Owens, A.J. v Repatriation Commission

[1994] FCA 749

JUDGMENT NO. ... 2.3!../ Ak..

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)

BETWEEN:  ALBERY JAME OWENF

Appilcanc -

AND :  REPATRIATION COMMISSION 4

Ftesponaenr

21 SEPTEMBER

REASONS FOR JUDGMENT

LOCKHAR? J .

This matter was before the Court on 19 August 1994 for hearlng. There was some alscusslon or that occasion as to the appropriate procedure to be taker. by the respondent, the Repatrlarion Commission, in order to enable it to assert that the Admlnlstrate Appeals Trl~unal, fzom whose declsion this appeal (in the origlnal jurlsulcrlor of the Court) has been brought, lacked jurlsdlctlor,

matter placed before the Board.

Brlefly stated, the polnz was tnat the appeal before the Tribunal was Itself broughr o declsion of the Veterans' Revlex Boarc, whlch in turr. heard an application for revlew of e prlor aeclsion of the Cominlsslor., bas fondamentally flawed

for want o: ~urlsdlctlon becausc tnt relevant condltlon, the sublect of the proceedings before the Tribunal, had not been a

The particular pornt of wanr cf -Jurls&ctlon hac been lnltlall: ralsec before tne Trlbunal our nor pursued. I gave leave tc the Commlsslon to fllc ane serve a notlce of motion to strlke out tne appeal or for leavc tc cross appeal out of tlme. On either approacr. tne 3urlsd lctlor, pclnt would be ralsed.

The matzer was ad)ourned unrll today. When called on this morning counsel for the Commission sald that the Commission no longer sought to ralse the )ur~sd~ction point and therefore did not seek to press its motlon. He asked that it be dismissed, and submitted to whatever order for costs the Court thought appropriate. Counse: for the applicant has asked for an order that the Commlcsiop pay hls cllent's costs of the motion. I have been lnformed by counsel for the applicant that the notification of the Commission's intention not to pursue the motlon was not communicated untll 5.30 pm yesterday and counsel for the Commlsslon aarees ir, that statement.

It is of course a matrer for the taxlnc offlcer to determine the appropriate quantur o: coscs and tne principles upon whlch the costs should be determlnec bur it 1s obvious from what has been salc tc me t n x morninq tna: counsel for the applicant had preparec his araumen: or the motlon on the assumption that it walc proceeciln~, before nozlflcation was received of the intention to abandon the motlon. That is a matter whlch the taxlng officer will doubtless take into account.

kccordlngly, the Cour: orders tnat the not~ce of motlon

filed on 29 August 1994 be dlsmlssed ane tnat tnc Commlsslor. pay the costs of the appllcanr of tnc mozlor., tnc coscs cc DE. agreed or, failing agreement, taxed.

I certify that thls and the

preceding twn ( 2 ) pages are a true copy of the reasons for judgment herelr 0; the Honourable Mr. ~ustice Locknart.

-- Dated. 2i September 1994

Counsel for tnc kpplican:  Mr M.B. Smith

Solicltors foz t n c ~p:-:can= : Legal Aid Commission

of NSW

Counsel for tnc Respondenz	Mr D. Ryan
Solicltors for the hesLcnaent :	Australian Government Sollcltors
Date of Hearlnr	21 September 1994
Date of Judgmen:	21 September 1994