Australian Postal Corporation v Harris

The submissions of the parties 5 Counsel for Mr Harris submitted that I should set aside my earlier order and order that the Corporation pay Mr Harris' costs of the appeal. Reference was made to the well-known principles stated by Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at p. 48,136. It was submitted that the Corporation failed on two of the three issues it raised in the appeal and should, accordingly, bear its own costs of litigating them and pay Mr Harris' costs of defending them. Additionally, there were special circumstances justifying a departure from the usual rule that the Corporation receive its costs in respect of the issue on which it succeeded. That issue, namely Mr Harris' incapacity between the final day of the hearing and the date of the Tribunal's decision, arose out of the delay with which the Tribunal gave its decision and not out of any contention raised by Mr Harris before the Tribunal. Mr Harris could not have been expected not to defend the appeal, given that other issues were seriously agitated by the Corporation. Lastly, to order Mr Harris to pay one third of the Corporation's costs would deprive Mr Harris of a significant part of the compensation awarded by the Tribunal under beneficial legislation, in respect of which the Court found no legal error. Alternatively, counsel for Mr Harris submitted that each party bear its own costs. 6 The principal submission of counsel for the Corporation that the appropriate time for the making of submissions that the ordinary rule that costs follow the event should be departed from was at the hearing of the appeal. No such submissions were made by counsel for Mr Harris at the hearing and accordingly this Court should not revisit the costs order. Reference was made to De L v Director General of NSW Department of Community Services (1997) 190 CLR 207 at 215, Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 ("Hanave") and Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122. 7 Counsel for Mr Harris sought to distinguish Hanave on the basis that it was commercial litigation, whereas the present application concerned the respondent's entitlement to incapacity payments under beneficial legislation. Counsel also questioned the existence of any usual practice in this Court of making submissions on costs at the substantive hearing of a matter. 8 In the alternative, counsel for Mr Harris submitted that the Court should grant a certificate to the Corporation under s 7 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Act"), and a certificate to Mr Harris in respect of his costs of the appeal under s 6 of the Act. Counsel for the Corporation made no submission on this issue, taking the position that it is a matter for Mr Harris and the Court.

Conclusions 9 I am not satisfied that I should set aside the order that Mr Harris pay one third of the Corporation's costs. The authorities referred to in par 6 make clear that submissions as to costs should be put at the hearing, unless the Court has indicated otherwise, which often arises on the application of one of the parties. The submissions of counsel for Mr Harris do not disclose any reason why costs submissions could not have been put at the hearing, nor any exceptional circumstance that would require me to revisit the costs order. I accept that views may differ about what might have been an appropriate costs order in the circumstances. However Mr Harris elected to contest all issues in the appeal including the issue on which the Corporation succeeded. Had that issue been conceded by Mr Harris then plainly the considerations bearing on the question of costs would have been materially different as the Corporation would have failed on all contested issues. 10 Nonetheless, I am persuaded that this is an appropriate case for the grant of a costs certificate. Contrary to a tentative submission of counsel, the Act does not confer on the Attorney-General a general discretion whether or not to act on a certificate, though the Attorney-General is obliged to act in accordance with ss 16, 17 and 18 of the Act: see Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 179 at 183 per Gibbs CJ. 11 Section 6 of the Act relevantly provides: "6. (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. … (3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of - (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates." 12 I propose to grant Mr Harris a certificate under s 6 stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to Mr Harris under the Act in respect of Mr Harris' costs of the appeal and the Corporation's costs payable by him. This is plainly a Federal appeal: see par (g) of the definition of "Federal appeal" in s 3 of the Act, in which the appellant has succeeded on a question of law. However, the error of law arose through no fault of Mr Harris: see Minister for Human Services and Health v Haddad (No 2) (1995) 22 AAR 328. As I observed in par 20 of my earlier judgment: "While the Tribunal was plainly intent on dealing, in a practical way, with what it quite properly perceived to be the practical questions arising from giving a decision several months after the hearing, it did so by treating the evidence of Dr Pusic as founding a conclusion that it simply did not support. The point having been taken by the Corporation in these proceedings, I am obliged to deal with it." 13 No application was made by the Corporation for a certificate under s 7. Although counsel for Mr Harris invited me to grant a certificate to the Corporation under that section, the use in that section of the words "the court, on the application of the appellant, may … grant to the appellant a costs certificate" indicates that the Court's power to grant a certificate under that section depends on an application having been made by the Corporation. 14 Although it was not raised by counsel for the Corporation, mention should be made of s 14(1)(d) of the Act, which provides: "(1) A court is not empowered by this Act to grant a costs certificate to: … (d) a person … being sued, on behalf of the Commonwealth …" 15 Plainly, if Mr Harris is a person being sued "on behalf of" the Commonwealth, then this Court does not have the power to grant him a certificate. The phrase "on behalf of" does not have a strict legal meaning but rather draws its meaning from the statutory context in which it appears: R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 435; R v Toohey; Ex parte Attorney-General (Northern Territory) (1980) 145 CLR 374 at 386; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1987) 162 CLR 153 at 165. In the context of s 14(1)(d), the phrase "on behalf of" is, in my opinion, simply intended to provide a linkage between the person suing or being sued and the Commonwealth. That is, the phrase "on behalf of" is intended to define the relationship between the person and the Commonwealth and not expand the notion of what is the Commonwealth to persons or bodies who are not the Commonwealth but might, in some contexts, be treated as a manifestation of the Commonwealth. This expanded notion of the Commonwealth is illustrated by s 4 of the Trade Practices Act 1974 (Cth): see Tytel Pty Ltd v Australian Telecommunications Commission (1986) 67 ALR 433 at 436. 16 In any event, even if the Corporation is to be treated, for present purposes, as the Commonwealth (which I doubt), the benefit conferred by s 14(1)(d) (presumably to prevent the Crown being rendered liable for costs by operation of the Act in proceedings in which it had been involved as a party and was not ordered to pay the costs) would be denied to the Corporation by s 90A of the Australian Postal Corporation Act 1989 (Cth) which provides: "For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory." Section 16 does not, in my opinion, constitute an "express provision" in that no reference is made to the Corporation. 17 I make no order as to the costs of this application. 18 I grant the certificate in the expectation that the Corporation will not seek to recover its costs until the certificate has been acted on and, to the extent that the Corporation might lawfully do so, the Corporation will not satisfy its entitlement to one third of its costs from money otherwise due to Mr Harris. If there is any difficulty about these matters I grant liberty to apply. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the applicant: Australian Government Solicitor