Brewis and Australian Postal Corporation

[2005] AATA 897

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/319

DIVISION		)
Re		MELINDA BREWIS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal   Mr J.W. Constance, Senior Member

Date  13 September 2005 

Place  Canberra    

Decision Items 60-67, 69-82, 106-107 and 118 (all inclusive) in the Applicant’s bill of costs filed 17 May 2005 are allowed.

..............................................

CATCHWORDS

TAXATION OF BILL OF COSTS – Calderbank letter – whether consent decision was an agreement to pay costs in total or whether costs incurred after the date of the letter should be disallowed on taxation – original offer rejected and then renewed -Applicant acted expeditiously in accepting offer – costs incurred by Applicant after offer made allowed

Safety, Rehabilitation and Compensation Commission 1988 (Cth) s 67

Administrative Appeals Tribunal Act 1975 (Cth) s 69A

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Re Dive and Comcare (1997) 48 ALD 753

Re Collins and Military Rehabilitation Compensation Commission [2005] AATA 877

REASONS FOR DECISION

13 September 2005 Senior Member J W Constance

1.      Ms Brewis sought a review of a decision of the Corporation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The parties were able to settle their differences and the Tribunal made a consent decision. Part of the decision was that the Corporation pay Ms Brewis’ “reasonable party/party costs as agreed or taxed.”  The parties were unable to agree on the costs payable.

2.      Ms Brewis’ bill of costs came before the Taxing Officer for taxation but before this was completed the Taxing Officer referred the question of whether certain items in the bill should be allowed for the direction of the Tribunal.  This referral was at the request of Ms Brewer’s representative.

3.      For the reasons which follow the items in dispute should be allowed.

FACTS

4.      I make these findings of fact based on the evidence of Ms Hines, the solicitor for Ms Brewis, and on documents on the Tribunal’s file. These documents are not in dispute.

5.      On 15 February 2005 (by letter of the same date[1]) Ms Brewer’s solicitors received an offer of settlement from the Corporation’s solicitors.  The letter included the following:

”Please note that if this offer is not accepted, Australia Post proposes to rely upon the terms of this letter on the question of costs in the event the matter proceeds to hearing. In particular, if the offer is not accepted and the applicant does not achieve an outcome in the Tribunal proceedings which is materially batter than the terms of Australia Post’s offer as set out in this letter, Australia Post will, in due course:

a.oppose the applicant being awarded costs on and from the date of this letter; and

b.apply to have any costs the applicant would otherwise be awarded up to the date of this letter reduced by the amount of costs Australia Post incurs from the date of this letter.”

[1] Ex. A to affidavit of E L Hines.

At no stage was the matter listed for hearing.

6.      By letter of 9 March 2005[2] Ms Brewis rejected the offer of settlement and put a counter offer which was stated to be open until close of business on 11 March 2005.

[2] Ex. E to the affidavit of E L Hines.

7.      The Corporation rejected the counter offer in a letter of 11 March 2005[3] and stated “[w]e are instructed that our client’s offer made under cover of our letter dated 15 February 2005 is still open.”

[3] Ex. F to the affidavit of E L Hines.

8.      In a telephone conversation between solicitors on 18 March 2005 Ms Brewis accepted the Corporation’s offer. There was no discussion as to costs during this conversation. The parties then filed their consent to the Tribunal making a decision which included the term set out in paragraph 1 of these reasons.

9.      Between 15 February 2005 and 18 March 2005 Ms Brewer incurred costs in continuing the preparation of the matter for hearing. It was not in dispute that the cost of this work would have properly been payable by the Corporation had it not been for the terms of the letter of 15 February 2005. These were the items referred to the Tribunal for determination.

10.     The Corporation’s initial argument was that in considering the issue I should make a “strong presumption in favour of the correctness of the exercise of the discretion by the Taxing Officer……” and cited Australian Coal and Shale Employees’ Federation v The Commonwealth[4]  and an unreported decision of the ACT Supreme Court in Bennett v Seaman in support of this proposition.

[4] (1953) 94 CLR 621 at 627.

11. The principles stated in the cases relied on by the Corporation are not applicable here. This is not an appeal from (or review of) the Taxing Officer’s decision but a referral of the disputed items for an initial decision. These are two different procedures. The former is provided for in section 69A of the Administrative Appeals Tribunal Act 1975 (Cth), (when there has been a taxation of the disputed items); the latter in paragraph 6 of the Tribunal’s General Practice Direction (before the taxation is concluded). The Tribunal has previously recognized the existence of these two distinct procedures: Re Dive and Comcare[5]. In this case I must make my decision unfettered by any presumption such as is suggested by the Corporation.

[5] (1997) 48 ALD 753

12.     Once Ms Brewis rejected the Corporation’s offer on 9 March 2005 it was no longer open for her to accept at a later date unless the Corporation chose to again put it on the table. This it did in the letter of 11 March 2005. Although the Corporation referred to the offer of 15 February 2005 as being ‘‘still open”, it was reasonable for Ms Brewis to take the offer as being open for acceptance as at 11 March 2005 (and with effect at that date) in the absence of any statement from the Corporation that if the offer was accepted it would only agree to pay costs up to 15 February 2005. In these circumstances the costs incurred by Ms Brewis in continuing to progress the matter up until 18 March 2005 were reasonably incurred and should be allowed on taxation.

13.     Counsel for the Corporation referred me to the decision of the Tribunal in Re Collins and Military Rehabilitation and Compensation Commission[6] in which the facts in issue were similar to the facts in this matter. The different outcomes turn on the determinations of fact as to when the relevant offers were made and the exact terms of those offers. The principles applied in Collins are the same as those applied in this case…an offer should be acted on expeditiously and costs incurred in progressing a matter unnecessarily after an offer is made are not recoverable on taxation. I am satisfied that Ms Brewis did act expeditiously to accept the offer made on 11 March 2005 and did not incur any unnecessary costs.

[6]  Re Collins and Military Rehabilitation and Compensation Commission [2005] AATA 877

DECISION

14.     Items 60-67, 69-82, 106-107 and 118 (all inclusive) in the bill of costs filed 17 May 2005 are allowed to the Applicant.