FEDERAL COURT OF AUSTRALIA Australian Postal Corporation v Harris [2000] FCA 1252 COSTS – application to vary costs order – whether submissions on costs should have been made at the substantive hearing of the matter – costs certificate under Federal Proceedings (Costs) Act 1981 (Cth) s 6 – where appellant succeeded on a question of law – where error of law arose through no fault of respondent – discretion of Attorney-General to act on costs certificate – whether respondent is a person being sued "on behalf of" the Commonwealth WORDS AND PHRASES – "on behalf of the Commonwealth" Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 7, 14(1)(d), 16, 17, 18 Australian Postal Corporation Act 1989 (Cth) s 90A Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 referred to De L v Director General of NSW Department of Community Services (1997) 190 CLR 207 applied Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 applied Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122 applied Minister for Human Services and Health v Haddad (No 2) (1995) 22 AAR 328 applied R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 referred to R v Toohey; Ex parte Attorney-General (Northern Territory) (1980) 145 CLR 374 at 386 referred to Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1987) 162 CLR 153 referred to AUSTRALIAN POSTAL CORPORATION v IAN HYLTON HARRIS N 54 OF 2000 MOORE J 6 SEPTEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 54 OF 2000 ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: AUSTRALIAN POSTAL CORPORATION APPLICANT AND: IAN HYLTON HARRIS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 6 SEPTEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent be granted a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of his costs of the appeal and the applicant's costs of the appeal payable by him. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 54 OF 2000 ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: AUSTRALIAN POSTAL CORPORATION APPLICANT AND: IAN HYLTON HARRIS RESPONDENT JUDGE: MOORE J DATE: 6 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an application by Mr Ian Harris to vary a costs order I made on 2 June 2000 as part of final judgment in this matter: see [2000] FCA 712. 2 The proceedings were an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") by the Australian Postal Corporation ("the Corporation") against a determination of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal set aside a reconsideration determination of a delegate of the Corporation which affirmed an earlier determination disallowing a claim for compensation by Mr Harris under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal remitted the matter to the Corporation with, inter alia, the following direction: "1. … (d) the Applicant is entitled to incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of his mild anxiety disorder on the basis of total incapacity, until and including the date of this decision, and thereafter he is fit for work in a low stress environment, subject to a suitable rehabilitation program to assist him to return to work, and within the restrictions of his non-work-related back, neck and right knee conditions, but he is not fit to return to employment with the Respondent;" 3 In its appeal to this Court, the Corporation contended, on various bases, that the Tribunal erred in its conclusions concerning Mr Harris' incapacity during the period between the last day of the hearing before the Tribunal (5 March 1999) and the date of the decision of the Tribunal (21 December 1999). I concluded the Tribunal erred in law in making this direction on the basis that there was no evidence to support its conclusions to the effect that Mr Harris was incapacitated in that period. Given this finding, it was unnecessary to consider in detail the other bases on which those conclusions were challenged. I also considered and rejected submissions challenging two other aspects of the Tribunal's decision. 4 I ordered that Mr Harris pay one third of the Corporation's costs. My reasons for doing so were set out in par 21 of the judgment: "… The Corporation has succeeded in establishing error but only in relation to one aspect of the decision. Mr Harris has successfully defended the Tribunal's decision in large measure. In those circumstances it is appropriate, in my opinion, that the Corporation have some of its costs only. …" The submissions of the parties 5 Counsel for Mr Harris submitted that I should set aside my earlier order and order that the Corporation pay Mr Harris' costs of the appeal. Reference was made to the well-known principles stated by Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at p. 48,136. It was submitted that the Corporation failed on two of the three issues it raised in the appeal and should, accordingly, bear its own costs of litigating them and pay Mr Harris' costs of defending them. Additionally, there were special circumstances justifying a departure from the usual rule that the Corporation receive its costs in respect of the issue on which it succeeded. That issue, namely Mr Harris' incapacity between the final day of the hearing and the date of the Tribunal's decision, arose out of the delay with which the Tribunal gave its decision and not out of any contention raised by Mr Harris before the Tribunal. Mr Harris could not have been expected not to defend the appeal, given that other issues were seriously agitated by the Corporation. Lastly, to order Mr Harris to pay one third of the Corporation's costs would deprive Mr Harris of a significant part of the compensation awarded by the Tribunal under beneficial legislation, in respect of which the Court found no legal error. Alternatively, counsel for Mr Harris submitted that each party bear its own costs. 6 The principal submission of counsel for the Corporation that the appropriate time for the making of submissions that the ordinary rule that costs follow the event should be departed from was at the hearing of the appeal. No such submissions were made by counsel for Mr Harris at the hearing and accordingly this Court should not revisit the costs order. Reference was made to De L v Director General of NSW Department of Community Services (1997) 190 CLR 207 at 215, Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 ("Hanave") and Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122. 7 Counsel for Mr Harris sought to distinguish Hanave on the basis that it was commercial litigation, whereas the present application concerned the respondent's entitlement to incapacity payments under beneficial legislation. Counsel also questioned the existence of any usual practice in this Court of making submissions on costs at the substantive hearing of a matter. 8 In the alternative, counsel for Mr Harris submitted that the Court should grant a certificate to the Corporation under s 7 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Act"), and a certificate to Mr Harris in respect of his costs of the appeal under s 6 of the Act. Counsel for the Corporation made no submission on this issue, taking the position that it is a matter for Mr Harris and the Court. Conclusions 9 I am not satisfied that I should set aside the order that Mr Harris pay one third of the Corporation's costs. The authorities referred to in par 6 make clear that submissions as to costs should be put at the hearing, unless the Court has indicated otherwise, which often arises on the application of one of the parties. The submissions of counsel for Mr Harris do not disclose any reason why costs submissions could not have been put at the hearing, nor any exceptional circumstance that would require me to revisit the costs order. I accept that views may differ about what might have been an appropriate costs order in the circumstances. However Mr Harris elected to contest all issues in the appeal including the issue on which the Corporation succeeded. Had that issue been conceded by Mr Harris then plainly the considerations bearing on the question of costs would have been materially different as the Corporation would have failed on all contested issues. 10 Nonetheless, I am persuaded that this is an appropriate case for the grant of a costs certificate. Contrary to a tentative submission of counsel, the Act does not confer on the Attorney-General a general discretion whether or not to act on a certificate, though the Attorney-General is obliged to act in accordance with ss 16, 17 and 18 of the Act: see Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (1982) 152 CLR 179 at 183 per Gibbs CJ. 11 Section 6 of the Act relevantly provides: "6. (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. … (3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of – (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates." 12 I propose to grant Mr Harris a certificate under s 6 stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to Mr Harris under the Act in respect of Mr Harris' costs of the appeal and the Corporation's costs payable by him. This is plainly a Federal appeal: see par (g) of the definition of "Federal appeal" in s 3 of the Act, in which the appellant has succeeded on a question of law. However, the error of law arose through no fault of Mr Harris: see Minister for Human Services and Health v Haddad (No 2) (1995) 22 AAR 328. As I observed in par 20 of my earlier judgment: "While the Tribunal was plainly intent on dealing, in a practical way, with what it quite properly perceived to be the practical questions arising from giving a decision several months after the hearing, it did so by treating the evidence of Dr Pusic as founding a conclusion that it simply did not support. The point having been taken by the Corporation in these proceedings, I am obliged to deal with it." 13 No application was made by the Corporation for a certificate under s 7. Although counsel for Mr Harris invited me to grant a certificate to the Corporation under that section, the use in that section of the words "the court, on the application of the appellant, may … grant to the appellant a costs certificate" indicates that the Court's power to grant a certificate under that section depends on an application having been made by the Corporation. 14 Although it was not raised by counsel for the Corporation, mention should be made of s 14(1)(d) of the Act, which provides: "(1) A court is not empowered by this Act to grant a costs certificate to: … (d) a person … being sued, on behalf of the Commonwealth …" 15 Plainly, if Mr Harris is a person being sued "on behalf of" the Commonwealth, then this Court does not have the power to grant him a certificate. The phrase "on behalf of" does not have a strict legal meaning but rather draws its meaning from the statutory context in which it appears: R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 435; R v Toohey; Ex parte Attorney-General (Northern Territory) (1980) 145 CLR 374 at 386; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1987) 162 CLR 153 at 165. In the context of s 14(1)(d), the phrase "on behalf of" is, in my opinion, simply intended to provide a linkage between the person suing or being sued and the Commonwealth. That is, the phrase "on behalf of" is intended to define the relationship between the person and the Commonwealth and not expand the notion of what is the Commonwealth to persons or bodies who are not the Commonwealth but might, in some contexts, be treated as a manifestation of the Commonwealth. This expanded notion of the Commonwealth is illustrated by s 4 of the Trade Practices Act 1974 (Cth): see Tytel Pty Ltd v Australian Telecommunications Commission (1986) 67 ALR 433 at 436. 16 In any event, even if the Corporation is to be treated, for present purposes, as the Commonwealth (which I doubt), the benefit conferred by s 14(1)(d) (presumably to prevent the Crown being rendered liable for costs by operation of the Act in proceedings in which it had been involved as a party and was not ordered to pay the costs) would be denied to the Corporation by s 90A of the Australian Postal Corporation Act 1989 (Cth) which provides: "For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory." Section 16 does not, in my opinion, constitute an "express provision" in that no reference is made to the Corporation. 17 I make no order as to the costs of this application. 18 I grant the certificate in the expectation that the Corporation will not seek to recover its costs until the certificate has been acted on and, to the extent that the Corporation might lawfully do so, the Corporation will not satisfy its entitlement to one third of its costs from money otherwise due to Mr Harris. If there is any difficulty about these matters I grant liberty to apply. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 6 September 2000 Counsel for the applicant: Mr G M Elliott Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: Mr L T Grey Solicitor for the respondent: Carroll & O'Dea Date of Hearing: 3 August 2000 Date of Judgment: 6 September 2000