Comcare v Roser

[2003] FCA 516

FEDERAL COURT OF AUSTRALIA

Comcare v Roser [2003] FCA 516

COSTS CERTIFICATE – issue of costs certificate pursuant to s 61(1) of Federal Court Proceedings (Costs) Act 1981 (Cth) (“the Act”) where a Federal appeal succeeds on a question of law – “Federal appeal”  defined in s 3(1) of the Act

Federal Court Proceedings (Costs) Act 1981 (Cth) s 3 and s 6
Safety Rehabilitation and Compensation Act 1988 (Cth) s 24 and s 25

Comcare v Roser [2003] FCA 243

COMCARE v DESLIE ROSER

No Q 99 of 2002

SPENDER J
BRISBANE
26 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 99 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	DESLIE ROSER RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	26 MAY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The Court grants to Deslie Roser, the respondent in Federal Appeal No Q 99 of 2002, a costs certificate in respect of that appeal, the certificate to state that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 99 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	DESLIE ROSER RESPONDENT

JUDGE:	SPENDER J
DATE:	26 MAY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application on behalf of the respondent to the appeal in Comcare v Roser [2003] FCA 243. I gave judgment in that matter on 25 March 2003 allowing the appeal.

2. An application on behalf of the respondent to the appeal was made by letter dated 29 April 2003, for a costs certificate pursuant to s 6(1) of the Federal Court Proceedings (Costs) Act 1981 (Cth) (“the Act”).  Section 6(1) provides:

   “Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.”

3. The phrase “Federal appeal” is defined in s 3(1) of the Act and includes, in par 3(1)(g):

   “an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal.”

4. The application Q 99 of 2002 was an appeal from a decision of the Administrative Appeals Tribunal dated 29 May 2002.  The appeal concerned the operation and effect of s 24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).  The appeal turned on the interpretation of the relevant provisions of the 1988 Act and the guide to the assessment of permanent impairment.  A cross appeal was taken with respect to the interpretation of s 25(4) of the SRC Act, but the appellant did not press the conclusion of the Tribunal’s decision in that regard.  In essence the appellant conceded the cross appeal.  I made no order as to costs.

5. The respondent says that it has incurred costs in responding to the appeal, and in relation to the cross appeal.  In my judgment this is a matter where it is appropriate, having regard to the provisions of s 6 of the Act to recommend the payment of costs.  The solicitors for the respondent indicated that, having notice of the application by Ms Roser for a costs certificate, the respondent did not intend filing any submissions in response.

6. The order of the Court is that the Court grants to Deslie Roser, the respondent in Federal Appeal No Q 99 of 2002, a costs certificate in respect of that appeal, the certificate to state that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:             26 May 2003

Counsel for the Applicant:	Mr Robert Gotterson, QC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Ms Cate Heyworth-Smith
Solicitor for the Respondent:	D'Arcys Solicitors
Date of Hearing of Appeal:	26 November 2002
Date of Judgment on the application for a costs certificate:	26 May 2003