Keen v Telstra Corporation Limited - [2006] FCA 834

FEDERAL COURT OF AUSTRALIA
Keen v Telstra Corporation Limited [2006] FCA 834
ADMINISTRATIVE LAW – jurisdictional error – taxation of costs – nature of review under s 69A Administrative Appeals Tribunal Act 1975 (Cth) – whether there exists a strong presumption in favour of the correctness of the decision from which the appeal was brought – AAT should give the correct and preferable decision on the material before it
ADMINISTRATIVE LAW – jurisdictional error – taxation of costs – nature of review under s 67 Safety Rehabilitation and Compensation Act 1988 (Cth) – whether second proceedings arising from the same factual matrix incidental to initial proceedings – an administrative decision involving jurisdictional error is no decision in law – where different interpretations exists an instrument should be interpreted so as to make it within power – ut res magis valeat quam pereat
COSTS – goods and services tax – Federal Court Rules O 62 r 12 – scale of costs allowed for GST – GST not recoverable in addition to costs awarded
Held: the Tribunal erred by failing to conduct a review under s 69A of the AAT Act on the basis of arriving at the correct and preferable decision; the Tribunal was correct in determining that the first Tribunal’s decision was made without jurisdiction with respect to the 2002 proceedings; the Tribunal was correct in finding that Telstra was not liable to pay a sum in respect of GST in the amount of costs payable to Ms Keen under the first Tribunal’s order for costs.
A New Tax System (Goods and Services Tax) Act1999 (Cth)
Administrative Appeals Tribunal Act1975 (Cth) ss 3, 69A
Federal Court Rules O 62 r 12
Law and Justice Legislation Amendment Act (No 1)1995 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 64, 67
Goods and Services Tax Ruling (GSTR 2001/4)
Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 cited
Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 cited
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 cited
Collins v Military Rehabilitation and Compensation Commission (2005) 147 FCR 570 applied
In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 cited
Merringtons Pty Ltd v Luxottica Retail of Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006) discussed
Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 applied
Nominal Defendant v GLG Australia Pty Ltd (2006) 225 ALR 643 cited
Plaintiff S157/2001 v The Commonwealth (2003) 211 CLR 476 cited
Seyffer v Adamson (2001) 10 BPR 19,349 referred to
The Queen v Portus; Ex parte City of Perth (1973) 129 CLR 312 cited
Thornton v Apollo Nominees Pty Limited (2005) 59 ATR 244 discussed
Widgee Shire Council v Bonney (1907) 4 CLR 977 cited
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 cited
LA-RAINE LESLEY KEEN v…

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: [2006] FCA 834
Decision Date: 4 JULY 2006

CaseChat Overview and Summary

Keen v Telstra Corporation Limited involved a dispute between the applicant, Ms Keen, and the respondent, Telstra Corporation Limited, over costs incurred in proceedings before the Administrative Appeals Tribunal (AAT). The primary legal issue was the interpretation of s 67(13) of the Social Security and Other Legislation Amendment (Welfare Reform and Other Measures) Act 1998 (Cth) (SRC Act) and its relationship with s 69A(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Specifically, the court had to determine whether the absence of the term "reasonable" in s 67(13) of the SRC Act created a substantive difference from s 69A(1) of the AAT Act, particularly in the context of costs awarded by the Tribunal. The court also had to examine whether the AAT erred in its approach to reviewing costs awarded under s 67(13).

The court found that there was no substantive difference between the power to award or review costs in the two Acts. The omission of the term "reasonable" in s 67(13) of the SRC Act did not introduce a new concept but was consistent with the general power to award costs. The court reasoned that the reference to s 69A of the AAT Act in s 67(14) of the SRC Act indicated that the review under s 69A extended to costs ordered under s 67(13). Furthermore, the court held that the second Tribunal had erred in its approach by presuming the correctness of the decision, rather than reviewing it to determine what it considered the correct and preferable decision. This error of law necessitated the setting aside of the Tribunal’s decision and a rehearing of the matter according to law.

The court set aside the decision of the Administrative Appeals Tribunal made on 28 November 2005 and remitted the case back to the Tribunal for reconsideration. It declared that the order for costs only entitled the applicant to recover costs in respect of matter N2001/750 and clarified that the Tribunal could determine costs relevant to matter N2001/750 regardless of their relevance to matter N2002/730. Finally, the court ordered the respondent to pay the applicant’s costs of the proceedings, fixed at $13,500.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal made on 28 November 2005 be set aside.

2. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law, limited to the evidence and materials before it for the purpose of the decision referred to in order 1.

3. It be declared that:

a. the order for costs made by the Administrative Appeals Tribunal on 23 June 2003 only entitles the applicant to recover costs in respect of matter N2001/750.

b. nothing in paragraph (a) prevents the Administrative Appeals Tribunal from determining whether the applicant is entitled to recover the whole or any amount in respect of costs of any item claimed which was relevant to matter N2001/750, notwithstanding that such item may also have been relevant to matter N2002/730.

4. The respondent pay the applicant’s costs of the proceedings fixed pursuant to O 62 r 4(2)(c) in the total amount of $ 13,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

The second Tribunal made an error of law in approaching the review under s 69A(3) on the basis that there was a strong presumption in favour of the correctness of the decision from which an appeal was brought and thus did not perform the function which s 69A(3) in fact conferred on the Tribunal for it to perform, namely to review the decision so as to give what it considered to be the correct and preferable decision on the material before it. It follows that this ground of appeal succeeds.2002 DECISION Relevantly, the SRC Act defines a proceeding under Part VI (in which there are to be found ss 60-67) as having the meaning in s 4(12). That meaning is specified as being:‘(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the [Tribunal] for a review of that decision.’ Thus, as noted above, s 64(1)(a), which is found in Part VI, entitles a claimant such as Ms Keen to apply to the Tribunal for review of a reviewable decision. In s 67, which deals with costs before the Tribunal, the general rule is set out in s 67(1). That provides that subject to the section, costs incurred by a party to proceedings instituted under Part VI in respect of that reviewable decision should be borne by the party concerned. Critically, s 67(8) provides that where in any proceedings instituted by the claimant, the Tribunal makes a decision varying a reviewable decision in a manner favourable to the claimant or setting a decision aside and making a decision in substitution for it that is more favourable to the claimant than that the subject of the review, the Tribunal may, subject to the section, order the costs of those proceedings incurred by the claimant or any part of those costs to be borne by the responsible authority (here Telstra). And, s 67(13) provides that where the Tribunal orders the responsible authority to pay costs incurred by a claimant, it may in the absence of agreement between the parties as to the amount of the costs, tax or settle that amount itself or order that they be taxed by a registrar of the Tribunal. There is a textual difference between s 67(13) of the SRC Act and s 69A(1) of the AAT Act in that in the latter, there is a reference to the costs being ‘reasonable costs’ whereas the adjective ‘reasonable’ does not appear in s 67(13). However, it is clear that s 67(14) of the SRC Act intends to apply the power of review which the Tribunal possesses under s 69A of the AAT Act to decisions about costs made by the Tribunal pursuant to s 67(13) of the SRC Act. While the word ‘reasonable’ appears in s 69A(1) of the AAT Act and does not qualify the costs referred to in s 67(13) of the SRC Act, I am unable to perceive any substantive difference in the work which the power to award or review costs in each Act does. It could hardly be thought that the general power to award costs in s 67(13) of the SRC Act extended to an award of costs which were not ‘reasonable’ and, there would be no purpose in having s 67(14) refer to s 69A of the AAT Act (all of which were introduced in the same legislation) unless the Parliament intended that the review afforded under s 69A of the AAT Act extended to the costs ordered to be paid by the Tribunal under s 67(13) of the SRC Act. It is for that reason that s 69A(1) of the AAT Act includes a reference to any other Act, which was intended to refer to, among others, the power to award costs under s 67(13) of the SRC Act.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

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