Deas v Issa (No 2)

[2013] FCA 1145

FEDERAL COURT OF AUSTRALIA

Deas v Issa (No 2) [2013] FCA 1145

Citation:	Deas v Issa (No 2) [2013] FCA 1145
Appeal from:	Administrative Appeals Tribunal [2013] AATA 292
Parties:	SARAH DEAS, JOHN FORSYTH and ROBERT WOOD v BRYON ISSA, PAUL KRASSARIS and AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
File number:	VID 456 of 2013
Judge:	JESSUP J
Date of judgment:	8 November 2013
Catchwords:	COSTS – respondents successful in appeal from Administrative Appeal Tribunal – application by respondents for costs – whether respondents entitled to costs where success derived from argument not raised before Tribunal
Cases cited:	Armstrong v Boulton [1990] VR 215 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 The Great Gulf Company v Sutherland (1873) 4 AJR 164
Date of hearing:	Heard on the papers
Date of last submissions:	8 October 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicants:	Mr J Pizer
Solicitor for the Applicants:	Meridian Lawyers
Counsel for the First and Second Respondents:	Mr D Favell
Solicitor for the First and Second Respondents:	Gadens Lawyers
Counsel for the Third Respondent:	Mr A Dillon
Solicitor for the Third Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 456 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

SARAH DEAS
First Applicant

JOHN FORSYTH
Second Applicant

ROBERT WOOD
Third Applicant

AND:

BRYON ISSA
First Respondent

PAUL KRASSARIS
Second Respondent

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Third Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	8 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 456 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

SARAH DEAS
First Applicant

JOHN FORSYTH
Second Applicant

ROBERT WOOD
Third Applicant

AND:

BRYON ISSA
First Respondent

PAUL KRASSARIS
Second Respondent

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Third Respondent

JUDGE:	JESSUP J
DATE:	8 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 4 September 2013, I dismissed the applicants’ appeal from the Administrative Appeals Tribunal (“the Tribunal”) in this matter:  Deas v Issa [2013] FCA 892. The successful respondents have now applied for their costs.

2. The appeal was decided, favourably to the first and second respondents (“the respondents”), on a point which they had not taken in the Tribunal.  That circumstance provides a conventional basis for the court to reject their application for the costs of the appeal:  The Great Gulf Company v Sutherland (1873) 4 AJR 164, 164;  Armstrong v Boulton [1990] VR 215, 223; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [123].

3. On behalf of the respondents, it is submitted that the point upon which they succeeded in this court – the “partnership point” – was not a new consideration that had not been raised in the Tribunal.  I reject that submission.  Although it would be correct to note that the intention of the respondents to go into business in partnership was an uncontroversial fact in the Tribunal, the legal consequences of that fact were not adverted to.  The appeal was successful on a matter of law, the relevant legal proposition not having been advanced below. 

4. The respondents also submit that, had the “partnership point” been formulated below as it was in this court, the Tribunal would have reached the same conclusion.  So it may have been, and the applicants would then have had squarely before them the question of law upon which they failed on appeal.  The assumption must be that, properly advised, the applicants may well have chosen not to appeal at all. 

5. In the circumstances, the appropriate outcome is that there be no order for costs in this proceeding. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       8 November 2013