De Domenico v Marshall [2001] FCA 135

FEDERAL COURT OF AUSTRALIA

De Domenico v Marshall [2001] FCA 135 PRACTICE & PROCEDURE – whether costs certificate should be granted where appellant succeeds on point of law not raised in court below – whether court has power to grant costs certificate in an administrative process – meaning of "a new trial in a cause" – does not include administrative proceedings. WORDS & PHRASES – "a new trial in a cause" Federal Proceedings (Costs) Act 1981 (Cth), ss 8, 12 Discrimination Act 1991 (ACT), ss 90(2)(b)(iii), 94 Administrative Appeals Tribunal Act 1989 (ACT), s 46(1) Kunz v Commissioner of Taxation (1995) 62 FCR 345 approved

TONY DE DOMENICO v MARGOT MARSHALL A 14 OF 1999 SPENDER, MADGWICK & DOWSETT JJ BRISBANE (HEARD IN CANBERRA) 2 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 14 OF 1999

BETWEEN: TONY DE DOMENICO

APPELLANT

AND: MARGOT MARSHALL

RESPONDENT

JUDGE: SPENDER, MADGWICK & DOWSETT JJ

DATE OF ORDER: 2 MARCH 2001

WHERE MADE: BRISBANE (HEARD IN CANBERRA)

THE COURT ORDERS THAT: The application for a certificate under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) is refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 14 OF 1999

BETWEEN: TONY DE DOMENICO

APPELLANT

AND: MARGOT MARSHALL

RESPONDENT

JUDGE: SPENDER, MADGWICK & DOWSETT JJ

DATE: 2 MARCH 2001

PLACE: BRISBANE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT THE COURT: 1 By an application filed in the ACT District Registry on 23 September 1999, Mr Tony De Domenico seeks a certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of costs associated with the remission of the matter, the subject of a successful appeal by Mr De Domenico to a Full Court of the Federal Court, to the Administrative Appeals Tribunal (ACT) for reconsideration and determination in accordance with law. 2 Section 8 relevantly provides: "(1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial. … (3) The certificate that may be granted under subsection (1) or (2) to a party to a cause or to an accused person, as the case may be, by a court that has granted a new trial 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 that party or accused person in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party or accused person in relation to the new trial. 3 The background to the application for the costs certificate is as follows: on 29 December 1995, after a lengthy hearing, the Discrimination Commissioner established under the Discrimination Act 1991 (ACT) dismissed a complaint by Margot Marshall which alleged unlawful conduct by Mr De Domenico under the Discrimination Act. Mrs Marshall exercised her right under s 94 of the Discrimination Act to seek a review of the Commissioner's decision by the Administrative Appeals Tribunal ("the AAT") established under the Administrative Appeals Tribunal Act 1989 (ACT). On 1 June 1998 the AAT set aside the decision of the Commissioner. The AAT expressed the view: "We are persuaded that Mrs Marshall's complaint has been substantiated but that her claims as to the frequency and intensity of the conduct are exaggerated. We do not accept that it was of the 'unremitting' nature that she claimed it to be." and directed pursuant to s 90(2)(b)(iii) of the Discrimination Act 1991 that an amount of $1500 compensation be paid. 4 Mr De Domenico exercised his right under s 46(1) of the AAT Act to appeal to the Supreme Court of the Australian Capital Territory. The appeal to the Supreme Court was dismissed on 3 February 1999. 5 On an appeal to this Full Court of the Federal Court from the judgment of the Supreme Court of the Australian Capital Territory, it was argued for the first time that the AAT erred in law by not making sufficiently precise or comprehensible findings as to the conduct said to constitute the sexual harassment which it concluded had occurred. There had been no complaint to the Supreme Court that the issues in the matter had been inadequately identified by the Tribunal. 6 On 16 September 1999 the Full Court allowed the appeal, set aside the orders made by the Supreme Court of the ACT on 3 February 1999, and by the AAT on 1 June 1998 and 4 November 1998, and ordered that the matter be remitted to the Tribunal for reconsideration and determination in accordance with law. The Court made orders limiting the ambit of that reconsideration, and further ordered that there be no order as to the costs of the appeal or of the application in the Supreme Court of the Australian Capital Territory. 7 As the application for a costs certificate makes plain, that application does not attempt to revisit the merits of the order of the Full Court that there be no order as to the costs of the appeal or of proceedings in the Supreme Court of the Australian Capital Territory. That application says: "It is accepted that the appellant succeeded on arguments in the Full Court which were not advanced in the Supreme Court." 8 The merits of the application for the costs order are said to consist in the attempts made by Mr De Domenico before the Discrimination Commissioner to have much of the material by Mrs Marshall ruled irrelevant and struck out, and to confine the respondent to her complaint. It was submitted that the appellant faced further costs on the remission to the AAT where, had the AAT and the Discrimination Commissioner "acceded to the appellant's request to confine the case to the relevant issues, the error may never have occurred." The error there referred to is the failure to identify specific issues and the failure to make material findings of fact. 9 Pursuant to s 8 of the Federal Proceedings (Costs) Act 1991, a costs certificate may be granted in a federal appeal by "the court that heard the appeal". Section 12 of that Act provides: "The jurisdiction conferred on a court by this Act to grant costs certificates may be exercised by a member of that court sitting in Chambers. A "Federal appeal" is defined by s 3 to include: "(a) an appeal to the Full Court of the High Court from a judgment of the High Court constituted by a single Justice; … (e) an appeal to the full Court of the Federal Court from a judgment of the Federal Court constituted by a single Judge; (ea) an appeal to the Federal Court from a judgment of the Supreme Court of a State; … (f) an appeal to the Federal Court from a judgment of the Supreme Court of a Territory. …" 10 That definition seems to draw distinction between the Full Court of the High Court and the High Court, and the Full Court of the Federal Court and the Federal Court. This Federal appeal was a Federal appeal under the definition (f) "an appeal to the Federal Court from a judgment of the Supreme Court of a Territory". It was therefore heard by a Full Court of the Federal Court. 11 The interaction of s 8 and s 12 poses some difficulties. On one view, the jurisdiction in respect of the granting of a costs certificate under s 8 is conferred on the Federal Court and that any member of the Court might exercise it. It is, however, at least arguable that the conferral of power by s 8 is only on "the court that heard the appeal", being understood to mean the court as constituted for the hearing of the appeal. On this view, s 12 would permit the jurisdiction to grant a costs certificate to be exercised by a member of that court sitting in chambers, which is to say that where the Full Court of the Federal Court has heard an appeal, the effect of s 12 is to permit the grant of a costs certificate to be entertained by any of the members that constituted that Full Court. 12 Out of an abundance of caution, the Court which heard Mr De Domenico's appeal has considered the application for a costs certificate. 13 The application for a costs certificate has not been determined until now because of a communication from Mr De Domenico that ongoing proceedings in the Supreme Court were to require an appearance on 13 December 2000, and he was happy for the consideration of his application to wait until after that date. 14 There is, in our opinion, no power in the Federal Court to grant to Mr De Domenico the costs certificate he seeks. Jenkinson J in Kunz v Commissioner of Taxation (1995) 62 FCR 345 held that the phrase "a new trial in a cause" in s 8(1) of the Act, does not comprehend a hearing in an administrative process. Jenkinson J said at 346: "I cannot think that the draftsman of s 8 conceived the words 'a new trial in a cause' to be capable of comprehending a hearing in an administrative process. The words used, particularly the words 'in a cause', have no reference, either in common parlance or in legal discourse, to such a process. I cannot find in s 8(1) authority to grant the certificates sought by counsel for the applicant." 15 It was submitted for Mr De Domenico that the remitted proceedings in the Administrative Appeals Tribunal would be "judicial proceedings though determined by an administrative body", but that is not so. 16 The Court will not grant a certificate under s 8 of the Act because it has no authority to grant the certificate sought by Mr De Domenico. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Madgwick and Dowsett.