Seventh Mingcourt Pty Ltd (tas Allora Nursing Home) v The Honourable Carmen Lawrence (as the Commonwealth Minister of State for Human Services and Health)

[1996] FCA 658

CATCHWORDS

COSTS - recovery of costs - amended application wholly superseded original application - whether cost of original application recoverable as party and party costs - issues of alleged duplication and irrelevance issues for taxing officer.

COSTS - recovery of costs - provision of copy documents to Court and to opposing party - in a long and complex case provision of copy documents for the use of the Court may be appropriate.

COSTS - costs lie in the discretion of the Court - discretion to be exercised judicially - rarely appropriate for Court to determine merits of dispute after matter no longer live in order to determine questions of costs.

National Health Act 1953 (Cth) s 40AEF

Australian Securities Commission v Aust-Home Investments Limited & Ors (1993) 44 FCR 194

No VG 82 of 1994

SEVENTH MINGCOURT PTY LTD (A.C.N. 006 928 954) (trading as "Allora Nursing Home") v THE HONOURABLE CARMEN LAWRENCE (as the Commonwealth Minister of State for Human Services and Health)

Branson J
Adelaide
1 August 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIAN DISTRICT REGISTRY      )    No VG 82 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:

SEVENTH MINGCOURT PTY LTD
  (A.C.N. 006 928 954)
  (trading as "Allora Nursing
  Home")

Applicant

- and -

THE HONOURABLE
  CARMEN LAWRENCE (as the
  Commonwealth Minister of
  State for Human Services
  and Health)

Respondent

MINUTES OF ORDER

CORAM:    Branson J
PLACE:    Adelaide
DATE:     1 August 1996

THE COURT ORDERS THAT:

1. The applicant is to bring in within seven days of today's date minutes of order appropriate to reflect the reasons of the Court signed on behalf of each party.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIAN DISTRICT REGISTRY      )    No VG 82 of 1994
  )
GENERAL DIVISION                 )

BETWEEN:

SEVENTH MINGCOURT PTY LTD
  (A.C.N. 006 928 954)
  (trading as "Allora Nursing
  Home")

Applicant

- and -

THE HONOURABLE
  CARMEN LAWRENCE (as the
  Commonwealth Minister of
  State for Human Services
  and Health)

Respondent

REASONS FOR DECISION

CORAM:    Branson J
PLACE:    Adelaide
DATE:     1 August 1996

On 1 March 1996 I pronounced judgment in this matter setting aside decisions purportedly made pursuant to s40AEF of the National Health Act 1953 (Cth) ("the Act") and referring to the Minister for Human Services and Health for review according to law a decision of the delegate of the Secretary.  No order for costs was made at that time.  The parties were given liberty to apply.  The parties have been unable to reach agreement on the issue of costs and the matter was relisted before me for argument on the question of costs.

The applicant seeks an order for the whole costs of the action.  The respondent does not oppose an order that the respondent pay the applicant's party and party costs of the amended application for review dated 15 September 1995 which was the application argued before me.  However, the respondent opposes the making of an order that the respondent pay the applicant's costs of its original application dated 21 March 1994.  The respondent seeks an order that the applicant pay the respondent's costs of the application dated 21 March 1994.

The history of the proceedings in brief is as follows. A scale of fees applicable to the nursing home operated by the applicant was determined under the Act in late 1993. The applicant was notified of this determination by letter dated 15 December 1993. The application dated 21 March 1994 sought judicial review of the determination fixing such scale of fees.

However, on 25 January 1994 the applicant had requested the Minister to review the determination which fixes such scale of fees. Subsequently the Minister, as required by the Act, referred the request for a review of the determination to the Nursing Home Fees Review Committee of Inquiry established for South Australia. The applicant took part in an inquiry conducted by the Nursing Home Fees Review Committee of Inquiry. The inquiry was a lengthy one: the committee sat for 70 hours over a 6 week period. The applicant was represented at such inquiry by a solicitor and a barrister.
By notice of motion dated 6 April 1994, the applicant sought an order that the decision the subject of the application  dated 21 March 1994 be stayed until the hearing and determination of that application.

By a notice of motion dated 27 May 1994 the respondent sought an order that the Court refuse to grant the application dated 21 March 1994 for review by reason of the availability of an alternative method of review or, in the alternative, an order staying proceedings on such application.  The relief sought by this notice of motion was not granted.

On 18 October 1994 von Doussa J ordered, upon the applicant giving the usual undertaking as to damages, that the decision the subject of the application dated 21 March 1994 be stayed on the condition that the applicant lodge with the Registrar of the Court a bank guarantee in an amount fixed by his Honour.  His Honour reserved the costs of the motion.

The Nursing Home Fees Review Committee of Inquiry reported to the Minister on 21 October 1994.  There was a significant delay before the Minister purported to reach a decision on her review of the determination fixing the new scale of fees.  On 3 April 1995 counsel for the applicant foreshadowed an application seeking judicial review of the Minister's failure to conclude her review.  It seems that no such application was in fact ever filed.  Eventually the decisions were made which became the subject of the hearing before me.  The amended application which sought judicial review of such decisions was that dated 15 September 1995.  Such amended application raises matters quite distinct from those raised by the application dated 21 March 1994.

I consider first the issue of the costs of the application of 21 March 1994.  I note that on the hearing of the respondent's motion of 27 May 1994, von Doussa J expressed the view that the applicant was not to be criticised for making the application dated 21 March 1994 which was designed to raise issues of law not appropriate for determination by the Nursing Home Fees Review Committee of Inquiry.  His Honour subsequently made a stay order which was necessarily founded on such application.  The parties eventually agreed with the suggestion of von Doussa J that it would be appropriate for further consideration of the application dated 21 March 1994 to await the review by the Minister of the determination which fixed the scale of fees.  In the circumstances that happened, the purported review by the Minister necessitated what was, in effect, a complete redrawing of the application.

Costs lie in the discretion of the Court.  Such discretion is to be exercised judicially.  The authorities are clear that it will rarely be appropriate for a court to determine the merits of a dispute no longer live between the parties for the purpose only of the making of an order for costs (see  Australian Securities Commission v Aust-Home Investments Limited & Ors (1993) 44 FCR 194 esp. at 201).
It is contended on behalf of the respondent that it was not reasonable for the applicant to commence these proceedings on 21 March 1994 in view of its request of 14 February 1994 that the Minister review the determination which fixed the scale of fees.  In view of the attitude adopted by von Doussa J on the unsuccessful application by the respondent for an order that the Court refuse to grant the application, and having regard to the fact that interlocutory relief was granted to the applicant based upon its application of 21 March 1994, I am not satisfied that it was unreasonable for the applicant to commence the proceedings by its application of 21 March 1994.  However, I am not satisfied, indeed it was not suggested to me in argument, that the respondent acted unreasonably in defending the application.  I note that the parties acquiesced for some time in this matter not being litigated.

In all of the circumstances, I consider that the appropriate order is that each side should bear its own costs of the application dated 21 March 1994 - but on the following basis.  That basis is that the application dated 15 September 1995 should be regarded for the purposes of costs as an originating application, and that such of the affidavit evidence filed and served in support of the application dated 21 March 1994 as was properly relied upon in support of the application dated 15 September 1995 should be treated for the purposes of costs as having been filed and served in support of the application dated 15 September 1995.

I consider it appropriate, however, for the applicant to have its costs of the notice of motion dated 27 May 1994 pursuant to which the respondent moved the Court to refuse to grant the application for review dated 21 March 1994.

As to the notice of motion dated 6 April 1994, although the applicant eventually obtained an order on this notice of motion, it did so only on condition that it file a bank guarantee with the Registrar of the Court.  Initially it did not provide either to the Court or to the respondent detailed information to establish its solvency.  Nor did it offer to provide any security to the respondent.  In my view, the appropriate order as to the costs of this notice of motion, which were reserved by von Doussa J, is that each side should bear its own costs.

As to the amended application dated 15 September 1995, the respondent acknowledges that an order for costs in favour of the applicant is appropriate.  However, the respondent contends that much of the material filed by the applicant in support of the amended application duplicated material already in existence, was not capable of being of value on the hearing of the application or was not in fact referred to at the hearing.  The first two of these contentions are matters appropriate to be raised before the officer of the Court who undertakes the taxation of the costs in this matter.  As to the third, it is my view that if the material was proper to be filed in support of the application, it will not be a proper complaint on a taxation of the costs that, by reason of the course that the hearing took, it became unnecessary to refer to such material.

The respondent further complains that the applicant prepared unnecessary copy documents for use during the hearing.  If such copy documents were provided to the respondent's legal representatives unsolicited, as was suggested to me, it would be inappropriate for the respondent to be required to pay the costs of the set of such documents so provided.  Counsel for the respondent asserted, and I have no reason to doubt, that in fact such documents were not of assistance to him and he did not use them to any significant degree.

In a potentially complex case, as this one appeared to be, and where numerous affidavits have been filed over a long period of time, and in support of various applications and motions, the preparation of copy documents for the Court will often be of valuable assistance to the Court.  Subject to the applicant convincing the Court's taxing officer that the material placed within such copy documents was appropriate, the applicant will be entitled to the costs of the preparation of such copy documents for the use of the Court.  It will be for the taxing officer to determine whether it was a proper cost on a party and party basis for the applicant to have provided a set of such copy documents to its own counsel.

The applicant is to bring in within seven days of today's date minutes of order appropriate to reflect the reasons of the Court signed on behalf of each party.

I certify that this and the preceding         pages are a true copy of the Reasons for Decision of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant        :    Mr M E Hoile
  with Mr G King

Solicitors for the Applicant     :    Kings

Counsel for the Respondent       :    Mr S C Cole
  with Mr M J Reglar

Solicitors for the Respondent        :    Australian Government
  Solicitor

Hearing Date  :    15 July 1996