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[2006] FCAFC 38
Federal Court of Australia (Full Court)
2006-03-22
Black CJ, Finn JJ
Original judgment source is linked above.
Introduction 1 When judgment in this application by way of appeal from a decision of the Administrative Appeals Tribunal was delivered on 23 January 2006 the only substantive order made was that the application be dismissed. The parties were however ordered to file and serve written submissions on the question of costs. 2 In the course of the hearing I had expressed my concern about the size of the appeal papers. They consisted of nine volumes containing, in all, over 900 pages and they seemed to me to go far beyond what the nature of the case required. 3 The costs involved in the preparation of any appeal are likely to be considerable and they should not be increased by the production of unnecessary documents. Moreover, since at least five copies of the appeal papers will need to be produced when, as here, the matter comes before a Full Court of three judges, the cost of including each unnecessary document is, broadly speaking, multiplied fivefold. 4 The burden of costs is an impediment to access to the courts and it is appropriate for the Court, in the public interest, to discourage the incurring of unnecessary costs, including the costs of unnecessary appeal papers. In relation to appeals to a Full Court in the Court's appellate jurisdiction (and in relation to other matters before a Full Court where appropriate) Practice Note 1, issued by me on 14 August 2003, specifically warns that the inclusion of unnecessary material in appeal books exposes a party to the risk of an order that the costs occasioned by the unnecessary material be borne by the party responsible for its inclusion (see Section D). In my view, the circumstances of this case call for such an order. 5 Whilst, obviously, an appellant has the carriage of an appeal, all parties share a responsibility to avoid incurring unnecessary cost and expense. The settling of the index to the appeal papers ought to be a cooperative endeavour to avoid burdening the case with unnecessary documents and their attendant cost. As Practice Note 1 points out, if it becomes necessary during the course of a hearing to refer to additional material, the parties may, by leave, hand copies of the additional material to the Court. If due care has been exercised in the cooperative process of settling the index to the appeal papers, the parties are unlikely to encounter any difficulty if, contrary to their expectation, some limited additional material needs to be handed up at the hearing.
The Appeal Papers 6 The substantive proceeding was a statutory appeal instituted under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). An appeal under s 44(1) invokes the original jurisdiction of this Court. The original jurisdiction of the Court was exercised in this case by a Full Court pursuant to s 44(3)(b) of the AAT Act. 7 The nature of an appeal under s 44(1) of the AAT Act has received recent judicial consideration (see, particularly, Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 and Comcare v Etheridge [2006] FCAFC 27). As the subject matter of such an appeal is the question or questions of law on which the appeal is brought, it will rarely be necessary for the appeal papers to be extensive. This is recognised by O 53 r 16 of the Federal Court Rules which governs the preparation of appeal papers for an appeal to the Court from a decision of the Administrative Appeals Tribunal ('the Tribunal'). 8 Order 53 r 16 relevantly provides: '(1) The title page of the appeal papers shall give the title of the proceedings, including the division of the Tribunal from which the appeal is brought, the names of members constituting the Tribunal, and the names of the solicitors for each party and their addresses for service. (2) After the title page there shall be an index of the documents comprising the appeal papers and showing the date and page number of each document. (3) The appeal papers shall be paginated and shall include all documents necessary to enable the questions of law raised by the appeal to be determined by the Court.' 9 The whole of O 53 is directed to proceedings by way of appeal from the Tribunal. It is one of several Orders that make special provision for appeals under specific legislation. 10 It appears that the parties may have approached the preparation of the appeal papers in the present case on the assumption that their preparation was governed by O 52 r 28 and by Part D of Practice Note 1. As O 53 makes plain (and see especially O 53 r 16), any such assumption was incorrect. To the extent of any inconsistency between Practice Note 1 in its general application to proceedings before a Full Court and the specific provisions of O 53 r 16, the latter must prevail. But in any event, Part D of Practice Note 1 makes it clear that no encouragement is to be given to the inclusion of unnecessary papers in any matter before a Full Court. Whatever the context, the preparation of appeal papers should be, as I have pointed out, a cooperative process and if a concern arises that strict compliance with the requirements of the rules may result in costs being incurred unnecessarily, it is always open to a party to raise the matter before a registrar or a judge. If O 52 r 28 had been the applicable provision its requirements could readily have been modified by judicial direction under O 52 r 28(9). 11 As O 53 r 16(3) recognises, the papers for an appeal under s 44(1) of the AAT Act must include all documents necessary to enable the questions of law raised by the appeal to be determined by the Court. Even if the reasons for decision of the Tribunal are not strictly necessary for that purpose, they should nonetheless be included in the appeal papers as reference to them is likely to be necessary to allow consideration to be given by the Court to the relief, if any, to which the applicant may be entitled having regard to the answers to the questions of law the subject matter of the appeal. If it is to be seriously contended that the powers of the Court under s 44(7) of the AAT Act should be exercised, such of the evidence referred to in s 44(8) of the AAT Act as is relevant will also need to be included. 12 The respondent's written submissions on the question of costs acknowledge that its solicitor responded to a proposed index of appeal papers prepared on behalf of the applicants by suggesting that it was insufficient both as to the documents listed and as to the details provided of documents. The applicants' solicitor did not respond to this suggestion by drawing attention either to the terms of O 53 r 16 or to the limited nature of an appeal under s 44(1) of the AAT Act. Ultimately, as I have already noted, appeal papers which were manifestly excessive in the circumstances were filed. Not surprisingly, few of the documents included in the appeal papers were even mentioned during the course of the hearing. 13 I do not find persuasive the submission of the respondent that its request for the index to the appeal papers to be expanded did not carry with it an implied request for additional documents to be included in the appeal papers. Both O 53 r 16(2) and O 52 r 28 refer to 'an index of the documents comprised in the appeal papers'. If the respondent had wished documents to be identified in the index, but not included in the appeal papers, it ought to have made this plain to the applicants. In any event, the parties should have cooperated to reduce the volume of paper and to have ensured that only documents relevant to the determination of the questions of law raised by the appeal were included in the appeal papers. 14 In all of the circumstances it seems to me that the solicitors for the parties respectively share responsibility for the preparation of the unnecessarily extensive appeal papers. I conclude that the cost of the preparation of the appeal papers should be borne as to 50 per cent by the applicants and as to 50 per cent by the respondents.
Notice of Contention 15 The respondent filed a notice of contention of five paragraphs pursuant to O 53 r 13(3). The notice contended that two matters of law had been erroneously decided against it; the first was a question of statutory construction and the second was a challenge to the exercise by the Tribunal of a discretion. Ultimately the respondent abandoned any reliance on the point of statutory construction. It abandoned one aspect of the second contended matter of law. 16 The reasons for judgment of the Court record at [26] that it proved unnecessary to deal explicitly with the notice of contention. It may be observed, however, that it is not obvious that so much of the notice of contention as was not abandoned identified a question of law erroneously decided against the respondent by the Tribunal. It would appear that the notice of contention was drawn without appropriate regard being given to the limited nature of appeal under s 44(1) of the AAT Act. 17 I would not allow the respondent its costs of the notice of contention.
Statement of Facts and Contentions 18 The applicants have complained that the respondent's statement of facts and contentions, which was filed pursuant to a direction made by Mansfield J, was excessively long and put the applicants to unnecessary cost. The applicants sought to support their complaint by reference to Practice Note 1. 19 Practice Note 1 applies to all parties to appeals before the Full Court. It applies to other proceedings before the Full Court only in so far as the practices and procedures described in the practice note are appropriate to such other proceedings. The reference in Practice Note 1 to 'appeals' is a reference to appeal proceedings in the appellate jurisdiction of the Court (see s 24 of the Federal Court of Australia Act 1976 (Cth)). A statutory appeal pursuant to s 44(1) of the AAT Act, when heard by a Full Court, is for the purposes of Practice Note 1 a proceeding before the Full Court other than an appeal. 20 Part B of Practice Note 1 provides for the preparation of outlines of submissions not ordinarily exceeding 10 pages in length. Mansfield J did not order the parties to prepare an outline of submissions but rather to file a statement of facts and contentions. It may be assumed that his Honour did not envisage that the parties would additionally file outlines of their respective submissions. Part B of Practice Note 1 thus had no application this case - notwithstanding the terms of O 53 r 16A which applies those rules in O 52 that concern written submissions mutatis mutandis to an appeal under O 53. 21 I am not satisfied that any aspect of the respondent's statement of facts and contentions provides a basis for departure from the ordinary rule that costs follow the event.
Conclusion 22 I would make orders for costs as follows:
branson j 23 I agree with the reasons for judgment of the Chief Justice and with the orders proposed by him. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
finn j 24 I agree with the reasons for judgment of the Chief Justice and with the orders proposed by him. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate: Dated: 22 March 2006 Counsel for the Applicants: Mr N Morcombe QC with Mr A Tokley Solicitor for the Applicants: Mellor Olsson Lawyers
Counsel for the Respondent: Mr P Almond QC with Mr J Pizer Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 29 November 2005 Date of Final Submissions on Costs: 22 February 2006 Date of Judgment: 22 March 2006
Purvis
Dairy Adjustment Authority