Federal Court Orders Claimant to Pay Respondent’s Costs After Discontinuing Appeal

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Secretary, Department of [NAME] [COMPANY] [2015] FCA 1211 Citation: [APPELLANT] v Secretary, Department of [NAME] [COMPANY] [2015] FCA 1211

Appeal from: [APPELLANT], Department of [NAME] [COMPANY] [2014] AATA 915

Parties: [APPELLANT] v SECRETARY, DEPARTMENT OF [NAME] [COMPANY] number(s): NSD 15 of 2015

Judge(s): [NAME] J

Date of judgment: 10 November 2015

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Federal Court Rules 2011 (Cth), rr 33.31, 33.31(1)(a), 33.31(2), 33.31(4)

Date of hearing: Heard on the papers

Place: [APPELLANT]: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 13

Solicitor for the Applicant: [redacted]

Solicitor for the Respondent: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 15 of 2015

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: [APPELLANT]

Applicant

AND: SECRETARY, DEPARTMENT OF [NAME] [COMPANY]

Respondent

[APPELLANT] OF ORDER: 10 November 2015 [APPELLANT]

THE COURT NOTES THAT:

1. [ADDRESS] notes the terms of settlement signed by the parties on 6 November 2015.

THE COURT ORDERS THAT:

2. Judgment be entered for the respondent for $4,455.00 in relation to the respondent's interlocutory application filed on 9 October 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 15 of 2015

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

[APPELLANT]

Applicant

AND: SECRETARY, DEPARTMENT OF [NAME] [COMPANY]

Respondent

JUDGE: [NAME] J DATE: 10 November 2015 PLACE: [APPELLANT] FOR

JUDGMENT 1 This matter has had a haphazard procedural history. The only issue which now requires resolution is what order should be made respecting the costs of the proceedings, which have been discontinued by the applicant. 2 The proceedings were commenced in reliance upon s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the [NAME]"). The statutory appeal which the applicant sought to commence concerned a decision of the Administrative Appeals Tribunal ("the [NAME]") given on 10 December 2014 which affirmed a decision of the [NAME] Security Appeals Tribunal made on 12 December 2013. The decision of the [NAME] Security Appeals Tribunal was to the effect that the applicant had been overpaid various benefits and was indebted to the Commonwealth in the sum of almost $144,000. The reasons for those conclusions, and the facts upon which they were based, do not require examination in this judgment. 3 In the proceedings which he commenced in this Court the applicant was self-represented. [ADDRESS] is given power by s 44 of the [NAME] to deal with a statutory appeal which is "on a question of law". No question of law was identified in the notice of appeal. The respondent objected to the competency of the appeal. 4 On 27 March 2015, I listed the objection to competency for hearing on 30 July 2015. However, on 18 June 2015, the applicant filed a notice of discontinuance of his appeal. 5 Rule 33.31(1)(a), (2) and (4) of the Federal Court Rules 2011 (Cth) provides as follows: 33.31 Discontinuance of appeal (1) An applicant may discontinue an appeal by filing a notice of discontinuance of the appeal, in accordance with Form 78: (a) without the Court's leave—at any time before the hearing of the appeal; … … (2) A notice of discontinuance has the effect of an order of the Court dismissing the applicant's appeal. … (4) An applicant who files a notice under subrule (1) must, unless the parties otherwise agree, pay the costs of each party to the appeal. 6 It appears that the applicant may not have advised the respondent that the appeal had been discontinued but the respondent was advised of that fact by the [APPELLANT] of the Court on 1 July 2015. Notwithstanding that advice the respondent, quite unnecessarily, filed written submissions dated 13 July 2015 in support of its (now ineffective) notice of objection. 7 The respondent then commenced to press for its costs. On 16 September 2015, the respondent offered to accept $4,000 in full and final satisfaction of its costs. The applicant resisted. On 9 October 2015, the respondent filed an interlocutory application for its costs. The costs sought were $4,000 for work up to and including 1 July 2015 (when, as I have said, the respondent was informed by the [APPELLANT] that the appeal had been discontinued), an unspecified amount for costs "of applying for lump sum costs" and costs in a lump sum of $1,500 for work done since 1 July 2015. 8 Directions were made on 27 October 2015 that the respondent's interlocutory application would be dealt with on the papers and the applicant was directed to file any submissions upon which he wished to rely by 6 November 2015. The following day (28 October 2015) advice was received that terms of settlement had been agreed and would shortly be executed. 9 On 9 November 2015, the respondent forwarded a copy of terms of settlement which, the respondent's letter said, had been signed by Mr [APPELLANT]. The terms of settlement certainly bear a signature which closely resembles the signature on the appeal to this Court. That signature is not witnessed but there appears no reason to doubt that the terms of settlement were executed by Mr [APPELLANT]. Those terms of settlement commit Mr [APPELLANT] to the payment of $4,455 by 5 November 2015, failing which interest will accrue at the rate of 10% per annum from 29 October 2015. 10 Mr [APPELLANT] has not signed consent orders but, in the circumstances, that seems to me to be a formality which might be dispensed with. 11 It is desirable that the matter be finalised without the necessity for further assessment of costs. I would not, if the matter had required assessment, have allowed the amount of $1,500 for work done after 1 July 2015 when the respondent knew that the appeal was no longer on foot. However, that does not appear to be included in the agreed sum. In an affidavit sworn on 9 October 2015, the respondent's solicitor deposed to the work which was done in connection with the proceedings and to the way in which the offer made on 16 September 2015 (to accept $4,000 for work done to 1 July 2015) was calculated. The affidavit, and the accompanying correspondence, disclosed that a discount of about one-third had been applied at that stage. If some allowance is made for the extra cost of making the application for lump sum costs which became necessary, then an additional $455 seems to me to be appropriate. 12 The figure which Mr [APPELLANT] has accepted to pay seems to me, therefore, to be appropriate in the circumstances. It also seems to me to be appropriate that he has accepted some liability to pay interest if he does not pay those costs in a timely manner. 13 In the circumstances, I am prepared to make the orders proposed by the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 10 November 2015