Commonwealth of Australia v Snell

1. Subject to Orders 2, 3 and 4, the respondent pay one third of the appellant's costs of the appeal, on such terms as are reasonable bearing in mind the respondent's financial capacity and other circumstances, as agreed between the parties, or, failing agreement, as determined by the Chief Justice.
2. The appellant have liberty within 21 days to file and serve an application to vary or discharge that part of order 1 as commences "on such terms".
3. There be no orders for costs in respect of the argument as to the costs of the appeal.
4. The appellant pay the respondent's costs of the second interlocutory application of the appeal.
5. The respondent be granted a certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The Court made substantive orders on 11 April 2019 (Commonwealth v Snell [2019] FCAFC 57), and called for submissions on costs. 2 The Commonwealth seeks its costs of the appeal, the appeal having been allowed. There is a separate debate about an interlocutory application (referred to as the "second interlocutory application"). Further, there is an application by the respondent under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) for a costs certificate. 3 Whilst not determinative, it should be steadily borne in mind that the respondent is an individual (a former seafarer) in the late stages of a terminal cancer seeking compensation for that illness under legislation for workers' compensation. 4 The Court sought submissions from the parties on costs. Careful and principled submissions were filed, which we have fully considered. It is unnecessary, however, to deal with each submission individually. The discretion as to the award of costs is a broad one. It is not best resolved here by legal analysis of different cases in different factual contexts. The discretion is not, of course, unprincipled: a winning party ordinarily receives its costs. 5 The reasons of the Court reflect an important debate that was had about how the Administrative Appeals Tribunal should approach its task. That is a matter of significant public importance. The position taken by the respondent, was, in the Court's view, incorrect; but it had some support from existing authorities, as the reasons reveal. The respondent's position taken in the litigation was reasonable. Further, grounds 3 to 6 of the appeal were unsuccessful. They were not the primary arguments of the Commonwealth, which succeeded on the substance of its primary argument that the Tribunal erred in applying inappropriately restrictive principles to the manner in which it would receive evidence. 6 It would be productive of unnecessary expenditure of time and cost to approach the matter on an issue by issue basis. The parties have each had some success in the matter, the Commonwealth more so. The position taken by the respondent had significant foundation, the error not being his, but the Tribunal in the performance of its independent executive function. 7 Balancing all the factors to which we have referred, in order to achieve a just and appropriate outcome the appellant should have one third of its costs. The costs of the costs argument should, however, be excluded from this. Each party should bear its and his own costs of this. 8 Mr Snell (a former seafarer) is dying of cancer. We are unaware of the detail of his financial position or of all the calls on his resources for medical expenses. The material in the papers shows that he lives in a small flat in the downstairs part of his daughter and son-in-law's home in Brisbane. His future treatment is palliative, some of which is free, but some future expenses may require the expenditure of resources. His obligation to pay costs does not demand an immediate payment in full which, depending on all his circumstances, may impoverish him. The order for costs should therefore be subject to a reasonable regime for payment which we would order, subject to giving the Commonwealth an opportunity to discharge or vary the order. 9 As to the second interlocutory application, it is difficult to see why this application was necessary in the light of the nature of the matter and the reserved judgment of the Court. There was no imminent step whereby the position of the Commonwealth was likely to be prejudiced. The respondent should have his costs of this application. 10 The Court has a discretion under s 6(1) of the Federal Proceedings (Costs) Act 1981 of granting to a respondent a costs certificate when an appeal succeeds on a question of law. It is just and appropriate that the respondent be granted such a costs certificate. 11 The orders that we would make are: