Repatriation Commission v M.D. Allen, J.D. Campbell and A.R. Horton and Darryn Yates

[1997] FCA 633

FEDERAL COURT OF AUSTRALIA

COSTS - No point of principle

REPATRIATION COMMISSION  v M.D. ALLEN, J.D. CAMPBELL and A.R. HORTON and  DARRYN YATES

NG 416 of  1996,  NG 489 of 1996

DARRYN YATES v THE REPATRIATION COMMISSION

NG 700 of 1996

MOORE J

SYDNEY

17 July 1997

IN THE FEDERAL COURT OF AUSTRALIA  )  Not for Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY )   NG 416 of 1996
  )   NG 489 of 1996
GENERAL DIVISION  )

BETWEEN:           THE REPATRIATION COMMISSION

Applicant

AND: M.D. ALLEN, J.D. CAMPBELL and A.R. HORTON

(constituting the Administrative Appeals Tribunal)
First Respondents

AND:  DARRYN PAUL YATES

Second Respondent

NG 700 of 1996
  BETWEEN:                                   DARRYN PAUL YATES                  Applicant
AND:  THE REPATRIATION COMMISSION
Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          17 July 1997

MINUTES OF ORDER
THE COURT ORDERS THAT:

1. The Repatration Commission pay Darryn Yates’ costs in NG 489 of 1996

1. Darryn Yates pay the Repatration Commission’s costs in NG 700 of 1996

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

IN THE FEDERAL COURT OF AUSTRALIA  )                               Not for Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY )   NG 416  of 1996
  )  NG 489 of 1996
GENERAL DIVISION  )

BETWEEN:  THE REPATRIATION COMMISSION

Applicant

AND: M.D. ALLEN, J.D. CAMPBELL and A.R. HORTON

(constituting the Administrative Appeals Tribunal)

First Respondents

AND:  DARRYN PAUL YATES

Second Respondent

NG 700 of 1996

BETWEEN:  DARRYN PAUL YATES                  

Applicant

AND:  THE REPATRIATION COMMISSION

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          17 July 1997

REASONS FOR JUDGMENT

On 12 June 1997 I dismissed two applications brought by the Repatriation Commission and an application brought by Mr Darryn Yates.  I also dismissed a cross-claim by Mr Yates.  I do not repeat  my reasons for doing so save to note that I did not deal finally with the question of costs and indicated I was then minded to make no order as to costs.  Submissions have since been made proposing, on Mr Yates part, a different course and, on the Commission’s part, submitting that no order be made.

The challenge to the Administrative Appeals Tribunal’s (“AAT”) decision of 26 April 1996, NG 416 of 1996, became, in substance, an academic exercise five days after the proceedings were commenced when the AAT vacated the earlier impugned decision.  That occurred on 27 May 1996.  Mr Yates would, in the absence of his cross-claim in that proceeding, ordinarily be entitled to such costs as were incurred in that proceeding.  However a cross-claim was brought by him and dismissed.  In my opinion the most practical means of dealing with costs in NG 416 of 1996 is to make no order as to costs.

Different consideration arise in the proceeding brought by the Commission, NG 489 of 1996,  challenging the direction of 27 May 1996.  It is true, and I earlier accepted, that the terms of the order of Lindgren  J were ambiguous and its effect uncertain.  However, if the order, properly construed, had the effect that no further evidence could be entertained by the AAT, it was not a course that had been urged upon his Honour by the Commission.  The Commission was potentially the beneficiary of an order it had not asked for.  For whatever reason the Commission sought thereafter to derive a benefit from the ambiguous order by seeking, in effect, to enforce it if it precluded the reception of further evidence.  The Commission could have adopted another course and simply accepted the view apparently taken by the AAT that further evidence could be entertained.  It did not and failed in what I have just described as its attempt to enforce the ambiguous order to its benefit.  The Commission should pay the costs of Mr Yates in NG 489 of 1996. 

The application by Mr Yates for an extension of time to appeal against the decision of Lindgren J, NG 700 of 1996, was also dismissed.  It was plainly a defensive application in response to NG 489 of 1996.  However it was made in circumstances where, as has been asserted and not put in issue, counsel for Mr Yates had told the AAT before its direction of 27 May 1996, that the application of Yates for a pension could be determined by reference to existing evidence. The application for an extension of time appears to have been a forensic exercise of dubious practical worth.  The Commission says it incurred costs in relation to NG 700 of 1996. Though I apprehend they would not be great, it is entitled to those costs.  Mr Yates should pay the Commission’s costs in NG 700 of 1996

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:                   

Dated:  17 July 1997  

Counsel for the Applicant:                 Miss R.M. Henderson

Solicitor for the Applicant:                Australian Government Solicitor       

Counsel for the Respondent:             Mr M.B. Smith           

Solicitor for the Respondent:             Vardanega Roberts Solicitors