Julien v Department of Employment & Workplace Relations [2009] FMCA 259 (1 April 2009)

Last Updated: 1 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JULIEN v DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

[2009] FMCA 259

ADMINISTRATIVE LAW – Appeal from AAT – appeal dismissed – costs.

Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth)

Conlan v Mladenis [2008] FMCA 1214 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Ritter v Godfrey [1920] 2 KB 47 Yates Property Corp Pty Ltd v Boland (No 2) [1997] FCA 760 Zhang v Kanellos (No 2) [2005] FMCA 418

Applicant:

ARCHIE JULIEN

Respondent:

DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

File Number:

BRG 896 of 2007

Judgment of:

Burnett FM

Hearing date:

19 December 2007

Date of Last Submission:

19 December 2007

Delivered at:

Brisbane

Delivered on:

1 April 2009

REPRESENTATION

The Applicant appeared on his own behalf

Solicitors for the Respondent:

Minter Ellison

ORDERS

(1) That the appellant pay the respondent’s costs of and incidental to the appeal including reserve costs fixed in the sum of $8,752.74.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 896 of 2007

ARCHIE JULIEN

Applicant

And

DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

1. On 19 December 2007 I determined an appeal in this matter. The appeal was dismissed. At the time of delivery of judgment the matter of costs was left to the parties to negotiate. The parties have not been able to agree on costs.
2. Following reference to the Registrar directions were issued requiring each of the parties to exchange submissions. In accordance with the Registrar’s directions submissions were filed and delivered by the appellant and the respondent on 8 and 10 December 2008 respectively.
3. The respondent being successful seeks costs. The appellant resists that application and in turn claims for the recovery of his costs.
4. The relevant provisions in respect of costs are contained in section 79(2) of the Federal Magistrates Act 1999 (Cth) and Federal Magistrates Court Rules 21.02(2). In broad terms the Court has an unfettered discretion with respect to orders for costs. The discretion must be exercised judicially having regard to the facts and circumstances relevant to the particular case.[1]
5. Ordinarily costs follow the event and a successful litigant receives his or her costs in the absence of special circumstances justifying some other order.[2]
6. In this case the only matter advanced against the order for costs is the appellant’s contention that my order was in error as I “mistakenly struggled to adduce the character of my pension from other sources, through several subsequent paragraphs”. If I was incorrect in my determination that is a matter that can be corrected on appeal. In any event for present purposes the fact that the respondent disagrees with my decision is not a matter demonstrating special circumstances justifying a departure from the usual costs order.
7. The appeal was dismissed. The respondent was put to the trouble and expense of responding to the appeal and in my view is entitled to an order for costs in his favour by reason of its successful defence of the appeal.
8. The respondent seeks costs in accordance with the Court’s scale totalling $8,752.74. The items claimed for are appropriate and the quantum therefore is appropriate. I assess the respondent’s costs at $8,752.74.
9. It follows the respondent should receive an order in its favour for costs fixed in the sum of $8,752.74.

Order

10. The appellant pay the respondent’s costs of and incidental to the appeal including reserve costs fixed in the sum of $8,752.74.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 1 April 2009

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[1] Yates Property Corp Pty Ltd v Boland (No 2) [1997] FCA 760; Conlan v Mladenis [2008] FMCA 1214.
[2] Zang v Kanellos (No 2) [2005] FMCA 418; Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [63] – [67] per McHugh J.