Keen and Telstra Corporation Limited

[2004] AATA 1085

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1085

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/270

GENERAL ADMINISTRATIVE DIVISION		)
Re		LA-RAINE KEEN

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION AS TO COSTS

Tribunal Mrs Josephine Kelly, Senior Member

Date18 October 2004

PlaceSydney

Decision The Respondent is to pay the costs of the proceedings incurred by the claimant as agreed or taxed.

[sgd] Senior Member

CATCHWORDS

WORKER’S COMPENSATION – costs of proceedings before the Administrative Appeals Tribunal – Tribunal remitted matter for redetermination by the Respondent – no discretion as to costs under s67(9) SRC Act – Respondent to pay claimant’s costs as agreed or taxed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 8, 21, 33, 60, 67(8), (9)

CASELAW

Riley v Comcare (1994) 48 FCR 449

Spurr and Comcare (1999) 28 AAR 424

REASONS FOR DECISION

18 October 2004 Mrs Josephine Kelly, Senior Member      

1.      The Applicant, Ms Keen, seeks an order for costs of the substantive proceedings under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) determined on 16 August 2004 in which she was partly successful. The decision in those proceedings (“the Tribunal decision”) was:

“The Tribunal sets aside the decision under review and remits the matter to the respondent with the following directions:

(1) As at 30 December 1997 the Applicant’s normal weekly earnings pursuant to s 8 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) were $1,311.03;

(2)       (a)  The Applicant’s entitlement to weekly payments of compensation is to be       calculated pursuant to s 21 of the Act.

(b)       For the purpose of s 21 of the Act:

(i)    The superannuation amount is $183,397.73;

(ii)   The superannuation contribution is $65.55.

(3)       (a)  Section 33 of the Act applies to the calculation of the Applicant’s         entitlement to weekly payments of compensation.

(b) The gross redundancy payment made to the Applicant in the sum of     $104,828.55 is referable to the first 80 weeks after her involuntary   redundancy on 29 December 1997.”

2. The principal issue in this application is does s 67(8) or s 67(9) of the SRC Act apply? Those subsections of s 67 provide:

(8) 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

….

(9) 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.

3. The significance of the question is that the Tribunal has no discretion where s 67(9) applies (Riley v Comcare (1994) 48 FCR 449), whereas an order under s 67(8) is discretionary.

4. The secondary issue is that if s 67(8) applies, what is the appropriate order?

SUBMISSIONS

5. Mr Vincent appearing for Ms Keen put the following argument. The order made set aside a reviewable decision and remitted the case for re-determination by the determining authority. To find out what “re-determination” means, it is necessary to go to the definitions of “determination” and “decision” in s 60 of the SRC Act. “Decision” in s 60 has the same meaning as in s 3(3) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The intent of the provision, he says, is to ensure that whenever a matter has to go back to the decision-maker for something to be done, in this case for calculation, this provision has effect and the costs are “locked in”. There being something to be done means that there will be a right of review in relation to what is done. For example, in this case if Telstra erred in applying the decision or determined some other factor that had not been considered, or deliberately went against the decision (which was not seriously suggested), there should be a right of review. The present case therefore falls within s 67(9).

6.      Mr Polin for the Respondent, Telstra Corporation Limited (“Telstra”) argued that the present case was in substance the same as that before Deputy President Blow in Spurr and Comcare (1999) 28 AAR 424 where the Deputy President substituted a decision and left the parties to do the calculation. The decision in that case was:

“The decision under review is set aside and the following decision is substituted:

(a) for the period 1 September 1997 to 23 September 1997 the applicant's rate of compensation is to be calculated by reference to the earnings he would have received if he had continued to be employed by the Commonwealth in Tasmania as a plumber at GSO 6 level; and

(b) for the period 24 September 1997 to 31 October 1997, the applicant's rate of compensation is to be calculated by reference to the earnings he would have received if he had continued to be employed by the Commonwealth in Antarctica as a plumber at GSO 6 level.”

7. Mr Polin emphasised that the practical result of accepting Mr Vincent’s submission would that the Tribunal would become embroiled in detailed calculations such as are required in this case, because determining authorities would seek to avoid having the matter remitted to the decision-maker for the detailed calculations to avoid the cost consequences of s 67(9). He said remitting the matter to a determining authority for detailed calculations had been a course commonly followed in the Tribunal.

CONSIDERATION OF S67(9) OF THE SRC ACT

8. The power exercised by the Tribunal in the substantive proceedings was that conferred by s 43(1) of the AAT Act which provides:

“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any   directions or recommendations of the Tribunal.”

9. The reviewable decision was that of 20 July 2004 (Exhibit R3 in the substantive proceedings) made by the determining authority pursuant to s 62 of the SRC Act. That decision comprised 18 paragraphs ((a) to (p) followed by a second (a) and (b)). Each paragraph (except paragraph (n)) made a finding relevant to the calculation of Ms Keen’s entitlements pursuant to the SRC Act from 30 December 1997 until 15 January 2004 and thereafter. Each of paragraphs 1(a), (d), (f), (h), (j) and (l) was a finding at a different date as to Ms Keen’s normal weekly earnings pursuant to s 8 of the SRC Act. Following each of those paragraphs was a paragraph or paragraphs in which a determination was made as to the weekly payment Ms Keen was entitled to pursuant to s 21 of the SRC Act during a particular time period, and provided a gross figure for each period. (Section 21 relates to compensation for injuries resulting in incapacity where an employee is in receipt of a lump sum benefit.) The next four paragraphs of the document (paragraphs 1(n), (o), (p) and (a) (sic)) determined the gross figure to which Ms Keen was entitled as of 14 January 2004. Those calculations took into account the operation of s 33 and the amount of compensation already paid. The last paragraph 1(b) (sic) set out Ms Keen’s weekly entitlement pursuant to s 21 from 15 January 2004.

10.     As is apparent from paragraphs 5 and 6 of the Tribunal’s decision, the matters finally in issue and argued before the Tribunal were:

(a) whether Ms Keen’s entitlement to weekly payments of compensation are to be calculated according to s 19 or s 21 of the SRC Act, and

(b) whether, and if so how, s 33 of the SRC Act applied to the payments of weekly compensation.

11.      The Tribunal was not asked to make a finding in respect of each of the seventeen findings in the reviewable decision.

12. The Tribunal’s decision set aside the decision under review pursuant to s 43(1)(c) rather than affirming or varying it pursuant to s 43(1)(a) or (b). A decision was not substituted pursuant to section 43(1)(c)(i), but findings were made on the issues and the matter remitted pursuant to s 43(1)(c)(ii).

13. As mentioned above, “decision” in s 60(1) of the SRC Act has the same meaning as in the AAT Act, where it is defined in s 3(3):

“A reference in this Act to a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing.”

14. Section 60(1) of the SRC Act defines “determination” for the purposes of Part VI in which s 67 appears:

“Determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under division 3 of Part X.”             

15. It seems clear that “re-determination” means the “determination” of the same matter again. In my opinion, there were “determinations” in the reviewable decision pursuant to s 8 and s 21 of the SRC Act. Those “determinations” have been set aside by the Tribunal’s decision which requires “re-determinations” to be made by the determining authority taking into account the Tribunal’s findings. Accordingly, the Tribunal’s decision falls within the terms of s 67(9) and the costs order must be made pursuant to that section.

16.      Mr Polin’s submission that the Tribunal decision is the same in substance as that in Spurr does not assist the consideration of this matter. I have to determine within which provision of s 67 of the SRC Act the Tribunal decision falls. I also note that in Spurr, Deputy President Blow was alerted by counsel to the costs consequences of remitting the matter to the determining authority  (paragraphs 17 to 19) and accordingly formulated the order in terms of substituting a decision (paragraph 20) to ensure that the costs dispute “can be resolved according to the merits of the parties’ arguments”.  Whether the formulation overcame the problem it sought to address is not a matter I need to deal with.

17. Having reached the above conclusion, it is unnecessary to consider what the appropriate order would have been if s 67(8) had applied.

DECISION

18.      The Respondent is to pay the costs of the proceedings incurred by the claimant as agreed or taxed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  27 August, 1 September 2004
Date of Decision  18 October 2004
Counsel for the Applicant         M Vincent
Solicitor for the Applicant          Stacks Forster
Counsel for the Respondent     N Polin
Solicitor for the Respondent     Henry Davis York