Telstra v Slater

REASONS FOR JUDGMENT 1 On 28 February 2001, I ordered that the appeal of Telstra Corporation Limited (Telstra) be allowed with the consequence that Mr Slater's application for review of the decision of the delegate of Telstra made on 10 November 1998 be dismissed. I then invited submissions from the parties as to the costs of the appeal. I have since received written submissions, both by the appellant and the respondent, as to the costs order I should make. 2 The appeal to this Court was an application in the original jurisdiction of the Court, and was from a decision of the Administrative Appeals Tribunal (the AAT) in proceedings brought by Mr Slater for review of a decision by a delegate on behalf of Telstra and made under the Safety Rehabilitation and Compensation Act 1988 (Cth). 3 Section 67 of that Act sets out lengthy and elaborate provisions for costs where decisions under review are either varied or set aside in favour of applicants. In those cases, applicants to the AAT will recover their costs. The Act is such that an applicant to the AAT will not in any circumstances be ordered to pay the costs of Telstra before the AAT. 4 In this particular case the costs of the appeal are governed by s 43(2) of the Federal Court of Australia Act 1976 (Cth) which relevantly provides: "Except as provided by any other act, the award of costs is in the discretion of the court or judge." There is no provision in the Safety Rehabilitation and Compensation Act which modifies the tenor of that provision. 5 Frequently in appeals from the AAT (which is in general a "costs-free" environment) the Court will make enquiry as to an appellant's attitude on the question of any costs order that the Court might make. This approach reflects the view that, frequently, an appellant to this Court from a decision favourable to a citizen made by the AAT is concerned not simply with the particular circumstances of that person, but with considerations of more general application; in those circumstances it is often thought, at least by me, to be a prudent exercise of the discretion conferred by s 43 of the Federal Court of Australia Act that that person should not be exposed to an adverse costs order, even if that person be unsuccessful in the proceedings in the Federal Court. 6 In this case, there was no undertaking by Telstra that it would not seek costs in the event of its being successful, nor any suggestion by the Court that in this particular case there was any warrant for departure from the ordinary rule that costs should follow the event. 7 Ordinarily in the Federal Court, a successful litigant is entitled to his or her costs in the absence of some special circumstance or circumstances justifying some other order: see Hughes v West Australian Cricket Association Inc & Ors (1986) 8 ATPR 40-748 per Toohey J at p 48, 136. 8 It was difficult to avoid the impression that from Mr Slater's position, the legal questions in Telstra's appeal were academic. Mr Slater in truth was not concerned, at any relevant time, to explore avenues of employment that might have been available to him, with or without retraining, in Australia; rather, at all relevant times, he was concerned only with extracting such monetary payments as the circumstances might have permitted him to derive, he having had no intention of pursuing any alternative opportunities for employment in Australia that Telstra had been canvassing. 9 On the question of costs of Telstra's successful appeal, I am satisfied, in the circumstances of this case, that no reason has been shown to depart from the ordinary rule.