Tisdall v Blazow

Federal Court of Australia (Full Court)|2005-09-29|Before: Dr P, Black CJ, Miles JJ, Kenny J, Tamberlin J, Woodward J, North JJ

REASONS FOR JUDGMENT 1 This is an application by the first respondent for indemnity costs following the decision of this Court on 7 September 2005 in Tisdall v Blazow [2005] FCAFC 190 (the 'Full Court decision'), in which the respondents were successful. The Full Court decision concerned an appeal under the Health Insurance Act 1973 (Cth), and an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to a determination of the Professional Services Review Tribunal. Both the appeal and the application were dismissed. The judgment in the Full Court decision sets out all the relevant facts and findings. The first respondent was granted leave to apply for indemnity costs. Pursuant to that leave, the first respondent filed and served an application together with her written submissions in support of the application. On 21 September 2005 the applicant filed written submissions in response. 2 By virtue of ss 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (the Act) the Court has the power to make costs orders at its discretion. This power is unfettered; but is to be exercised judicially. Generally, costs should be ordered on a party and party basis, unless the particular circumstances of the matter possess special or unusual features so as to warrant a departure from the general approach: Re: Wilcox; Ex parte Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151 at 152 per Black CJ; Abbott v Random House Australia Pty Ltd [1999] FCA 1540 per Beaumont, Drummond and Miles JJ at [5]; and Saizeriya Co Ltd and Anor v Peregrine Management Group Ltd Pty and Ors [2005] FCA 1174 per Kenny J at [32].

The Applicant's argument 7 The applicant submits that the arguments put to the Full Court were not the same as those decided by Tamberlin J, there was no estoppel and the applicant was entitled to exercise his right of appeal in the matter. Further, the applicant was entitled to withdraw the appeal from Tamberlin J's decision in order to allow the present appeal to be the vehicle to decide the issues. The applicant then indicates that he did not regard the grounds of appeal as without merit and he should not be punished for pursuing an appeal that failed. The submissions conclude: The Appellant's conduct has always supported the view that he firmly believes in the matters he had raised and that they are worthy of an appeal - a right which he has that is given by our system of justice. To punish him for losing, it is submitted, would be unfair.

Consideration 8 We accept the first respondent's submission that this proceeding exhibits sufficient special or unusual features as to warrant an order for costs on an indemnity basis. Quite apart from the applicant's abandonment of a number of grounds of appeal on the day of the hearing, the grounds which were pursued were of so little merit that the applicant should have appreciated that they had no chance of success. The order for costs on an indemnity basis is not made to punish the applicant, but to indemnify the first respondent against the costs of an appeal which was unreasonably instituted and pursued. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Sundberg and North.

Counsel for the First Respondent: NJD Green SC with MD Murphy

Solicitor for the First Respondent: Minter Ellison

Date of Hearing: 10 August 2005

Date of Judgment: 29 September 2005

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)