Comcare v Roser

Case [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
Details
AGLC
Comcare v Roser [2003] FCA 516
Case
[2003] FCA 516
Decision Date

CaseChat Overview and Summary

In the matter of Comcare v Roser, the respondent sought a costs certificate pursuant to section 61(1) of the Federal Court Proceedings (Costs) Act 1981 (Cth). The case concerned a successful appeal in the Federal Court by the respondent, Deslie Roser, against a decision of the Administrative Appeals Tribunal. The appeal was on a question of law, and the respondent sought the certificate to cover the costs incurred during the appeal. The Court was tasked with determining whether the respondent was entitled to such a certificate under the provisions of the Act.

The central legal issue before the Court was the interpretation of section 61(1) of the Act, which provides for the issuance of a costs certificate in certain circumstances. Specifically, the Court needed to determine if a costs certificate could be issued when the appeal is successful and defined as a "Federal appeal" under section 3(1) of the Act. The respondent argued that the Court should issue a certificate in line with the statutory provisions, while Comcare contended that the Act did not explicitly cover this situation.

The Court examined the statutory language and found that the definition of "Federal appeal" in section 3(1) of the Act encompassed the situation where an appeal is successful on a question of law. Consequently, the Court held that the respondent was entitled to a costs certificate under section 61(1) of the Act. The Court determined that it would be appropriate for the Attorney-General to authorise a payment to the respondent for the costs incurred in the Federal appeal. This decision aligns with the statutory provisions and ensures that the respondent is compensated for the costs of a successful appeal on a question of law.

Accordingly, the Court grants Deslie Roser a costs certificate in respect of the Federal Appeal No Q 99 of 2002. The certificate states that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment to the respondent for the costs incurred by the respondent in relation to the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER J

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Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

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