Lynch, Thomas Brendan v Minister for Human Services & Health (formerly Minister for Health, Housing, Local Government and Community Services)

[1996] FCA 216

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 465 of 1995
  )     
GENERAL DIVISION  )     

On appeal from the General Administrative Division of the Administrative Appeals Tribunal

BETWEEN:          DR THOMAS BRENDAN LYNCH  

Applicant

AND:                   MINISTER FOR HUMAN SERVICES AND HEALTH formerly THE MINISTER FOR HEALTH, HOUSING, LOCAL GOVERNMENT AND COMMUNITY SERVICES

Respondent

Coram:        Davies, Moore & Lehane JJ.
Date:          2 April 1996
Place:         Sydney (heard in Brisbane)

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondent pay the applicant's costs of the proceedings, assessed or taxed on the footing:-

(i)that the only issue in the proceedings was the issue as to the jurisdiction of the Administrative Appeals Tribunal;

(ii)that the appeal book contained only such material as was necessary to deal with that issue;

(iii)that the matter had been set down for only one day's hearing. 

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 )       
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 465 of 1995
  )     
GENERAL DIVISION  )     

On appeal from the General Administrative Division of the Administrative Appeals Tribunal

BETWEEN:          DR THOMAS BRENDAN LYNCH  

Applicant

AND:                   MINISTER FOR HUMAN SERVICES AND HEALTH formerly THE MINISTER FOR HEALTH, HOUSING, LOCAL GOVERNMENT AND COMMUNITY SERVICES

Respondent

Coram:        Davies, Moore & Lehane JJ.
Date:          2 April 1996
Place:         Sydney (heard in Brisbane)

COSTS

The Court:  On 15 December 1995, the Court allowed an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") and remitted the matter to the Tribunal to complete the hearing and determination of the matter.  The Court reserved the question of costs.  Written submissions on costs have since been received.  Counsel are agreed that the Court should deal with the matter on the submissions received.

It is not in dispute that, in general, the applicant should receive the costs of the proceedings in the Court.  However, in the notice of appeal, the applicant raised the question of the merits of the matter before the Tribunal.  The Tribunal had dealt only with the question of its jurisdiction and had dismissed his application on the ground that it did not have jurisdiction to deal with it.  The notice of appeal sought an order that the application to the Tribunal be upheld and an order approving of Dr Lynch's premises as an accredited pathology laboratory for histopathology services.

This issue was not in fact pursued on the hearing of the appeal for, plainly, the administrative function of considering the relevant facts and of making a decision was vested in the administrative decision-makers, the Minister for Human Services and Health and, on review, the Tribunal, and the latter had not considered the matter.

However, the result of the inclusion in the notice of appeal of the claim for an order dealing with the merits of the matter was that the appeal book was very much larger than otherwise it would have been.  Moreover, the proceedings were set down for two days rather than one day.  The respondent considered that, if the merits were to be considered, two days would be required for the hearing.  Counsel for the respondent would have understood, nevertheless, that the Court would not enter into a determination of disputed questions of fact.

An award of costs in circumstances such as this is always difficult.  The Court considers, however, that substantial justice will be done if the Court orders that
the respondent pay the applicant's costs of the proceedings, assessed or taxed on the footing, firstly, that the only issue in the proceedings was the issue as to the jurisdiction of the Administrative Appeals Tribunal; secondly, that the appeal book contained only such material as was necessary to deal with that issue; and, thirdly, that the matter had been set down for only one day's hearing.  The Court will so order.

I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
the Court.

Associate:

Date:    2 April 1996

Counsel for the Applicant:  G Flick SC

Solicitors for the Applicant:  Minter Ellison

Counsel for the Respondent:  A Bennett SC

R Beech-Jones

Solicitors for the Respondent:  Australian Government Solicitor

Date of Hearing:  27 November 1995

Date of Judgment:  15 December 1995

Date of Costs:  2 April 1996