Keen v Telstra Corporation Limited

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.