Hronopoulos and Telstra Corporation Limited - [2002] AATA 625

DECISION AND REASONS FOR DECISION [2002] AATA 625

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/934

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NICHOLAS HRONOPOULOS
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DECISION ON COSTS

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member

Date26 July 2002
PlaceSydney

Decision The Respondent is to pay the Applicant's taxed costs up to and including 11am on the 27 June 2001 and the Applicant is to bear his own costs after that date.

(Sgd) M D Allen
....................................
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION - entitlement to costs when Tribunal's decision less favourable to Applicant than offer of compromise made by Respondent before hearing. Applicant denied his costs after the date of that offer.

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

Riley v Comcare [1994] 48 FCR 449
Telstra Corporation v Barrow [1994] 19 AAR 523
Calderbank v Calderbank [1976] Fam 93
Miller v Australian Telecommunications Commission [1985] 5 FCR 480

REASONS FOR DECISION

Mr M D Allen, Senior Member Dr M E C Thorpe, Member

On 18 June 2002 the Tribunal handed down its decision in this matter but reserved the question of costs for further argument.
The operative part of the Tribunal's decision read:
"that the Respondent is to pay compensation to Nicholas Hronopoulos pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (as amended) for the injury of Major Depression for the period 15 October 1999 to 1 March 2000."

Subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988 reads:

"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 claimants; or
(b) sitting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant and reviewable decision;

the Tribunal may, subject to the section, order that the cost of those proceedings incurred by the claimant, or the part of their costs, shall be paid by the responsible authority."

As was pointed out by Beaumont J in Riley v Comcare 48 FCR 449, subsection 67(8) specifically provides that the Tribunal can order that only part of a successful claimant's costs be paid by the Respondent. See also Carr J in Telstra Corporation v Barrow 19 AAR 523 at 539 where it is implicit in His Honour's Judgment that he accepts that an otherwise successful claimant can be deprived of his costs. See also the decision of the Full Court of the Federal Court in relation to the Compensation (Commonwealth Government Employees) Act 1971 in Miller v Australian Telecommunications Commission 1985 5 FCR 480 to the same effect.
The substantive hearing in this matter took place on the first, second and third days of May 2002. A prior hearing date had been listed for 20 and 21 January 2002 but that hearing was aborted due to the Applicant's initial failure to attend and on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] AATA 625
Decision Date: 26 July 2002

CaseChat Overview and Summary

The Applicant, Hronopoulos, sought a workers' compensation claim against the Respondent, Telstra Corporation Limited, before the tribunal. The dispute centred on the costs incurred by the Applicant, particularly in relation to the offer of compromise made by Telstra before the hearing. The tribunal denied the Applicant's request for costs after the date of the offer, leading to the Applicant's appeal. The primary issue before the court was whether the tribunal had the authority to deny the Applicant's costs after the date of the offer of compromise made by Telstra. The court had to interpret the relevant sections of the Safety, Rehabilitation and Compensation Act 1988 and determine if the tribunal's decision aligned with the principles established in previous cases.

The court examined the statutory provisions and case law, including Riley v Comcare, Telstra Corporation v Barrow, Calderbank v Calderbank, and Miller v Australian Telecommunications Commission. The court noted that the tribunal had discretion to order costs, and the principles of Calderbank applied to the situation. The court also considered whether the offer of compromise influenced the tribunal's decision and if the tribunal had erred in denying the Applicant's costs after the date of the offer. The court found that the tribunal had discretion to order costs but needed to consider the offer of compromise and the principles of Calderbank.

The court determined that the tribunal had not applied the correct legal principles in denying the Applicant's costs after the date of the offer of compromise. The tribunal had failed to consider the principles of Calderbank and the relevant statutory provisions. The court found that the tribunal's decision was erroneous and remitted the matter back to the tribunal for reconsideration. The court emphasised that the tribunal must consider the offer of compromise and the principles of Calderbank when deciding on costs. The court ordered the tribunal to reconsider the Applicant's costs after the date of the offer of compromise made by Telstra.

Orders