Phipson Nominees Pty Ltd v French, M.M

[1989] FCA 767

Re: PHIPSON NOMINEES PTY. LIMITED
And: MARGARET MUIR FRENCH
No. ACT G45 of 1987
FED No. 767
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Miles J.(1)

CATCHWORDS

Costs - Appeal court's decision involving questions of law and fact - whether costs certificate should issue - Federal Proceedings (Costs) Act 1981, s.6

Warren v. Coombes (1979) 142 CLR 531 at p 552

Annand & Thompson Pty. Ltd. v. Trade Practices Commission (1979) 25 ALR 91

Wagner v. Moran (1958) 75 WN NSW 60

Cole v. Commonwealth of Australia (1964) NSWR 1035, (1963) 80 WN NSW 1365

Jenkins v. Gleeson (1983) 46 ALR 207

HEARING

CANBERRA

#DATE 9:11:1989

ORDER

A costs certificate under s.6 of the Federal Proceedings (Costs) Act 1981 be issued.

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

JUDGE1

This is an application for a costs certificate pursuant to s.6 of the Federal Proceedings (Costs) Act 1981 (the Act). The section provides as follows:

"6(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.

(2) Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, 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.

(3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of -

(a) the costs incurred by the respondent in relation to the appeal; and

(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates."

1. Under s.12 of the Act jurisdiction to grant the certificate may be exercised by a member of the court sitting in Chambers.

2. The appeal which gave rise to the present application was an appeal from the Supreme Court of the Australian Capital Territory. The decision on the appeal was handed down on 19 July 1988 when the Court, by majority, allowed the appeal, and ordered that the respondent pay the appellant's costs of and incidental to the appeal, that the judgment of the Supreme Court be set aside, that the action be dismissed and that the respondent pay the appellant's costs of and incidental to the action.

3. As the opening paragraphs of the majority judgment indicate, the appeal was against an award of damages for negligence causing repetitive strain injury, the respondent alleging that the injury had been caused by her being caused or forced to work too hard as an employee of the appellant, a service company of a firm of solicitors. In the majority judgment it was said that "the questions involved in the appeal appear to be purely factual". After reviewing the evidence, their Honours went on to consider what they called "the ultimate question, namely (the allegation) that there was a relevant lack of reasonable care". In this respect they expressed the view that it was proper to give effect to their own conclusions of fact, and referred to the following passage in Warren v. Coombes (1979) 142 CLR 531 at p 552.
   

"The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment."

1. On the issue of lack of reasonable care, the majority judgment concludes as follows:
   

"In our respectful opinion, once the question of furniture and fittings is left out of account, nothing of consequence was proved against the appellant other than that it worked its employees a four day rather than five day week, that there was a great deal of work to do and difficulty in attracting competent staff, and that, although it ordered the taking of rest breaks, that requirement was not rigorously enforced. Had the appellant been of the view, even absent the slightest complaint of a physical difficulty from the respondent, that her word-processing work exposed her to a risk of permanent injury, no doubt it should have stopped her doing that work, wholly or partly. But we cannot accept that the appellant was obliged to ascertain and act upon the alarmist views about R.S.I. represented by some of the publications tendered below. As the primary judge recognised, those views are, and were in 1983, inconsistent with much competent opinion. We do not agree with his Honour's conclusion that from November to the end of the respondent's service the appellant's conduct, considered as a whole, was negligent."

1. Their Honours then went on to deal with the further question whether "the injuries (if that is the right description) were, or could have been, caused by the negligent acts and omissions found". Insofar as their Honours had already found that there were no negligent acts or omissions the question was a hypothetical one. In any event, their Honours concluded that the respondent has failed "to show that the negligent acts and omissions found caused her condition". Hence, the appellant succeeded and the respondent failed on these two issues, want of reasonable care and causation.

2. The question then arises for the purpose of the present application whether the appeal can be said to have succeeded on a question of law within sub-s.6(1) of the Act.

3. An appeal to the Full Court under s.24 of the Federal Court of Australia Act 1976 is not limited to an appeal on a question of law: Annand & Thompson Pty. Ltd. v. Trade Practices Commission (1979) 25 ALR 91, following Warren v. Coombes.

4. In New South Wales the Suitors' Fund Act 1951 provides for an indemnity certificate in relation to certain appeals which succeed on a question of law. It was held that the section does not include a case where it is alleged that the jury has made an unreasonable, excessive or inadequate award of damages (Wagner v. Moran (1958) 75 WN NSW 60) or a situation where the appeal is on both questions of law and quantum of damages where the appeal succeeds on quantum only: Cole v. Commonwealth of Australia (1964) NSWR 1035, (1963) 80 WN NSW 1365. These decisions, however, turn on the construction of the NSW legislation which although similar in purpose is not in identical terms as those of s.6(1) of the Act.

5. In Jenkins v. Gleeson (1983) 46 ALR 207 Blackburn J. said at p 209:
   

"In my opinion, if the reasoning by which a court comes to its decision to allow an appeal requires at any stage the determination of a question of law which was disputed before it, then the appeal can be said to have succeeded on a question of law for the purposes of s.6 of the Federal Proceedings

(Costs) Act 1981. On this ground I hold that the respondent is entitled to a certificate."

1. Blackburn J. considered that the process of reasoning in the judgment of the Full Court, whereby the then appellant was successful, involved two steps. The first step involved a decision that there was in law no evidence upon which the trial judge was able to come to a particular finding of a fact in issue. That decision, according to Blackburn J., was a decision of law. The second step involved a decision of fact, involving the drawing of an inference from primary facts. Blackburn J. went on to say that as the first of the two steps involved a question of law, it was possible to say that the appeal succeeded on a question of law notwithstanding that the second step was a decision of fact only, and that accordingly,the respondent to the appeal was entitled to a certificate under the Act.

2. Although the majority decision in the present case ultimately turned on questions of fact, it was necessary as a preliminary step for the question to be asked to what extent was the Full Court entitled to find the facts for itself or to interfere with the primary judge's findings of fact. This preliminary question was one which troubled me as the dissenting judge in the appeal. I expressed the view in my judgment that in accordance with the principles espoused in Warren v. Coombes, it was necessary for the appeal court to decide initially whether or not the trial judge was in a better position than the appeal court to decide the facts in issue. If the trial judge was in no better position, then the Full Court was free to substitute its own findings of fact. The majority judges on the Full Court clearly took the view that the trial judge was in no superior position. The decision to that effect, in my opinion, involved a question of law which was necessary to be decided against the appellant before their Honours went on to find the facts against the appellant. Accordingly, there was, in my opinion, and to adopt the words of Blackburn J., in the reasoning by which their Honours came to their decision to allow the appeal a determination of a question of law which was disputed before the Full Court. Accordingly, the appeal can be said to have succeeded on a question of law for the purposes of s.6 of the Act and I hold that the applicant respondent is entitled to a certificate.

3. The application for the issue of a costs certificate under s.6(3) of the Act will be granted.