Norton v Comcare

[2000] FCA 1446

FEDERAL COURT OF AUSTRALIA

Norton v Comcare [2000] FCA 1446

JAMES LESLIE NORTON v COMCARE
QG 182 OF 1998

DRUMMOND J
13 OCTOBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 182 OF 1998

BETWEEN:	JAMES LESLIE NORTON APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	13 OCTOBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The respondent pay the applicant’s costs to be taxed of the appeal to the Federal Court of Australia, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 182 OF 1998

BETWEEN:	JAMES LESLIE NORTON APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	DRUMMOND J
DATE:	13 OCTOBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 4 August 2000 I allowed the applicant’s appeal from a decision of the Administrative Appeals Tribunal dismissing his claim and affirming the decision of a reconsideration’s delegate of the respondent which had affirmed a decision of a delegate of the respondent of January 1995 that deemed the applicant able to earn full income in suitable employment.  I also ordered that the matter be remitted to the Tribunal, differently constituted, for redetermination, with liberty to receive further evidence.

2. Although I did not then deal either with the costs of the appeal or the costs of the proceedings in the Tribunal, the applicant now seeks all those costs.  Brief written submissions have been delivered by each party.

3. The respondent assumes, wrongly, that when I allowed the appeal I ordered that it pay the applicant’s costs of the appeal.  The applicant now asks for those costs.  There will be an order that the respondent pay the applicant’s costs to be taxed of the appeal to this Court, including reserved costs.

4. The applicant also asks for an order that the respondent pay the applicant’s costs of the proceeding in the Tribunal which culminated in the dismissal of the applicant’s challenge to the decision of the respondent’s reconsiderations’ delegate. The general rule contained in s 67(1) the Safety, Rehabilitation and Compensation Act 1988 (Cth) is that the costs incurred by a party to proceedings of the kind here in question instituted in the Tribunal shall be borne by that party. This is qualified in a number of respects including by s 67(8), which provides:

   “Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

   (a)varying a reviewable decision in a manner favourable to the claimant; or

   (b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

   the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.”

5. It is s 67(8) upon which the applicant relies. Neither this provision nor s 44(4) the Administrative Appeals Tribunal Act 1975 (Cth), upon…