Sheikh v Australian Postal Corporation [2006] FCA 646

FEDERAL COURT OF AUSTRALIA

Sheikh v Australian Postal Corporation [2006] FCA 646 COSTS – appeal from Administrative Appeals Tribunal – claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal dismissed – no order as to costs – whether respondent may make an application for costs after the hearing – prima facie rule under the Safety, Rehabilitation and Compensation Act that each party bears its own costs – whether Court on appeal has discretion to order appellant to pay costs of appeal Held: the appellant is to pay the respondent's costs of the appeal

Federal Court of Australia Act 1976 (Cth) subs 43(2) Safety, Rehabilitation and Compensation Act 1988 (Cth) subs 67(8)

Roberts v Repatriation Commission (1992) 39 FCR 420 YASMIN SHEIKH V AUSTRALIAN POSTAL CORPORATION NSD 1422 OF 2005 TAMBERLIN J SYDNEY 29 MAY 2006

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY NSD 1422 OF 2005

BETWEEN: YASMIN SHEIKH

APPELLANT AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 29 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appellant is to pay the costs of the respondent of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY NSD 1422 OF 2005

BETWEEN: YASMIN SHEIKH

APPELLANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 29 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 22 December 2005, I dismissed an appeal in this matter by Yasmin Sheikh and made no order as to costs. 2 The respondent now seeks an order for costs on the basis that the normal rule - that costs follow the outcome - should apply. 3 The appellant resists the order for costs and submits that no specific application for costs was made by the respondent at the hearing. The appellant submits that there is no reason advanced by the respondent as to why it should be given the indulgence of setting aside an order already made. 4 In the circumstances of this case, it is submitted by the appellant that the order of 22 December 2005 that there be no order as to costs of the appeal has not been shown to be an unsupportable or unjust exercise of the Court's broad power to award costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth). Therefore, the appellant says that the question of costs should not be reopened. 5 The appellant also submits that litigation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act") is not properly viewed as adversary litigation, even though the process may manifest some characteristics of such litigation. 6 In this case, the fact that no order is made as to costs simply means what it says, namely, that there has been no order made. Accordingly, it is open to the respondent to approach the Court for an order for costs at this later stage. 7 I appreciate that the litigation is essentially not adversarial in character and this is a factor that can be taken into account when exercising the Court's broad discretion in relation to costs. This is not one of those exceptional cases in which public interest in the litigation makes it appropriate that the usual order as to costs not apply. Nor is it a case in which there has been unsatisfactory conduct by a government department resulting in the refusal of the Court to award costs: Roberts v Repatriation Commission (1992) 39 FCR 420. 8 Section 67 of the SRC Act contains a prima facie rule that each party bears its own costs with the proviso that a successful applicant has the right to ask for costs from the respondent, subject to the exercise of the Tribunal's discretion. The respondent, on the other hand, does not have a right to apply for its costs of the proceedings. Counsel for the appellant submitted that this is consistent with the nature of the statutory process where an injured worker seeks to assert a statutory right against an authority charged with administering legislation for the benefit of such workers as outlined in subs 67(8) of the SRC Act. 9 In this case, the appellant has already unsuccessfully ventilated her complaint before the Administrative Appeals Tribunal and has failed on the appeal to this Court. Therefore, the matter of the costs of the appeal is at the discretion of the Court. It is not inconsistent with the SRC Act that the Court should exercise its discretion as to the costs of the appeal in accordance with the general rule applicable in this Court. There are no circumstances that take this matter out of the ordinary course. 10 Accordingly, the appropriate order is that the appellant pay the costs of the respondent of this appeal.