Bis Industries Limited v Dale

1. There will be no order as to the costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 In Bis Industries Limited v Dale [2017] FCA 789 I ordered that a decision of the Administrative Appeals Tribunal (the Tribunal) be set aside and that the case be remitted to the Tribunal to decide again. The parties have now filed written submissions as to costs. 2 The applicant submits that the respondent should pay the applicant's costs of the appeal on the party and party basis, except that the respondent should pay the costs of an interlocutory application brought by the respondent on an indemnity basis. The respondent submits that each party should bear its own costs of the appeal, including the costs of the interlocutory application. 3 Section 43(3) of the Federal Court of Australia Act 1976 (Cth) gives the Court a discretion in relation to costs. Section 43(3)(e) provides that the Court may award costs in favour of, or against, a party whether or not that party is successful in the proceeding. The discretion is broad and unfettered, save that it must be exercised judicially: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9]. 4 A successful party in litigation is generally entitled to an award of costs in its favour. This is known as the "usual order as to costs": see Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] (McHugh J). However, there is no absolute rule to this effect: Oshlack v Richmond River Council at [40] (Gaudron and Gummow JJ), [134] (Kirby J). 5 The Tribunal's decision that was set aside was to the effect that the respondent was entitled to a particular amount of weekly compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). 6 The applicant's principal argument in the appeal was that the Tribunal had failed to address the applicant's argument as to the effect of the termination of the respondent's employment under s 19(4) of the Act. While the applicant demonstrated that the Tribunal failed to deal with that argument, the applicant did not succeed on that basis. That was because the applicant was unable to demonstrate that the argument, as it was put to the Tribunal, could have succeeded if the argument had been dealt with by the Tribunal. The argument had been put to the Tribunal on the basis of a particular construction of s 19(4) of the Act and I rejected that construction. 7 However, the applicant succeeded on a different ground, namely that the Tribunal gave inadequate reasons for its finding that the respondent was unable to earn any income from suitable employment. That ground was not raised in the notice of appeal. In fact, the issue was only taken up following a comment from the Bench. As the issue was then fully argued, the issue was treated as a ground of appeal. 8 The inadequacy of this aspect of the Tribunal's reasons was, in my opinion, contributed to by the applicant's approach to the medical evidence led by the respondent at the hearing before the Tribunal. The applicant did not engage with that evidence beyond submitting that it was irrelevant. That submission was misconceived as the evidence was centrally relevant to the issues that the Tribunal was required to decide. The applicant, although offering limited assistance to the Tribunal, was ultimately able to take advantage of the Tribunal's error. 9 There are some similarities between the circumstances of this case and those considered by the Full Court in Summers v Repatriation Commission (No 2) [2015] FCAFC 64 in which it was ordered that each party bear its own costs of an appeal. 10 The respondent's interlocutory application was for an order that the applicant pay the respondent incapacity benefits pending completion of the appeal. There was some argument at the hearing upon the interlocutory application, but it was ultimately adjourned and not determined. I am not satisfied that the respondent's case on the interlocutory application was so hopeless as to warrant any order for indemnity costs. Nor am I satisfied that an order for party and party costs in respect of the interlocutory application against the respondent is appropriate when weighed against the extent of the applicant's own failures in the case. 11 The applicant failed upon the argument it based its case upon, and succeeded only upon an argument belatedly raised in the course of oral submissions. The applicant's conduct of the case before the Tribunal contributed to the Tribunal's error. It would not be just to require the respondent to pay the applicant's costs of the appeal in these circumstances. The appropriate order is to make no order as to the costs of the appeal. 12 The respondent seeks a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). The respondent must demonstrate a ground calling for the exercise of the discretion in his favour: Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477-478. I am not satisfied that the respondent has established an adequate basis for the grant of a costs certificate. I decline to grant a costs certificate. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.