Kunoth v TIO Board - [2003] NTSC 70

Kunoth v TIO Board [2003] NTSC 70
PARTIES:DESMOND KUNOTH

v
THE TERRITORY INSURANCE OFFICE BOARD

TITLE OF COURT:  MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
JURISDICTION:  CIVIL
FILE NO:M2 of 2002 (20204709)
DELIVERED:  12 June 2003
HEARING DATES:  22 May 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:D. McConnel
Respondent:  N. Henwood
Solicitors:
Appellant:Morgan Buckley
Respondent:  Cridlands
Judgment category classification:        C
Judgment ID Number:  tho200323
Number of pages:  14

IN THE MOTOR ACCIDENTS
(COMPENSATION) APPEAL TRIBUNAL
AT DARWIN
Kunoth v TIO Board [2003] NTSC 70
No. M2 of 2002 (20204709)

BETWEEN:
DESMOND KUNOTH

Appellant
AND:
THE TERRITORY INSURANCE OFFICE BOARD

Respondent

TRIBUNAL: THOMAS J
REASONS FOR JUDGMENT
(Delivered 12 June 2003)

This is a summons issued by the respondent applying for the following orders:
1.The applicant’s reference to the Tribunal be dismissed.
2.Such further or other order as this Tribunal deems fit including, if applicable, an order that the applicant pay the respondent’s costs of the referral of this application.
The court was advised that there was no issue between the parties with respect to the application to the Tribunal which it had been agreed between the parties would not be proceeding.
The issue to be dealt with is an argument on the question of costs. The applicant in the reference to the Tribunal sought an order that the respondent pay the applicant’s costs of and incidental to this reference.
The primary argument advanced by Mr McConnel on behalf of the respondent on the question of costs is that the Tribunal does not have jurisdiction to receive the reference and therefore the only order it can make is to declare that it does not have jurisdiction in the matter and no other order, including no order as to costs.
Mr McConnel refers to s 29 and s 29A(1)(b) of the Motor Accidents (Compensation) Act which provide as follows:
“29.   Appeals to the Tribunal
(1)     Any person who is aggrieved –
(a)by a determination of the Board under this Act; or
(b)by the failure of the Board to make a determination within the 60 days referred to in section 27(3),
may, within 28 days after being served under section 27(4) with a copy of the determination of the Board or the expiration of that time, as the case may be, refer the matter to the Tribunal.
(2)     The Board may, at any time, refer to the Tribunal any matter affecting the right of any person to a benefit, or the amount of a benefit, under this Act.
(3)     Where a matter is referred to the Tribunal, it shall conduct such hearings into the matter as it thinks fit and may make such determination as the Board could have made thereon as the Tribunal considers proper in the circumstances having regard to the intention of the Act, and such determination is binding on the Board.
(4)     A hearing conducted under this Part by the Tribunal shall be a hearing de novo.
29A. Rules and procedure of Tribunal (see back note 3)
(1) The Judges appointed under section 32(1) of the Supreme Court Act who are not additional Judges, or a majority of them, may make rules, not inconsistent with this Act –
…..
(b)providing for the awarding of costs in matters before the Tribunal;”
The submission on behalf of the respondent is that there was neither a determination, nor a failure to make a determination in this case. Accordingly, on the respondent’s argument a requisite element is missing, there was no entitlement to refer the matter to the Board (see Jones & Anor v Territory Insurance Office (1988) 55 NTR 17, Hatton v Beaumont (1978) 20 ALR 314, Hook v Territory Insurance Office Board (1995) 123 FLR 478.
The background to this matter is set out in the affidavits of Tracy Jeanette Green sworn 3 April 2003, Mark John O’Loughlin sworn 6 May 2003 and Michael Patrick North sworn 13 May 2003.
The affidavit sworn by Tracy Jeanette Green deposes to the fact that on or about 29 October 1988, the applicant was involved in an accident within the meaning of the Act and submitted a claim for compensation. The claim was accepted and payments made pursuant to the Act.
On 4 September 2001, the designated person issued a determination in relation to the applicant’s claim. This determination was served on the applicant on 3 October 2001.
On or about 8 October 2001, the applicant requested in writing that the designated person refer this matter to the Board of the Territory Insurance Office.
On or about 15 October 2001, the office advised the applicant in writing that the matter would be referred to the Board on 2 December 2001 being the next meeting of the Board. The matter was referred to the Board on 4 December 2001.
On or about 10 January 2002, Mr Mike North an employee of Territory Insurance Office had a telephone conversation with Mr O’Loughlin, a solicitor employed by Cridlands, who had conduct of the matter on behalf of the applicant.
The substance of the conversation was that the Board was unable to determine the matter within the 60 days required under s 27(3) of the Act and wished to secure further time to conduct “without prejudice” negotiations with the applicant.
On or about 21 January 2002, the Board resolved to exercise its power under s 27(4A) of the Act to request a conference with the applicant. Copy of this document is Annexure “G” to the affidavit of Tracy Jeanette Green. I have annexed copy of this document to my reasons for judgment.
Ms Green deposes to the fact that this notice issued pursuant to s 27(4A) of the Act, was issued in a wrong format which was styled as a Determination. This was due to an “administrative oversight” within the office.
On or about 27 March 2002, the applicant’s solicitors filed the reference to this honourable Tribunal commencing these proceedings.
In her affidavit it is the evidence of Ms Green that at no time prior to 27 March 2002 did the Board:
(a)affirm the decision of the designated person dated 4 September 2001; or
(b)substitute its own decision for the determination of the designated person dated 4 September 2001.
In his affidavit sworn 6 May 2003, Mark John O’Loughlin deposes to his concerns as to ongoing delays on the part of the respondent. Mr O’Loughlin confirms that he was advised the matter would be referred to a meeting of the Territory Insurance Office Board on 4 December 2001.
Mr O’Loughlin deposes as to a number of conversations he had with various employees of the Territory Insurance Office and the dealings that occurred in advising him as to the result of the Board Meeting on 4 December with respect to the applicant.
Mr O’Loughlin received a letter dated 25 February 2002, enclosing a Determination dated 23 January 2002 which is included in Annexure “D” to the affidavit of Mr O’Loughlin and is the same document as Annexure “G” to the affidavit of Ms Green, copy of which is annexed to these reasons for judgment.
In the letter dated 25 February 2002 forwarded on behalf of the Territory Insurance Office, the document is referred to as a “Board Determination signed by the Chairman of the Board dated 23 January 2002”.
Mr O’Loughlin deposes to the fact that the respondent had given an indication this was a Determination. He obtained instructions from his client the applicant and on 27 March 2002 filed the reference to the Tribunal in this matter.
In his letter to the Territory Insurance Office dated 3 April 2002, Annexure “E” to his affidavit, Mr O’Loughlin makes it clear that he filed the reference to the Tribunal as a precaution because of the mandatory time limits but that he was still keen to negotiate a settlement.
In a telephone conversation with Mr Gerard Harkin from the Territory Insurance Office on 25 April 2002, Mr Harkin confirmed that he understood Mr O’Loughlin had sought the referral to safe guard the time limits but did not wish to terminate negotiations. Mr Harkin made no reference to the document dated 23 January 2002 being anything other than a Board Determination.
Mr O’Loughlin deposes to further telephone conversations with employees of Territory Insurance Office concerning the negotiations and arrangements that were made to obtain relevant information from Centrelink. The matter was listed before the Tribunal on a number of occasions. On or about 15 October 2002 the respondent filed a conditional answer to the applicant’s reference filed some seven months previously.
It is Mr O’Loughlin’s evidence as deposed to in his affidavit that the statement by Tracy Green that the format of the document dated 23 January 2002 Annexure “G” to her affidavit sworn 3 April 2003, was the first indication he had received that it was an “administrative oversight” despite his frequent and extensive conversations with several representatives of the Territory Insurance Office.
The affidavit of Mr North, sworn 13 May 2003, also refers to numerous discussions and negotiations that took place in an effort to resolve this matter including efforts made to obtain certain information from Centrelink.
Mr North deposes to the fact that between 23 February 2002 when the notice was forwarded to Cridlands and 2 April 2002 when the reference was served on Territory Insurance Office did Mr O’Loughlin or anyone else on behalf of the applicant contact Territory Insurance Office to seek clarification of the notice or the status of the matter generally. No response to the request for a conference contained in the notice was ever made by anyone on behalf of the applicant.
Relevant to this issue of costs is the fact that Mr North does not assert that he or any other representative of the Territory Insurance Office ever informed Mr O’Loughlin that the notice included under cover of letter dated 23 February 2002 was in fact an “administrative oversight” and did not amount to a Determination.
I accept the affidavit evidence of Mr O’Loughlin that the first time he became aware of this was from the affidavit of Tracy Green sworn 3 April 2003.
The argument presented by Mr Henwood, on behalf of the applicant, is that Rule 11 of the Motor Accidents (Compensation) Rules provides that costs of and incidental to a reference to and a proceeding before the Tribunal may be awarded at the discretion of the Tribunal. It is submitted that the costs sought are of and incidental to this reference to the Tribunal and the related proceedings.
Rule 11 of the Motor Accidents (Compensation) Appeal Tribunal Rules provides as follows:
“(1)Subject to these Rules and the Act, the costs of and incidental to a reference to and a proceeding before the Tribunal shall be at the discretion of the Tribunal.
(2)Costs shall follow the event, unless the Tribunal otherwise orders.
(3)In making an order as to costs, the Tribunal may make such further orders as are necessary to give effect to its order, including, but not limited to, an order –
(a)that costs be taxed before the Registrar and the procedures to be followed in taxing costs;
(b)specifying the scale of costs to apply;
(c)fixing a lump sum amount of costs; or
(d)that a party pay the costs of a witness required to attend before the Tribunal.
(4)Where it appears to the Tribunal that costs have been improperly, or without reasonable cause, incurred, or there has been a failure, without reasonable excuse, to comply with these Rules or an order of the Tribunal made pursuant to these Rules, the Tribunal may penalize the party at fault by making such order as to costs as it thinks fit.
(5)Where the Tribunal orders a party to pay costs to another party, that other party may recover those costs as if the order were a judgment for the payment of money given by the Supreme Court.”
Mr Henwood, on behalf of the applicant, further submits that the Tribunal has jurisdiction to hear and determine an order for costs in relation to the reference and proceeding. Further that the Tribunal has jurisdiction to inquire as to its own jurisdiction.
I accept the principle expressed by Kearney J in Conley Ebatarinja v Territory Insurance Office [1992] NTSC 55, 6 August 1992 (par 27):
“… It is clear, I think, that this Tribunal must have jurisdiction to enquire into matters which go to its jurisdiction; see, for example, Jones v Territory Insurance Office (1988) 93 FLR 308.”
I also agree with the submission made by Mr Henwood that the phrase “costs of and incidental to a proceeding” encompasses the circumstances where a party makes use of the machinery of the Tribunal to bring forward a claim or to apply for relief against another (see Crittendon; Ex Parte Law Institute of Victoria [1958] VR 101).
I consider the Tribunal does have jurisdiction to hear and determine an order for costs in relation to the reference and proceeding.
Mr McConnel on behalf of the respondent, makes a further submission in the event the Tribunal concludes that it has jurisdiction to make an order for costs. This submission is directed to the issue of discretion.
It is Mr McConnel’s submission that the respondent seeks the separate determination of the question of costs of his application on summons filed on 4 April 2003 as against the costs of the matter as a whole. The reason for doing this is that evidence relevant to the question of costs of this application on summons has not been put before the Tribunal and the respondent seeks only to do so in the event that the Tribunal determines that it has jurisdiction to award costs.
As to the costs of the matter as a whole, the respondent submits that the Tribunal should either:
(a)award costs in favour of the respondent; or
(b)make no order as to costs.
The respondent relies on Rule 11(2) and says that prima facie the Tribunal should award costs in favour of the respondent, the applicant having in effect discontinued the reference and consented to its being dismissed.
I agree with Mr McConnel that the usual rule is that costs follow the event. The applicant having in effect consented to the application being dismissed bears the onus of persuading the Tribunal that there should be a departure from the usual rule which when an application is dismissed would usually be that the applicant pay the respondent’s costs.
Mr McConnel refers to the document dated 23 January 2002 headed “Determination”. Mr McConnel points to the fact that it requests a conference making reference to s 27(4A) of the Act.
He refers to the fact that s 27(4A) provides only for a conference to be requested before the Board makes a Determination. The notice did not do either of the two things that s 27(3) requires of the Board for a Determination. It is Mr McConnel’s submission that the applicant had legal representation of good standing both before and after receiving the notice. The submission is that the applicant’s lawyer should have realised the document was not actually a Determination and further that the applicant’s solicitor had made no attempt to seek clarification from the respondent as to the status of the notice before filing the reference.
In looking at the document I am not able to agree with Mr McConnel’s submission. The notice dated 23 January 2002, is head “Determination”. It states:
“Pursuant to the provisions of the Motor Accidents (Compensation) Act 1979 it is hereby determined”
The notice is signed by the Chairman of the Board and the notice below advises the applicant of his rights if he is a “person aggrieved by the Determination of the Board” which is within 28 days to appeal to the Tribunal.
These are not obvious typographical or clerical errors. It is understandable that on receipt of this notice a prudent lawyer would as a precaution against infringing the mandatory time limits file a reference to the Tribunal.
In his letter to the respondent dated 3 April 2002, Mr O’Loughlin advises that is the reason he is filing the reference and indicated a willingness to continue settlement negotiations.
On the affidavit material before me there were numerous telephone conversations between Mr O’Loughlin and employees of the respondent. The evidence is that in none of these conversations was Mr O’Loughlin informed that the Territory Insurance Office had made “an administrative oversight” and the document dated 23 January 2002 was not in fact a Determination. It is not to the point that Mr O’Loughlin should have sought to clarify the status of the notice before filing the reference. He was put in a situation where he made a decision to take the steps he did to protect the interests of his client. In doing so he acted reasonably in light of the fact that time limits are mandatory (see Jones & Another v Territory Insurance Office (supra) p 25) and the possible consequences for his client if the time limits were not strictly observed.
Mr Henwood on behalf of the appellant, referred me to the decision of Aust Security Commission v Australian Home Investment Limited & Ors (1993) 116 ACR 523 in which Hill J at p 530 expounded a number of principles that a Court may apply in a situation where a matter has been discontinued. His Honour canvassed a number of authorities and then stated:
“These cases seem to me to support the following propositions being made.
(1)Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford and the SEQUEB case.
(2)It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford, supra. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.
(3)In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (SEQUEB, supra).
(4)In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: of Sunday Times Newspaper Co Ltd vMcIntosh (1933) 33 SR (NSW) 371.
(5)Where the proceedings terminate after interlocutory relief has been granted, the court may take into account the fact that that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd (in liq) [1973] 1 NSWLR 603 at 606, a case which, however, depended upon the specific wording of the statute under consideration.”
Applying these principles to the facts in this case, I accept the argument advanced by Mr Henwood that the applicant acted reasonably in the circumstances by instituting the reference and proceeding. It was through the respondent’s “administrative oversight” and through no fault of the applicant which led to the reference being filed.
I consider that in these circumstances the respondent should pay the applicant’s costs of, and incidental to, the reference.
I do not accept the alternate argument submitted by Mr McConnel that there having been no Determination on the merits of the proceeding there should be no order as to costs. For the reasons I have already stated the applicant has discharged the onus that rests upon him that he is entitled to an order for costs even in the circumstances where the application is dismissed.
I make the following orders:
1.The application being the reference filed by the applicant is dismissed.
2.I order the respondent to pay the applicant’s costs of and incidental to the reference to the Tribunal
3.With respect to the respondent’s application on summons I grant leave to the parties to apply on the issue of costs. This leave is granted on the basis that Mr McConnel informed me that if I do conclude I have jurisdiction to make an order for costs that the costs of the application on the respondent’s summons be considered separately on the basis of evidence that has not yet been put to the Tribunal.