Minister for Human Services & Health Haddad, J G M & Anor

[1995] FCA 1074

IN CHAMBERS - LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No. G164 of 1995                 GENERAL DIVISION                 )

BETWEEN:MINISTER FOR HUMAN SERVICES AND HEALTH

Applicant

AND:JOSEPH GAMIL MORCOS HADDAD

First Respondent

MEDICARE PARTICIPATION
  REVIEW COMMITTEE
  Second Respondent

CORAM:        TAMBERLIN J
PLACE:        SYDNEY
DATED:        6 DECEMBER 1995

REASONS FOR JUDGMENT

This is an application by Dr Haddad who was the unsuccessful respondent to an appeal by the Minister for Human Services and Health ("the Minister") from a decision of the Administrative Appeals Tribunal ("AAT").

On 28 July 1995, the Full Court ordered that the appeal be allowed and that the decision of the AAT be set aside.  The matter was remitted to the AAT for determination in accordance with law and Dr Haddad was ordered to pay the Minister's costs of the appeal.

Dr Haddad ("the applicant") has made an application to the Court for a Costs' Certificate under s 6 of the Federal Proceedings (Costs) Act 1981.

That section provides:

1. 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 a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal ...."

By s 3 of the Act the term "Federal appeal" means:

"(g)An appeal to the Federal Court from a decision of the Administrative Appeals Tribunal."

This was such an appeal.

Section 12 of the Act provides that the jurisdiction conferred on the Court to grant costs certificates may be exercised by a member of that court sitting in chambers.

The discretion conferred on the Court under s 6(1) of the Act must be exercised judicially.

The section confers an "unfettered" discretion. As the authorities point out, it is a discretion to grant the certificate. It is not a discretion to refuse the certificate.

Accordingly, there is no presumption in favour of the respondent to the making of the application, to the effect that it will generally be granted: Richards v Faulls Pty Limited [1971] WAR 129 at 137-8. See also Commonwealth of Australia v Twyman (1985) 8 ALD 554 at 559. The unsuccessful respondent must establish some grounds for the court to exercise the power. The circumstances which would properly influence the decision are many and various. One matter which is relevant is that the taxpayer is being asked to bear the cost, up to a maximum amount, which is at present $6,000. Cf Bullock v Federated Furnishing Trades (No 2) (1985) 58 ALR 373.

In Bullock's case a cost certificate was not granted by the Full Court because the respondents had obtained a positive advantage and the applicants had suffered a corresponding disadvantage by reason of the erroneous decision of the Court when hearing the application. Between the date of the judgment and the time when the court was able to restore the position to that which had previously obtained, the respondents had a period during which they were permitted to pursue their campaign against the applicants without fear of any legal sanction.  An additional factor, in that case, was that the respondents had elected to place no evidence before the court when the application was heard.  The court considered that there was no good reason why the taxpayer should be asked to subsidise the legal costs of litigants who, rather than "put all their cards on the table", deliberately elected to rely on legal arguments which were clearly very debatable.

In the present case, the application is supported by an affidavit. This affidavit points out that there was an error of law and asserts that the applicant had no part to play in the error of law. In addition, the applicant does not have the benefit of any indemnity and even if he received the maximum amount, it would still be well below, to the extent of about $5,700, the estimated costs which the applicant has been ordered to pay.

The application is opposed by an affidavit on behalf of the Minister. The affidavit points out that counsel for the applicant submitted that knowledge of falsity by the applicant was not a relevant issue in the proceedings before the AAT and that the Medicare Participation Committee, ("the Committee"), fell into error by applying the guidelines as if the applicant had been convicted under s 128B, when he had only been convicted under s 128A.  The Full Court allowed the appeal of the Minister, on the basis that the AAT had erred by making its determination on the basis that the Committee wrongly took into account the knowledge of the applicant that the claims were false. The Minister asserts that the submissions of the applicant in the proceeding before the AAT played a part in the error of law. Further, it is asserted that the applicant's
financial position does not distinguish the applicant from any other unsuccessful litigant. 

In my view, it was reasonably open to the applicant to make these submissions to the AAT. It cannot be said that the applicant misled the AAT. I do not consider that the submissions, on behalf of the applicant before the AAT, warrant a conclusion that the applicant caused the error of law.

It does not seem to me appropriate, in deciding the present application, to give any substantial weight to the conduct in respect of which the applicant pleaded guilty in the Magistrate's court.

The simple fact is that there was has been an error of law, not contributed to by the applicant, which gave rise to the successful appeal to this Court. The effect of this appeal is that the case will now be reconsidered by the AAT in accordance with law as it ought to have been originally considered after the hearing before the AAT.

In these circumstances, it is appropriate that the applicant be granted a Costs' Certificate in respect of the appeal in accordance with s 6 of the Act.

I make no order in respect of the costs of this application.

I certify that this and
the preceding five (5)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  6 December 1995  

Solicitor for Applicant:     Australian Government Solicitor

Solicitor for Respondent: Whitehead Green & Cooper

Date Judgment Delivered:     6 December 1995