Summers v Repatriation Commission (No 2)

Case [2015] FCAFC 64


FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission (No 2) [2015] FCAFC 64

Citation: Summers v Repatriation Commission (No 2) [2015] FCAFC 64
Appeal from: Summers v Repatriation Commission [2014] FCA 608
Parties: RONALD JOHN SUMMERS v REPATRIATION COMMISSION
File number: VID 366 of 2014
Judges: KENNY, MURPHY AND BEACH JJ
Date of judgment: 14 May 2015
Catchwords: PRACTICE AND PROCEDURE – costs – discretion to award costs – departure from usual rule that successful litigant is awarded costs in their favour
Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases cited: Armstrong v Boulton [1990] VR 215
Bostock v Ramsey Urban District Council [1900] 2 QB 616
Gladstone Park Shopping Centre Pty Ltd v Ross Wills and Others (1984) 6 FCR 496
Jones v McKie [1964] 1 WLR 960
King & Co v Gillard & Co [1905] 2 Ch 7
Levick v Commissioner of Taxation (2000) 102 FCR 155
Oshlack v Richmond River Council (1998) 193 CLR 72
Ritter v Godfrey [1920] 2 KB 47
Ruddock v Vadarlis and Others (No 2) (2001) 115 FCR 229
Smith v Gould(No 2) [2012] VSC 541
Summers v Repatriation Commission (2012) 130 ALD 32
Summers v Repatriation Commission [2013] AATA 439
Summers v Repatriation Commission [2014] FCA 608
Summers v Repatriation Commission [2015] FCAFC 36
Trade Practices Commission v Nicholas Enterprises Pty Ltd and Others (1979) 28 ALR 201
Date of hearing: 6 November 2014
Date of last submissions: 31 March 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 33
Solicitor for the Appellant: Mr D De Marchi of De Marchi & Associates
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 366 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

RONALD JOHN SUMMERS
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

KENNY, MURPHY AND BEACH JJ

DATE OF ORDER:

14 MAY 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Each party bear its own costs of the proceedings before Mortimer J and of this appeal.

2.The solicitors for the Appellant have leave to file further submissions on or before 21 May 2015 as to whether or not an order in the terms proposed in paragraph 32 of the reasons for judgment delivered today should be made.

3.In the event that the solicitors for the Appellant do not file any further submissions in accordance with [2] above, then the Court orders that the solicitors for the Appellant shall not seek or obtain payment of professional fees by Mr Summers (or by any other person or body) for the legal work in the proceeding before Mortimer J or in this appeal, but, subject to any fee and retainer agreement between the solicitors and Mr Summers, may recover the disbursements incurred.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL…

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Summers v Repatriation Commission (No 2) [2015] FCAFC 64
Case
[2015] FCAFC 64
Decision Date

CaseChat Overview and Summary

Summers v Repatriation Commission (No 2) involved the issue of costs following an appeal against a decision of the Administrative Appeals Tribunal (AAT). Mr. Summers, the appellant, sought an increased pension based on his claim of war-caused PTSD and alcohol dependence. The Federal Court of Australia was tasked with determining the costs associated with the proceedings. The central legal issues were whether the successful party should be awarded costs and if the court had discretion to depart from the usual rule.

The court considered the unusual circumstances of the appeal, where Mr. Summers succeeded on grounds not fully pleaded or argued before the primary judge. Despite his success, the court observed that Mr. Summers' solicitor did not adequately direct the evidence to the specific requirements of the applicable law, leading to errors in the tribunal's decision. The court concluded that while Mr. Summers was successful on some grounds, the manner in which the appeal was conducted warranted a departure from the usual rule of awarding costs to the successful party. Consequently, the court ordered that each party bear its own costs. Furthermore, it directed that Mr. Summers' solicitors could not seek or obtain payment of professional fees for the work done unless further submissions were made regarding the proposed terms.

The final orders stipulated that each party would bear its own costs for the proceedings before the primary judge and the appeal. Additionally, Mr. Summers' solicitors were given leave to file further submissions on whether an order should be made as proposed. If no further submissions were filed, the court ordered that the solicitors could not seek or obtain payment of professional fees for the work done but could recover any disbursements incurred, subject to any existing fee agreements.

Orders

Orders of the court

1. Each party bear its own costs of the proceedings before Mortimer J and of this appeal.

2. The solicitors for the Appellant have leave to file further submissions on or before 21 May 2015 as to whether or not an order in the terms proposed in paragraph 32 of the reasons for judgment delivered today should be made.

3. In the event that the solicitors for the Appellant do not file any further submissions in accordance with [2] above, then the Court orders that the solicitors for the Appellant shall not seek or obtain payment of professional fees by Mr Summers (or by any other person or body) for the legal work in the proceeding before Mortimer J or in this appeal, but, subject to any fee and retainer agreement between the solicitors and Mr Summers, may recover the disbursements incurred.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 17 March 2015 we handed down judgment in this matter and allowed Mr Summers’ appeal (“the principal judgment”) (Summers v Repatriation Commission [2015] FCAFC 36). We now deal with the question of costs.THE PROCEDURAL BACKGROUND The claim to which the appeal relates commenced on 10 December 2007 when Mr Summers sought an increased pension to the special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) on the basis that he suffered from war-caused PTSD and alcohol dependence. In the various proceedings since the claim was lodged Mr Summers has at all material times been represented by Mr De Marchi of the legal firm De Marchi and Associates. In relation to the proceeding before us, at first instance a single judge of this Court dismissed Mr Summers’ application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (Summers v Repatriation Commission [2014] FCA 608) from a decision of the Administrative Appeals Tribunal (“Tribunal”) on 27 June 2013 (Summers v Repatriation Commission [2013] AATA 439). In that proceeding Mr Summers raised ten questions of law directed at two main parts of the Tribunal’s decision - the interpretation and application of the applicable Statement of Principles (“SoP”) under the Act and the proper construction and application of s 24 of the Act. Mr Summers was unsuccessful on all grounds and the Commission was unsuccessful in its cross-appeal. Because both parties were unsuccessful the primary judge held that there should be no order as to costs. Mr Summers then appealed to us by way of an Amended Notice of Appeal dated 11 August 2014. The eight grounds of appeal before us were essentially the same as the grounds before the primary judge. Before us Mr Summers was unsuccessful on grounds of appeal 1, 2, 2A and 3 which related to the proper construction and application of s 24 of the Act. It was unnecessary to trouble counsel for the Commission with oral submissions on those grounds. Mr Summers succeeded in the appeal on two bases. First, he succeeded on appeal ground 4D which concerned whether the Tribunal failed to consider the applicability of cl. 6(a) of the SoP. This ground was not pleaded and was not raised before the primary judge. It was raised as a matter of concern by the Court and at the Court’s invitation Mr Summers sought leave to file a Further Amended Notice of Appeal. Leave was granted after considering the parties’ written submissions on the issue. Second, he succeeded on appeal grounds 4, 4A, 4B and 4C which related to whether the Tribunal misconstrued s 120 of the Act and parts of cl. 3(b) of the applicable SoP. In the hearing Mr Summers’ solicitor, Mr De Marchi, cast the appeal more broadly than it was pleaded and we dealt with the case on that broader basis. Mr Summers succeeded on a basis which was largely not as pleaded and which was only raised in part before the primary judge. We held that the Tribunal erred in its approach to the evidence regarding whether Mr Summers’ alcohol dependence satisfied the requirements in clause 3(b) of the SoP, and that the primary judge erred in failing to correct this error. In relation to this question we observed in the principal judgment (at [120]):It is here that the deficiencies in Mr Summers’ solicitor’s approach to the evidence to be adduced before the Tribunal are plainly apparent. We say this because there appears to have been no attempt to direct Mr and Mrs Summers’ evidence to the specific requirements of the cl. 3(b) factors, and before us Mr De Marchi’s submissions again failed to focus on those requirements. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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