Coffey v Secretary, Department of Social Security

[2000] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 1999

B e t w e e n -

PETER MICHAEL COFFEY

Applicant

and

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 MARCH 2000, AT 1.57 PM

Copyright in the High Court of Australia

KIRBY J:   You are Mr Peter Coffey, and you appear for yourself in this application?

MR P.M. COFFEY:   That is correct, your Honour.

MR S.J. MAHARAJ:   If it please the Court, I appear for the respondent in this matter. (instructed by the Australian Government Solicitor)

KIRBY J:   Do you have the picture over there, you can see us here clearly?

MR COFFEY:   Yes, I can, your Honour.

KIRBY J:   And you understand that you have 20 minutes to advance oral argument.

MR COFFEY:   I understand that.

KIRBY J:   Yes, thank you very much.  We have read the written submissions, so you do not have to go over all of those again, but you now have 20 minutes to advance whatever you want to tell us.

MR COFFEY:   Yes, well I wish to rely on my written submissions at this stage, your Honour.

KIRBY J:   Is there anything that you wish to add to the written submissions, that are not adequately set out there?

MR COFFEY:   No, I think it is quite adequate, what I have written out, your Honour.

KIRBY J:   Yes, very well.  We will call on Ms Maharaj to address us, and then you can answer whatever she says.

MR COFFEY:   Thank you.

MS MAHARAJ:   Your Honours, we do not propose to add to the written submissions which we have filed already, unless the Court has any questions.

KIRBY J:   Yes, very well; you do not wish to say anything in elaboration of the written submissions?

MS MAHARAJ:   No, your Honour.

KIRBY J:   Thank you.  Well, Mr Coffey, we do not have any oral submissions from either party; are you content that the matter be dealt with on that basis or do you wish to add something now by way of oral persuasion in support of your application?

MR COFFEY:   No, I am quite happy to let it be decided on the written submissions.

KIRBY J:   I am trying to see here, Mr Coffey, whether you have any arguments that you have advanced as to why, in the event that the Court were to dismiss the application, you should not pay the costs.  Ordinarily the costs are ordered to follow the outcome of the case.  If the Court were minded to dismiss the application, is there any reason why you should not be ordered to pay the costs?

MR COFFEY:   Just the practicality of the situation.  I probably would be up for over $30,000 worth of costs and I am not in any sort of position to pay that and it would probably end up in my bankruptcy and they probably would not get any costs anyhow.

KIRBY J:   I understand that, and that is quite often the case, but there is a difference between whether the Court, exercising its functions, should not order the payment of the costs, even though, ultimately, the costs cannot in practicality be recovered, and then it is left up to the other party to decide whether it is worth their trouble and effort to try to recover the costs.

MR COFFEY:   Yes, I understand that, your Honour.

KIRBY J:   I appreciated your situation and that is why I was looking for whether you had dealt with this in your submissions, but you do not appear to have done that.

MR COFFEY:   No, that is the only point I would wish to make in regard to that, your Honour.

KIRBY J:   Yes, very well.  Thank you very much.

In this application for special leave to appeal the Court has had the benefit of the written submissions of both parties.  The Court has considered those written submissions and it has considered the judgment of the Full Court of the Federal Court of Australia.  It is the opinion of this Court that the decision of the Full Court of the Federal Court of Australia is not attended with sufficient doubt to warrant the grant of special leave.  Accordingly, special leave is refused.

The question arises as to whether costs should be ordered.  The applicant indicated that, having regard to his personal situation, there would be real difficulties in the recovery of costs from him.  However, there is no reason why the ordinary order should not be made.  It will then be left to the respondent to decide, having regard to its size and the position of the applicant, whether it will seek to enforce the order for costs.  However, the formal order of this Court is special leave refused.  The applicant to pay the respondent’s costs.

The final application is by video link to Darwin.  The Court will now adjourn in order to allow that video link to be established.

AT 2.03 PM THE MATTER WAS CONCLUDED