Repatriation Commission v Codd

[2005] FCA 910

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Codd [2005] FCA 910

REPATRIATION COMMISSION  v  KATHLEEN M CODD

V 1152 of 2004

RYAN J

1 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1152 of 2004

On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	KATHLEEN M CODD Respondent
JUDGE:	RYAN J
DATE OF ORDER:	1 JULY 2005
WHERE MADE:	MELBOURNE

CERTIFICATE UNDER FEDERAL PROCEEDINGS (COSTS) ACT 1981

THE COURT CERTIFIES THAT IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 in respect of the costs incurred by the abovenamed respondent in relation to the appeal from the Administrative Appeals Tribunal which was allowed by order of the Court made 30 June 2005.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1152 of 2004

On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	KATHLEEN M CODD Respondent
JUDGE:	RYAN J
DATE:	1 JULY 2005
PLACE:	MELBOURNE

RULING ON APPLICATION FOR CERTIFICATE UNDER
FEDERAL PROCEEDINGS (COSTS) ACT 1981

1. After orders were pronounced in this matter yesterday, the solicitor for the respondent applied for a costs certificate under the Federal Proceedings (Costs) Act 1981 (“the Costs Act”).  The appeal to this Court was from a decision of the Administrative Appeals Tribunal (“the AAT”) and was accordingly a “Federal appeal” within the meaning of the Costs Act.  The grant or withholding of a certificate is in the unfettered discretion of the Court;  Bullock v Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476.

2. I have decided to grant the certificate.  The principal consideration influencing me to exercise the discretion in that way is that the AAT’s error of law occurred in the administration of beneficial legislation (the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) framed generally for the assistance of veterans and their dependants.  As Branson J pointed out in Repatriation Commission v Cornelius noted at (2002) 69 ALD 250;

   ‘the status of a respondent as a war veteran is a factor which may be taken into account in the exercise of a discretion to grant a certificate under s 6 of the [Costs] Act.’

3. Unlike the respondent in Cornelius, the present respondent was not on notice of the weakness of her case.  Although the appeal to this Court did not involve a novel point of law or the clarification of principles earlier left unclear, the legislation now embodied in the VE Act has undergone successive changes since the veteran’s death which have hedged entitlements with multiple layers of complexity.  That complexity has been particularly attendant on the introduction of Statements of Principle one of which was applied by the AAT and later required detailed examination by this Court.

4. For these reasons I shall grant a certificate under the Costs Act.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Ryan J.

Associate:

Dated:            1 July 2005

Counsel for the Applicant:	Ms J Macdonnell
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr N J D Green QC
Solicitor for the Respondent:	Williams Winter
Date of Hearing:	2 May 2005
Date of Judgment:	30 June 2005
Date of Ruling:	1 July 2005