Keen and Deputy Registrar of the Administrative Appeals Tribunal and Anor

Administrative

Appeals

Tribunal

REASONS FOR DECISION AS TO COSTS [2005] AATA 1171

ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION )

) No N2005/293

LA-RAINE KEEN

Applicant

And

DEPUTY REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent
AndTELSTRA CORPORATION LIMITED
Second Respondent

DIRECTION AS TO COSTS

Tribunal

Ms G Ettinger - Senior Member

Date 28 November 2005

Place Sydney

Directions

The Tribunal directs that in relation to Matter N2001/750, the costs payable to the Applicant as a result of these proceedings are those as assessed at the taxation that occurred on 29 October 2004 and published in the Taxation Bill of Costs, Reasons of the Conference Registrar dated 10 February 2005, except where a different approach to a particular item has been taken by me as stated in these Reasons.

Where an approach to an item has been different, then the Tribunal directs that that approach is to govern the costs payable to the Applicant in respect of that item.

In Matter N2002/730, the Tribunal affirmed the decision under review. Accordingly no costs may be awarded in that matter. I direct that the entire costs awarded by the Conference Registrar be set aside, and in substitution direct that no costs may be awarded.

The costs of the taxation and this hearing are part of the costs of the proceedings in respect of which the Applicant is to receive party/party costs.

..............................................
Ms G Ettinger
Senior Member

CATCHWORDS

COSTS – workers’ compensation - costs recoverable by employee – principles involved - nature of party/party costs – costs following conclusion of the hearing cannot be considered part of the proceedings - goods and services tax included in scale of costs.

Administrative Appeals Tribunal Act 1975 ss 3(h) 37 33

Safety, Rehabilitation and Compensation Act 1988 ss 59, 67(8), 70

Federal Court Rules, Schedule 2

Federal Court Amendment Rules 2000 (No 6)

W. & A. Gilbey Ltd v Continental Liqueurs Pty Limited (1963) 81 WN (Pt.1) (NSW) 1

Peel v London and North Western Railway Company (No. 2) (1907) 1 Ch D 607

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

Re O’Halloran and Comcare Australia (AAT 10198a, 10 August 1995)

Re Reserve Bank of Australia and Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees and Peter John Wheeler (AAT 6108, 1 June 1990)

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

Re Treneski v Comcare (2004) 80 ALD 760

Comcare v Labathas (1995) 61 FCR 149

REASONS FOR DIRECTION AS TO COSTS

28 November 2005

Ms G Ettinger, Senior Member

BACKGROUND

The Applicant, Ms La-Raine Keen, who had been employed by Telstra Corporation Ltd and its predecessors since 6 April 1970, injured herself at work on 8 August 1991. Telstra, accepted liability for muscular and ligamentous injury to the neck, and for medical expenses for a time (N2001/750). Ms Keen lodged a further claim, (N2002/730), this time for depression, in which she linked the depression to the original neck injury of 8 August 1991. Telstra refused to accept liability for the depression.
Ms Keen was awarded payments for permanent impairment in relation to the cervical spine.
However after a time, Telstra refused to continue compensation payments. Eventually Ms Keen appealed to the Tribunal against both decisions.

The Tribunal heard both matters contemporaneously, and set aside the decision of the Respondent which held that Ms Keen was not liable for compensation for the muscular and ligamentous injury to the neck (N2001/750). The Tribunal affirmed the decision of Telstra finding that the depression was not compensable (N2002/730).
What was important for purposes of the matter before me was that the Tribunal held in Matter N2001/750, that Ms Keen was entitled to compensation for incapacity pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), on and from 30 December 1997, to be calculated on the basis that the amount she was able to earn in suitable employment was nil. The Tribunal also held at paragraph 78 of its Reasons for Decision that: “the redundancy, which was formally voluntary, was in fact involuntary because the applicant was left, in practical terms, with no choice in the matter.”
Ms Keen’s compensation rights are regulated by the Safety, Rehabilitation and Compensation Act 1988. Section 67(8) of that Act, provides that, where an applicant in a compensation matter before the Tribunal is the beneficiary of a Tribunal decision varying the reviewable decision or setting it aside, the Tribunal may order that the costs of the proceedings incurred by the applicant be paid by Comcare.
Section 67(8) of the SRC Act provides as follows:
“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.”
I was mindful that on the cover page of the Reasons of Decision, (the “Decision Page”), the Tribunal stated that: “The respondent is liable to pay the applicant’s costs of these proceedings in accordance with the Tribunal’s General Practice Direction.” Thus on the face of the matter, Ms Keen qualified for payment of her costs pursuant to section 67(8) of the Act, and the General Practice Direction, in regard to Matter N2001/750 in which the reviewable decision was set aside, and was ostensibly not so entitled in Matter N2002/730, which was affirmed by the Tribunal.
The General Practice Direction states as follows:
“… The Tribunal has the power under the Safety, Rehabilitation and Compensation Act 1988, the Seafarers Rehabilitation and Compensation Act 1992, the Freedom of Information Act 1982, the Mutual Recognition Act 1992, the Lands Acquisition Act 1989, to order or recommend that the respondent pay the costs, or part of the costs, of a successful applicant, or where the application has been instituted by the Commonwealth. Under the Safety, Rehabilitation and Compensation Act 1988, the Tribunal may also award costs to a person where the application has been instituted by the Commonwealth…” (my emphasis)
I have also noted that the statement by the Tribunal at paragraph 100, in a paragraph headed “Decision”, which however I find formed part of the “Reasons for Decision”, but was not “The Decision” of the Tribunal, (my emphasis), (which was in its customary place on the cover page), the Tribunal had stated: “the respondent is liable to pay the applicant’s costs in both applications.” The Tribunal had erred because it had no power to order costs in Matter N2002/730 which it affirmed.
The parties could not agree regarding Ms Keen’s recoverable costs. In accordance with the General Practice Direction, the Applicant’s bills of costs in relation to both Matters N2001/750 and N2002/730 were therefore taxed by a Tribunal Conference Registrar, and resulted in a decision dated 10 February 2005.
Ms Keen has appealed that decision before me.

ISSUES

The issues I had to decide were:

whether Ms Keen is entitled to costs in relation to both Matters N2001/750 and N2002/730;
whether the decisions made by the Conference Registrar in relation to the particular items of costs claimed Ms Keen on a party/party basis should be affirmed or varied.
whether GST is to be calculated separately.

COSTS

The term costs describes the remuneration and expenses incurred in relation to legal work. Costs on a party/party basis are such costs as are necessary and proper for the attainment of justice, or for enforcing or defending the rights of the party whose costs are being taxed, in this case Ms Keen. Costs on a party/party basis do not entitle the successful party to a complete indemnity for his or her costs. The costs are those that are necessary to enable the successful party to conduct the litigation, and no more. It is also said that the successful party should have his or her full costs, but not luxuries. (W. & A. Gilbey Ltd v Continental Liqueurs Pty Limited (1963) 81 WN (Pt.1) (NSW) 1 and Peel v London and North Western Railway Company(No. 2) (1907) 1 Ch D 607). Costs apparently resulting from over-caution, negligence, mistake or merely at the desire of the party are not party/party costs.
There are also costs on a solicitor and client basis which do not concern me here.
In the AAT, there is the General Practice Direction published on 18 May 1998 which guides the parties, and provides in relation to recoverable costs:
“…
The Tribunal has the power under the Safety, Rehabilitation and Compensation Act 1988, the Seafarers Rehabilitation and Compensation Act 1992, the Freedom of Information Act 1982, the Mutual Recognition Act 1992, the Lands Acquisition Act 1989, to order or recommend that the respondent pay the costs, or part of the costs, of a successful applicant, or where the application has been instituted by the Commonwealth. Under the Safety, Rehabilitation and Compensation Act 1988, the Tribunal may also award costs to a person where the application has been instituted by the Commonwealth.
Unless the order determines otherwise, the costs payable may include:
·     witness expenses at the prescribed rate;
·     all reasonable and proper disbursements; and
·     75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court Scale.
Costs will be assessed on a party and party basis.
Costs may be agreed between the parties. Where there is no agreement, a Registrar of the Tribunal will tax the bill, but may refer any question for the direction of the Tribunal. Either party may apply to the Tribunal for a direction on any question related to costs, before the taxation is concluded.
…”
In reply to Mr Jeffriess’ submission regarding costs incurred because of delays occasioned by the Respondent, whose role is to act as the model litigant, Mr Polin submitted that 15% of the “skill and care” component of the bill had been deducted. I noted his further submission that there had been no challenge to that part of bill, and make no further comment, particularly as in the paragraphs which follow, I have conducted a detailed review of those items which were challenged.
As to submissions by Mr Jeffriess that this matter was complex, including the determination of the question of whether Ms Keen’s redundancy was voluntary, I was mindful that each matter before the Tribunal has some complexity.
For the sake of completeness and information of the parties, I refer to pages 74 – 76 of the transcript of these proceedings, and the discussion recorded there regarding whether Ms Richardson, the Conference Registrar who prepared the taxation of the bill of costs should be contacted in connection with this review. I was satisfied that I was able to complete the task without any input from her, and I have not mentioned to, or discussed this matter with her.

WHETHER MS KEEN IS ENTITLED TO COSTS IN RELATION TO BOTH MATTERS N2001/750 AND N2002/730

Mr Jeffriess of counsel who appeared for Ms Keen, argued:

That the Tribunal had ordered costs in both matters;
That there was nothing confusing or inconsistent in the orders of the Tribunal ordering costs;
That the Conference Registrar had assessed the costs in relation to both matters; and
That if the Respondent considered the order of the Tribunal was unclear or inconsistent, it could have appealed the matter, and that I did not have jurisdiction to re-interpret or review a decision of the Tribunal.

Mr Jeffriess conceded that there were cases which indicated costs could only be awarded where the Applicant had been successful in her claim before the Tribunal. However, he submitted that arguably, and in the alternative, the matters, (N2001/750 and N2002/730), relating to Ms Keen were one proceeding, that is, that the injury claimed in Matter N2002/730 was the psychiatric sequelae of the first injury, and not a separate injury. In support of his argument, Mr Jeffriess referred me to the definition of proceeding in section 3(h) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
Section 3(h) of the AAT Act provides as follows:
“proceeding, in relation to the Tribunal, includes:
…
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
Mr Jeffriess referred to the case of Re Gourvelos and Telstra Corporation Limited (AAT 9158a, 28 July 1994) and Re O’Halloran and Comcare Australia (AAT 10198a, 10 August 1995) in relation to reconsideration of costs orders. I noted the submissions, and was mindful that these cases did not extend any powers in regard to matters which had been affirmed.
Mr Polin submitted that common sense was required to interpret the orders of the Tribunal, submitting that the orders should be read with the legislation in mind. He argued that the Applicant’s entitlement to costs pursuant to section 67(8) of the Act, was only as to costs necessary and proper for maintaining her rights. Mr Polin argued that Ms Keen could not show that any part of the proceedings in Matter N2002/730, maintained her rights because the matter had been affirmed. He also referred to the Federal Court Rules, submitting that section 67 of the Act was consistent with those.
Mr Polin also referred to the decision of Re Reserve Bank of Australia and Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees and Peter John Wheeler (AAT 6108, 1 June 1990) provides at paragraph 35:
“I think the first step in deciding this question of costs is to ask what is the “reviewable decision” which is in fact before this Tribunal. In my opinion that “reviewable decision” must be confined to the decision of the Commission that the basis of Mr Wheeler’s entitlement to relevant compensation is pursuant to s.123(4) of the 1988 Act. The result of the proceedings before me is to affirm that particular decision. But as the relevant correspondence in the T documents (Exhibit “B”) makes clear (especially a letter from the Commission to the Applicant dated 21 November 1989) the decision to pay Mr Wheeler pursuant to s.132(4) was based on a significantly different interpretation of the relevant provisions of Part X of the 1988 Act, from the interpretation of this Tribunal. The decision of the Commission was apparently based on the proposition (set out in the letter mentioned above):
‘that the meaning of “receiving weekly payments” includes an entitlement to receive compensation. Any other interpretation would render the Act inapplicable to former employees not in receipt of compensation as 1/12/88”.
That particular interpretation of the relevant provisions forms no part of the interpretation given to the provisions by this Tribunal and, indeed, is contrary to the analysis of the relevant provisions by the Tribunal as is contained in these reasons.”
I was mindful that notwithstanding the two applications were linked and heard concurrently, they were separate applications in relation to two separate injuries or conditions, as claimed. The matters were determined separately by the Tribunal, with Matter N2001/750, set aside, and Matter N2002/730 affirmed. I did not accept Mr Jeffriess argument that the two matters were one proceeding.
In coming to a decision, I have to say that I am not aware of any authority which entitles the Tribunal to award costs pursuant to section 67(8) of Act in a matter where the decision has not been decided in a manner favourable to the Applicant.
As to Ms Keen; I was mindful that on the cover page of the Reasons of Decision, (the “Decision Page”), the Tribunal stated that: “The respondent is liable to pay the applicant’s costs of these proceedings in accordance with the Tribunal’s General Practice Direction.” Thus on the face of the matter, Ms Keen qualified for payment of her costs in regard to Matter N2001/750 in which the reviewable decision was set aside, and was ostensibly not so entitled in Matter N2002/730 which was affirmed by the Tribunal.
However, in apparent contradiction of the above statement by the Tribunal at paragraph 100, in a paragraph headed “Decision” which I find formed part of the “Reasons for Decision”, but was not “The Decision” of the Tribunal, (my emphasis), (which was in its customary place on the cover page), the Tribunal had stated: “the respondent is liable to pay the applicant’s costs in both applications.”
Because the parties could not agree regarding Ms Keen’s recoverable costs, the Applicant’s bills of costs in relation to both Matters N2001/750 and N2002/730 were taxed by a Tribunal Conference Registrar, and resulted in a decision dated 10 February 2005.
Each party before me took a different view as to whether the decision of the Tribunal had been inconsistent. I looked to the “Decision” page, the cover page of the “Decision” of the Tribunal, and decided on the basis of that, that the costs order had correctly only been made in relation to Matter N2001/750 by the Tribunal, because that matter had set aside the reviewable decision, and the Applicant had accordingly had a decision favourable to her. Accordingly costs could, and were, awarded in that matter.
Matter N2002/730 was affirmed, and accordingly, costs could not be awarded in that matter, notwithstanding some potential confusion because of the wording of paragraph 100 of the Decision. I am satisfied that paragraph 100 of the Decision was part of the “Reasons for Decision”, and not the “Decision” itself. Accordingly, notwithstanding the Applicant detailing its costs in relation in N2002/730, which were reviewed by the Conference Registrar, I find that there is no power for me to review any costs in relation to matter N2002/730 because as the reviewable decision was affirmed, the Applicant is not entitled to any costs in that matter. Accordingly, I set aside the decision of the Conference Registrar in relation to costs assessed in Matter N2002/730, and substitute zero for the amount assessed as ordered by the Tribunal.

WHETHER THE DECISIONS MADE BY THE CONFERENCE REGISTRAR IN RELATION TO THE PARTICULAR ITEMS OF COSTS CLAIMED BY MS KEEN ON A PARTY/PARTY BASIS IN MATTER N2001/750 BASIS SHOULD BE AFFIRMED OR VARIED

Both parties relied on the statements made in their clients’ Statements of Facts and Contentions.
However, Mr Jeffriess stated in respect of each item of costs, that the Conference Registrar had misapplied her discretion, given weight to irrelevant considerations, and acted upon wrong principles (Gilbey (supra) and Peel (supra)). He submitted that the Conference Registrar had consistently disallowed matters which were within the reasonable preparation and running of the case, and had been unreasonable and unjust.
Mr Polin submitted that the Tribunal was effectively hearing the same argument which had been made before the Conference Registrar, and that her decision did not contain anything manifestly incorrect. He argued on behalf of the Respondent that there is a legal presumption in favour of the taxing officer, that is, the Conference Registrar’s determination. He submitted that this Tribunal was not in its usual role of reviewing a decision, and making the correct and preferable decision. Mr Polin cited the High Court decision in Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, at 627, where Kitto J stated that there are cases of the highest authority which establish that in an appeal against a decision involving discretionary judgment, there is a strong presumption in favour of the correctness of the decision appealed from.

I am bound by Kitto J, who stated that the decision must be affirmed unless the appeal “court” is satisfied that it is clearly wrong. His Honour also stated that satisfaction may be reached “where there has been an error consisting of acting upon a wrong principle, or where weight is given to extraneous or irrelevant matters, or where no or insufficient weight was given to relevant considerations, or where there has been a mistake as to facts…. it is sufficient that the result is so unreasonable or plainly unjust that the appellate “court” may infer that there has been a failure properly to exercise the discretion at first instance”.
I am also guided by what Senior Member Sassella said in Re Treneski and Comcare (2004) 80 ALD 760, and am satisfied that my task here is not the usual Tribunal task which is to make the correct or preferable decision. I am mindful that I should disturb the Conference Registrar’s determination only if satisfied that it was infected with one of the problems shown in italics in the paragraph above, such as where there has been an error consisting of acting upon a wrong principle, or where weight has been given to extraneous or irrelevant matters, or where no or insufficient weight was given to relevant considerations, or where there has been a mistake as to facts. (Australian Coal and Shale Employees Federation v Commonwealth (supra)).
I was mindful also of the principles expressed in Comcare v Labathas (1995) 61 FCR 149, where it was held that there may be circumstances in which costs can be incurred well before a reviewable decision is given, and can be incurred not for the reviewable decision or, for that matter, for the original determination, but for the purposes of a projected appeal to the Tribunal, cases where distinctive circumstances exist, and where such costs can then be considered party/party costs. The overriding principle is that the expenses must have been necessary or proper for the attainment of justice or for maintaining or defending the rights of the claimant.
Finn J held in Labathas that:
“The particular language of s67(8) – “costs of those proceedings” – considered in the context of the three tiers of decision making enshrined in the SRC Act make this a necessary matter to address. Costs incurred for the purposes of the original determination or of the reviewable decision are in my view costs of “proceedings” other than the Part VI proceedings for which s67(8) costs are payable. To this extent I am in agreement with Comcare’s submissions.
However, I did indicate that that agreement is subject to one qualification. It is this. It was submitted that no expense incurred before the reviewable decision was capable of being an allowable cost under s67(8). I am unable to agree with this temporal limitation. My reason is that the critical question is not: When were the costs incurred? but rather: What were the proceedings for which they were incurred?
There may be circumstances in which costs can be incurred well before a reviewable decision is given and can be incurred not for the reviewable decision or, for that matter, for the original determination, but for the purposes of a projected appeal to the Tribunal. I refrain from attempting to exemplify situations in which this may be so. It is only necessary to acknowledge the possibility of this. But having so concluded that preliminary expenses cannot be subjected to a temporal limitation, I must add that it would in my opinion require distinctive circumstances indeed before it could properly be said that expenses incurred (a) before the original determination, or (b) before the reviewable decision were not incurred for those proceedings but were incurred despite them for a projected Part VI proceedings. What in my view is not sufficient to attract the characterisation of “costs of the proceedings” for s67(8) purposes is the mere proof that the prior incurred costs were useful in the Part VI proceedings.”
In the section which follows, I have made decisions on each item in dispute in the bill of costs as given below, mindful of the legislation and authorities. I am mindful however, that contrary to other occasions where the Tribunal has far more material before it than any earlier decision maker, in this case I had considerably less material before me than the Conference Registrar did when she made her decision. I am mindful also that pursuant to Kitto J in Australian Coal and Shale Employees Federation v Commonwealth (supra), where there is an appeal against a decision involving discretionary judgment, there is a strong presumption in favour of the correctness of the decision from which the appeal is brought.
The overriding principle is that the expenses must have been necessary or proper for the attainment of justice, or for maintaining or defending the rights of the claimant. (W. & A. Gilbey Ltd v Continental Liqueurs Pty Limited (supra) and Peel v London and North Western Railway Company (supra)).

CONSIDERATION OF SPECIFIC ITEMS OF COSTS RELATING TO DECISION N2001/750

ITEMS 1 – 37 IN THE BILL OF COSTS

I noted that in regard to items 1 – 37 in the bill of costs the Registrar had allowed the Respondent’s objections, holding that the costs incurred were not costs of the proceedings in accordance with the decision in Labathas (supra).
Mr Jeffriess referring to items 1 – 37, submitted that they included attendances to take instructions from the Applicant and similar activities. He said that, “Yes, I have to concede straight up that the instructions that were taken led to an application, or a claim for compensation being made rather than these proceedings be (sic) commenced.” He submitted however, that at least a part of the costs, (including the taking of instructions and scanning of documents), were matters which related to the proceedings eventually commenced. In the Applicant’s Statement of Facts and Contentions, Mr Jeffriess referred to Labathas (supra), emphasising, that pursuant to Labathas, costs incurred before the commencement of proceedings were not automatically disallowed. He referred in particular to claims in regard to items 29 and 33 of the bill of costs.
Mr Polin’s submission was that those items were normal items in advising a client regarding compensation, and did not demonstrate any “distinctive circumstances” as contemplated by Finn J in Labathas.
I have noted the arguments of the parties, and the principles in Labathas, (supra). I am mindful that the items relate generally to advising Ms Keen about lodging a claim, perusal of a letter from the GIO, and the consequences (item 29), and advice re a reconsideration, and retrenchment (item 33).
I was mindful that the Conference Registrar had allowed the Respondent’s objections and disallowed $246 of the costs claimed for items 28 – 37.
I was mindful of the Labathas test, noting that whilst costs incurred before the commencement of proceedings are not automatically disallowed, I was not satisfied that any of the other items 1 – 37 in the bill of costs came within the Labathas test.
In the circumstances, I decided that the decision of the Conference Registrar in relation to items 1 - 37 should be upheld.

ITEM 43 IN THE BILL OF COSTS

I noted that item 43, perusal of the reconsideration decision, Statement of Reasons, and a notice advising rights of review (21 folios), at a cost of $50 had been reduced by $8 in the decision of the Conference Registrar.
Notwithstanding the small amount involved, the Applicant argued that the Conference Registrar had misapplied the scale, whereas Mr Polin argued that the words of the scale had to be read literally.
I have noted that the costs in the scale at the time of the delivery of the service and that the number of pages involved is 21. Applying the scale, and noting the discretion available to the Conference Registrar, I did not find it appropriate to change her decision, which I affirmed.

ITEMS 61 - 68 IN THE BILL OF COSTS

Items 61 – 68 included scanning the T-documents, and perusing medical reports. The Conference Registrar allowed the Respondent’s objection in part, and reduced the quantum for reviewing the T-documents by $282. She exercised the discretion available to her, and applied item 31 for review of the documents at $51 per 15 minutes to the total of two hours.
Mr Jeffriess submitted that item 18 (scanning of documents), and item 31 for attendance by a solicitor were the appropriate items. He considered however, that the two hours allowed had been decided on an arbitrary basis, and was too short.
Mr Polin argued that the Conference Registrar had a discretion to consider that perusing the T-documents for two hours was a reasonable time, and that it could not therefore be shown to be so unreasonable and manifestly wrong that her decision should be set aside.
I have noted the argument between the parties as to items 61 – 68, noting that the items 62 – 68 inclusive were medical reports which formed part of the T-documents. I cannot find that the Conference Registrar in exercising her discretion to consider the items pursuant to item 31 and for a period of two hours, acted upon any wrong principle, or that her decision was unreasonable or plainly unjust. Accordingly, I affirm her decision in regard to items 61 – 68.

ITEM 82 IN THE BILL OF COSTS

The Conference Registrar deducted $20, the full amount charged in the bill of costs for a covering letter to counsel enclosing a brief and requesting advice before a telephone conference listed for 8 August 2001. She had accepted the Respondent’s submission on that point.
Mr Jeffriess argued that the letter contained necessary advice as to dates.
I could not find a basis in law for setting aside the Conference Registrar’s decision as the letter was simply a covering letter, and the dates were likely to have been in the brief itself. I affirmed the decision to disallow the item.

ITEMS 85, 93 AND 94 IN THE BILL OF COSTS

The Registrar disallowed each item in full, being $11 each for items 85 and 93, being for covering letters to counsel, and $1 for photocopying a notice.
Mr Jeffriess argued that counsel needed to be kept informed of progress of matters before the Tribunal, and that the notice also had to be photocopied to keep him informed.
Mr Polin argued that the Tribunal should not interfere with the costs order unless it could be found to be manifestly wrong. Mr Polin argued that the above costs were in the area of “luxury” rather than was what was necessary and proper (W & S Gilbey Ltd v Continental Liqueurs Pty Ltd and Peel v London and North Western Railway Company). He argued such expenses should not be included in party/party costs because of the early timing of the communications to counsel.
I agreed with the Respondent, and found that the decision was not infected with error consisting of the Conference Registrar acting upon a wrong principle, or that there had been a mistake as to fact, or that it was so unreasonable or unjust that I could infer that there had been a failure properly to exercise a discretion. (Australian Coal and Shale Employees Federation v Commonwealth (supra)). I affirmed the decision of the Conference Registrar with regard to items 85, 93 and 94.

ITEM 125 OF THE BILL OF COSTS

The Registrar had allowed the Respondent’s objection and reduced the cost by $8 by reducing the charge to $2 per folio for perusing a report, the Applicant’s solicitor having charged $18 for five folios.
The argument here was as for item 43, Mr Jeffriess arguing that it was necessary for solicitors to keep clients informed. Mr Polin replied, submitting if it was necessary, then it would be a solicitor/client cost, and in any case the decision of the Registrar could not be found to have been manifestly incorrect.
I have noted that the number of pages involved is 21, and applying the scale, I do not find it appropriate to change the decision of the Conference Registrar in which she had exercised her discretion. I affirmed her decision.

ITEMS 126 AND 143 OF THE BILL OF COSTS

The Registrar deducted item 126 of the bill of costs, which was a covering letter, in full ($20). In item 143, she had allowed the telephone call at the clerk’s rate, because the information given to the client did not require a solicitor’s expertise.
Mr Jeffriess submitted that the letter (item 126), sought instructions from the client about the appropriateness of serving the report which it enclosed, and was therefore proper and necessary. He made the same argument in relation to the telephone call, subject of item 143.
Mr Polin argued that it may be proper to advise clients and keep them up to date, but that that comprised a solicitor/client cost, and that the decision of the Registrar could not be found to be manifestly incorrect in regard to items 126 and 143.
I accepted the submissions of the Respondent in that regard, and could not find the necessary reasons to disturb the decisions of the Registrar in relation to items 126 and 143, which I have decided to affirm.

ITEM 134 OF THE BILL OF COSTS

The Registrar allowed perusal of 36 folios at the rate of $2 each and deducted $8 from the total of $80.
Mr Jeffriess referred to the argument regarding costs allowed for scanning, and relied on what he submitted were, that the Registrar had misapplied her discretion, and given weight to irrelevant considerations (Gilbey and Peel (supra)). He also referred to item 143 where there was a charge for the solicitor advising the client about the doctor’s report scanned in item 134.
Mr Polin submitted that the communication from the solicitor to the client in item 143 was not necessary for the proper conduct of the proceedings.
I found the rate of $2 per folio as applied by the Conference Registrar appropriate, and affirmed her decision in relation to perusal of folios in item 134.

ITEMS 184, 186, 188, 189, 192, 193 & 194 OF THE BILL OF COSTS

The above noted items related to attendances by telephone, and in correspondence with counsel. In general terms, the Conference Registrar disallowed them on the basis that they did not progress the matter before the Tribunal, and that it was unnecessary for counsel to be involved at that stage.
Mr Jeffriess submitted that given the fact the solicitor was in the country, rendered it important for counsel to be involved, and for advice and instructions to be given and received.
Mr Polin supported the decision of the Conference Registrar to disallow the costs in items 184, 186, 188, 189, 192, 193 and 194 on the basis that the involvement of counsel at that stage was not appropriate. He made the point that these items related back to the conciliation conference held in this matter, noting that the Conference Registrar had before her all the material relating to the matter which was now not before this hearing. Mr Polin emphasised that unless the Applicant could point to a decision taken on manifestly incorrect grounds, the fact the Conference Registrar had all the material before her to make the decision on the above mentioned items meant that her decision in regard to those should be affirmed.
I agreed with the Registrar that the items as claimed did not progress the matter before the Tribunal, and that it was unnecessary for counsel to be involved at that stage. I did not find error in the discretion the Registrar exercised, such that I might set aside or vary her decision in relation to those items.

ITEMS 195 & 196 OF THE BILL OF COSTS

The Registrar disallowed the full amount of $22 for receiving and filing an incoming letter and perusal of one folio of a letter from Centrelink regarding Ms Keen’s disability support pension.
Mr Jeffriess submitted that the Registrar had incorrectly applied the law concerning what is included in party/party costs.
Mr Polin submitted that what happens with Centrelink is a matter of statutory interpretation and had nothing to do with the issues between the parties or what had to be decided by the Tribunal.
I noted that the Registrar’s decision that the material was not necessary to progress the matter before the Tribunal, and was mindful that the correspondence predated the matter before the Tribunal by some months. I found that the Registrar’s decision in relation to items 195 and 196 of the bill of costs was correct, and could not be found to be manifestly incorrect. I affirmed her decision.

ITEM 208 OF THE BILL OF COSTS

The Registrar found that a one hour attendance to review the 98 pages produced on summons pursuant to item 31 was appropriate.
Mr Jeffriess relied on his argument regarding items 61 – 68, being the scanning rate versus the amount allowed by the Conference Registrar in accordance with item 31. He submitted that the scanning rate, a specific item, should not be substituted by a general item such as 31.
Mr Polin submitted that the Registrar had the documents before her, and was able to make that judgment, which could not be shown to be manifestly incorrect, whereas I would only be guessing if I sought to vary the time allowed. He also submitted that the scale indicated that where the documents were in excess of 10 pages, then it was at the discretion of the taxing officer (Conference Registrar in this case), to decide on the item number.
I noted that the Federal Court Rules permitted a decision at the discretion of the taxing officer if 10 pages or more were involved. I did not find that the Conference Registrar was shown to be manifestly incorrect in terms of the authorities in choosing to apply item 31. I accordingly affirmed her decision.

ITEM 210 OF THE BILL OF COSTS

Item 210 of the bill of costs dealt with costs incurred in attendance by the solicitor (from Forster) upon counsel in Sydney.
Mr Jeffriess acknowledged that the Applicant conceded the item at the taxation. He did not wish to make submissions about it, and the item, as decided by the Conference Registrar, was accordingly affirmed.

ITEMS 211 & 213 OF THE BILL OF COSTS

In item 211, the Registrar had deducted $318, being the full amount charged for advice prior to a conciliation conference, and in item 213, she had disallowed the full amount of $53.
Mr Jeffriess clarified that this was in relation to the second conciliation conference, claiming that the Registrar incorrectly applied the law on what party/ party costs encompassed.
Mr Polin submitted that Mr Jeffriess had no basis for considering the decision of the Registrar inappropriate, and noted that she had made other allowances for attendances upon counsel.
I accepted the argument of the Respondent and the decision of the Conference Registrar that counsel’s attendances had been accounted for elsewhere as indicated. Accordingly, the decision to disallow items 211 and 213 is affirmed.

ITEM 214 OF THE BILL OF COSTS

Item 214 dealt with costs incurred in attendance by the solicitor (from Forster) upon counsel in Sydney.
Mr Jeffriess acknowledged that the Applicant conceded the item at the taxation. He did not wish to make submissions about it, and the item, as decided by the Conference Registrar, is accordingly affirmed.

ITEM 224 OF THE BILL OF COSTS

The Registrar had disallowed $150, being the full amount claimed for scanning an agreement relating to the Applicant’s redundancy from Telstra.
Mr Jeffriess argued that the redundancy was at the heart of the argument before the Tribunal, and was discussed in paragraphs 77 and 78 of the Tribunal’s decision.
Mr Polin submitted that the question before the Tribunal was whether the Applicant had voluntarily accepted a redundancy, and submitted that the agreement itself was irrelevant to that question.
However, after hearing Mr Polin, Mr Jeffriess conceded that if the agreement was a generic agreement rather than the one signed by the Applicant, then he withdrew his objection to the Registrar’s decision.
Based on the evidence before me regarding the redundancy agreement, I accepted that the agreement scanned was a generic agreement, and found the decision of the Registrar appropriate. I affirmed her decision.

ITEM 225 OF THE BILL OF COSTS

The Registrar refused the claim for item 225, the scanning of Taxation Notices of Assessment and other documents ($60), noting that the scanning of such items had been claimed, and allowed at item 232.
Mr Jeffriess submitted that there was a difference between Taxation Returns the scanning of which had been allowed, and the Notices of Assessment.
Mr Polin submitted that this was not a “calculation case of what was payable”. He submitted the disallowance was correct.
I agreed with Mr Jeffriess that of course there is a difference between Taxation Returns and Notices of Assessment, but could not find that taxation matters were directly part of the proceedings so as to bring them into party/party costs in this matter. The decision of the Registrar in relation to item 225 of the bill of costs is affirmed.

ITEMS 241 AND 242 OF THE BILL OF COSTS

The Registrar held that the attendance on counsel as charged, was not necessary and proper, and deducted the full amount of $22 for items 241 and 242 of the bill of costs.
Mr Jeffriess submitted that the Registrar had incorrectly applied the law about party/party costs, while Mr Polin disagreed.
I found that I had no additional information in regard to items 241 and 242, and in the absence of specific submissions, could not find that the Registrar had - acted upon a wrong principle, or that her decision had been so unreasonable or unjust that there had been a failure to properly exercise her discretion. I affirmed her decision in relation to items 241 and 242 of the bill of costs.

ITEM 265 OF THE BILL OF COSTS

The Conference Registrar found that the letter to prompt the Respondent was not necessary or proper at that time, and deducted the full amount of $21.
Mr Jeffriess emphasised that the report of the medical practitioner attended by the Applicant a year previously had not been served, and was finally served three days before the hearing. He submitted that the letter was a necessary part of the litigation, and a result of the failure of the Respondent to properly present the matter.
Mr Polin submitted that it was for the Respondent to serve his reports when he chose to, submitting also that such correspondence did not form part of party/party costs.
I did not agree, noting that service of a report three days before the hearing was not appropriate. Such late service is in contravention of the Tribunal’s Practice Direction. I have no evidence to doubt the assertion that the report was served as indicated by the Applicant. I find that the Applicant’s representatives were entitled to follow up the report, and that the action was part of the litigation. I set aside the Registrar’s decision as to item 265 of the bill of costs and restore the item to be paid by the Respondent to the Applicant as part of party/party costs.

ITEM 276 OF THE BILL OF COSTS

The Registrar accepted the submission of the Respondent and disallowed the item in full, being $10.
Mr Jeffriess did not make oral submissions regarding this item, relying on the Applicant’s Statement of Facts and Contentions which stated that “The medical report went to the applicant’s fitness for work, one of the essential elements in the applicant’s case before the Tribunal. It did ‘progress the matter’.”
Mr Polin submitted that the report of Dr Fisher referred to in item 276 had already been received and perused by the Applicant’s solicitor, and paid for in the bill at a prior stage.
In the absence of further information from the Applicant regarding the report of Dr Fisher, I accepted the submissions of the Respondent in regard to the previous payment for this item. I accepted the decision of the Registrar in regard to item 276 of the bill of costs and affirmed her decision.

ITEM 287 AND 288 OF THE BILL OF COSTS

The Registrar held that it was unnecessary for counsel to be informed about Centrelink matters at that stage of the proceedings, and disallowed the full amount of $14.
Mr Jeffriess submitted as per the Applicant’s Statement of Facts and Contentions that the communication with counsel was necessary, particularly in relation to settlement negotiations shortly after the dates given.
Mr Polin supported the Conference Registrar’s findings, emphasising that counsel had been briefed prematurely.
I was satisfied with the Conference Registrar’s findings that it was unnecessary for counsel to be briefed about Centrelink matters at that time. I affirmed the findings of the Conference Registrar.

ITEMS 291, 292, AND 293 OF THE BILL OF COSTS

The Registrar allowed certain items, reducing the bill of costs by $23. She indicated that the costs incurred by the Applicant in N2002/730 were allowable. She allowed $3 per folio for item 292.
Mr Jeffriess did not make further submissions, relying on earlier submissions regarding charging for scanning and perusing, and accepting that the Registrar’s evidence that the charge was for 11-12 folios (and not 20), as submitted by the Respondent.
The decision of the Conference Registrar to reduce the bill of costs by $23 is affirmed provided the costs related to N2001/750.
It appears that items 292 & 293 refer to N2002/730. No costs may be awarded in Matter N2002/730. Those costs are accordingly disallowed in full for the reasons given in the paragraphs above.

ITEM 309 OF THE BILL OF COSTS

The Registrar deducted $576 for this item which had been conceded by the Applicant, and accepted by the Respondent. I affirmed the Registrar’s decision on item 309 of the bill of costs.

ITEM 312 OF THE BILL OF COSTS

The Registrar disallowed this item in full, ($106), finding that there had been numerous previous attendances on counsel.
Mr Jeffriess submitted emphatically that a conference with counsel at the end of the first day of a hearing was essential, and that there had never been a situation when he had not spoken to his client in such circumstances. However, he then realised what had been disallowed was a conference between the solicitor and counsel, but submitted that this was also necessary after the first day of hearing for the ongoing conduct of the matter.
Mr Polin submitted that such attendances were part of the brief, although I noted that this was not a reason given by the Registrar.
I accepted that such a conference between solicitor and counsel at the end of the first day of hearing was necessary and desirable for the proper conduct of the hearing, and set aside the decision of the Conference Registrar in item 312, restoring it as charged.

ITEMS 314 & 315 OF THE BILL OF COSTS

In item 314, the Conference Registrar reduced the amount claimed for attendance with the Applicant after the hearing by $106. In item 315 she disallowed the full amount of $848.
I noted that the Applicant conceded the items at taxation, and in the absence of further evidence or submissions which would cause me to change the decision, I affirm the decision of the Registrar in relation to items 314 and 315.

ITEM 320 OF THE BILL OF COSTS

The Registrar allowed only for scanning the reasons for decision of the Tribunal in relation to the Applicant, and deducted $668 from item 320 of the bill of costs.
Mr Jeffriess submitted that it was a fundamental part of the proceedings that the Reasons for Decision be read and understood. He submitted it was a misapplication of the law regarding party/ party costs to disallow the item.
Mr Polin submitted that the only relevant matter in relation to party/party costs was whether the Applicant had won or lost. Mr Polin submitted that the regular practice of the Tribunal was reflected in the decision. He suggested the Registrar could be called as a witness, and submitted that I should be cautious about interfering with the decision unless I had heard why it had been made. He submitted that once the decision was made, to refer to pages other than the decision page of the decision, meant that the parties had entered into the solicitor/client regime. He submitted that reading pages other than the decision page was no longer a party/party cost. The perusal of reasons for decision are not a cost of the proceedings as they do not progress the matter, but are properly costs of an appeal, if there is to be an appeal.
I agreed with the Respondent and the Conference Registrar that the Reasons for Decision do not progress the matter between the parties, and are properly costs of an appeal. I affirmed the decision of the Registrar in relation to item 320 of the bill of costs.

ITEMS 333 & 334 OF THE BILL OF COSTS

The Registrar reduced the claims for items 333 and 334 by $960 on the basis that certain costs in drawing and engrossing the bill were necessary and proper, and given 50% of the claimed items were allowed, 50% of the costs claimed for the preparation of the bill were allowable.
Mr Jeffriess submitted that if further items were allowed by the Tribunal as a result of this hearing, then further allowance regarding costs should be made. Mr Polin did not disagree, and I find that an appropriate basis for the recalculation of costs of preparation of the bill. Accordingly, I remit it to the parties for calculation on that basis.

ITEM 350 OF THE BILL OF COSTS

The Registrar disallowed the standby fee of $160 for Dr Spencer, in full, because he was not called to give evidence, and the fee was therefore not necessary or proper.
Mr Jeffriess referred to page 10 of Gilbey (supra), submitting that the judge in that case had cautioned about being affected by what was colloquially termed hindsight. I noted his Honour stated:
“In determining whether an items of costs is “necessary” or “proper” the taxing officer would have regard to the facts in issue between the parties to the litigation as disclosed by the pleadings and to all facts which render probable the existence or non-existence of the facts in issue, …. But in making his decisions upon such matters the taxing officer should place himself in the position of the solicitor sitting in his office chair engaged in the task of preparing the case for trial and, to use the words of Sachs J in Francis v Francis and Dickerson (380, “in particular care must be taken not to be affected by what is colloquially termed ‘hindsight’ …”
Mr Jeffriess also referred me to Mr Dunne’s affidavit, where at paragraph 10, Mr Dunne had stated the situation regarding witnesses at the hearing as follows:
“At the callover of this matter on 2 July 2002 the Second Respondent indicated that they intended to call evidence from 2 medical witnesses at the hearing. A copy of the report letter from Karen Thompson appearing as my agent is annexed marked “F”. The Applicant’s intention to call telephone evidence from Dr Spencer was also indicated at that callover and again by fax 1 week before the hearing. I arranged for Dr Spencer to block out 2 hours from his diary on the first hearing day and to ensure that no appointments were made for that time.”
Mr Jeffriess submitted that the Applicant’s legal representatives did not know until the morning of the hearing that Dr Spencer would not be required to give oral evidence, and submitted that it would accordingly be unreasonable and unjust to disallow the standby fee.
Mr Polin submitted that Dr Spencer was the treating psychologist, and accordingly would have given evidence in relation to proceedings N2002/730 where the decision of the Respondent was affirmed, and Ms Keen was accordingly not entitled to costs. He also submitted that in general terms, it was the Respondent meeting the Applicant’s case, and not vice versa. Mr Polin also referred to Order 62 Rule 19 of the Federal Court Rules which indicates that no amount is to be allowed for something that has been incurred through a party being overcautious.
I agreed with the Respondent that the treating psychologist would have been relevant to evidence given in Matter N2002/730, in which Ms Keen was not successful, and where costs could in any case not be awarded. I affirm the decision of the Registrar in relation to item 350 of the bill of costs, notwithstanding on different grounds.

ITEMS 364 - 366, 367, 368, 369 – 376 & 378 OF THE BILL OF COSTS

Items 364 – 382 of the bill of costs related to counsel, Mr Vincent’s costs. Two items, 362 and 363 were billed as Ms Thompson of counsel attending for return of summons hearings and at call over. There appeared to be no dispute over these items. For items 364 – 382, the Registrar allowed the Respondent’s objections in part, and mindful of the location of the Applicant’s solicitor (Forster), exercised her discretion to allow fees for other counsel (Ms K Thompson) for attendance at a Return of Summons hearing (item 365).
Mr Jeffriess submitted that the dates had been confused in relation to attendance by counsel, and that for item 365, it was not Ms Thompson but Mr Vincent who had attended that particular summons hearing on.
I noted that in relation to item 375, the Conference Registrar had disallowed the Respondent’s objection in relation to counsel’s fees on the basis that five days before the hearing it was necessary to have counsel’s advice. I concur and accept that ruling.
Mr Jeffriess also argued as far as counsel’s costs went, it was a misunderstanding or misapplication of the law on party/party costs to have disallowed fees to the extent the Registrar did for attendances by counsel in a complex matter such as this.
The Respondent however, argued that counsel was briefed prematurely, and that therefore, many of the items were not a necessary and proper cost of the proceedings. Mr Polin referred also to the costs of counsel after the hearing, such as perusal of the Reasons for Decision, (items 380 – 382). I was mindful that Mr Jeffriess agreed, but had no instructions to withdraw his objection. I accepted items 380 – 382 be disallowed as ruled by the Registrar on the basis that these costs were incurred after the hearing, and could not be considered part of the proceedings.
I was mindful of the geographical location of the solicitor who would have found it difficult and costly to attend in person at conferences, but was able to represent the Applicant by telephone, when appropriate. I accordingly accepted the Conference Registrar’s rulings regarding the unnecessary attendance of Mr Vincent at telephone conferences, that is in connection with items 364 and 366.
Re item 365; at the Tribunal, summons hearings are generally attended by quite junior unqualified persons, agents and the like. If the Conference Registrar saw fit to allow $120 for Ms Thompson to attend the summons hearing, then I am likewise satisfied that there is no manifest error in doing so. I allow item 365 at $120 regardless of whether Mr Vincent attended.
Re item 367; I have noted the submissions, and I agree with the Conference Registrar’s ruling regarding this item, because I consider those attendances superfluous. However, notwithstanding the fact solicitor’s fees, and costs of travel have been allowed, I have allowed counsel’s participation in the conciliation conference which follows, that is, item 368. I consider that in a matter such as this, the client is entitled to counsel’s representation in a conciliation conference.
Re items 369, 370, 372 and 374; I accept that the costs of that service were superfluous to the effective carriage of the matter.
Re item 376; I agreed with the Conference Registrar, who explained that counsel had had the opportunity of perusing relevant material previously, and that fees had been allowed in relation to that.

CONCLUSIONS AS TO MATTER N2001/750

The decisions in relation to each individual item in Matter N2001/750 are as stated in the paragraphs above.

CONSIDERATION OF BILL OF COSTS IN MATTER N2002/730

I was mindful that Mr Jeffriess argued that the Conference Registrar had acted in regard to the bill as if the Tribunal had made a costs order in relation to matter N2002/730, and that she had accordingly reviewed the costs.
I accepted the submissions of the Respondent that there was nothing in relation to this matter which the Applicant could put up as being a proper cost in terms of maintaining her rights because the Tribunal determined, by affirming the reviewable decision, that she did not have the right she asserted. The matter has been discussed in the paragraphs above where I also referred to section 67(8) of the Act and the Tribunal’s Practice Direction.
As the decision under review in matter N2002/730 was affirmed, and as the Tribunal could not award costs in that matter, there is no bill of costs for me to review. Pursuant to section 67(8) of the Act Ms Keen is not entitled to costs in matter N2002/730. I have no discretion which I can exercise in this matter.

THE ISSUE OF GST

The Applicant’s solicitor claimed that Ms Keen is liable to pay GST on the total amount charged by her solicitor because the services provided fall within the definition of taxable supply as set out in section 9-5 of A New Tax System (Goods and Services Tax) Act 1999. In his submissions Mr Jeffriess also referred to the Explanatory Memorandum to the High Court Amendment Rules 2000 (No 1) 2000 No.274, arguing that the increases made at that time were to take account of the “impact” of GST, rather than to include GST.
The Respondent however, distinguishing between party/party costs and solicitor/client costs, submitted, referring to ATO Ruling GSTR 2001/4, that party/party costs were not a payment of consideration for a supply of labour. He indicated that party/party costs in this jurisdiction are strictly subject to the Federal Court Rules, and argued, that the maximum recoverable is as set out in the Second Schedule, as amended from time to time.
I am mindful of Order 62, Rule 12(1) which provides that:
“Except as otherwise ordered in all proceedings commenced on and after the date these Rules came into operation, solicitors are, subject to these Rules, entitled to charge and be allowed the fees set forth in the Second Schedule in respect of the matters referred to in that Schedule and higher fees shall not be allowed in any case except such as are by this Order otherwise provided for.”
Order 62 of the Federal Court Rules and the Second Schedule set out the maximum costs that can be recovered by the successful party as against the unsuccessful party. Neither the Rules nor the Second Schedule provide for recovery of any extra for GST.
I am mindful of Senior Member Sassella’s conclusions in Treneski (supra) which follow:
“Mr Chapman submits that the Federal Court does not allow GST in addition to the scale of costs. He informed me that late in 2000 the scale was amended to include the GST. He produced to the tribunal the explanatory statement relating to Statutory Rule no 300 of 2000, the Federal Court Amendment Rules 2000 (No 6). Amendment [11] of Statutory Rule no 300 of 2000 provided an updated scale of costs to commence on gazettal. The explanatory statement stated that the amendment gave effect to the 16^th Report of the Federal Costs Advisory Committee which recommended that the allowable costs be increased by three percent and provided for a further increase of 9.5 percent on account of the GST. The figures in the scale are therefore gross and include an allowance for the GST. As I see it, this resolves the situation. There can be no basis for an increase in the allowable costs, based as they are by reference to the Federal Court scale, to account for the GST.”
I accept that the situation in Treneski applies equally in the present case, and that Senior Member Sassella’s conclusions were correct. I accordingly accept the Respondent’s position on GST, and find that there can be no basis for an increase in the allowable costs, based as they are by reference to the Federal Court scale, to account for the GST.

DIRECTIONS AS TO COSTS

The Tribunal directs that in relation to Matter N2001/750, the costs payable to the Applicant as a result of these proceedings are those as assessed at the taxation that occurred on 29 October 2004 and published in the Taxation Bill of Costs, Reasons of the Conference Registrar dated 10 February 2005, except where a different approach to a particular item has been taken by me as stated in these Reasons.

Where an approach to an item has been different, then the Tribunal directs that that approach is to govern the costs payable to the Applicant in respect of that item.
In Matter N2002/730, the Tribunal affirmed the decision under review. Accordingly no costs may be awarded in that matter. I direct that the entire costs awarded by the Conference Registrar be set aside and in substitution direct that no costs may be awarded.
The costs of the taxation and this hearing are part of the costs of the proceedings in respect of which the Applicant is to receive party/party costs.

Item	Amount of Original Costs	Subject matter	Decision
1-37	$724.00	Includes attendances to take instructions from the Applicant and similar activities – items argued as being normal items in advising a client regarding compensation.	The decision of the Conference Registrar to disallow the costs charged in full is upheld.
43	$50.00	Perusal of reconsideration decision and the Statement of Reasons and a Notice Advising of client’s rights of review – 21 folios	The decision of the Conference Registrar to reduce the cost of $50 by $8 is affirmed.
61-68	$690.00	Scanning T-documents and the perusal of medical reports.	Medical reports part of T-documents; Two hours allowed pursuant to Item 31; Conference Registrar’s decision affirmed.
82	$20.00	Letter to Counsel which enclosed brief to advise and requested receipt of advice prior to telephone conference listed for 8 August 2001.	The decision of the Conference Registrar to disallow the item is affirmed.
85, 93 and 94	$23.00	85: Letter to Counsel in which was enclosed a copy of the request for particulars and response – 93: Letter to Counsel in which was enclosed a Copy of Perusal of Notice of Return of Summons – 94: Copy of Notice.	The decision of the Conference Registrar to disallow each item in full is affirmed.
125	$18.00	Perusal of report of Mr B Wood, treating clinical psychologist dated 28 August 2001 on treatment provided by him to the client for pain management which included cognitive behaviour therapy and his assessment that she had suffered from chronic pain syndrome characterised by irritable mood, sleep disturbance, anxiety and behavioural deficits.	The decision of the Conference Registrar to allow the Respondent’s objection and reduce the cost by $8 by reducing the charge to $2 per folio is affirmed.
126 and 143	$71.00	126: Letter to client in which was enclosed a copy of the report of Mr B Wood, treating clinical psychologist – 143: Attendance on client by telephone.	The decisions of the Conference Registrar to disallow item 126 and to allow item 143 are affirmed.
134	$80.00	Perusal of report of Dr J Govind, qualified specialist occupational physician dated 18 September 2001 on examination of client – 36 folios.	The decision of the Conference Registrar to allow the perusal of 36 folios at the rate of $2 each and deduct $8 from the total of $80 is affirmed.
184, 186, 188, 189, 192, 193 and 194	$189.00	Attendances, by telephone and in correspondence with counsel.	The decision of the Conference Registrar to disallow the items is affirmed.
195 and 196	$22.00	195: Receiving and filing letter – 196: Perusal of letter from Centrelink to client which advised that her recent medical review showed that she still meets the criteria for and is entitled to receive continued payment of disability support pension.	The decision of the Conference Registrar to disallow the full amount of $22 is affirmed.
208	$588.00	Scanning material produced by Dr D O’Neil, treating doctor in response to a Summons to Produce issued by the Solicitor for the Respondent and seeking all material relating to the treatment of client including medical reports, clinical notes, discharge summaries, x-ray reports and reports of investigations – 98 pages.	The decision of the Conference Registrar to allow this item is affirmed.
210	$848.00	Attendance travelling from Foster to Sydney by plane to conference with Counsel departing at 5.20am – 7 hours including waiting time but amount claimed is – 4 hours.	The decision of the Conference Registrar to allow this item is affirmed.
211 & 213	$371.00	211: Attendance in conference with client and Counsel from 12.30pm to 2:00pm and discussions about medical reports and issues relating to the proceedings and receipt of advice regarding the Conciliation Conference – 90 minutes.	The decision of the Conference Registrar to deduct the full amount for both items was affirmed.
214	$848.00	Attendance travelling to Forster from Sydney by plane and arriving at 9.00pm – 5 hours with a claim of 4 hours.	The decision of the Conference Registrar to allow the item is affirmed. (Applicant conceded the item).
224	$150.00	Scanning Redundancy Agreement between various Unions and client’s employer which contained provisions relating to involuntary retrenchment, redeployment and relocation of employees of the Respondence and is called “ATOC Redundancy Agreement” – 25 pages	The decision of the Conference Registrar to disallow the item in full is affirmed; it was a generic agreement.
225	$60.00	Scanning Taxation Notices of Assessment of client for years ending 1998, 1996, 1995, 1994, 1993 and 1992 and Final pay slip dated 21 January 1998 and letter from Telstra Super dated 14 August 1997 referring to the job offer from Pacific Access and letter from client dated 6 May 2002 indicating that 30% of salary was made up of bonus – 10 pages.	The decision of the Conference Registrar to disallow the claim for this item is affirmed.
241 and 242	$22.00	241: Receiving and filing incoming letter – 242: Perusal of letter from Counsel which advised of serving report of Dr Arad dated 14 December 2000 and to seek details of the purpose for which it was prepared.	The decision of the Conference Registrar to disallow the claim for this item is affirmed.
265	$21.00	Letter to the Solicitor for the Respondent which noted that client attended a medical appointment with Professor R Mitchell, qualified orthopaedic surgeon on 29 September 2001 and sought a copy of his report and noted that they have not provided clarification of the calculation of their compensation rate as foreshadowed at the Conciliation Conference and requested the same plus estimates for a closed period.	The decision of the Conference Registrar to disallow the item claimed is set aside and in substitution for the decision set aside, the Tribunal decides that the bill of costs for item 265 is to be paid by the Applicant. Report served late necessitated Applicant’s action.
276	$10.00	Telephone attendance on client when informed that she was not reviewed by Dr Arad and that she was not happy with his opinion expressed on her and that she had provided Centrelink with a report of Dr S Fischer, treating general practitioner at the time and Centrelink had then granted her a pension of 5 years and indication by client that she will forward a copy of the report of Dr S Fischer, treating general practitioner dated 19 April 2001.	The decision of the Conference Registrar to disallow the item in full is affirmed.
287 and 288	$14.00	287: Letter to Counsel which enclosed a copy of material received from Centrelink – 288: Copy of enclosures to above letter (3 pages).	The decision of the Conference Registrar to disallow the items in full is affirmed. Not necessary to brief counsel about Centrelink at that time.
291, 292 and 293	$96.00	291: Receiving and filing incoming letter from Solicitor for the Respondent which enclosed Amended Statement of Facts and Contentions – 292: Perusal of Amended Statement of Facts and Contentions of the Respondent which asserted that client had opted for redundancy in an e-mail dated 11 June 1997 and provided an analysis of numerous medical reports and stated that client did not suffer depression (20 folios) – 293: Receiving the above by Facsimile.	The decision of the Conference Registrar to reduce the bill of costs by $23 is affirmed provided the costs related to N2001/750. It appears that items 292 & 293 refer to N2002/730. Those costs are accordingly disallowed in full.
309	$848.00	Attendance when Mr D Dunn, Associate travelled from Forster to Sydney by car for hearing including waiting time – 4 hours	The decision of the Conference Registrar to deduct $576 for this item (which had been conceded by the Applicant and accepted by the Respondent) is affirmed.
312	$106.00	Attendance in conference with Counsel after hearing – 30 minutes.	The decision of the Conference Registrar to disallow this item in full is set aside and in substitution for the decision set aside, the Tribunal decided that the item be allowed in full. Conference desirable for the proper conduct of he hearing.
314 and 315	$954.00	314: Attendance in conference with client after hearing – 18 minutes – 315: Attendance travelling from hearing to Forster by car including waiting time – 4 hours.	Conceded by Applicant at taxation. The decisions of the Conference Registrar to reduce the amount claimed in item 314 by $106 and to disallow the full amount of $848 in item 315, are affirmed.
320	$683.00	Perusal of letter from the AAT which enclosed a copy of its decision in both proceedings and provided advice on a limited right of Appeal and the decisions and reasons for the decision – 170 folios.	The decision of the Conference Registrar to deduct $668 from item 320 of the bill of costs is affirmed. Reasons for Decision do not progress the matter between the parties and are costs of an appeal.
333 and 334	$1920.00	333: Drawing this Bill of Costs – 160 folios – 334: Typing this Bill of Costs – 160 folios.	The decision of the Conference Registrar to reduce the claims for items 333 and 334 by $960 is affirmed.
350	$160.00	Dr D Spencer, treating clinical psychologist – standby fee to give evidence at hearing.	The decision of the Conference Registrar to disallow the standby fee of $160 for Dr Spencer is affirmed.
364-366, 367, 368, 369-376 and 378	$3937.00	364: Mr M Vincent of Counsel – telephone conference – 365: Mr M Vincent of Counsel – attendance in return of summonses – 366: Mr M Vincent of Counsel – telephone conference – 367: Mr M Vincent of Counsel – conference – 368: Mr M Vincent of Counsel – attendance at Conciliation Conference – 369: Mr M Vincent of Counsel – conference – 370: Mr M Vincent of Counsel – perusal of tax returns and reports – 371: Mr M Vincent of Counsel – advice – 372: Mr M Vincent of Counsel – telephone conference – 373: Mr M Vincent of Counsel – perusal of T documents – 374: Mr M Vincent of Counsel – telephone conference – 375: Mr M Vincent of Counsel – telephone conference – 376: Mr M Vincent of Counsel – perusal – 378: Mr M Vincent of Counsel – brief on hearing.	Items 364 – 382 related to Mr Vincent’s fees. The Conference Registrar allowed the Respondent’s objections in part. Re items 364, 366, 367, 369, 370, 372, 374, 375, 376, 380 – 382, I concur and affirm the Conference Registrar’s ruling. Re item 365, I allow $120 for attendance by a counsel. Re item 368, I allow counsel fees for participation in the conciliation conference.

I certify that the 163 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member

Signed:Associate

Dates of Hearing7 September 2005; final written submissions, 30 September 2005

Date of direction28 November 2005

Counsel for the applicant          Mr P Jeffriess
Solicitor for the applicant          Stacks The Law Firm
Counsel for the respondent      Mr N Polin
Solicitor for the respondent      Henry Davis York

[2005] AATA 1171

28 November 2005

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Costs

Judicial Review