Gribbles Pathology (Vic) Pty Ltd v Cassidy (No 2)
[2002] FCA 960
•5 AUGUST 2002
FEDERAL COURT OF AUSTRALIA
Gribbles Pathology (Vic) Pty Ltd v Cassidy (No 2) [2002] FCA 960
COSTS – applicant substantially successful in achieving its primary aim in proceeding – applicant unsuccessful in relation to majority of grounds upon which it relied – principles governing exercise of discretion relating to costs.
Federal Court of Australia Act 1976 (Cth) s 43
Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 referred to
Ritter v Godfrey [1920] 2 KB 47 referred to
Hughes v Western Australian Cricket Association (Inc) [1986] § ATPR 40-748 at 48,136 referred to
Saitta Pty Ltd v The Commonwealth [2001] FCA 8 referred to
North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 546 referred to
Forster v Farquhar [1893] 1 QB 564 referred to
Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 referred to
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 referred toGRIBBLES PATHOLOGY (VIC) PTY LTD (ACN 006 823 089) v D I CASSIDY QC, DR E RAIK AND DR F H SMITH CONSTITUTING THE MEDICARE PARTICIPATION REVIEW COMMITTEE and MINISTER FOR HEALTH AND AGED CARE
V93 of 2001
WEINBERG J
5 AUGUST 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V93 OF 2001
BETWEEN:
GRIBBLES PATHOLOGY (VIC) PTY LTD
(ACN 006 823 089)
APPLICANTAND:
D I CASSIDY QC, DR E RAIK AND DR F H SMITH CONSTITUTING THE MEDICARE PARTICIPATION REVIEW COMMITTEE
FIRST RESPONDENTMINISTER FOR HEALTH AND AGED CARE
SECOND RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
5 AUGUST 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The first respondent, whether by itself, its members, officers, employees, or agents, or howsoever otherwise, be restrained from further hearing and determining the matter referred to it by the second respondent pursuant to a notice given by the second respondent under s 23DL(4)(c) of the Health Insurance Act 1973 (Cth) on 5 July 2000.
2.Order 1 applies only insofar as that notice alleges that the applicant breached pars 15 and 16 of the undertaking accepted by the second respondent on 30 June 1995 and insofar as that notices alleges that the applicant breached par 19 of that undertaking by reason that the applicant’s servants, directors or executives breached pars 15 and 16 of the undertaking.
3.Nothing in Order 1 prevents the second respondent from issuing a fresh notice containing the allegations set out above, pursuant to s 23DL(1), provided that the notice complies with the requirements of the Act regarding the provision of adequate particulars.
4.The second respondent pay fifty per cent (50%) of the applicant’s costs of and incidental to this proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V93 OF 2001
BETWEEN:
GRIBBLES PATHOLOGY (VIC) PTY LTD
(ACN 006 823 089)
APPLICANTAND:
D I CASSIDY QC, DR E RAIK AND DR F H SMITH CONSTITUTING THE MEDICARE PARTICIPATION REVIEW COMMITTEE
FIRST RESPONDENTMINISTER FOR HEALTH AND AGED CARE
SECOND RESPONDENT
JUDGE:
WEINBERG J
DATE:
5 AUGUST 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 5 July 2002, I delivered judgment in this proceeding: Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859. I said that I would grant the applicant “a measure of relief” under s 39B and 39B(1A) of the Judiciary Act 1903 (Cth) and I published what I described as “provisional orders”. Those provisional orders were in the following form:
“1.The first respondent, whether by itself, its members, officers, employees, or agents, or howsoever otherwise, be restrained from further hearing and determining the matter referred to it by the second respondent pursuant to a purported notice given by the second respondent under s 23DL(4)(c) of the Health Insurance Act 1973 (Cth) on 5 July 2000.
2.Order 1 applies only insofar as that notice alleges that the applicant breached pars 15 and 16 of the undertaking accepted by the second respondent on 30 June 1995.
3.Nothing in Order 1 prevents the second respondent from issuing a fresh notice containing the allegations set out above, pursuant to s 23DL(1), provided that the notice complies with the requirements of the Act regarding the provision of adequate particulars.
4.The parties file and serve any written submissions as to the final form of these Orders and written submissions relating to the costs of this application, on or before 26 July, 2002.”
In accordance with provisional order 4, both the applicant and second respondent, the Minister for Health and Aged Care, have filed written submissions on the final form of orders, and on the question of costs.
ORDERS
The applicant submitted that there was a minor modification only required to the provisional orders. It submitted that the second of those orders should be amended to read:
“Order 1 applies only insofar as that notice alleges that the applicant breached pars 15 and 16 of the undertaking accepted by the second respondent on 30 June 1995 and insofar as that notices alleges that the applicant breached para 19 of that undertaking by reason that the applicant’s servants, directors or executives breached pars 15 and 16 of the undertaking.”
The second respondent accepted that reference to para 19 of the undertaking was appropriate to the extent that it related to breaches of paras 15 and 16 of the undertaking. Accordingly, order 2 will be in the terms set out above.
The second respondent submitted that the word “purported” should be deleted from order 1 of the provisional orders. It contended that I had found the notice to be valid in respect of the second, third and, in part, fifth alleged breaches of undertaking, and therefore to be legally effective to that extent. I consider that this submission should be accepted. Accordingly, order 1 will be made without the inclusion of the word “purported”.
COSTS
The applicant submitted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a discretionary power to award costs. The general rule is that costs follow the event and are ordered on a party/party basis in favour of the successful party: Ritter v Godfrey [1920] 2 KB 47. Where each party has enjoyed a measure of success, it is open to the Court to apportion liability for costs: Hughes v Western Australian Cricket Association (Inc) [1986] § ATPR 40-748 at 48,136; Saitta Pty Ltd v The Commonwealth [2001] FCA 8 and North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 546.
The applicant submitted that it had been successful in relation to its challenge to the first alleged breach which it described as “the principal breach in the notice”, and had enjoyed consequential success in limiting the fifth breach. The Minister had succeeded only with respect to the second alleged breach, which was comparatively minor in nature, and the fifth alleged breach insofar as it depended upon the second alleged breach. The applicant further submitted that it was immaterial that a number of the arguments raised in support of its claim had been rejected, citing Hughes in support of that proposition. The applicant contended that in those circumstances, the second respondent ought to pay seventy per cent of the applicant’s costs of this proceeding, including reserved costs, such costs to be taxed in default of agreement.
The second respondent submitted that where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Forster v Farquhar [1893] 1 QB 564. It was further submitted that a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but ordered as well to pay the other sides costs of them. Numerous authorities were cited in support of that principle including, in particular, Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 and Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129.
The applicant had challenged the jurisdictional basis for the establishment of a Medicare Participation Review Committee, and its proposed hearing and inquiry into the allegations referred to that Committee on five grounds. It had succeeded only in part, and only on the basis of one of those grounds. Accordingly, the second respondent had been “substantially successful” in the outcome of the proceeding brought by the applicant, the Court having held that the Committee has jurisdiction to hear and determine the second, third and in part fifth alleged breaches of undertaking. The Court had also held that the Committee will have jurisdiction to hear the first and fifth alleged breaches once it has provided a notice under s 23DL(1) of the Health Insurance Act 1973 (Cth) which was adequately particularised. It was submitted that, in those circumstances, the Court should make an order for costs in favour of the second respondent.
The second respondent also submitted that the Court should take into account the fact that the applicant had given notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), but had ultimately resiled from reliance upon any constitutional challenge, dealing with the issue identified in the s 78B notice as going to a question of construction.
By way of alternative submission, the second respondent contended that if the Court were minded to apportion costs based on the success of the parties on each of the legal grounds of challenge, the applicant should be ordered to pay seventy per cent of the party/party costs of the second respondent.
In my opinion, the applicant has had a substantial measure of success in this proceeding. It has clearly achieved at least one of its primary aims. It is entitled, in accordance with ordinary principles, to an order for costs in its favour.
At the same time, the applicant relied upon a number of grounds in support of its case upon which it was wholly unsuccessful. The matter extended into a second day, largely because of the elaborate nature of the applicant’s submissions. The second respondent was put to considerable additional expense in responding to a series of claims, the majority of which were ultimately rejected.
In all the circumstances, I consider that justice will best be done if the second respondent is ordered to pay fifty per cent of the applicant’s costs of the application in this Court, including reserved costs, such costs to be taxed in default of agreement.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate:
Dated: 5 August 2002
Counsel for the Applicant: Mr P.J Hanks QC with Ms P. Tate Solicitor for the Applicant: Schetzer Brott and Appel Solicitor for the First Respondent, submitting save as to costs: Ms S. Pryde
Australian Government SolicitorCounsel for the Second Respondent: Mr N.A. Moshinsky QC with Mr M.J. Crennan SC Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 20 and 21 September 2001 Date of Judgment: 5 August 2002
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