Marchant v GB Radio

REASONS FOR JUDGMENT 1 Before the Court is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) made on 25 January 2001. The Tribunal decided that it had jurisdiction to review a number of decisions made by the Australian Communications Authority. The appeal was listed for hearing on 6 February 2002. Just prior to the hearing, the parties were advised by the Court to consider whether there was any appealable decision made by the Tribunal. Reference was made to the decision in Director-General Social Services v Chaney (1980) 31 ALR 571. 2 On 6 February 2002, the appellant conceded that the appeal was incompetent by application of that case. The question of costs then arose. Instead of determining that issue, I referred the matter to mediation. Today the matter has returned to the Court and I have been told that the mediation has been unsuccessful to date. 3 The appellant seeks to have the matter further referred to mediation. The first respondent resists this course. While I remain of the view that the best interests of the parties would be served by further mediation, be it within the Court or outside, I am not persuaded that I should use the power to force the first respondent to a mediation in circumstances where that course has been tried and has not yet been successful. 4 I now return to the question of costs. This question was addressed by the appellant and the first respondent in written submissions filed prior to today. The first respondent sought costs on the basis that the appellant had brought an appeal which was incompetent. In cases of the exercise of the Court's appellate jurisdiction, Order 52 rule 18(3) provides that respondents who fail to take an objection to competency at an early stage, or at all, should not receive their costs unless the Court otherwise orders, and the Court may order that such respondents their pay the appellant's costs. 5 The present application is not within the Court's appellate jurisdiction. Nonetheless, the Court has a wide discretion as to costs: see s 43 of the Federal Court of Australia Act (1976) (Cth). The policy behind Order 52 rule 18(3) bears examination. That rule provides for a process for taking objections to competency. The focus of the scheme is that objections will be taken early, and taken as a discrete application. The purpose, no doubt, is to relieve parties of the expense of the preparation of an appeal which is incompetent. It also allows the appellant to consider withdrawing the appeal without incurring further expense. Finally, it prevents inconvenience to the Court which would otherwise be composed of three judges. 6 The starting point of the rule is that both parties share the responsibility for failing to prevent an incompetent appeal from reaching a hearing; the appellant for commencing it and the respondent for failing to object early. In my view, that shared responsibility applies in the present case. 7 The appropriate order is that the appellant and the first respondent each bear their own costs of and incidental to the appeal. The second respondent did not seek its costs. 8 As to the costs of today's directions hearing, the first respondent took the opportunity to further advance its claim for costs and the appellant restated its position that the proper order was that there be no order as to costs. In these circumstances, it seems to me right that the costs of today should follow the event; that is to say, that the first respondent should pay the costs of today's directions hearing.