Griffiths v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Griffiths v Australian Postal Corporation [2008] FCA 19

ADMINISTRATIVE LAW – administrative tribunals – Administrative Appeals Tribunal (Cth) – procedure and evidence – costs – exercise of discretion to award costs under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

Held:  Error of law in exercise of Tribunal’s discretion in failing to take account of Calderbank letter – error was in favour of rather than against applicant – otherwise no legal error in exercise of discretion is shown – discretion is broad.

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

Perry v Comcare (2006) 150 FCR 319 applied

Lees v Comcare (1999) 56 ALD 84 discussed

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

Oshlack v Richmond River Council (1998) 193 CLR 72 cited

GEOFFREY GRIFFITHS v AUSTRALIAN POSTAL CORPORATION
NSD 2416 OF 2006

MADGWICK J
24 JANUARY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2416 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ALLEN

BETWEEN:

GEOFFREY GRIFFITHS
Applicant

AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

MADGWICK J

DATE OF ORDER:

24 JANUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Any submission as to costs should not exceed one page and should be forwarded to my associate within 7 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2416 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ALLEN

BETWEEN:

GEOFFREY GRIFFITHS
Applicant

AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

MADGWICK J

DATE:

24 JANUARY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

  1. This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal), constituted by Senior Member Allen, that each party pay its own costs. The applicant was successful on the substantive aspects of his claim and seeks to have this Court make a costs order in his favour in place of that of Senior Member Allen.

    The legal framework

  2. The legal principles governing costs in proceedings brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) are found in s 67 of that Act. Greenwood J in Perry v Comcare (2006) 150 FCR 319 at [65]-[66] made the following observations:

    The provisions of s 67 “constitute a code in the area of costs”: Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449 per Beaumont J.

    The elements of that code are these.  The primary rule, subject to the operation of the section is, “the costs incurred by a party to proceedings instituted under Pt VI before the Tribunal shall be borne by that party”: (s 67(1)). Subsections (2) to (12) of s 67 provide specific circumstances where the primacy…

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Details
Case
[2008] FCA 19
Decision Date

CaseChat Overview and Summary

In the matter of Griffiths v Australian Postal Corporation, the dispute primarily revolves around the determination of costs in a workers' compensation claim. The case was heard and decided by the Senior Member Allen, who was tasked with assessing whether any error of law had occurred in the exercise of the discretion regarding costs. The applicant, Griffiths, sought compensation for a temporary exacerbation of symptoms caused by cervical spondylosis, which the respondent, Australian Postal Corporation, initially denied. The respondent later made a "Calderbank" offer of settlement, agreeing to compensate Griffiths but only for a limited period and under different sections of the relevant Act, which the Senior Member deemed irrelevant to the initial reviewable decision.

The legal issues before the court included whether the Senior Member correctly exercised his discretion under s 67(8) by considering the Calderbank offer and whether the Senior Member's decision to award costs was legally sound. The court examined if the Senior Member's reliance on the applicant's broader claims in the Statement of Facts and Contentions was justified in determining the costs. The court also considered the broader implications of the Lees v Comcare decision, which restricted the Tribunal's powers in relation to the reviewable decision.

The court found that while the Senior Member's reasoning in dismissing the Calderbank offer was legally flawed, the error was in favor of the applicant. Despite the Senior Member's assertion that the offer could not be considered due to the principles in Lees, the court clarified that Perry 150 FCR 319 allows the Tribunal to consider any Calderbank offer as part of the case's circumstances. The court concluded that the Senior Member should have considered the offer in exercising his discretion, even though it did not conform to the required principles. The court also noted that the applicant's pursuit of broader relief had unnecessarily extended the hearing, which justified the Senior Member's decision to award costs to each party. The appeal was ultimately dismissed, and the court requested concise submissions on costs within a specified timeframe.

Orders

Orders of the court

1. The appeal be dismissed.

2. Any submission as to costs should not exceed one page and should be forwarded to my associate within 7 days.

Background

Background to the litigation

All that now remains in this appeal is to determine whether the Senior Member committed any error of law adverse to the applicant in the exercise of his discretion as to costs.Background It is now to be taken that Senior Member Allen decided that a reviewable decision should be set aside and that the respondent was liable, pursuant to s 14 of the SRC Act, for a temporary exacerbation of symptoms caused by cervical spondylosis suffered by the applicant. In his reasons for his decision that each party should pay its own costs, the Senior Member referred to a letter from the respondent to the applicant dated 15 August 2006. The letter contained a “Calderbank” offer of settlement. The respondent was prepared to concede that the applicant had suffered an aggravation of an existing condition, and that he was entitled to compensation under ss 16 and 19 of the SRC Act, but only from 27 April 2005 to 8 June 2005 (in reliance on a medical report of Dr Olsen, which stated that any aggravation was temporary). The offer included an undertaking by the respondent to pay the applicant’s costs of the proceedings. No response was received to this letter. The Senior Member referred to Perry 150 FCR 319 as authority allowing consideration of a “Calderbank letter” in the exercise of the discretion conferred by s 67(8). The Senior Member considered that the letter of offer in this matter satisfied the criteria set out in Perry 150 FCR at 327, 333-5, that it be clear, precise and certain, particularly with respect to the question of costs. However, the Senior Member was of the opinion that the agreement proposed by the letter, which was to be the basis for a proposed consent decision of the Tribunal, did not constitute a decision open to the Tribunal to make. This was due to the principle in Lees v Comcare (1999) 56 ALD 84 which prevents the Tribunal from exercising any powers or discretions which were not available to the authority making the reviewable decision. The reviewable decision had affirmed the original decision that there was no liability under s 14 of the SRC Act, which deals with liability for injury. The offer of compromise dealt with compensation under ss 16 and 19, which relate to compensation for medical expenses and incapacity respectively. The Senior Member held that the Calderbank letter “was of no effect”. In deciding that nevertheless each party should bear its own costs, he relied instead on the applicant’s Statement of Facts and Contentions. According to the Senior Member the Statement claimed relief in terms far broader than liability simpliciter under s 14. The hearing was, in his opinion, extended unnecessarily as a result and, therefore, each party should bear its own costs.Consideration Perry 150 FCR at [89] makes it clear that it is not necessary that a Calderbank offer must conform to the principles dictating the validity of such an offer for it to be considered by the Tribunal in the exercise of its discretion under s 67(8). This is because the Tribunal is to have regard to the “circumstances of the case”, and any such offer, regardless of validity, forms part of these circumstances. As outlined above, the Senior Member held that the Calderbank offer would not have been capable of being confirmed by the Tribunal, due to the principle in Lees 56 ALD 84. However, he seems to have reasoned that this prevented him from taking the offer into consideration when exercising his discretion as to costs. Such reasoning is incorrect in the light of Perry 150 FCR 319. This was an error of law in the exercise of the Tribunal’s discretion, but it was an error in favour of, rather than against, the applicant. Even though the Senior Member purported not to consider the offer while exercising his discretion, he clearly outlined how he would have taken the letter into account, had he considered himself able to do so. Such treatment would not have been favourable to the applicant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

In deciding that nevertheless each party should bear its own costs, he relied instead on the applicant’s Statement of Facts and Contentions. According to the Senior Member the Statement claimed relief in terms far broader than liability simpliciter under s 14. The hearing was, in his opinion, extended unnecessarily as a result and, therefore, each party should bear its own costs.Consideration Perry 150 FCR at [89] makes it clear that it is not necessary that a Calderbank offer must conform to the principles dictating the validity of such an offer for it to be considered by the Tribunal in the exercise of its discretion under s 67(8). This is because the Tribunal is to have regard to the “circumstances of the case”, and any such offer, regardless of validity, forms part of these circumstances. As outlined above, the Senior Member held that the Calderbank offer would not have been capable of being confirmed by the Tribunal, due to the principle in Lees 56 ALD 84. However, he seems to have reasoned that this prevented him from taking the offer into consideration when exercising his discretion as to costs. Such reasoning is incorrect in the light of Perry 150 FCR 319. This was an error of law in the exercise of the Tribunal’s discretion, but it was an error in favour of, rather than against, the applicant. Even though the Senior Member purported not to consider the offer while exercising his discretion, he clearly outlined how he would have taken the letter into account, had he considered himself able to do so. Such treatment would not have been favourable to the applicant. The Senior Member went on to consider the circumstances of the case generally, including the parties’ conduct with respect to the proceeding. In short, he took the view that the applicant had sought to, and had, litigated issues going beyond those which could lawfully result in useful relief. The decision under review had dealt only with the respondent’s liability to pay compensation to the applicant and, being negative, had not dealt with the quantum of any compensation that would be payable (on the basis of computation of the compensation payable). Very inconveniently for all concerned, that appears to be the state of the law in the workers’ compensation cases governed by the SRC Act, as a result of the decision in Lees 56 ALD 84. (In the course of the hearing, I suggested that the statutes should be amended to do away with this considerably inconvenient and expensive need for multiple considerations of a single claim.) The applicant had embarked on a lengthy investigation of the duration of his incapacity, though the Tribunal could not lawfully determine that issue in the instant proceeding. The principal contention of the applicant was that, having won the case, he should have his costs. The respondent had not simply offered to concede liability but sought, itself, to tie that concession to a determination favourable to itself of an issue that was not lawfully before the Tribunal. In some cases, where no party has objected, the Tribunal has been willing in a commonsense way to determine both liability and quantum issues where the primary decision maker denied the respondent’s liability: small wonder that the applicant, without dissent from either the respondent or the Senior Member, had sought to litigate both issues.