Griffiths and Telstra Corporation Limited
[2004] AATA 1363
•15 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1363
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/362
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN GRIFFITHS Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member Date15 December 2004
PlaceCanberra
Decision The respondent shall pay the costs of the proceedings incurred by the applicant up to and including the 23 July 2004, such costs to be agreed or taxed on a party/party basis.
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CATCHWORDS
COMPENSATION – costs – reviewable decision contravening Oudyn set aside – no agreement as to costs – whether applicant is entitled to costs – whether costs should be awarded on a indemnity or party/party basis – costs awarded to applicant on a party/party basis for the period before and including the conciliation conference
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Australian Postal Corporation v Oudyn [2003] FCA 318
Safety, Rehabilitation and Compensation Act 1988 – s 14
REASONS FOR DECISION
15 December 2004 Mr J.W. Constance, Senior Member 1. In this application Mr Griffiths sought a review of a decision of Telstra affirming a primary determination made 7 May 2003. The reviewable decision clearly was beyond the power of the decision maker as it purported to affirm a decision which contravened the principles set out by the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628.
2. On 2 December 2004, with the agreement of the parties I decided that the reviewable decision should be set aside and that in substitution it should be decided that no other decision needs to be made.
3. Mr Griffiths has sought an order that the costs of the proceedings incurred by him be paid by Telstra. His Counsel has argued that those costs should be ordered on an indemnity basis.
4. For the reasons set out the appropriate order is that Telstra pay those costs incurred by Mr Griffiths up to and including the conciliation conference and that those costs be determined on a party/party basis.
BACKGROUND
5. In order to understand the reasons for the order it is necessary to set out the manner in which this matter has progressed.
6. The full text of the primary determination is:
“In accordance with he provisions of Section 14 and all other Sections of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that:
1.The claimant suffered “situational stress disorder and aggravation of tinnitus” on 25th November 1994.
2.I am satisfied on the balance of probabilities that the effect of any such injury has now ceased and that Telstra Corporation Limited is no longer liable to pay compensation in respect of the claim on and from 7 May 2003.
3.In pursuance of the provisions of the Act, Telstra Corporation Limited is no longer liable to pay compensation in respect of any incapacity or medical expenses on and from 7 May 2003.”
7. Mr Griffiths requested a reconsideration by letter of 29 May 2003.[1] He included in his request the following:
“I am currently being prescribed medication & have been since approximately 1995 for which compensation had been payed (sic) as late as 17th April 2003. This medication helps maintain my capacity for full time employment & family & social activity.”
……..
“Dr England monitors my condition approximately every 6-8 weeks & the effects work places on my health and family & I would expect this to be compensateable (sic) until he advises that treatment is no longer required.”
[1] S.37 doc. T243.
8. It is clear from this request that Mr Griffiths was seeking a review of the determination that the effect of the injury had ceased and the consequent determination that Telstra was no longer liable to pay compensation in respect of incapacity and medical expenses. This was exactly the request one would expect he would have made.
9. The determination was affirmed by a reviewable decision of 7 August 2003.
10. The application for review of the decision was filed in the Tribunal on 11 September 2003. It did not restrict the application to any particular part of the decision to be reviewed. The reasons for the application were stated to be that the decision was incorrect in law and in fact.
11. The Statement of Issues filed on behalf of Mr Griffiths on 29 October 2003 was as follows:
“1.Whether the applicant continues to suffered from ‘situational stress disorder and aggravation of tinnitus’ that was contributed to in a material degree by his employment with the (sic) Telstra, pursuant to the Safety, Rehabilitation and Compensation Act 1988.”
12. In the notes of a Preliminary Conference held on 31 October 2003 the following appears:
“What does A want from ongoing liability? Ongoing treatment and medication”.
“A” refers to Mr Griffiths.
13. On 22 December 2003 Mr Griffiths solicitors filed a copy of a report of Dr Saboisky as to “an extended psychiatric assessment” of Mr Griffiths which took place on 4 December 2003.
14. A second Preliminary Conference was held on 27 May 2004. In the conference report the following note is recorded:
“RD 7 Aug 03 – no comp payable under any section of SRC Act for situational stress disorder and aggravation of tinnitus for previously accepted condition. Does this offend the Oudyn principles? Parties aware of this and it may need some attention.”
There is also a note that “A has filed report of Dr Saboisky 9 Dec 2003 which is supportive of the claim for ongoing liability…….”
15. The contentions stated on behalf of Mr Griffiths in his Statement of Facts and Contentions filed on 31 May 2004 were:
“2.1The Applicant continues to suffer from “situational stress disorder and aggravation of tinnitus”.
2.1The Applicant’s condition was materially contributed to by his employment with the Respondent.
2.3The Applicant is entitled to compensation pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
2.4 The Reviewable Decision dated 7 August 2003 should be set aside.”
16. With the consent of the parties I viewed the notes on the Tribunal’s file which related to the Conciliation Conference held by Member Webb on 23 July 2004. Also with the parties’ consent I spoke to Mr Webb as to his further recollection of discussions as to the issues in contention at that time.
17. The notes made by Member Webb include the following:
“Issues
1.s.14 cease liability decision cannot stand. S.16 claim on foot.
2.Med issue whether A continues to suffer from depressive disorder prev accepted as compensable.
3.Tmt ongoing but some evid of personality disorder and serial depressive episodes – R arguing that prior depressive episode that was compensable has resolved + current cond not .·̣. compensable.”
18. Member Webb has informed me (and I have previously so advised both parties’ representatives) that he has no independent recollection of the discussions at the conference but that his notes indicate that both parties agreed that the need to correct the “section 14 cease liability” decision was no longer in issue.
19. The parties provided to me copies of correspondence which followed shortly after the conference.
20. By letter of 30 July 2004 Telstra made an offer in the following terms:
“1Telstra accepts liability pursuant to sections 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) in respect of the Applicant’s ‘situational stress disorder and aggravation of tinnitus’ (compensable condition),
2Telstra accepts liability to pay compensation for medical expenses pursuant to sections 16 and incapacity payments pursuant to 19 of the Act, for a closed period up to and including 23 July 2004,
3The Applicant agrees that he does not presently suffer form a work related condition. Accordingly, Telstra is not presently liable to pay compensation for medical expense, pursuant to section 19 of the Act in respect of the compensable condition;
4The Applicant agrees that he suffered a personality disorder with depressive symptoms which are unrelated to his employment with Telstra,
5Telstra will pay the Applicant’s solicitors’ reasonable party/party costs (as agreed).”
21. By letter of 12 August 2004 Mr Griffiths responded with a counter-offer as follows:
“1.The Respondent agrees that the Applicant continues to suffer from his compensable condition under section 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988, namely “situational stress disorder and aggravation of tinnitus”; and
2.The Respondent agrees to pay the Applicant’s reasonable legal costs to be agreed or taxed.”
22. Subsequently, at the request of the parties, the matter was set down for a 3 day hearing. It was not until a Directions Hearing on 2 December 2004 that the parties announced their agreement as to a decision which simply set aside the reviewable decision and substituted a decision that no other decision needs to be made. The effect of this decision was to overcome the breach of the Oudyn principles and nothing more. The only remaining issue in dispute was as to the appropriate costs order.
REASONS
23. As Mr Griffiths has achieved the setting aside of the reviewable decision and the substitution of a more favourable decision he is entitled to some form of costs order in his favour.
24. Counsel for Mr Griffiths has vigorously argued that there should be an order that Telstra pay the costs of the whole proceedings. He put that in fact the Tribunal had jurisdiction only to deal with the question of liability under section 14 of the Act and therefore any matters dealt with in relation to other sections (such as liability under sections 16 and 19) were irrelevant in deciding an appropriate costs order. I do not agree.
25. Clearly, from the time of the request for reconsideration, there were issues raised by Mr Griffiths as to liability for medical expenses and periods of incapacity. The reviewable decision affirmed a determination which purported to deal with liability to pay “compensation in respect of any incapacity or medical expenses”. I am of the view that the Tribunal was seized of jurisdiction in relation to issues wider than those raised by section 14 alone.
26. Even if the Tribunal had decided at some stage that it did not have jurisdiction to deal with section 16 and section 19 issues it does not follow that Mr Griffith would be entitled to recover costs associated with the agitation of those issues when he was the one who raised them before the Tribunal and with Telstra. The fact that there was more in issue than just the Oudyn principle was confirmed by Mr Griffiths’ solicitors in the Statement of Facts and Contentions, at the Preliminary Conferences, by the filing of Dr Saboisky’s report and in the letter of offer following the Conciliation Conference.
27. I am satisfied that, at the time of the Conciliation Conference at the latest, both parties accepted that the reviewable decision must be set aside as it did not comply with the principles set out in the Oudyn decision. From that time onwards they were engaged in a dispute as to other issues. This is borne out by the offer and counter offer and the fact that the parties requested that the matter be set down for a hearing estimated to last 3 days.
28. It is appropriate that Telstra pay the costs of the proceedings incurred by Mr Griffiths up to and including the Conciliation Conference held on 23 July 2004.
29. Counsel for Mr Griffiths also argued that costs should be awarded on an indemnity basis. His reason for this submission was that Telstra was the respondent in the matter of Rosillo v Telstra Corporation Limited (supra) in which judgement was delivered on 8 December 2003, being shortly after this application was lodged. In giving his reasons Justice Madgwick made the following statement:
“……I do not think that in this case an order for indemnity costs would be warranted. In what would be the unthinkable event that the Tribunal repeated what has been done in this case, any respondent who caused an applicant to contest a case in this Court to correct the Tribunal’s error would likely not be so fortunate.”[2]
[2] At paragraph 24.
30. There are some early decisions in which the Tribunal took the view that costs could only be awarded on a party/party basis. However in Rodriguez and Telstra Corporation Limited [2001] AATA 1053 the Tribunal considered that it could award costs on an indemnity basis although it did not do so in that matter.
31. Had the only issue between the parties been the need to make the decision ultimately agreed upon, and had Telstra resisted the making of such a decision, an indemnity order may have been appropriate. That was not the case here. The appropriate order is that costs be paid on a party/party basis.
DECISION
32. Telstra shall pay the costs of the proceedings incurred by Mr Griffiths up to and including the 23 July 2004, such costs to be agreed or taxed on a party/party basis.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
(Chelsey Bell) AssociateDate/s of Hearing 2 December 2004
Date of Decision 15 December 2004
Date of Reasons 15 December 2004
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Slater & Gordon
Solicitor for the Respondent Sparke Helmore
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