Gelastopoulos, D. v Australian Telecommunications Commission

[1990] FCA 707

'JUDGMENT NO. .?,Q.J.../?D ....

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. G 192 of 1990

G E N E W DIVISION 1

BETWEEN: DIMITRIOS GELASTOPOULOS !

Applicant

AND :  AUSTRALIAN
TELECOMMUNICATIONS
COMMISSION
Respondent

REASONS FOR JUDGMENT

!

EINFELD J	SYDNEY	9 NOVEMBER 1990	.*
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On 13 January 1988, the delegate of the Director for Commonwealth Employees' Compensation found that the applicant was not entitled to compensation for certain injuries alleged to have been sustained while he was an employee of the respondent (Telecom). On 15 March 1990 the Administrative Appeals Tribunal upheld the delegate's decision. On 12 April 1990 the applicant filed an appeal to this Court from that decision but after appearing at two directions hearings on 11 May and 3 August 1990, he withdrew the appeal on 2 October 1990 by consent. No index of the papers was ever prepared, lodged or settled. Telecom applied for an order that its costs on the appeal be paid by the applicant. Nothing is said about any impecuniosity on the part of the applicant.

Telecom's submissions were: 

1.  Under Order 53 rule 11 of the Federal Court Rules, an applicant may give notice of discontinuance of a proceeding such as this, in which event the applicant will pay the costs of the other parties.

1. Although the Court may permit an applicant to discontinue without the filing of a notice, this is part of the jurisdiction provided by Order 53 rule 11 and a respondent is still "automatically entitled" to its costs at the expense of the applicant.

3.   Alternatively, the operation of Order 22 means that Telecom is entitled to have the applicant file a notice of discontinuance, in which case Order 53 rule 11 operates to entitle Telecom to its costs "automatically''.

1. As a further alternative, if the effect of Order 22 rule

   2 or the facts of this case mean that the leave of the

   Court was required to permit the applicant to discontinue

   and presuming that the Court has given that leave, "it

would be fair and consistent with the normal provisions
of the Rules" that such an order be made.

Order 53 rule 11 provides:

( l )	An applicant may a t any time f i l e and serve a
not ice o f discontinuance o f the appeal and	upon i t s
being f i l e d the appeal	shal l be abandoned.

( 2 ) The no t i ce o f discontinuance under sub-rule ( 1 )

does not a f f e c t any other applicant i n the appeal.

( 3 ) A party f i l i n g a notice o f discontinuance under

sub-rule (1 ) shall be l iable t o pay the costs of the

other party or parties occasioned by h i s appeal.

( 4 ) A party whose costs are payable under sub-rule

(3 ) m a y tax the costs and i f the taxed costs are not

paid within 14 days a f t e r service o f the cer t i f i ca te

o f taxation may enter judgment for the taxed costs.

Order 22 rules 2 and 3 provide:

2. ( 1 ) Subject t o sub-rule ( 2 ) , a party making a

as concerns the whole or any part o f any claim for	claim for r e l i e f may discontinue a proceeding so f a r
r e l i e f made by him -

(a) at any time before the directions

h e a r i n g a p p o i n t e d i n t h e application - without the leave o f the Court or the consent o f any other party;

(b) where	a f t e r the directions hearing the proceeding continues on pleadings
b u t the pleadings a r e not closed -
without the leave o f the Court or the consent o f any other party;
(c)	where judgment has not been entered -
with the consent o f a l l the parties; and
(d)	at any time - with the leave of the Court.

(2) A party who represents any other person i n the proceeding shall not discontinue h i s claim for r e l i e f under sub-rule ( 1 ) without the leave o f the Court.

3. A party who discontinues pursuant t o paragraph
2 ( l ) ( a ) or (b) shall be l iable t o pay the costs o f	the other party or parties occasioned by the whole
or the relevant part o f the proceeding.

In my opinion there should be no order for costs. This i s not

a case under Order 53 because there was no notice of discontinuance or order t o dispense with the f i l i ng o f the notice. Neither was it a discontinuance under Order 22 rule 2 ( l ) ( a ) or ( b ) . Order 22 has t o be read t o accord with the

type of case being considered. The discontinuance came after the initial directions hearing. This was not a case for pleadings strictly so called; the only formal substantive court document required was the notice of appeal which was filed. The index, which was not, cannot be described as a pleading. Hence the "pleadings" were closed. Thus the mandatory costs provisions of Order 53 rule ll(3) and Order 22 rule 3 are not applicable.

By Order 22 rule 2 this was either a case for leave to discontinue under subrule (l) (d) which it may be assumed was granted, or a case where judgment having not been entered, only the consent of Telecom was needed under subrule (l) (c). As this was given, costs are in either case at best discretionary and I exercise my discretion against making an order. My reasons include:

1.   At the initial directions hearing on 11 May 1990, Telecom consented to two months adjournment to permit the index

to be prepared and lodged.

2.   At the second directions hearing on 3 August 1990, Telecom consented to a further 2 months adjournment, despite the fact that no index had been filed, in the belief that the matter might or would not proceed.

3.  When the appeal was withdrawn at the third directions hearing on 2 October, no question of the need for leave was raised by Telecom when it gave its consent to withdrawal.

1. It is not customary in New South Wales to award costs against injured workers in compensation cases (the State legislation actually prohibits such orders being made except in the rarest of circumstances). There is no justification for drawing a distinction in this respect between workers subjected to federal or state compensation law, especially in an entity as large as Telecom where people subjected to both laws may well be found on the same premises, for example when electrical, plumbing, building or catering contractors are performing work for Telecom.

2. There is no suggestion that the appeal was vexatious, an abuse of process or fraudulent, or anything akin to such concepts.

6.    The costs would in the circumstances be minimal.

The application for costs is dismissed. As the application was entirely without merit or substance, I have given consideration to ordering that Telecom pay the costs of its

order that Telecom pay the costs of the Court time used, I	failure to obtain the order it sought. As I am not able to
have on reflection decided that the proper order is that the parties bear their own costs of the application for costs.

I certily th2t th.s and the '%

preccd~ng F y e s arc a ::[I?	c->![ of :he
Uczsons :or Judgment herem o i h ~ s	Honour

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