Tisdall v Blazow

Case [2005] FCAFC 213

FEDERAL COURT OF AUSTRALIA

Tisdall v Blazow [2005] FCAFC 213

DR PETER THOMAS TISDALL v JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973) AND THE PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)

VID 45 OF 2005

HEEREY, SUNDBERG and NORTH JJ
29 SEPTEMBER 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 45 OF 2005

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973)
FIRST RESPONDENT

PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)
SECOND RESPONDENT

JUDGE:

HEEREY, SUNDBERG and NORTH JJ

DATE OF ORDER:

29 SEPTEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appellant pay the first respondent’s costs on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the first respondent will be completely indemnified by the appellant for its costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 45 OF 2005

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973)
FIRST RESPONDENT

PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)
SECOND RESPONDENT

JUDGE:

HEEREY, SUNDBERG and NORTH JJ

DATE:

29 SEPTEMBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application by the first respondent for indemnity costs following the decision of this Court on 7 September 2005 in Tisdall v Blazow [2005] FCAFC 190 (the ‘Full Court decision’), in which the respondents were successful. The Full Court decision concerned an appeal under the Health Insurance Act 1973 (Cth), and an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to a determination of the Professional Services Review Tribunal. Both the appeal and the application were dismissed. The judgment in the Full Court decision sets out all the relevant facts and findings. The first respondent was granted leave to apply for indemnity costs. Pursuant to that leave, the first respondent filed and served an application together with her written submissions in support of the application. On 21 September 2005 the applicant filed written submissions in response.

  2. By virtue of ss 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (the Act) the Court has the power to make costs orders at its discretion. This power is unfettered; but is to be exercised judicially. Generally, costs should be ordered on a party and party basis, unless the particular circumstances of the…

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AGLC
Tisdall v Blazow [2005] FCAFC 213
Case
[2005] FCAFC 213
Decision Date

CaseChat Overview and Summary

In the case of Tisdall v Blazow, the appellant sought to appeal against the decision made by Tamberlin J. The first respondent argued that the proceeding exhibited sufficient special or unusual features to warrant an order for costs on an indemnity basis. The appellant contended that the arguments put to the Full Court were not the same as those decided by Tamberlin J, there was no estoppel and the appellant was entitled to exercise his right of appeal in the matter. The appellant also claimed that he was entitled to withdraw the appeal from Tamberlin J’s decision in order to allow the present appeal to be the vehicle to decide the issues. The appellant submitted that he did not regard the grounds of appeal as without merit and he should not be punished for pursuing an appeal that failed.

The court was required to decide whether the proceeding exhibited sufficient special or unusual features to warrant an order for costs on an indemnity basis. The court was also required to determine whether the appellant was entitled to exercise his right of appeal in the matter and whether he was entitled to withdraw the appeal from Tamberlin J’s decision in order to allow the present appeal to be the vehicle to decide the issues. The court was required to assess the merit of the grounds of appeal and whether the appellant should be punished for losing.

The court found that the proceeding exhibited sufficient special or unusual features to warrant an order for costs on an indemnity basis. The court held that the grounds which were pursued by the appellant were of so little merit that the appellant should have appreciated that they had no chance of success. The court found that the order for costs on an indemnity basis was not made to punish the appellant, but to indemnify the first respondent against the costs of an appeal which was unreasonably instituted and pursued. The court concluded that the appellant was not entitled to exercise his right of appeal in the matter and that he was not entitled to withdraw the appeal from Tamberlin J’s decision. The court held that the appellant should be punished for losing.

The court ordered that the appellant pay the first respondent’s costs on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the first respondent will be completely indemnified by the appellant for its costs.

Orders

Orders of the court

1. The appellant pay the first respondent’s costs on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the first respondent will be completely indemnified by the appellant for its costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant submits that the arguments put to the Full Court were not the same as those decided by Tamberlin J, there was no estoppel and the applicant was entitled to exercise his right of appeal in the matter. Further, the applicant was entitled to withdraw the appeal from Tamberlin J’s decision in order to allow the present appeal to be the vehicle to decide the issues. The applicant then indicates that he did not regard the grounds of appeal as without merit and he should not be punished for pursuing an appeal that failed. The submissions conclude: The Appellant’s conduct has always supported the view that he firmly believes in the matters he had raised and that they are worthy of an appeal – a right which he has that is given by our system of justice. To punish him for losing, it is submitted, would be unfair. CONSIDERATION We accept the first respondent’s submission that this proceeding exhibits sufficient special or unusual features as to warrant an order for costs on an indemnity basis. Quite apart from the applicant’s abandonment of a number of grounds of appeal on the day of the hearing, the grounds which were pursued were of so little merit that the applicant should have appreciated that they had no chance of success. The order for costs on an indemnity basis is not made to punish the applicant, but to indemnify the first respondent against the costs of an appeal which was unreasonably instituted and pursued.