Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd (No 2)

[2016] FCAFC 165

FEDERAL COURT OF AUSTRALIA

Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd (No 2) [2016] FCAFC 165

Appeal from:	Aboriginal Community Benefit Fund Pty Ltd v Chief Executive Centrelink [2016] FCA 769
File number:	QUD 533 of 2016
Judges:	PERRAM, GRIFFITHS AND MORTIMER JJ
Date of judgment:	2 December 2016
Catchwords:	COSTS – costs where case pursued on appeal not substantively pursued at trial
Date of hearing:	22 September 2016
Date of last submissions:	25 November 2016
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	2
Counsel for the Appellant:	Mr T Howe QC with Mr G Del Villar
Solicitor for the Appellant:	Allens
Counsel for the Respondents:	Mr S Doyle QC with Mr M Black
Solicitor for the Respondents:	Small Myers Hughes

ORDERS

QUD 533 of 2016

BETWEEN:

CHIEF EXECUTIVE CENTRELINK

Appellant

AND:

THE ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD

First Respondent

ACBF FUNERAL PLANS PTY LTD

Second Respondent

ACBF FUNERAL PLANS AUSTRALIA PTY LTD
Third Respondent

JUDGES:	PERRAM, GRIFFITHS AND MORTIMER JJ
DATE OF ORDER:	2 DECEMBER 2016

THE COURT ORDERS THAT:

1.Set aside orders 1 - 4 made in the Court below on 30 June 2016 and in lieu thereof order that:

1.The Application be dismissed.

2.The Applicants pay the Respondent's costs of the trial as taxed or agreed.

2.Each party bear their own costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1. In Chief Executive Centrelink v The Aboriginal Community Benefit Fund Pty Ltd [2016] FCAFC 153, we allowed the appeal but called for further submissions on the issue of the costs of the trial and the costs of the appeal. The case pursued on appeal was not substantively pursued at trial. Had it been pursued at trial, the appeal would have been unnecessary. The appellant has succeeded, but it would be unfair if the respondent were to bear the full expense of the process of forensic maturation under which the appellant’s case successfully went. On the other hand, had the correct argument been raised substantively at trial, the respondent would have suffered an adverse costs order. In those circumstances, the appropriate orders are that the respondent should bear the costs of the trial (which would have been borne if the correct argument had been advanced by the appellant at trial), but there should be no costs of the appeal (which would not have been necessary on the same hypothesis). It is true that an argument is available on that basis that the appellant should pay the costs of the appeal, but the fact is that the appellant won the appeal, which deserves to be recognised.

2. This Court made orders on 11 November 2016 allowing the appeal but going no further.  The following additional orders should now be made:

   1.Set aside orders 1 - 4 made in the Court below on 30 June 2016 and in lieu thereof order that:

   1.The Application be dismissed.

   2.The Applicants pay the Respondent’s costs of the trial as taxed or agreed.

   2.Each party bear their own costs of the appeal.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Griffiths and Mortimer.

Associate: 

Dated:        2 December 2016