Case: Repatriation Commission v Cornelius [2002] FCA 930
Outcome: referred to
In summary, Ms Skennar has submitted that relevant factors for the Court to consider in exercising its discretion are: &#8226; the fact that the respondent's husband was a war veteran: Repatriation Commission v Cornelius [2002] FCA 930 &#8226; by making appropriate concessions, the respondent limited the appeal to a short point &#8226; although no new issue of law has arisen in this matter, the appeal results in a confirmation of the steps that must be taken in considering an application such as this, particularly in circumstances where there is more than one hypothesis connecting the veteran's death to his war service &#8226; the critical issue in this matter is that the Tribunal failed to give appropriate reasons identifying each of the steps taken &#8226; a further concession in relation to the ingestion of salt might have been forthcoming if the Repatriation Commission had provided further submissions with respect to the hearing before the Tribunal to Ms Skennar prior to the hearing before this Court, rather than providing relevant documents to her the morning of the hearing. 18 However, Ms Bowskill for the applicant submitted in summary that the Court should not exercise its discretion pursuant to s 6 because: &#8226; appeals of this nature from the Tribunal only involve questions of law, so they can only ever succeed on a question of law &#8226; the material with respect to the ingestion of salt, in particular the transcript of the hearing before the Tribunal, was material to which the respondent's legal representatives would already have had access &#8226; the decision of Branson J in Cornelius [2002] FCA 930 serves to support the submission that it is not appropriate to grant a costs certificate in this case. 19 In my view there are no circumstances in this case which warrant departure from the usual rule that costs follow the event. I make this finding for the following reasons. 20 First, as pointed out by Branson J in Cornelius [2002] FCA 930 , a submission that a costs certificate should be granted only because a Veteran is a party to the proceeding, is not sustainable. Her Honour continued: "I am unable to discern any such legislative intent in the Act . Section 6 of the Act , in my view, requires that each application for a certificate, including each application made on behalf of a war veteran, be considered individually and on its merit. [9] This is not to discount the significance of ' the special contribution made by war veterans to protecting Australian society in time of war '. Parliament has given recognition to this special contribution in the Veterans' Entitlements Act 1986 (Cth) by, amongst other things, providing for a relatively low standard of proof to be applied in the determination of whether a veteran's death, injury or disease is war-caused. The Executive Government has given recognition to the special contribution in the formulation of the Commonwealth guidelines for the administration of legal aid. It seems to me that the status of a respondent as a war veteran is a factor which may be taken into account in the exercise of the discretion to grant a certificate under s 6 of the Act . However, I am not persuaded that it is a factor which either compels, or necessarily suggests strongly in favour of, the grant of a certificate. As indicated above, each application must be considered on its merits. [10]" 21 Second, although it is commendable that the respondent made appropriate concessions thus limiting the appeal to a short point, the obvious response is that such an approach has the beneficial effect of limiting costs which may arise in the appeal rather than justifying a complete relief from the obligation to pay costs.