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Comcare v Labathas

Comcare v Labathas

Case [1995] FCA 996 30 November 1995

Administrative Appeals

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CATCHWORDS

ADMINISTRATIVE LAW - Administrative Appeals - appeals from an AAT decision - concurrent AAT Act and ADJR Act applications - whether appeal against the assessment of costs competent.

ADMINISTRATIVE LAW - Administrative Appeals - AAT - power to award costs conferred by the Safety Rehabilitation and Compensation Act - ambit of the power - cannot be enlarged by Practice Direction.

COSTS - Jurisdiction - "costs of proceedings" and "costs of and incidental to proceedings" distinguished.

COSTS - AAT appeal - costs not available for original decision or for internal review - costs awarded for external review - meaning of "proceedings" - relevance of stage at which costs incurred - relevance of costs incurred before an appeal is filed - when preliminary expenses are costs of proceedings.

Administrative Appeals Tribunal Act 1975, s44

Administrative Decisions (Judicial Review) Act 1977

Safety Rehabilitation and Compensation Act 1988, s67(8)

Birmingham Citizens Permanent Building Society v Caunt [1962] 1 Ch 883, applied

Federal Commissioner of Land Tax v Jowett (1930) 45 CLR 115, distinguished

In re Gibson's Settlement, Mellors v Gibson [1981] 1 Ch 179, applied

Higgins v Nicol (No 2) (1972) 21 FLR 34, considered

McIntyre v Perkes (1987) 15 NSWLR 417, applied

Wright v Bennett [1948] 1 KB 601, considered

FINN J
CANBERRA
30 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G35 of 1994

DISTRICT REGISTRY )
)
GENERAL DIVISION )

BETWEEN: COMCARE

Applicant
AND:CON LABATHAS

Respondent

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )

DISTRICT REGISTRY ) No. ACT G36 of 1994
)
GENERAL DIVISION )

BETWEEN: COMCARE

Applicant
AND:B J McMAHON in his capacity as Deputy President of the Administrative Appeals Tribunal

First Respondent

CON LABATHAS

Second Respondent

COURT: FINN J.

PLACE: CANBERRA

DATE: 30 NOVEMBER 1995

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The application, numbered ACT G35 of 1994, is dismissed.

The decision of the first respondent in application number ACT G36 of 1994:

(i)be set aside; and

(ii)the question of the amount of costs required to be paid by the applicant to the second respondent be referred to the first respondent for consideration according to law.

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     )
  )    No. ACT G35 of 1994

DISTRICT REGISTRY )
)
GENERAL DIVISION )

BETWEEN: COMCARE

Applicant
AND:CON LABATHAS

Respondent

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )

DISTRICT REGISTRY ) No. ACT G36 of 1994
)
GENERAL DIVISION )

BETWEEN: COMCARE

Applicant
AND:B J McMAHON in his capacity as Deputy President of the Administrative Appeals Tribunal

First Respondent

CON LABATHAS

Second Respondent

COURT: FINN J.

PLACE: CANBERRA

DATE: 30 NOVEMBER 1995

REASONS FOR JUDGMENT

These two proceedings relate to the same subject matter and, for practical purposes, raise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Comcare v Labathas

Details

AGLC: Comcare v Labathas [1995] FCA 996
Case: [1995] FCA 996
Decision Date: 30 NOVEMBER 1995

CaseChat Overview and Summary

The two proceedings before the court involved Comcare appealing a decision of the Administrative Appeals Tribunal (Tribunal) that awarded costs to Con Labathas, and a separate application for judicial review of the same decision. The central issue was the interpretation of the Safety Rehabilitation and Compensation Act 1988, s67(8), which allows the Tribunal to order that costs incurred by a claimant in proceedings be paid by the respondent if the Tribunal's decision is favourable to the claimant. Specifically, the court had to determine whether costs incurred prior to the making of a reviewable decision could be considered as part of the proceedings for which costs are awarded under s67(8).

Justice Finn found that the Federal Court had jurisdiction to entertain the appeal under the Administrative Appeals Tribunal Act 1975, s44, although there were some uncertainties regarding the metamorphosis of the Tribunal in exercising its authority. However, the court decided to focus on the application for judicial review under the Administrative Decisions (Judicial Review) Act 1977.

The court examined the language of s67(8) and distinguished between costs "of the proceedings" and costs "incidental to the proceedings". It concluded that costs incurred for the purposes of the original decision or the reviewable decision were not costs of the Part VI proceedings, which are the only proceedings for which costs can be awarded under s67(8). Justice Finn held that while costs incurred before the reviewable decision might not be subject to a temporal limitation, they could not be considered costs of the proceedings unless they were incurred for the projected appeal to the Tribunal.

The court set aside the decision of the Deputy President of the Tribunal and referred the question of the amount of costs to be paid by Comcare to the Tribunal for reconsideration according to law. The appeal under the Administrative Appeals Tribunal Act 1975 was dismissed.

Orders