FEDERAL COURT OF AUSTRALIA Johnson v Veterans' Review Board (No.2) [2003] FCA 39 COSTS – application by way of appeal from decision of Veterans' Review Board – primary decision maker appeared in substantive opposition to application – whether costs of Veterans' Review Board should also be awarded against applicant. KEITH DOUGLAS JOHNSON v VETERANS' REVIEW BOARD & REPATRIATION COMMISSION S 193 of 2002 MANSFIELD J 30 JANUARY 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 193 OF 2002 BETWEEN: KEITH DOUGLAS JOHNSON APPLICANT AND: VETERANS' REVIEW BOARD FIRST RESPONDENT REPATRIATION COMMISSION SECOND RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 30 JANUARY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant Keith Douglas Johnson pay the costs of the second respondent Repatriation Commission of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 193 OF 2002 BETWEEN: KEITH DOUGLAS JOHNSON APPLICANT AND: VETERANS' REVIEW BOARD FIRST RESPONDENT REPATRIATION COMMISSION SECOND RESPONDENT JUDGE: MANSFIELD J DATE: 30 JANUARY 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 I gave judgment in this matter on 13 December 2002. I dismissed the application. At the time, each of the respondents sought costs against the applicant. As the applicant was unprepared at the time to deal with that request, the matter was adjourned today for further argument as to costs. In the meantime, there has been an exchange of written submissions on the issue of costs. The second respondent appeared by senior counsel at the hearing and presented substantively the argument in opposition to the application. That argument was in large measure accepted. 2 The applicant contends that the usual rule as to costs should not apply in this matter, essentially for two reasons. 3 The first is that the submissions for costs filed by the respondents were not filed by the date specified in directions given when judgment was delivered. They were filed a little later. I accept that the circumstance giving rise to that delay was some uncertainty on the part of solicitors for the respondents as to whether the costs argument would proceed in the light of an appeal from the principal judgment then instituted by the applicant. The applicant has acknowledged today that the belated filing of the submission as to costs on the part of the respondents has caused him no particular disadvantage or embarrassment. Although I take into account that the costs submission was filed belatedly, I do not think that of itself is a reason not to apply the ordinary rule as to costs. 4 The other submission of the applicant as to costs is that the respondents should not get costs because they had the benefit of an informal extension of time to file their written arguments as to costs, by an inquiry of my associate as to whether the costs issue would be dealt with as proposed, notwithstanding the appeal. I have explained to the applicant that that did not involve any lack of even‑handedness on the part of the Court, and that had a similar inquiry been made by him, a similar response would have been given. More particularly, however, the applicant contends that a telephone call from an officer of the first respondent prior to its decision on 11 March 1999, especially in the light of the first respondent having received on 10 February 1999 a copy of the authorisation given under s155AC by the applicant, the present issue would never have arisen. That is, he says, in a practical sense, had he been extended the opportunity by such a telephone call to address an apparent failure on the part of his authorised person to respond to the notice given on 4 February 1999, in the way in which the respondents have now been given an opportunity to file, a submission as to costs a little late, he would have been able to address the first respondent's concern and his application would not have been dismissed. 5 I do not know if all of the factual premises upon which that submission is based are correct. However, in my view, even accepting what the applicant says, there is a difference between the two circumstances. In this matter, the respondents sought costs when judgment was delivered. The timing of the submissions for costs was not in circumstances where the failure to comply with the directions as to timing for those submissions involved any automatic or statutorily provided consequence. The directions were to ensure the applicant had an opportunity to know the arguments why he should pay costs, and have an adequate chance to respond. He has acknowledged today that he has had sufficient time to respond. 6 Although I can understand from a lay point of view the contention of the applicant, I do not think the circumstances are sufficiently similar to lead me to the conclusion that the normal rule as to costs should not apply. 7 Accordingly, taking the matters raised by the applicant together or separately, in my view there is no sufficient reason shown why the normal rule as to costs should not apply. I accordingly order that the applicant pay to the second respondent costs of the application. It was the substantive opponent at the hearing. 8 The first respondent also seeks costs of the application. The issues ventilated on that argument are in large measure the same as those relating to the claim for costs of the second respondent. To the extent to which they overlap, I would reach the same conclusion. However, in my view, the first respondent is in a different position. It appropriately took the view that it should not be a protagonist in the proceedings: see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, in particular at 35-36. 9 The first respondent, nevertheless, appeared by counsel at the hearing, and indicated that it proposed to make submissions if necessary going to its powers and procedures. In the result, it did not need to do so. In my judgment, the fact that it took that role and that the application was dismissed does not warrant the making of an order for costs in its favour in addition to an order for costs in favour of the second respondent as the active protagonist in opposition to the application. 10 I accept that there are circumstances in which it would be appropriate for the first respondent to appear separately, as it did in this matter, to make submissions if necessary as to its powers and procedures. Such an intervention, however, would be in the public interest and to secure generally rather than only for the particular case a proper statement of its powers and functions. In relation to the particular circumstances of each particular case, there will generally be (as there was in this case) an active and competent protagonist to the issues directly arising in the proceeding. Moreover, in this matter, the same solicitors, Australian Government Solicitor, were the solicitors on the record for both the first and second respondents. There can therefore be no question of counsel for the second respondent being unaware of matters which the first respondent wished to say, or being instructed to put a position different from that which the first respondent might have wished to put. Had that been so, the same solicitors would not have acted for both respondents. As an officer of the Court, senior counsel for the second respondent had the obligation to assist the Court as necessary in a proper understanding of the legislation, and to draw to the Court's attention such authorities as directly related to its consideration. As one might expect, he did so. The contingency that there may have been the necessity for further submissions going to the first respondent's powers and procedures was one which may have justified the engagement of separate counsel by the first respondent, albeit through the same solicitors, but I do not think the circumstances are such as to warrant the first respondent also recovering its costs against the applicant of so doing. 11 I accordingly refuse the application for costs made by the first respondent against the applicant. 12 The order for costs I make is that the applicant pay to the second respondent the costs of the application. 13 I will give leave to the second respondent to apply to the Court by written notice to the applicant and to the Court for an order fixing the costs of the second respondent in a lump sum, such application, if made, to be notified by 14 February 2003. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 3 February 2003 Counsel for the Applicant: Mr Johnson appeared in person. Solicitor for the First Respondent: Mr D Partington Counsel for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Ms V Vuksan Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 30 January 2003 Date of Judgment: 30 January 2003