Duong and Australian Postal Corporation

[2008] AATA 16

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1124

GENERAL ADMINISTRATIVE DIVISION		)               N2006/1423
Re		CUC KIM DUONG

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Member, Dr John Campbell

Date9 January 2008

PlaceSydney

Decision

Proceeding N2005/1124

We make no order as to costs.

Proceeding N2005/1243

The Applicant is entitled to 20 per cent of the costs of the proceedings.

.....................[sgd]......................

Presiding Member

Senior Member, Mrs Josephine Kelly

CATCHWORDS

COMPENSATION – costs – reviewable decisions varied and set aside in manner more favourable to applicant – discretion to order part payment of costs exercised – no order as to costs for first proceeding – applicant entitled to 20 per cent of costs for second proceeding

Safety, Rehabilitation and Compensation Act 1988 s 67

Re Konstantanos Gourvelos and Telstra (AAT 213, 28 July 1994)

Re O'Regan and Comcare Australia (AAT 8813, 2 July 1993)

REASONS FOR DECISION

9 January 2008	Senior Member, Mrs Josephine Kelly
Member, Dr John Campbell

1.      A decision in these proceedings was delivered on 12 July 2007 (Re Duong and Australian Postal Corporation [2007] AATA 1542). The question of costs was reserved.

2.      The question we now have to consider is what is the appropriate order as to costs.  There were two proceedings before the Tribunal.  The Applicant had suffered three frank injuries:  to her neck in 1994, to her right upper limb in 1995, and to her lower back 1997.

3.      Proceedings N2005/1124 were remitted from the Federal Court.  We dealt with that claim as being for permanent impairment as a result of the two frank injuries in 1995 and 1997.    We found against the Applicant on the substantive question, but varied the reviewable decision because it stated that liability for the injuries had ceased, which was wrong in law.

4.      We dealt with proceedings N2006/1423 as:

a) A claim for liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the 1994 neck injury;

b) A nature and conditions claim (s 14 of the Act) in relation to the right upper limb, cervical and lumbar spine;

c) A permanent impairment claim for the right upper limb, cervical and lumbar spine encompassing the three frank injuries and the nature and conditions claim; and

d) A claim for incapacity (s 19 of the Act) and medical expenses (s 16 of the Act) in relation to the injury to the lower back.

5. The Applicant was successful only in relation to the claim for s 14 liability in respect of the 1994 neck injury. The reviewable decision was set aside and a new decision substituted, principally because the reviewable decision had dealt with the claim only on the basis that it was a nature and conditions claim in relation to the lower back and right upper limb.

6. Given our findings, the relevant provision of the Act is s 67(8), which provides:

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.

7.      Mr Jackson, who appeared for Mrs Duong, argued that each decision was more favourable to Mrs Duong than the reviewable decision and therefore we should exercise the discretion in each proceeding in her favour.   We note the decisions he referred to including Re Konstantanos Gourvelos v Telstra (AAT 213, 28 July 1994) and Re O'Regan and Comcare Australia (AAT 8813, 2 July 1993).

8.      We understood Mr Polin, who appeared for the Respondent, to argue that we did not have to vary the decision in proceedings N2005/1124 and therefore no costs should be awarded in those proceedings.  In relation to proceedings N2006/1423 we understood his analysis of the proceedings to be that we should award costs in the order of 10 per cent of legal costs, and with some caution in relation to the costs of medical reports.

9. The discretion under s 67(8) of the Act is only conferred where the decision is more favourable to the Applicant. We would be prepared to find that in each proceeding our decision was more favourable to Ms Duong. However, it is a matter for us how to exercise that discretion. We note that the discretion allows us to order part of the costs be paid by the responsible authority.

10.     Taking into account all of the circumstances of the proceedings and the orders we made, we consider that it is not appropriate to make an order for costs in relation to proceedings N2005/1124. 

11.     In relation to proceedings N2006/1423 in our opinion Mrs Duong is entitled to part of her costs, but not all.   In our view it is appropriate that she receive 20 per cent of her costs of those proceedings, given the narrow issue upon which she succeeded.

I certify that the preceding 11 paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr John Campbell.

Signed: Steven Mulipola

Associate

Date of hearing on costs:               3 October 2007

Date of primary decision:               12 July 2007

Date of costs order:  9 January 2008

Counsel for Applicant:                  Mr C Jackson

Solicitor for Applicant:                   Pham & Associates

Counsel for Respondent:              Mr N Polin

Solicitor for Respondent:               Sparke Helmore