party on a party and party basis:  see generally Re Wilcox;  Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727; I would need to be satisfied that this was a proper case in which to adhere to that practice.

2. The respondent’s subsequently applied for costs.  The essence of their submission is that notwithstanding the criticisms made by me of the decision-making processes in this case and the maladministration revealed, a reasonable offer of compromise was made on 8 August 2002 (in the form of an offer to make a fresh decision in relation to the unsuitability report) after the respondents had made plain the bases upon which the various decisions impugned in this proceeding were said to have been taken.  In consequence they claim their costs in their entirety, or else those following the offer of 8 August 2002.  They also claim separately an order for costs thrown away in consequence of the adjournment of the hearing on 18 August 2002, that adjournment being occasioned by the illness of counsel.  I should indicate immediately that I consider the latter order sought inappropriate in the circumstances.

3. The applicant opposes any costs order being made, emphasising the width of the discretion in relation to the award of costs.  Reliance is placed, in particular, upon the decision of the Full Court in Shelton v Repatriation Commission (1999) 85 FCR 587 in which, an appeal having been made to this Court in an administrative matter, the Court refused to make a costs order after noting that the proceeding, though unsuccessful, was not unreasonably begun and did clarify the law in a wider interest than that of the applicant. The applicant’s submission accentuates the treatment to which he was subjected in the decision-making process, the confusion that attended it, and the lack of an explanation given prior to the initiation of proceedings of the sources of power relied upon by the respondents. It equally is contended that the refusal of the 8 August offer was not unreasonable. It merely offered to make a fresh decision in relation to the unsuitability report decision with no proposal to pay the applicant’s costs. He was within his rights to reject the offer in those circumstances.

4. The respondents in reply have sought to distinguish Shelton’s case, principally on the grounds that it involved the construction of beneficial legislation;  it resulted in a clarification of the law in a way that had a wider public benefit;  and it was not a case in which the applicant had rejected a reasonable offer of settlement.

5. For my own part, but for the applicant’s rejection of the 8 August 2002 offer, I would without hesitation have characterised this proceeding as one in which no order as to costs should be made.  There can be no doubt the proceedings were reasonably instituted.  Against the background of decision-making that can only be described as chameleon-like in character, Flight Lieutenant Bromet was quite entitled to resort to this Court in judicial review proceedings both to challenge the regularity of the course of decision-making to which he had been subjected and to ascertain the actual bases of the decisions made.  The proceeding itself exposed not only poor administration in an area of the Royal Australian Air Force’s internal working, it also exposed real issues about the frame, scope and present suitability in aspects of the regime of Defence Instructions that ought be addressed.  And, as I indicated in my principal reasons, the proceeding exposed as well the need to review the procedures the Air Force has in place to monitor the progress of action being taken in matters such as gave rise to this proceeding.

6. In Shelton’s case the Full Court made an observation which is peculiarly opposite to the present proceeding (at 590):

   “Often, in administrative law, such an application as this … clarifies the law in a wider interest than that of the applicant.  Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review.  Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion give to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party.”

7. Notwithstanding that the applicant was unsuccessful in his challenges both to the suspension decision and to the unsuitability report decision, the case is one in which, but for any question raised by the 8 August offer, no costs order should be made.

8. The matter which concerns me is whether that offer and its rejection should alter what otherwise would be my view.  I have already noted that the respondents rely on this offer as an important factor differentiating this proceeding from that in Shelton.  And I accept the broad proposition they put that maladministration ought not allow an applicant to maintain proceedings in the face of a reasonable offer to settle without risk as to costs.

9. In the end, though, I am not satisfied that the applicant acted unreasonably in not accepting the 8 August offer even if at that stage it was motivated by the insistence on his part that the respondent’s pay his costs to that date.  I should indicate that while the evidence and the submissions reflect a direct concern with the payment of such costs, I am not in a position to find that this was the applicant’s sole reason for rejecting the offer.  Be this as it may, that offer was addressed to only one of the matters that was of concern to him.  It left the suspension decision on foot and to that extent merely narrowed the scope of the dispute.  In the circumstances, given the foundations of his challenges to both reports and the less than comprehensive scope of the offer, he was reasonably entitled to persist in his objections to both decisions made against him and, in particular, to their alleged lack of legal foundation.

10. The parties have raised other, lesser matters which they contend bear on how my discretion should be exercised.  I have had regard to them.  But I remained satisfied that the proper exercise of discretion in this matter is as I have foreshadowed.  I would add that I consider there is likely to be a public benefit from this proceeding having been prosecuted to its end even if an immediate beneficiary of it will not be the applicant. 

11. I will make no order as to costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             18 December 2002

Counsel for the Applicant:	Mr C Erskine
Solicitor for the Applicant:	Meyer Clapham
Counsel for the Respondent:	Mr T Howe
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 September 2002
Date of Judgment:	18 December 2002