Secretary, Department of Social Security v Jackson, Mark Rex

[1998] FCA 1330

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 171 of 1997

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	MARK REX JACKSON RESPONDENT

JUDGE:	COOPER J
DATE OF ORDER:	22/10/98
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. A costs certificate issue under s 6(1) of the Federal Proceeding (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

2. There be no order in respect of the costs of this application for a costs certificate.

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 171 of 1997

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	MARK REX JACKSON RESPONDENT

JUDGE:	COOPER J
DATE:	22/10/98
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The appellant has succeeded in this appeal on a question of law. The question involved the proper construction of s 1165(3) of the Social Security Act 1991 (Cth) and its application to the circumstances of the respondent. The respondent seeks a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). I am satisfied that I have jurisdiction in the exercise of my discretion to grant a costs certificate in respect of the appeal (s 6, s 12).

The question of law determined in this appeal has been the subject of determination in the Social Security Appeals Tribunal (“the SSAT”), the Administrative Appeals Tribunal (“the AAT”), before a single judge of this Court and most recently before this Full Court.  The decisions below and the reasoning in this Court show that there remains a divergence of views on the issue.  A Full Court of this Court in Blunn v Cleaver (1993) 47 FCR 111 at 127 - 128 has previously commented on the difficulties which have arisen in respect of Part 3.14 of the Social Security Act 1991 (Cth) because of the drafting style adopted in the legislation.

The litigation has been treated by the Department as a test case.  In recognition of that fact, it has agreed with the respondent that, in the event of success on the appeal to the Full Court, it would not seek against the respondent orders for the costs of the appeal and below.  The arguments put by the respondent before the SSAT, the AAT and Spender J could not in any way be described as irresponsible, improper or baseless.  The issue was not one which was obvious as to its resolution or capable of easy disposition.  The Full Court reserved the question and in the result differing views prevailed between members of the Court.  There is nothing in the history of the litigation or the conduct of the respondent which would weigh against the exercise of the discretion to grant a costs certificate.  In these circumstances, I intend to grant such a certificate.  Although the discretion is unfettered, it is to be exercised judicially.  The matters which persuade me to exercise the discretion favourably to the respondent also have been treated by others as relevant circumstances to the exercise of the discretion in respect of this and similar cost certificate legislation:  see, for example, R v Hookham [No 2] (1993) 32 NSWLR 345 (CA) at 346 - 347; Builders Licensing Board v Price Constructions Pty Ltd [1979] NSWLR 607 at 619; Minister for Human Services and Health v Haddad (1995) 39 ALD 557 at 558 - 559; Lauchlan v Hartley [1980] Qd R 149 (FC).

I order that a costs certificate issue under s 6(1) of the Federal Proceeding (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

I make no order in respect of the costs of this application for a costs certificate.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             22/10/98

Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	P L Feely
Solicitor for the Respondent:	W H Tutt & Quinlan
Date of Hearing:	22 October 1998
Date of Judgment:	22 October 1998