Summers v Repatriation Commission (No 2)

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.