Comcare v Stewart (No 2) [2019] FCA 564

Comcare v Stewart (No 2) [2019] FCA 564

Comcare failed in its appeal and there were no relevantly separate issues justifying a departure from the ordinary costs order. Mr Stewart's non-acceptance of Comcare's non-negotiable offer was reasonable because the offer required him to agree that the appeal be allowed and the Tribunal's decision set aside, but the Court would still need to be satisfied of a vitiating error of law and the proposed notes did not coincide with the Court's conclusions. Comcare's application for a different costs order had no chance of success after it was put on notice of these difficulties, so Comcare must pay the respondent's costs generally and the costs of meeting the different costs order application...

Jurisdiction
Australia
Judgment Date
23 April 2019
Procedural Posture
Costs Application Following Dismissal of Application for Review on a Question of Law From the Administrative Appeals Tribunal / Costs Determination After Substantive Application Dismissed
Outcome
Comcare's application for a different costs order was refused; the Court ordered Comcare to pay the respondent's costs, with indemnity costs for the costs application.
Legal Topics
['discretion to Award Costs' 'indemnity Costs' 'non Acceptance of Settlement Offer' 'consent Orders Involving a Federal Tribunal' 'application on a Question of Law From the Administrative Appeals Tribunal']
['administrative Law' 'costs'] ['discretion to Award Costs' 'indemnity Costs' 'non Acceptance of Settlement Offer' 'consent Orders Involving a Federal Tribunal' 'application on a Question of Law From the Administrative Appeals Tribunal']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Application for Review on a Question of Law From the Administrative Appeals Tribunal / Costs Determination After Substantive Application Dismissed

Legal Issues

  1. 1 ["Whether Comcare should be relieved from paying the respondent's costs because of the respondent's refusal of Comcare's non-negotiable offer." 'Whether costs should be apportioned by reference to issues on which Comcare claimed substantial success.' "Whether Comcare should pay the respondent's costs of resisting the different costs order application on an indemnity basis."]

Ratio Decidendi

Comcare failed in its appeal and there were no relevantly separate issues justifying a departure from the ordinary costs order. Mr Stewart's non-acceptance of Comcare's non-negotiable offer was reasonable because the offer required him to agree that the appeal be allowed and the Tribunal's decision set aside, but the Court would still need to be satisfied of a vitiating error of law and the proposed notes did not coincide with the Court's conclusions. Comcare's application for a different costs order had no chance of success after it was put on notice of these difficulties, so Comcare must pay the respondent's costs generally and the costs of meeting the different costs order application...

Court Disposition

Comcare's application for a different costs order was refused; the Court ordered Comcare to pay the respondent's costs, with indemnity costs for the costs application.

Orders

  • ["Subject to order 2, the applicant pay the respondent's costs, as agreed or assessed." "The applicant pay the respondent's costs of meeting its application for a different costs order on an indemnity basis, that is, except in so far as those costs are of an unreasonable amount or unreasonably incurred."]