Thomas Fischer v Commonwealth of Australia [1997] FCA 1029 (25 September 1997)

• THOMAS FISCHER v COMMONWEALTH OF AUSTRALIA
• NG 299 of 1997
  • BRANSON J
  • SYDNEY
    • REASONS FOR JUDGMENT

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - costs - where successful respondent failed to make an application for costs at the time of delivery of judgment - whether appropriate to relist the proceeding for argument on costs - whether discretion to correct accidental slip should be exercised.

COSTS - whether unsuccessful applicant engaged in public interest litigation.

Federal Court Rules, O 62 r 3(1), O 35 r 7(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s11.

Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227 cited

Kent v Cavanagh (1973) 1 ACTR 43 distinguished.

Arnold v Queensland (1987) 73 ALR 607 distinguished.

Fischer v PSS Board (Full Federal Court, 29 May 1997, unreported) distinguished.

L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 cited.

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 cited.

Qantas Airways v Cameron (Full Federal Court, 14 August 1996, unreported) cited.

Symes v Commonwealth (1987) 89 FLR 356 cited.

THOMAS FISCHER v COMMONWEALTH OF AUSTRALIA

NG 299 of 1997

BRANSON J

SYDNEY

25 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 299 of 1997

BETWEEN:	THOMAS FISCHER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	26 september 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The order of 11 August 1997 in this matter be corrected by deleting paragraph 3 thereof and including in lieu thereof an order that the applicant pay the respondent's costs of the proceeding other than the costs of and incidental to the attendances before the Court on 16 and 26 September 1997.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 299 of 1997

BETWEEN:	THOMAS FISCHER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE(S):	BRANSON J
DATE:	26 sEPtember 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 11 August 1997, I made orders in this matter refusing the applicant an extension of time within which to lodge an application seeking judicial review of a decision that his employment by the Commonwealth be terminated. I further dismissed an application by the applicant for an order directing the respondent, or alternatively a named officer of the respondent, to furnish to the applicant a statement in writing pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act").

At the time that I made the above orders, I did not make an order as to the costs of the two applications on which the orders were made or of the proceeding generally. Although Mr Johnson, counsel for the respondent on the hearing of the two applications, had indicated at the close of his submissions that "we would ask your Honour for an order for costs", I did not hear Mr Fischer on that occasion on the issue of the costs order or orders that it would be appropriate to make on the two applications then before me or as to the proceeding generally. It seemed to me to be desirable that any debate as to any cost order or orders to be made should await the making of orders on the applications then before me and the publication of reasons for the making of such orders.

Following the making of the orders referred to above, each of which was favourable to the respondent, I asked the solicitor then appearing for the respondent whether she had any application to make. She said that she did not. As a consequence I assumed that the respondent had decided not to press for an order for costs against Mr Fischer. My recollection is that I announced that there would be no order for costs.

Approximately twenty-four hours later, the Court received a request, made on behalf of the respondent, for the proceeding to be relisted to allow the respondent to seek an order that the applicant pay its costs of the proceeding. The proceeding was relisted and I heard argument on the respondent's application for costs on 16 September 1997. Mr Johnson again appeared on behalf of the respondent. He had not appeared on 11 August 1997.

No affidavit evidence was filed on behalf of the respondent in support of its application. In my view, such evidence should have been filed and served a reasonable time ahead of the date upon which the application was listed for argument so as to give Mr Fischer proper time to consider his position in the light of such evidence.

The solicitor who attended the Court on behalf of the respondent at the time when the orders were pronounced was in Court when the costs application came on for hearing. As Mr Fischer took no objection to her giving oral evidence on the application, I allowed her to do so. Her evidence was to the effect that on 11 August 1997 she failed to notice that I did not make any order as to costs and, being aware that the respondent had filed a notice of objection to competency in the proceeding which claimed an order for costs, and that Mr Johnson had at the hearing sought an order for costs, she did not think it necessary to ask for an order for costs. It was for this reason that she responded "No", when I asked whether she had any application to make. I accept the truthfulness of her evidence.

The rules which govern the exercise of the Court's discretion with respect to costs make it difficult, in all but relatively simple matters, for the question of costs to be fully debated ahead of the Court's ruling on the substantive case or issues before it. In some cases the Court will make orders for costs without having heard argument in addition to that made during the hearing of the substantial matter. In a significant number of cases it will not be appropriate for it to do so.

It is a common practice in the Court for short argument concerning costs to be entertained at the time that a judgment is pronounced or substantive orders made. Those who attend at the Court to receive judgments or orders ought, generally speaking, to have sought in advance instructions from their clients on the issue of costs - both on the basis that their client is successful and on the basis that their client is not successful.

Where a judgment is pronounced without an order for costs being made at the same time, or where orders are made which do not include an order for costs, the Court will ordinarily expect that a party who seeks an order for costs in its favour will immediately make or renew an application for such an order. This will be the case even where the originating process in the proceeding, or an interlocutory application, formally seeks an order for costs, and notwithstanding that an oral application may have been made during the hearing of the substantive matter - if it has not been ruled on.

It will not ordinarily be open to a party who does not at the conclusion of a proceeding seek an order for costs, to later have the proceeding relisted to allow an application for costs to be heard. However, as I am satisfied that the failure of the respondent in this case to apply for an order for costs on 11 August 1997 was the result of a misunderstanding, I am prepared to entertain the application (cf Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227). In doing so, I place reliance on 0 62 r 3(1) of the Federal Court Rules which provides that - "The Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding."

The orders made by me on 11 August 1997 have been entered on the initiative of the solicitor for the respondent. The sealed order includes in paragraph 3 the order that "[t]here be no order as to costs." Nonetheless, in view of the failure of the legal representative of the respondent to advert to the issue of costs on 11 August 1997, which caused me to believe that no costs order in favour of the respondent was sought, this case falls within the traditional "slip rule" which is reflected in O 35 r 7(3) of the Federal Court Rules (L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 at 594-595; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 per Lockhart J at 389-391; Symes v Commonwealth (1987) 89 FLR 356; Qantas Airways Limited v Cameron (Full Federal Court, 14 August 1996, unreported)).

Under the slip rule I have a discretion to correct an accidental slip or omission when justice requires this to be done.

Mr Fischer, who again appeared in person on the costs application, did not suggest that he had suffered or would suffer, any prejudice as a result of the respondent's now seeking costs when it did not expressly do so on 11 August 1997.

However, Mr Fischer opposed the making of an order for costs against him on the basis that the proceeding ought properly to be regarded as public interest litigation. Mr Fischer referred to a number of authorities including Kent v Cavanagh (1973) 1 ACTR 43, Arnold v Queensland (1987) 73 ALR 607 and Fischer v PSS Board (Full Federal Court, 29 May 1997, unreported). In my view, this case is clearly distinguishable from those to which Mr Fischer referred. I was not principally concerned in this proceeding with the interpretation of a legislative provision of broad application, as Mr Fischer contended. I was concerned rather with the proper construction of s 11 of the Act, an essentially uncontroversial provision which has been considered by the Court on many occasions, and with whether it was fair and equitable in the circumstances for Mr Fischer to be granted an extension of time within which to lodge an application under the Act.

The question of the costs of this application aside, I am not satisfied that there is any reason in this case for the Court to depart from the usual rule that costs should follow the event. Quite properly, the respondent did not contend that it was entitled to the costs of this application.

The order of 11 August 1997 in this matter will be corrected by deleting paragraph 3 thereof and including in lieu thereof an order that the applicant is to pay the respondent's costs of the proceeding other than the cost of and incidental to the costs of this application.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:

The applicant appeared in person.
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 September 1997
Date of Judgment:	26 September 1997

.