Howard Smith Industries Pty Ltd v Richards

[1999] FCA 1310

FEDERAL COURT OF AUSTRALIA

Howard Smith Industries Pty Ltd v Richards [1999] FCA 1310

Federal Proceedings (Costs) Act 1981 (Cth): s 6

HOWARD SMITH INDUSTRIES PTY LTD v JAMES PAUL RICHARDS
VG 62 of 1998

GOLDBERG J
MELBOURNE
10 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	No VG 62 of 1998

BETWEEN:	HOWARD SMITH INDUSTRIES PTY LTD (ACN 004 082 062) Applicant
AND:	JAMES PAUL RICHARDS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	10 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal is allowed.

2.The decision of the Tribunal dated 2 February 1998 is set aside and the matter is remitted to the Tribunal differently constituted to determine the compensation (if any) to be paid by the applicant to the respondent in respect of that amount of the respondent’s hearing loss and impairment and tinnitus, which occurred on and after 24 June 1993.

3.        The respondent pay the applicant’s costs of the appeal, including reserved costs.

4.A certificate be granted pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent stating that in the opinion of the Court it is appropriate for the Attorney‑General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:

(a)the costs incurred by the respondent in relation to this appeal;

(b)any costs incurred by the appellant in respect of the appeal that are required to be paid by the respondent to the appellant in pursuance of this order.

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	No VG 62 of 1998

BETWEEN:	HOWARD SMITH INDUSTRIES PTY LTD (ACN 004 082 062) Applicant
AND:	JAMES PAUL RICHARDS Respondent

JUDGE:	GOLDBERG J
DATE:	10 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 3 September 1999 I published my reasons for reaching the conclusion that the appeal in this matter should be allowed and the decision of the Administrative Appeals Tribunal (“the Tribunal”) set aside.  I incorporate by reference into these reasons those reasons for judgment. 

2. Those reasons involved a consideration of the scheme whereby there was a change from the regime for seafarers rehabilitation under the Seamen’s Compensation Act 1911 (Cth) to a new regime under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the 1992 Act”). To provide for the facilitation of that new regime there was also enacted the Seafarers Rehabilitation Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) (“the Transitional Act”). 

3. The matter which came before me essentially involved a consideration of that part of the statutory scheme found in the Transitional Act and particular provisions of the 1992 Act in particular ss 11, 39 and 41.

4. Although a number of points were raised in the notice of appeal the appellant confined itself to a consideration of what I will call loosely the proper construction of the 1992 legislative scheme, the inter‑relation between the Transitional Act and the 1992 Act and how the two Acts dealt with a hearing loss which straddled the pre‑1992 and the post‑1992 provisions, by that I mean straddled the date of the commencement of the 1992 Act. 

5. I proposed an order on the date that I published my reasons that the appeal would be allowed and that the decision of the Tribunal be set aside and the matter remitted to the Tribunal differently constituted to determine the compensation, if any, to be paid by the applicant to the respondent in respect of that amount of the respondent's hearing loss and impairment and tinnitus which occurred on and after 24 June 1993, that date being the commencing date of the 1992 Act.

6. Mr Trigar who appears for the respondent has made application before me this morning for a cost certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). It is trite to say that just because an appeal succeeds on a question of law, that is, it succeeds due to an error of law shown in the lower court or tribunal, that fact of itself is not a ground for the allowance or the award of the certificate. Section 6(1) of the Federal Proceedings (Costs) Act 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 the respondent to the appeal, grant to the respondent a cost certificate in respect of the appeal”. 

   It is clear from the definition of “federal appeal” in s 3(1) of that Act that an appeal to this Court from a decision of the Tribunal is a federal appeal. Subsection (3) of s 6 provides that:

   “The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:

   (a)      the costs incurred by the respondent in relation to the appeal; and

   (b)any costs incurred by the appellant in respect to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs which a cost certificate granted under section 7 relates.” 

   The power I have under s 6, is discretionary and it is clear that I have an unfettered discretion in relation to such a costs order, albeit a discretion that I should exercise judicially.

7. In the circumstances of this case I should take the following matters into account. I have been informed from the bar table, and it appears, that this is the only case that has come before the court in relation to the construction of the Transitional Act and its relationship with the 1992 Act. It was submitted that the case was of significance to the appellant but that of itself I think is insufficient to be a deciding factor for the exercise of my discretion under s 6.

8. What is more important and what is more significant is that I have been informed that the case is a case of wider application.  It is a case of wider application for two reasons.  The first reason is that it involves a consideration of the proper construction of federal legislation which was designed to put in place a regime for the future and to cover situations to ensure that there is a clear legislative prescription for what is to happen in relation to hearing losses which occur before the commencing date of the 1992 Act and which either are further exacerbated or continue after the commencing date of the 1992 Act in a situation where there is not a loss of wages or an inability to work brought about by the hearing loss.

9. To that extent, this decision is a matter of wide general application within the particular industries covered by the legislation and has ramifications beyond just the particular parties to this appeal.  I was informed at the commencement of the appeal that this was a test case.  It was presumably for that reason that the appellant sensibly limited the grounds of appeal to the pure question of law, the proper construction of the relevant legislation. 

10. The second reason is that I have also been informed from the bar table that there are presently other cases before the Tribunal awaiting the determination of this appeal before me.  In all the circumstances I have formed the opinion that it would be appropriate for the Attorney‑General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the respondent in respect of the costs identified in subs (3)(a) and (b) of s 6 of the Federal Proceedings (Costs) Act 1981.

11. The reason for the formation of that opinion is the matters to which I have already referred, in particular the fact that the appeal involved the interpretation of federal statutes in a transitional situation; it involved matters which have ramifications in relation to other matters presently before the Tribunal and in general terms has a wide and general application not limited solely to the issues between the parties before me. 

12. The orders of the Court will therefore be:

    1.        The appeal is allowed.

    2.The decision of the Tribunal dated 2 February 1998 is set aside and the matter is remitted to the Tribunal differently constituted to determine the compensation (if any) to be paid by the applicant to the respondent in respect of that amount of the respondent’s hearing loss and impairment and tinnitus, which occurred on and after 24 June 1993.

    3.        The respondent pay the applicant’s costs of the appeal, including reserved costs.

    4.A certificate be granted pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent stating that in the opinion of the Court it is appropriate for the Attorney‑General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:

    (a)the costs incurred by the respondent in relation to this appeal;

    (b)any costs incurred by the appellant in respect of the appeal that are required to be paid by the respondent to the appellant in pursuance of this order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             16 September 1999

Counsel for the Applicant:	Mr M O’Loghlen QC and Mr J R Wallace
Solicitor for the Applicant:	Middletons Moore & Bevins
Counsel for the Respondent:	Mr J T Rush QC and Mr P R Trigar
Solicitor for the Respondent:	Ryan Carlisle Thomas
Date of Hearing:	10 September 1998
Date of Judgment:	10 September 1999