Sleep v Repatriation Commission [2006] FCA 98 (9 February 2006)

Last Updated: 20 February 2006

FEDERAL COURT OF AUSTRALIA

Sleep v Repatriation Commission [2006] FCA 98

COSTS – application for costs – discretion of the Court – whether costs should follow the event.































KENNETH JOHN SLEEP v REPATRIATION COMMISSION

SAD 793 of 2003




LANDER J
9 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 793 OF 2003

BETWEEN:	KENNETH JOHN SLEEP APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	9 FEBRUARY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The applicant pay the respondent’s costs on a party and party basis.
















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	SAD 793 OF 2003

BETWEEN:	KENNETH JOHN SLEEP APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	LANDER J
DATE:	9 FEBRUARY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 21 December 2005 I delivered my reasons for an order which I made on that day dismissing the applicant’s appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) given on 4 September 2004. The applicant, through no fault of his own, was not present on that occasion. He was unwell, suffering from the illness which is the subject matter of the appeal.

2 In any event, counsel for the Repatriation Commission, the respondent to the appeal, made an application for costs. Because the applicant was absent I thought the question of costs should be reserved so that the applicant might be heard if he wished in opposition to the application for costs. The matter was called on again this morning when the applicant appeared and made submissions why, in the circumstances of this appeal, costs should not follow the event.

3 The question of costs is always in the discretion of the Court. However, there are certain rules, none of which bind a Judge which need to be borne in mind in exercising that discretion which, of course, must be exercised judicially. Ordinarily, costs follow the event. There are exceptions; for example, when the conduct of the successful party may disqualify that party. The subject matter of the litigation may make it inappropriate for the usual order to follow. Matters of public interest may mean that the usual order ought not to be made.

4 In this case the applicant has submitted that this appeal was brought not only for the applicant’s sake but also for other persons in a similar position to the applicant who do not have the ability to prosecute their own appeals.

5 I have considerable sympathy for the applicant. The applicant, as I noted in my reasons, was conscripted to serve in the Australian Forces in the 1960s and, whilst a conscript, was sent to serve in Vietnam. In the performance of his duties, the applicant contracted serious physical and psychological illnesses which have impacted to a considerable extent on his and his wife’s lives. This appeal arose out of the applicant’s belief that the Commission had not recognised the seriousness of his disabilities and had thereby under-compensated him for a long period of time.

6 As I explained in my reasons, the question of the merits of the claim was for the Tribunal. The only matter for me was whether the Tribunal had erred in law. In the end result, I found that the Tribunal had not made any error of law.

7 Whilst I have considerable sympathy for the applicant, there seems to me no reason why the usual rule should not take effect in this case. In other words, in the exercise of my discretion acting judicially, I can think of no reason why the Repatriation Commission should not be entitled to its costs and there must be an order accordingly.

8 However, I would ask those advising the Repatriation Commission to bring to the attention of the Commission these reasons so that the Commission might consider whether, having regard to the contribution Mr Sleep has made and to the consequences which he has suffered, it would be appropriate not to enforce the order. However, that is a matter for the Commission. The only order I can make is that there be an order that the applicant pay the respondent’s costs on a party and party basis.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 9 February 2006

Counsel for the Applicant:	Mr K Sleep appeared in person
Counsel for the Respondent:	Mr M Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 2006
Date of Judgment:	9 February 2006