Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1341

FEDERAL COURT OF AUSTRALIA

Nair-Marshall v Secretary, Department of Family & Community Services [2005] FCA 1341 Social Security Act 1991 (Cth) s 1061PB(2)(b)(i) Federal Court of Australia Act 1976 (Cth) s 43 Hughes v Western Australia Cricket Association (Inc)& Ors (1986) ATPR 40-748 referred to Oshlack v Richmond River Council (1998) 193 CLR 72 referred to Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 referred to OWEN NAIR-MARSHALL v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES No QUD 8 of 2005 SPENDER J 23 SEPTEMBER 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 8 OF 2005

BETWEEN: OWEN NAIR-MARSHALL

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 23 SEPTEMBER 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The applicant pay the costs of the respondent of and incidental to the application, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 8 OF 2005

BETWEEN: OWEN NAIR-MARSHALL

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE: 23 SEPTEMBER 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 24 August 2005 I dismissed an appeal by the applicant, Mr Owen Nair-Marshall, from a decision of the Administrative Appeals Tribunal in relation to the applicant's claim that he was entitled to a Pensioner Education Supplement under s 1061PB(2)(b)(i) of the Social Security Act 1991 (Cth). I indicated then that there seemed to me to be no reason why the ordinary order as to costs should not be made, but that the applicant would have seven days within which to make submissions concerning the orders for costs which should be made, and if the applicant made such submissions, the submissions by the respondent be filed within a further seven days. 2 The applicant in his written submissions said in part: '1. As an unrepresented applicant to the Court, I concede it was unrealistic to attempt an interpretation of statute law. 2. The whole of the Social Security Act, and in particularly in my case the Pension Education Supplement provisions, are complex and cause great concern not only to myself but to the great majority who have to deal with it. … 6. The mainstream media has reported the same things coming out of the budgets namely that the Government want to have pensioners of all types being able to return to remunerative work and that the government will assist them to do so. 7. My reward for attempting to attract the Pensioner Education Supplement so that I could retrain and resume remunerative work is that I am no[w] to be delivered to the hands of the governments Department and have costs awarded against me. 8. The reward the government will receive is that it can make any statement in Parliament and in its papers and claim immunity. In effect it can lie to me and be rewarded for that.' 3 In addition, the applicant submitted that he was already receiving a disability pension and finding it extremely difficult to make ends meet. He was obliged to support himself and his six-year-old son in his schooling and social life, he has to pay sums for pharmaceuticals, and he will require further treatment for kidney failure. 4 At the conclusion of his submissions concerning costs, the applicant said: '12. I ask the Court to take into account all the possibilities including what will happen to me if a large costs order is made, and request that the costs are waived due to these circumstances.' 5 The Court's jurisdiction to award costs is set out in s 43 of the Federal Court of Australia Act 1976 (Cth). Section 43(1) relevantly provides: '… The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.' 6 Toohey J in Hughes v Western Australia Cricket Association (Inc)& Ors (1986) ATPR 40-748 said at 48,136: 'The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1922) 2 KB 47. …' 7 It is correct to say, as the respondent submitted, that: 'The primary purpose of costs orders are to be compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and per McHugh J at 566 to 567.' 8 McHugh J, in relation to the exercise of discretion, said in Oshlack v Richmond River Council (1998) 193 CLR 72 at 96: 'By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. … If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.' 9 The position is that the submissions made by the applicant do not raise any ground upon which the Court should depart from the ordinary rule, that costs follow the event. The financial difficulties of the applicant, and his personal circumstances, do not provide a reason or special circumstances which should persuade the Court against exercising its discretion to order that the successful litigant receive his costs. 10 In Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450, Beaumont and French JJ, in considering whether special circumstances existed which made it appropriate to depart from the ordinary rule that the unsuccessful party pay the other party's costs, said at [4]: 'The first ground relied upon relates to the financial position of the appellants. The appellants are litigants in person. They are impecunious. They rely on social security benefits. They are not able to satisfy any costs order made against them. However sympathetic one may personally be to arguments of this kind, inability to meet a costs order or the fact that the losing party has limited financial means has never been a sufficient reason to deny a successful party his costs: Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975.' 11 No reason has been shown why the Court should not make the usual order as to costs. The Court orders that the applicant pay the costs of the respondent of and incidental to the application, to be taxed if not agreed. 12 It is, of course, a matter for the respondent, the Secretary, Department of Family and Community Services, to decide whether to enforce the costs order that the Court has made. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .