FEDERAL COURT OF AUSTRALIA
Comcare v Stewart (No 2) [2019] FCA 564
File number: ACD 83 of 2018 Judge: ROBERTSON J Date of judgment: 23 April 2019 Catchwords: COSTS – where Comcare unsuccessful in its application for review on a question of law of decision of the Administrative Appeals Tribunal – application by Comcare that it not pay the respondent’s costs – effect of non-negotiable offer made by Comcare to the respondent, where by that offer respondent asked to agree with the contents of a note under Practice Note GPN-TRIB Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), [2.1]
Cases cited: Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588
Comcare v Stewart [2019] FCA 365
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; 81 ALR 397
Hamod v New South Wales [2002] FCA 424; 188 ALR 659
InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574
Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; 132 FCR 93
Date of hearing: 23 April 2019 Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: Mr PG Woulfe Solicitor for the Applicant: Lehmann Snell Lawyers Counsel for the Respondent: Mr PJ Hanks QC with Mr K Pattenden Solicitor for the Respondent: Bradley Allen Love Lawyers ORDERS
ACD 83 of 2018 BETWEEN: COMCARE
Applicant
AND: PAUL STEWART
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
23 APRIL 2019
THE COURT ORDERS THAT:
1.Subject to order 2, the applicant pay the respondent’s costs, as agreed or assessed.
2.The applicant pay the respondent’s costs of meeting its application for a different costs order on an indemnity basis, that is, except in so far as those costs are of an unreasonable amount or unreasonably incurred.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
These reasons deal with costs. They are to be read with the reasons on the substantive application: Comcare v Stewart [2019] FCA 365. By orders made on 21 March 2019, I dismissed Comcare’s application for review of the decision of the Administrative Appeals Tribunal that the reviewable decision dated 15 June 2016 denying liability to compensate Mr Stewart in respect of adjustment reaction with anxious mood be set aside and, in substitution, that Comcare was liable to compensate Mr Stewart in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury, being adjustment disorder with anxious mood, suffered by him on 15 January 2016.
The orders I then made were as follows:
1. The application…
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- AGLC
- Comcare v Stewart (No 2) [2019] FCA 564
- Case
- [2019] FCA 564
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether Comcare should be ordered to pay Mr Stewart’s costs on an indemnity basis, as Comcare had suggested in an email to its solicitors on 28 March 2019. The Court had to determine if Mr Stewart’s refusal to accept Comcare’s non-negotiable offer was reasonable given Comcare’s unsuccessful application for review. The Court also needed to assess whether the offer made by Comcare was in line with the Court's authority and obligations as per relevant case law and the GPN-TRIB.
The Court found that Comcare's application for review should be dismissed as it did not establish any vitiating error of law. Since Comcare's appeal failed, the Court concluded that there were no relevantly separate issues to warrant a different costs order. The Court further noted that Comcare's offer required Mr Stewart to agree that the AAT's decision be set aside, which Comcare could not achieve. Additionally, the notes referenced in Comcare's offer did not align with the Court's conclusions in dismissing the appeal. Therefore, the Court held that Mr Stewart's refusal to accept Comcare's offer was reasonable. The Court ordered that Comcare pay Mr Stewart’s costs, as agreed or assessed, and his costs of responding to the application for a different costs order on an indemnity basis, except where those costs are unreasonable or incurred unreasonably.
ORDERS:
1. The applicant pay the respondent’s costs, as agreed or assessed.
2. The applicant pay the respondent’s costs of meeting its application for a different costs order on an indemnity basis, that is, except in so far as those costs are of an unreasonable amount or unreasonably incurred.
Orders
Orders of the court
1. Subject to order 2, the applicant pay the respondent’s costs, as agreed or assessed.
2. The applicant pay the respondent’s costs of meeting its application for a different costs order on an indemnity basis, that is, except in so far as those costs are of an unreasonable amount or unreasonably incurred.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Stewart sought an order that Comcare pay his costs of responding to the current application on an indemnity basis, as foreshadowed in the email to Comcare’s solicitors on 28 March 2019. Properly advised, he submitted, Comcare should have known that none of the matters advanced in its submissions justified denying Mr Stewart the normal costs order.Consideration It is not in dispute that the Court has a broad discretion under s 43(2) of the Federal Court of Australia Act 1976 (Cth). In some cases it is appropriate to assess costs by reference to issues. In my opinion, there is no reason at all to make the costs orders for which Comcare contends. The appropriate order is that Comcare pay the respondent’s costs, as agreed or assessed. Principally this is for two reasons. The first reason is that, in my assessment, there were no relevantly separate issues. The decision of the Tribunal would only be set aside on a question of law, which was the basis of Comcare’s application to this Court, if there were a vitiating error of law. Comcare failed in its appeal. To have the decision of the Tribunal set aside, which was the relief claimed, Comcare needed to succeed either on all three of the issues of law which it raised or at least on its argument that what the Tribunal said about administrative action infected what it said about whether that action was taken in a reasonable manner or on its argument that the Tribunal made an error of law in its conclusion that the action was not taken in a reasonable manner. Comcare did not succeed on any of these bases. The second reason, informed by the first, concerns the reasonableness of Mr Stewart’s non-acceptance of Comcare’s offer which was “not open to any negotiations”. In the circumstances, that non-acceptance was reasonable. First, the offer required Mr Stewart to agree that Comcare’s appeal be allowed and the decision of the Tribunal set aside. As I have said, Comcare failed in this respect. Second, the “notes”, the correctness of which this Court would have needed to assess in order to make any consent orders allowing the appeal, did not coincide with the conclusions of the Court in dismissing Comcare’s appeal. The application being on questions of law from a decision of a tribunal, it was necessary for the applicant Comcare, even if the respondent had agreed and consented to the application being allowed, to persuade the Court that there had been an error of law on the part of the Tribunal and to articulate the basis for that conclusion: see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at 326-8 per French J, approved in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; 132 FCR 93 at [56] and Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[14] and Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB) at [2.1]. I applied these authorities in Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588 at [59]. I reject the submission on behalf of Comcare that the Court’s consideration of the “notes” is limited to what appears on their face, or that it is relevant to the present question to say that the Court could have so proceeded.