FEDERAL COURT OF AUSTRALIA Secretary, Department of Health (as successor to the Secretary, Department of Social Services) v DLW Health Services Pty Ltd (No 2) [2016] FCAFC 128 Appeal from: DLW Health Services Pty Ltd v Secretary, Department of Social Services [2015] AATA 796 File number(s): VID 746 of 2015 Judge(s): NORTH, BARKER AND RANGIAH JJ Date of judgment: 14 September 2016 Legislation: Federal Proceedings (Costs) Act 1981 (Cth) s 6 Date of hearing: Decided on the papers Date of last submissions: 30 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Ms F McKenzie Solicitor for the Respondent: Russell Kennedy Solicitors ORDERS VID 746 of 2015 BETWEEN: SECRETARY, DEPARTMENT OF HEALTH (AS SUCCESSOR TO THE SECRETARY, DEPARTMENT OF SOCIAL SERVICES) Applicant AND: DLW HEALTH SERVICES PTY LTD Respondent JUDGE: NORTH, BARKER AND RANGIAH JJ DATE OF ORDER: 14 September 2016 THE COURT ORDERS THAT: 1. The application for a costs certificate is dismissed. 2. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 23 August 2016, the Court set aside a decision of the Administrative Appeals Tribunal given on 13 October 2015. The Court directed that the parties were to file and serve any written submissions as to the costs of the application within 7 days of that judgment. 2 On 30 August 2016, the respondent filed submissions applying for a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) which provides that where an appeal on a question of law is successful, the court hearing the appeal may grant to the respondent a costs certificate in respect of the appeal. The applicant, the Secretary of the Department of Health, did not file any submissions in reply. 3 The respondent seeks a costs certificate based on, inter alia, the ground that it was successful before the Administrative Appeals Tribunal, and lost on appeal due to error of law on the part of the Tribunal. 4 In our view, the application for a costs certificate should not be granted. 5 In substance, the respondent's argument before the Tribunal was that the relevant legislative instrument should be read as allowing certain treatment to be performed by someone other than an allied health professional. The legislative instrument comprised, inter alia, a checklist and notes relevant to the interpretation of each checklist. 6 The Tribunal held that the checklist, which used the word "undertaken", should be read as allowing for the treatment in question to be performed by someone other than an allied health professional. 7 In contrast, the Tribunal held that the notes, which used the word "provide", should be read as requiring the treatment in question be personally performed by an allied health professional. The Tribunal further held that it was beyond the power conferred on the Minister by the Aged Care Act 1997 (Cth) to make the notes requiring the treatment be personally performed by an allied health professional. 8 Thus, the respondent's substantive argument, that the legislative instrument as a whole, including the notes, should be read as allowing for treatment by someone other than an allied health professional, was unsuccessful before the Tribunal. The respondent was successful before the Tribunal only as a result of the issue regarding the limits on the Minister's power to make the notes. 9 On appeal, the Court held that the Tribunal erred in finding that it was beyond the power of the Minister to make the notes. 10 Further, the Court agreed with the Tribunal's reading of the notes as requiring that treatment be personally performed by an allied health professional. However, the Court also held that "undertaken" was synonymous with "provide", and that therefore both the notes and the checklist required that treatment be personally performed by an allied health professional. 11 For the above reasons, the application for a costs certificate is dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and Rangiah. Associate: Dated: 14 September 2016