FEDERAL COURT OF AUSTRALIA Deas v Issa (No 2) [2013] FCA 1145 Citation: Deas v Issa (No 2) [2013] FCA 1145 Appeal from: Administrative Appeals Tribunal [2013] AATA 292 Parties: SARAH DEAS, JOHN FORSYTH and ROBERT WOOD v BRYON ISSA, PAUL KRASSARIS and AUSTRALIAN COMMUNITY PHARMACY AUTHORITY File number: VID 456 of 2013 Judge: JESSUP J Date of judgment: 8 November 2013 Catchwords: COSTS – respondents successful in appeal from Administrative Appeal Tribunal – application by respondents for costs – whether respondents entitled to costs where success derived from argument not raised before Tribunal Cases cited: Armstrong v Boulton [1990] VR 215 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 The Great Gulf Company v Sutherland (1873) 4 AJR 164 Date of hearing: Heard on the papers Date of last submissions: 8 October 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the Applicants: Mr J Pizer Solicitor for the Applicants: Meridian Lawyers Counsel for the First and Second Respondents: Mr D Favell Solicitor for the First and Second Respondents: Gadens Lawyers Counsel for the Third Respondent: Mr A Dillon Solicitor for the Third Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 456 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SARAH DEAS First Applicant JOHN FORSYTH Second Applicant ROBERT WOOD Third Applicant AND: BRYON ISSA First Respondent PAUL KRASSARIS Second Respondent AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Third Respondent JUDGE: JESSUP J DATE OF ORDER: 8 NOVEMBER 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 456 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SARAH DEAS First Applicant JOHN FORSYTH Second Applicant ROBERT WOOD Third Applicant AND: BRYON ISSA First Respondent PAUL KRASSARIS Second Respondent AUSTRALIAN COMMUNITY PHARMACY AUTHORITY Third Respondent JUDGE: JESSUP J DATE: 8 NOVEMBER 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 4 September 2013, I dismissed the applicants' appeal from the Administrative Appeals Tribunal ("the Tribunal") in this matter: Deas v Issa [2013] FCA 892. The successful respondents have now applied for their costs. 2 The appeal was decided, favourably to the first and second respondents ("the respondents"), on a point which they had not taken in the Tribunal. That circumstance provides a conventional basis for the court to reject their application for the costs of the appeal: The Great Gulf Company v Sutherland (1873) 4 AJR 164, 164; Armstrong v Boulton [1990] VR 215, 223; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [123]. 3 On behalf of the respondents, it is submitted that the point upon which they succeeded in this court – the "partnership point" – was not a new consideration that had not been raised in the Tribunal. I reject that submission. Although it would be correct to note that the intention of the respondents to go into business in partnership was an uncontroversial fact in the Tribunal, the legal consequences of that fact were not adverted to. The appeal was successful on a matter of law, the relevant legal proposition not having been advanced below. 4 The respondents also submit that, had the "partnership point" been formulated below as it was in this court, the Tribunal would have reached the same conclusion. So it may have been, and the applicants would then have had squarely before them the question of law upon which they failed on appeal. The assumption must be that, properly advised, the applicants may well have chosen not to appeal at all. 5 In the circumstances, the appropriate outcome is that there be no order for costs in this proceeding. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 8 November 2013