Hawk and Linfox Armaguard Pty Ltd (Compensation)

[2021] AATA 1525

Hawk and Linfox Armaguard Pty Ltd (Compensation) [2021] AATA 1525 (31 May 2021)

Division:GENERAL DIVISION

File Number(s):      2019/1587

Re:Victor Hawk

APPLICANT

AndLinfox Armaguard Pty Ltd

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:31 May 2021

Place:Sydney

The correct and preferable decision is for the Tribunal to substitute paragraph 182 of the decision dated 8 April 2021 with a new paragraph making an order that the costs of the proceedings incurred by the Applicant shall be paid by the Respondent.  Such costs, in the absence of agreement, are to be taxed by the Registrar, a District Registrar or a Deputy Registrar of the Tribunal.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

COSTS – compensation – whether costs should be awarded under s 67(9) of the Safety, Rehabilitation and Compensation Act 1988 – whether the Tribunal can correct an error of law made in a substantive decision – costs awarded

LEGISLATION

Administrative Appeals TribunalAct 1975 (Cth), s 43AA

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 67(8), 67(9)

Uniform Civil Procedure Rules 2005, Regulation 36.17

CASES

Comcare v Moon [2003] FCA 569

Hatton v Harris [1892] AC 547

Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

SECONDARY MATERIALS

Ritchie’s Uniform Civil Procedure NSW

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

31 May 2021

BACKGROUND

1. In its decision of 8 April 2021, at paragraph [181], the Tribunal made the following decision:

   Given the evidence before the Tribunal, the correct or preferable decision is to set aside the reviewable decision dated 22 March 2019 and for the matter to be remitted to the Respondent to make a determination on the amounts payable to the Applicant pursuant to sections 16 and 19 of the Act in light of the findings of the Tribunal.

2. At paragraph [182], the Tribunal made the following statement as to costs:

   The Applicant has also sought that the Respondent pay the Applicant’s costs on a party / party basis, as agreed and taxed. Such orders are very rare in the Tribunal and I find nothing in this case which would warrant such an order.

3. On 9 April 2021, the Applicant sought a further hearing in relation to the issue of costs. I note that in the meantime, the Applicant had on 5 May 2021 filed an appeal with the Federal Court in relation to this issue.

4. At the hearing as to costs, the Applicant argued that the Tribunal’s decision fell squarely within the language of s.67(9) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”), and that accordingly, the Tribunal had misinformed itself on the question of costs.

5. Section 67(9) provides as follows:

   Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority.

6. The Respondent claimed that the decision did not fall within the provisions of s.67(9), but rather, may fall within other provisions such as s.67(8) of the Act, which gives the Tribunal a discretion as to the award of costs.

7. The Applicant argued that the Tribunal has the power to alter paragraph [182] of the decision, notwithstanding that the alteration may not be covered by the slip rule or by s.43AA of the Administrative Appeals TribunalAct 1975 (Cth) (the “AAT Act”).

8. The Respondent argued that the Tribunal was precluded from revisiting the matter, because such an amendment would not be covered by the slip rule or s.43AA of the AAT Act.

   DISCUSSION

9. Having considered the provisions of s.67(8) and s.67(9) of the Act, I am of the opinion that the Tribunal’s decision falls within the provisions of s.67(9) of the Act. The Tribunal’s decision at paragraph [181] states clearly that the reviewable decision, dated 22 March 2021, is set aside and the matter remitted to the Respondent to make a determination of the amounts payable to the Applicant, pursuant to sections 16 and 19 of the SRC Act. In other words, the Tribunal’s decision was precisely in accordance with the language of s.67(9). Accordingly, as agreed by both parties, the SRC Act provides for a mandatory order of costs.

10. In this case, there is authority which, in my opinion, enables the Tribunal to correct paragraph [182], even if the alteration did not fall within the slip rule or the provisions of s.43AA of the AAT Act. In particular, in the case of Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, the High Court rejected any blanket rule that meant that once the power to make an administrative decision is exercised, that power is necessarily spent. In other words, the court rejected the principle of functus officio as it might apply to courts in relation to administrative decisions. Chief Justice Gleeson enunciated the basic legal issue as to whether a decision maker has power to vary or revoke. His Honour said as follows:

    11. To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.

11. The circumstances in Bhardwaj were as follows:

    14. In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as “error in fact” in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal “to stay its hand if it had knowledge, or to re-open its judgment had it the power”. The Act, in Pt 5 Div 5, prescribed the procedures according to which the tribunal was required to conduct its review of the delegate's decision. If the tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its “decision”, the tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the tribunal recognised that it had not performed its functions and proceeded to do so.

    15. In those circumstances, it was not inconsistent with the statutory scheme for the tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

12. In the present case, the Tribunal’s failure to deal with the issue of costs, as required by the Act, is further underlined by the fact that there was no argument from either party during the substantive hearing in relation to the issue. The decision does not refer to the Tribunal’s obligations under s.67(9) in relation to costs.

13. Further limited authority for the Tribunal taking steps to correct the error can be found in Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76. In that particular case, Finkelstein J at page 88 held as follows:

    There is no doubt that an invalid administrative decision can have operational effect. For example, it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.

14. Turning to the “slip rule”, in the notes to UCPR 36.17 in Ritchie’s Uniform Civil Procedure NSW, it is observed that a criterion suggested for determining whether a proposed correction is justified under the slip rule is the hypothetical enquiry as to whether the supposed error, if it had been drawn to the attention of the court or the parties at the relevant time, would have been corrected as a matter of course. The authority cited is Hatton v Harris [1892] AC 547. At page 558, Lord Hershell, commenting on a slip rule provision referring to “any clerical mistake, in a decree, or any error arising from an accidental slip or omission” said:

    I myself think that it was a mere accidental omission that in the case of a bond the amount should not exceed the penalty; and if attention had been called to the fact that those words were not so inserted, and that one incumbrancer might thereby be prejudiced as against another in respect of the omission, I cannot doubt that the correction would at once have been made.

15. That test was satisfied in the present case, and on the face of it, the case is one proper for the application of the s.43AA of the AAT Act.

16. It is also appropriate for the Tribunal to make reference to the case of Comcare v Moon [2003] FCA 569 which was decided by Mansfield J in the Federal Court. A relevant issue in that case was whether the Tribunal was functus officio upon the delivery of its ex tempore reasons for decision. Mansfield J decided that was in fact the case and therefore the Court could not subsequently consider the issue of costs. Mansfield J said as follows at paragraph 59:

    In my judgement, the delivery by the Tribunal of its oral ruling as to costs in the circumstances was an overt act of such a character as precluding Comcare by counsel from requesting the tribunal to revisit that ruling at the time, and precluding the tribunal from revisiting the ruling.

17. The decision in Moon was made in the context of considering s.67(8) of the SRC Act, which gives the Tribunal a discretion as to costs, rather than s.67(9) where there is no discretion. Mansfield J did note at paragraph 66 in relation to his decision that “it appears to offend somewhat against common-sense”. I note it appears that the court did not have the opportunity to consider the decision of the High Court in Bhardwaj, to which I have already referred.

18. Generally, decisions of the Federal Court must be seen as binding on the Tribunal. However, in the case of Moon, it is clearly distinguishable from the current case. In particular, it relates to a very different section of the SRC Act and the Court did not have the benefit of the High Court decision in Bhardwaj which in my opinion provides clear authority for the course of action the Tribunal proposes to adopt.

19. In my opinion, the case of Moon is distinguishable from the current circumstances, where the Tribunal clearly failed to exercise its obligation to make a costs order in accordance with s.67(9), and in my opinion it is appropriate and in accordance with the principles outlined above, for it to do so now.

20. Further, unless there were compelling reasons to do otherwise, it would appear contrary to the best interests of justice, and patently undesirable for the parties to be forced into lodging an appeal in order to achieve an outcome which can be readily and properly achieved in accordance with relevant authority, without the necessity for an Appeal and the associated delay and costs.

    DECISION

21. The correct and preferable decision is for the Tribunal to substitute paragraph [182] of the decision with a new paragraph as follows:

    Having made a decision in accordance with the provisions of section 67(9) of the SRC Act, the Tribunal is obliged to order that the costs of these proceedings incurred by the Applicant shall be paid by the Respondent. Accordingly, the Tribunal orders that the Respondent pay the costs of the Applicant of these proceedings, such costs in the absence of agreement to be taxed by the Registrar, a District Registrar or a Deputy Registrar of the Tribunal.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 31 May 2021

Date(s) of hearing:	13 May 2021
Date final submissions received:	13 May 2021
Counsel for the Applicant:	Mr Dan Steiner
Counsel for the Respondent:	Mr Matthew Gollan
Solicitors for the Respondent:	Ms Emily Stower, HWL Ebsworth Lawyers