Williams v Muller (No 2)

[2003] FCA 1472

FEDERAL COURT OF AUSTRALIA

Williams v Muller (No 2) [2003] FCA 1472

GARY WILLIAMS v DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) & COMCARE

D 3 OF 2003

MANSFIELD J
3 DECEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 3 OF 2003

BETWEEN:

GARY WILLIAMS
APPLICANT

AND:

DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
FIRST RESPONDENT

COMCARE
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

3 DECEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The second respondent to pay to the applicant 80 per cent of his costs of the application to be taxed or agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 3 OF 2003

BETWEEN:

GARY WILLIAMS
APPLICANT

AND:

DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
FIRST RESPONDENT

COMCARE
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	3 DECEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 31 October 2003 I published reasons for judgment in this application and made the declaratory and other orders there referred to Williams v Muller [2003] FCA 1190. I reserved the question of costs. The parties today have had the opportunity of making submissions as to costs.

2. The applicant seeks the costs of the proceedings.  He does so on the basis that the application has been substantially successful on most of the issues raised at the hearing and contends that the unsuccessful interlocutory application for an order restraining the Administrative Appeals Tribunal hearing from proceeding should be part of the order for costs.

3. The second respondent, Comcare, seeks an order that each party bear its own costs of the proceedings, including of that interlocutory application.  The second respondent acknowledges that the applicant has had a degree of success in the proceeding, because it was found that the applicant and the second respondent are bound by aspects of Professor Cohen's opinion as to the cause of the applicant's diabetes.  It points out, however, that it also achieved a degree of success because the Court found that Professor Cohen's opinion does not determine the question whether the applicant's diabetes in fact gives rise to liability to pay compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in relation to the factors which Professor Cohen identified as causative to his disease.

4. Before dealing with the respective contentions I indicate that I do not propose to treat the interlocutory application discretely from my consideration of the appropriate order for costs in the proceedings.  It is true that the applicant brought an interlocutory application to restrain the Administrative Appeals Tribunal from proceeding with a proposed hearing on the eve of that proposed hearing and that interlocutory application was refused.  The application before the Administrative Appeals Tribunal did not proceed in any event the day following that interlocutory application and, at the…