Dina Saad and Comcare
[2014] AATA 972
•28 November 2014
[2014] AATA 972
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5217; 2013/2729; 2014/0556; 2014/0557
Re
Dina Saad
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal G D Friedman, Senior Member
Decision
Written Reasons
28 November 2014
15 January 2015
Place Canberra The Tribunal orders that:
- The Respondent is to pay the applicant’s costs in applications 2014/0556 and 2014/0557; and
- The quantum of costs is to be calculated between the parties.
No order as to costs is made in applications 2012/5217 or 2013/2729.
...........................[sgd].............................................
G D Friedman, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – costs of application under Safety, Rehabilitation and Compensation Act 1988 – multiple applications – two decisions varied, two affirmed – whether decision varying reviewable decision favourable to applicant – varied decisions extended compensation to future date – partial costs awarded.
PRACTICE AND PROCEDURE – Commonwealth employees – decision varied beyond term of reviewable decision – whether beyond jurisdiction – no appeal to Federal Court – not a matter for Tribunal to decide.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 67(8)
CASES
Lobkovsky v Comcare (1988) 53 ALD 371
Re Greerdam and Minister of the Capital Territory (1979) 2 ALD 137
Re Saad and Comcare [2014] AATA 636Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
G D Friedman, Senior Member
28 November 2014
This matter is a simple question of whether costs or partial costs are payable in relation to a decision by Senior Member Creyke on 3 September 2014 in the matter of Re Dina Saad and Comcare [2014] AATA 636. The decision of Senior Member Creyke was that matters 2013/2729 and 2012/5217 are affirmed, and the reviewable decisions in matters 2014/0556 and 2014/0557 are varied to allow Ms Saad to continue to receive four hours of household assistance up to and including 30 May 2015.
The respondent in this matter has lodged a submission to the effect that the applicant is not entitled to costs or partial costs under section 67(8) of the Safety, Rehabilitation and Compensation Act 1998 (‘the SRC Act’). That subsection states:
Where in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision,
the tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
The respondent submitted that the outcome that was obtained by Ms Saad was not a "more favourable" one. In view of the actual reading of paragraph 67(8)(a), I will delete the word "more". The respondent submitted that the applicant did not receive a favourable outcome under the Tribunal's decision on the basis that the reviewable decision assessed the applicant's leave for household assistance at four hours per week, when the applicant sought 10 hours per week on the advice of one of the consulting doctors.
On that basis, the respondent submitted that the decision was not favourable to the applicant. The respondent went on to say that it did not accept that the portion of the Tribunal's decision which stated that the applicant is entitled to receive compensation for household assistance until 30 May 2015 had given rise to a favourable result. Ms Howard said the decision under review did not suggest that the applicant would be denied further household assistance after 30 May 2014, and that:
It is a common, and understood, practice of the respondent to review compensation entitlements on a regular basis with updated relevant medical evidence. No evidence was presented at the hearing that the respondent intended to deny compensation to the applicant following 30 May 2014, nor any suggestion made that this was a likely scenario.
In fact, the respondent said, ‘The applicant has continued to receive this compensation from the respondent until the present day.’ So to summarise that submission: "It's normal practice to review matters from time to time, so when Senior Member Creyke specified a date, that really didn't change things because we would have reviewed it anyway". That is the argument from the respondent.
The respondent also submitted that in those circumstances, the discretion should not be exercised because Ms Saad has not gained anything. Further, and in the alternative, the respondent submitted that that part of the decision purporting to extend the entitlement until 30 May 2015
is not enforceable – and cannot give rise to a costs order. The respondent accepts that regardless of the grounds of review that are asserted by the applicant or the submissions made by the parties at the hearing, the Tribunal is entitled, and indeed obliged to review the reviewable decision as a whole, and may therefore reach a conclusion as to whether it should be allowed to stand or not having regard to any matters that the Tribunal considers appropriate.
The respondent referred there to Re Greerdam and Minister of the Capital Territory (1979) 2 ALD 137 at 42, and Lobkovsky v Comcare (1988) 53 ALD 371 at 385. The respondent went on to submit:
However, the reviewable decision did not address the applicant's entitlement to compensation for household assistance after 30 May. The power of the Tribunal to review a decision under section 43(1) of the AAT Act is limited by a purposive construction of the Act. The Tribunal does not have the power to exercise the power of the decision-maker that are [sic] only enforceable in relation to another decision that is not under review, and that any future determination dealing with the applicant's entitlement to compensation was not under review…On that basis, the Tribunal's decision to extend the applicant’s payments until 30 May 2015 was outside of its jurisdiction.
Further, the respondent submitted that:
To the extent that the Tribunal's decision binds the respondent, as decision-maker, in futuro (that is, payments in the future), the respondent submits that this is not allowable…[and] the decision does not and cannot give rise to a favourable outcome for the applicant. The Tribunal should not therefore exercise its discretion to make a costs order under s 67 of the SRC Act.
And:
In summary…the decision of the Tribunal has not resulted in a more favourable outcome for the applicant, and even if the Tribunal’s decision may be considered theoretically more favourable to the applicant, that that aspect of the decision is not enforceable as it was beyond the scope of the review of the Tribunal in this matter.
In response, the applicant submitted that the Tribunal did have jurisdiction to consider a period beyond the date to which the most recent Comcare reviewable decision ran, namely 30 May 2014. It took evidence from the applicant and her husband at the hearing on 23 July, and the sole issue before the Tribunal was that of funded household assistance or paid domestic help under section 29 of the SRC Act. On that basis, the applicant submitted that the Tribunal extended the domestic assistance up to 30 May 2015, and therefore there was a more favourable outcome.
On the jurisdictional issue, the applicant submitted that:
If the respondent considers that the tribunal made a jurisdictional error – namely that it was not empowered to make a finding in relation to an entitlement beyond 30 May 2014, the appropriate course for the respondent was to take the matter on appeal to the Federal Court.
The respondent did not do so. The applicant went on to say that it is just a contention by the respondent that the tribunal exceeded its jurisdiction and there cannot now be a lawful finding by the tribunal that it did. He said that, ‘In any event’, the decision in Shi v Migration Agents Registration Authority [2008] HCA 31 is authority that the Tribunal can go beyond the reviewable decision and look at the matter afresh, ‘provided the matter in dispute is before it.’
Those are the two submissions. In my view, what happened at the hearing as a result of Senior Member Creyke's decision is as follows. Before the hearing,
Ms Saad was given four hours household assistance up to
30 November 2013, following a determination by Comcare on 15 November 2013; and up to 30 May 2014 following a determination by Comcare on 23 December 2013. Both of these determinations were affirmed by a Comcare review officer in the reviewable decision dated 1 January 2014. The Tribunal varied the decision by saying, "Well, you can have the same number of hours but I will extend the date".
I take the ordinary meaning of the word "favourable" from the Macquarie Dictionary:
Affording aid, advantage or convenience; a favourable position; manifesting favour; inclined to aid or approve; or of an answer, granting what is desired or promising well. Eg, The signs are favourable.
Comparing the situation before the decision that was made before Senior Member Creyke and afterwards, there has been a favourable outcome for the applicant. She had four hours up to a certain date and she was granted four hours to a year later. Therefore, she has received a favourable outcome – not necessarily a more favourable outcome, but a favourable outcome – which is sufficient for costs to be ordered under section 67(8)(a) of the SRC Act.
The second issue is whether the Tribunal went beyond power to make an order as to extend. I agree with the applicant’s submission. There is nothing in the decision which prevented Senior Member Creyke from making the decision. There was argument, there were matters put before her, evidence was taken on the issue, and if there was any jurisdictional issue to be determined or objected to, then the time to do that would have been at the hearing. That did not happen.
In any case, what has been submitted by the respondent is that
Senior Member Creyke's decision was beyond the Tribunal's power and it was jurisdictional error. I agree with the applicant that whether that is the case or not is up to a court. That is a decision for a judge, and I am effectively being asked to set aside Senior Member Creyke's decision. I agree with the applicant that that issue could have been taken on appeal to the Federal Court and it was not. As it stands, the submission is merely an assertion, and it is up to a judge or a court to make that decision.
As things stand today, the decision of Senior Member Creyke is a perfectly valid decision, and one that was open to her. As the applicant said, the authority of Shi allows the Tribunal to look at a decision afresh and does not really limit it beyond looking at matters to which it's entitled to look in the course of its deliberations. For all those reasons, I find that s 67(8)(a) of the SRC Act is satisfied in this case, and I believe it's appropriate for the tribunal to make an order giving partial costs to the applicant. As suggested today, I leave it to the parties to negotiate the quantum of those costs.
The Tribunal orders that:
- The Respondent is to pay the applicant’s costs in applications 2014/0556 and 2014/0557; and
- The quantum of costs is to be calculated between the parties.
No order as to costs is made in applications 2012/5217 or 2013/2729.
I certify that the preceding 18 (nineteen) paragraphs are a true copy of the reasons for the decision herein of G D Friedman, Senior Member ...............................[sgd].........................................
Associate
Dated 15 January 2015
Date(s) of hearing 28 November 2014 Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co Advocate for the Respondent Ella Howard Solicitors for the Respondent Australian Government Solicitor
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