Fu and Australian Postal Corporation

[2003] AATA 864

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 864

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1086

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LINA FU

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date3 September 2003

PlaceSydney

Decision The Tribunal orders the Respondent to pay the Applicant's reasonable costs as taxed or agreed in accordance with the Tribunal’s General Practice Direction.

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

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - costs – reviewable decision varied - whether Tribunal decision more favourable to Applicant than decision under review - whether Tribunal should apportion costs

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 section 67

CASELAW

Re Fu and Australian Postal Corporation [2003] AATA 779

Telstra Corporation Limited v Barrow (1994) 35 ALD 461

Re Gourvelos and Telstra Corporation Limited (AAT 9158A, 28 July 1994)

Re ACT Department of Health and Nikolovski and Comcare (AAT 10826A, 13 November 1996)

Re Georgiades and Comcare (AAT 11822, 2 May 1997)

Hughes v Western Australian Cricket Association (Inc.) & ors. (1986) ATPR 40-748

REASONS FOR DECISION

3 September 2003 Mr S. Webb, Member        

1.      On 11 August 2003, written Reasons for Decision were delivered in the above application by Ms Lina Fu (“the Applicant”) for review of a decision of the Australian Postal Corporation (“the Respondent”): Re Fu and Australian Postal Corporation [2003] AATA 779.  In the absence of submissions on the issue of costs, the Tribunal made no costs award.  Subsequently, the parties were unable to reach agreement on this issue and written submissions were received by the Tribunal from the Applicant, dated 28 August 2003, and from the Respondent, dated 26 August 2003.

2.      The Tribunal will proceed to make Orders as to costs, taking into account the matters raised in submissions.

3.      The decision under review in the original application ceased liability in relation to the Applicant’s low back pain condition on 25 February 2002.  The Tribunal varied the decision with the effect that the Applicant’s soft tissue injury to her lower back had not ceased on 25 February 2002 but subsequently ceased to cause any incapacity for work or to warrant further medical treatment on and after 6 January 2003.

4.      Section 67(8) of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) 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.”

Pursuant to section 67(8) of the Act, the Applicant sought an order that all the costs of the proceedings before the Tribunal be paid by the responsible authority.  In the Applicant’s submission, section 67(8) of the Act should be read in conjunction with sections 67(11) and (12), contending that:

“[I]f the Parliament intended that an Applicant should only obtain a costs Order where the Applicant receives, on Review, a full range of entitlements it would have expressly said so, in similar terms to sections 67(11) and 67(12).”

5.      The Applicant made further submissions concerning whether the Tribunal has jurisdiction to make an order as to costs after a primary decision has been made, referring to “the slip rule” whereby a clerical error or accidental omission from a judgement may be corrected after formal entry of the judgement.

6.      In this matter there was no such error or omission.  Issues concerning costs were not ventilated at the hearing and now fall for determination following receipt of written submissions on the matter (Telstra Corporation Limited v Barrow (1994) 35 ALD 461).

7.      Turning to the question of jurisdiction, the Act confers a discretion on the Tribunal to award costs under section 67.   The applicable section in this case is section 67(8)(a) of the Act.  The Tribunal finds that sections 67(11) and 67(12) of the Act, which limit the authority of the Tribunal to award costs, have no application in this case. 

8.      The discretion of the Tribunal to award costs pursuant to section 67(8) of the Act is unfettered by temporal considerations or by the need for an application by the Applicant (Re Gourvelos and Telstra Corporation Limited (1994) AATA 9158A). On this construction the Tribunal is not functus officio until after it has made a costs order (Re ACT Department of Health and Nikolovski and Comcare (AAT 10826A, 13 November 1996 ).

9.      The Respondent submitted that the Tribunal’s decision was essentially the same as the decision under review “with the only difference being the postponement of the date of cessation from 25 February 2002 to 6 January 2003”, contending that the Applicant did not claim incapacity payments or specific medical expenses during that period.  In the Respondent’s submission the Applicant has no ongoing entitlement to compensation and the “extension of the “cease effects” date was made for technical reasons and not to specifically accommodate a particular claim for benefits”.  On this basis, the Respondent submitted that no costs order should be made or in the alternative, referring to Re Georgiades and Comcare (AAT 11822, 2 May 1997), only part costs should be awarded.

10.     In Re Georgiades and Comcare (supra) the Tribunal awarded ten percent of the Applicant’s costs because she failed to establish a compensable stress condition but was successful in relation to ongoing medical treatment costs.  Clearly the decision in the case at hand is to be distinguished from that in Re Georgiades..  In this case, the Applicant was successful in extending the period in which compensation for incapacity and medical treatment costs was payable in respect of her work-related injury from 25 February 2002 until 6 January 2003. 

11.     The substantive issue for determination by the Tribunal on review was whether the effects of the Applicant’s injuries had ceased on 25 February 2002 as determined by the Respondent.  That matter was determined in the Applicant’s favour: the effects had not ceased on the specified date but the injury was found to have ceased to cause incapacity or to warrant further medical treatment more than 10 months later on 6 January 2003.  The Applicant’s failure to satisfy the Tribunal that her injury continued to cause incapacity or to warrant medical treatment on or after 6 January 2003 does not mean the decision was less favourable to the Applicant than the decision under review.

12.     The Respondent submitted that such a finding was a technicality that had little bearing on the substantive issues under review.  This submission is not made out on the facts.  The Applicant’s refusal to undertake full duties without restriction was a matter of significance in the disputation.  Much of the evidence was directed to that issue.  The Tribunal found that she was not fit to perform her pre-injury duties during the period without restriction.  On the evidence, the Tribunal found that the Applicant was working full hours on restricted duties and was treated by Dr Goh and Dr Shenstone during the period in question.  That the Applicant subsequently exaggerated her symptoms caused the Tribunal some difficulty in evaluating the evidence.  It is neither possible nor reasonable, however, to quantify the proportion of the hearing that dealt with the issue of exaggeration.  The Applicant submitted that although she did not claim incapacity payments during the period, she incurred medical treatment costs in the amount of $3,098.12.  While evidence of the medical treatment costs she incurred during the period in question are not before the Tribunal, it is reasonable to infer that medical treatment costs were incurred. 

13.     Despite the Tribunal’s finding that the Applicant ‘s injury ceased to cause incapacity for work or to warrant further medical treatment on or after 6 January 2003, the Tribunal cannot agree with the Respondent that the decision to extend the period of liability in relation to incapacity and medical treatment costs is only “technically more favourable”. 

14.     Toohey J discussed the issue of apportionment of costs in Hughes v Western Australian Cricket Association (Inc.) & ors. (1986) ATPR 40-748, observing:

“Also it is necessary to keep in mind the caveat by Jacobs J. in Cretazzo v. Lombardi at p.16 [(1975) 13 SASR 4].  His Honour sounded what he described as “a note of cautious disapproval” of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial.  His Honour commented:

“But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law.  The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.  There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike.  I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.””

While Toohey J determined to apportion costs in the Hughes case on the basis that the applicant failed on one discrete issue, in terms of evidence and submissions, the same cannot be said in this case. Considering the evidence and the submissions in the instant case, the Tribunal is of the view that there was no similarly discrete issue on which the Applicant failed in this matter.  The fact is that the Applicant succeeded in her assertion that the reviewable decision was incorrect and that the effects of her injury had not ceased on 25 February 2002.  The evidence and submissions leading to this conclusion are intertwined and entangled with those leading to the conclusion that she no longer suffered incapacity or required medical treatment in consequence of her injury on or after 6 January 2003. 

15.     This being so, the Tribunal does not consider it appropriate to apportion costs in this matter..  Each case must be considered on its merits and an apportionment of costs may be warranted in other circumstances.  In this case, however, the Tribunal is not satisfied that apportioning costs in the manner submitted by the Respondent is, with respect, either warranted or appropriate in the circumstances.

16.     The Tribunal’s decision is more favourable to the Applicant than the decision under review.  This being the case, the Respondent must pay the reasonable costs of the Applicant, as agreed or taxed in accordance with the Tribunal’s General Practice Direction.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  18 and 19 June 2003
Date of Decision  3 September 2003
Counsel for the Applicant         Mr J Mrsic
Solicitor for the Applicant          Ms R James
Counsel for the Respondent     Mr P Jones
Solicitor for the Respondent     Mr L Forner