Sheikh v Australian Postal Corporation

FEDERAL COURT OF AUSTRALIA

Sheikh v Australian Postal Corporation [2006] FCA 646

COSTS – appeal from Administrative Appeals Tribunal – claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal dismissed – no order as to costs – whether respondent may make an application for costs after the hearing – prima facie rule under the Safety, Rehabilitation and Compensation Act that each party bears its own costs – whether Court on appeal has discretion to order appellant to pay costs of appeal

Held: the appellant is to pay the respondent’s costs of the appeal

Federal Court of Australia Act 1976 (Cth) subs 43(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth) subs 67(8)

Roberts v Repatriation Commission (1992) 39 FCR 420

YASMIN SHEIKH V AUSTRALIAN POSTAL CORPORATION
NSD 1422 OF 2005

TAMBERLIN J
SYDNEY
29 MAY 2006

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NSD 1422 OF 2005

BETWEEN:	YASMIN SHEIKH APPELLANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	TAMBERLIN J
DATE OF ORDER:	29 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appellant is to pay the costs of the respondent of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NSD 1422 OF 2005

BETWEEN:	YASMIN SHEIKH APPELLANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	29 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 22 December 2005, I dismissed an appeal in this matter by Yasmin Sheikh and made no order as to costs.

2. The respondent now seeks an order for costs on the basis that the normal rule - that costs follow the outcome - should apply.

3. The appellant resists the order for costs and submits that no specific application for costs was made by the respondent at the hearing.  The appellant submits that there is no reason advanced by the respondent as to why it should be given the indulgence of setting aside an order already made.

4. In the circumstances of this case, it is submitted by the appellant that the order of 22 December 2005 that there be no order as to costs of the appeal has not been shown to be an unsupportable or unjust exercise of the Court’s broad power to award costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth). Therefore, the appellant says that the question of costs should not be reopened.

5. The appellant also submits that litigation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) is not properly viewed as adversary litigation, even though the process may manifest some characteristics of such litigation.

6. In this case, the fact that no order is made as to costs simply means what it says, namely, that there has been no order made.  Accordingly, it is open to the respondent to approach the Court for an order for costs at this later stage. 

7. I appreciate that the litigation is essentially…