Merit Protection Commissioner v Nonnenmacher

[1999] FCA 562

FEDERAL COURT OF AUSTRALIA

Merit Protection Commissioner v Nonnenmacher [1999] FCA 562

COSTS – costs certificate.

Federal Proceedings (Costs) Act 1981, s 6(1).

MERIT PROTECTION COMMISSIONER, ANNA LE THANH, ARTHUR NORRIS AND THE SECRETARY OF THE DEPARTMENT OF DEFENCE v GARRY JAMES NONNENMACHER

N 104 OF 1999

JUDGES:      BEAUMONT, LEE & DOWSETT JJ

DATE:           28 APRIL 1999         
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 104 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MERIT PROTECTION COMMISSIONER
First Appellant

ANNA LE THANH
Second Appellant

ARTHUR NORRIS
Third Appellant

THE SECRETARY OF THE DEPARTMENT OF DEFENCE
Fourth Appellant

AND:

GARRY JAMES NONNENMACHER
Respondent

JUDGES:

BEAUMONT, LEE & DOWSETT JJ.

DATE OF ORDER:

28 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay the appellants’ costs of the appeal.

2.The respondent have a costs certificate in respect of the appeal pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 and for the Attorney-General to authorise a payment under that Act to the respondent in respect of:

(a)      The costs incurred by the respondent in relation to the appeal.

(b)Any costs incurred by the appellants in relation to the appeal that are required to be paid by the respondent to the appellants in pursuance of the order of the Court.

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	N 104 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MERIT PROTECTION COMMISSIONER
First Appellant

ANNA LE THANH
Second Appellant

ARTHUR NORRIS
Third Appellant

THE SECRETARY OF THE DEPARTMENT OF DEFENCE
Fourth Appellant

AND:

GARRY JAMES NONNENMACHER
Respondent

JUDGES:	BEAUMONT, LEE & DOWSETT JJ.
DATE:	28 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (ON COSTS)

THE COURT:

1. By orders dated 23 March 1999 disposing of the appeal, the Court reserved in order 4, liberty to apply for costs of the appeal which were reserved, any application for such costs to be made by written submission filed and served within 28 days. 

2. On behalf of the appellants, a submission has been filed, seeking the costs of the appeal on several grounds, but primarily on the ground that the costs should follow the event of the disposition of the appeal.

3. On behalf of the respondent, a submission has been received in reply making no submission as to the usual order, but making a submission dealing with another matter to which I need not, in the circumstances, refer.  In his written submission, the respondent also sought a certificate for costs under the Federal Proceedings (Costs) Act 1981 (“the Act”). 

4. On the question of the costs of the appeal, the Court is of the opinion that there is no reason to depart from the usual order in such a matter, that is to say, that costs follow the event of the appeal.

5. The appeal was allowed and having considered the matter and the submissions, the Court is of the opinion that the appellants should have their costs of the appeal.  So it will be ordered that the respondent pay the appellants’ costs of the appeal. 

6. As has been noted, the respondent however, seeks a certificate under the Act. This appeal did involve a question of law and an important question of procedure and, in our view, it is appropriate that the respondent should have a certificate under the Act. It is ordered that the respondent have a costs certificate in respect of the appeal pursuant to the provisions of s 6(1) of the Act and, accordingly, we note that it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:

   (a)      The costs incurred by the respondent in relation to the appeal.

   (b)Any costs incurred by the appellants in relation to the appeal that are required to be paid by the respondent to the appellants in pursuance of the order of the Court.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             28 April 1999

Counsel for the First, Second, Third & Fourth Appellants:	Mr T Howe
Solicitor for the First, Second, Third & Fourth Appellants:	Australian Government Solicitor
Counsel for the Respondent:	Mr V F Kerr
Solicitor for the Respondent:	Marsdens
Date of Hearing:	23 March 1999
Date of Written Submissions:	19 April 1999 and 23 April 1999
Date of Judgment on costs:	28 April 1999