FEDERAL COURT OF AUSTRALIA Williams v Muller (No 2) [2003] FCA 1472 GARY WILLIAMS v DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) & COMCARE D 3 OF 2003 MANSFIELD J 3 DECEMBER 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 3 OF 2003 BETWEEN: GARY WILLIAMS APPLICANT AND: DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) FIRST RESPONDENT COMCARE SECOND RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 3 DECEMBER 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The second respondent to pay to the applicant 80 per cent of his costs of the application to be taxed or agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 3 OF 2003 BETWEEN: GARY WILLIAMS APPLICANT AND: DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) FIRST RESPONDENT COMCARE SECOND RESPONDENT JUDGE: MANSFIELD J DATE: 3 DECEMBER 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 31 October 2003 I published reasons for judgment in this application and made the declaratory and other orders there referred to Williams v Muller [2003] FCA 1190. I reserved the question of costs. The parties today have had the opportunity of making submissions as to costs. 2 The applicant seeks the costs of the proceedings. He does so on the basis that the application has been substantially successful on most of the issues raised at the hearing and contends that the unsuccessful interlocutory application for an order restraining the Administrative Appeals Tribunal hearing from proceeding should be part of the order for costs. 3 The second respondent, Comcare, seeks an order that each party bear its own costs of the proceedings, including of that interlocutory application. The second respondent acknowledges that the applicant has had a degree of success in the proceeding, because it was found that the applicant and the second respondent are bound by aspects of Professor Cohen's opinion as to the cause of the applicant's diabetes. It points out, however, that it also achieved a degree of success because the Court found that Professor Cohen's opinion does not determine the question whether the applicant's diabetes in fact gives rise to liability to pay compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in relation to the factors which Professor Cohen identified as causative to his disease. 4 Before dealing with the respective contentions I indicate that I do not propose to treat the interlocutory application discretely from my consideration of the appropriate order for costs in the proceedings. It is true that the applicant brought an interlocutory application to restrain the Administrative Appeals Tribunal from proceeding with a proposed hearing on the eve of that proposed hearing and that interlocutory application was refused. The application before the Administrative Appeals Tribunal did not proceed in any event the day following that interlocutory application and, at the least, the second respondent did not urge it to continue to do so. In those circumstances it seems to me that I should regard that interlocutory process simply as part of the proceeding generally, and that costs in relation to it should follow whatever order for costs, if any, I make in the proceedings. 5 Both parties have accurately described in their submissions the outcome of the proceedings. In substance the issues in the proceedings are described in pars 10 to 16 of the reasons for decision given on 31 October 2003. The applicant has succeeded in respect of all but one of those issues. The issue in respect of which he did not succeed is that which I identified in [48(2)] of the reasons for decision, namely whether if Professor Cohen were of the opinion that certain 'employment factors' materially contributed to the applicant's diabetes, as a matter of law whether those 'employment factors' constituted part of his employment having regard to the definition of 'disease' in the Act. 6 That issue was not one which was identified by the parties in their discussions giving rise to the agreement which I found to have existed or, in any real sense, in the questions which they submitted to Professor Cohen. It emerged following the provision of Professor Cohen's report. I accept that it emerged in the course of correspondence between solicitors for the parties following receipt of, and consideration of, Professor Cohen's report in a letter from solicitors for the second respondent of 4 November 2002. The correspondence around that time and subsequently, however, demonstrates that it was but one of the focuses of dispute between the parties at that time and, indeed, in the course of these proceedings. 7 I am mindful of the general principles upon which applications for costs should be considered. There is no disagreement between counsel that I should have regard to the observations of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15 – 16. They have been approved in many subsequent cases. I am mindful also that the court should not be too precious in attempts to divide up a case by issues and, as Allsop J said in Anheuger-Busch Inc v Budéjovický, Budvar, Národní Podnik [2002] FCA 624 at [5], to examine the 'score' by reference to an issue count. Considerations along those lines were discussed by Giles J in NRMA Ltd v Morgan (No 3) (1999) NSWSC 768 at [24]. 8 However, in this matter, I think the issue of the legal consequences of a favourable report on the causation issue provided by Prof Cohen was one which was discrete and which was required to be addressed in the course of the proceedings. Ultimately, I have determined that that issue required further consideration by the Tribunal. In all other respects the applicant has succeeded in the application, involving the series of propositions put on behalf of the second respondent as to the existence or otherwise of an agreement, its terms, its breach, its variation, the terms of any variation, the absence of sufficient terms to make the agreement unenforceable, and such matters. 9 Having regard to those issues and to the outcome of the proceedings, in my judgment it is appropriate that I should make an order for costs on this application, but I do not propose to award the applicant all the costs of the application. He failed on a significant issue, albeit one which occupied a relatively short period of the hearing. I propose to order that the second respondent pay to the applicant 80 per cent of his costs of the application to be taxed or agreed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 16 December 2003 Counsel for the Applicant: Mr C McDonald QC Solicitor for the Applicant: Ward Keller Counsel for the Respondent: Mr P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 December 2003 Date of Judgment: 3 December 2003