Magna Alloys & Research Pty Ltd v Federal Commissioner of Taxation

IN TfIF FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) VG No. 40 of 1979
1

DIVISION

GFNERAL

)

On appeal from the Commonwealth Employees'

Compensation Tribunal

BARBARA ELIZABETH CLARKE

as Executrix

of the Estate of ROBIN JAMES HUNTLEY

CLARKE (deceased)

Applicant

and

AUSTRALIAN BROADCASTING COXMISSION

Respondent

O R D E R

Judge making Order:

KEELY J.

Date of Order:	28 October 1980
Where made:	Melbourne
THE COURT ORDERS THAT:

1. The

appeal

dismissed.

2. The decision of the Compensatiop Tribmai be affirmed.

3 . The applicant pay to the respoxdent i.ts c o s t s

o f this appeal.

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

)	VG No. 40 of 1979

GENERAL DIVISION

)

On appeal from the Commonwealth Employees'

Compensation Tribunal

BETWEEN :

BARBARA ELIZABETH CLARKE as Executrix

of the Estate of ROBIN JAMES HUNTLEY

CLARKE (deceased)

.icant

and

AUSTRALIAN BROADCASTING CO?IMISSION

Respondent

REASONS FOR JUDGMENT

28 October 1980

KEELY J.

This is an appeal against the decision

of the

Commonwealth Employees' Compensation Tribunal given

13 September 1979, which affirmed

a determination, dated

4 January 1979, made by the deputy chief delegate of Ehe

Commissioner for Employees' Compensation (the Commissioner).

The appeal

is broughr: by narbara Elizabeth Clarkt (the

applicant) as executrix of the estate of the

late Robin

Jarnes tiu-ntley Clarke (the deceased). The Conmjssioner had

2 .

determined that the myocsrdial infarction suffered by the

then applicant (the deceased)

''was due to the natural

progression of a pre-existing or underlying condition and

that accordingly the Australian Broadcasting Commission (the

A.B.C.)

was not liable to pay the claimant compensation".

The grounds of appeal set out in the notice of appeal were as follows:

I' The decision and order were wrong in law.

The decision and order were against the

evidence and the weight of the evidence.

3.	test as t o whether the deceased's employment with the Australian Broadcasting Commission

"The Tribunal failed to apply the proper myocardia1 infarction suffered by the deceased."

4. I' The Tribunal failed to consider the evidence

given by medical experts called

on behalf of

the deceased and/or to give any or any

1 1

sufficient weight thereto.

5. I 1 The Tribunal was wrong in law and there was no

or no sufficient evidence to support

:he findin?

that the job performed by the deceased was

not,

viewed objectively, stressful.

II The Tribunal was wrong in law and there was

6 . no

or no sufficient evidence

t o support the finding

that the deceased's work was not stressful.

I 1

him.

Mr Nathan of counsel

on behalf of the applicant conceded

that the right of appeal

to this court was an appeal "on

question of law only" by virtue

of s.95(1) of the Compensation

(Commonwealth Government Emplcvees) Act

1071 (Lhe A c t ) .

stated that, without abandcning any of the grounds of

appea l ,

the substantial ground

of appeal was that:

II the tribunal erred as

a matter of law in applying

an objective criteria of work related stress as

being the measure by which

m e assessed whether

there had been

an aggravation and acceleration

of the disease process".

Mr Crossley of counsel on behalf of the respondent	A.B.C.
conceded that:

II if this man was affected by his work

... such

that on the medical evidence there was a finding

of causal connection between the pressure

of that

work and the myocardia1 infarction,

then the

appeal would succeed".

Mr Nathan contended that the Tribunal had misdirected

I t

itself by treating as

irrelevant to its function evidence as

to whether subjectively the worker was affected by work

stresses".

I am unable to accept that contention. The

Tribunal's reasons for decision

show, in

my view, that it did

not treat the evidence as to the claimant's subjective stress

as being irrelevant. For example, the Tribunal expressly

accepted the evidence of Mr Profitt - who had worked under

the deceased and

had subsequently taken over his position

11 as to the claimant's manner of working and his reactions

that work". The Tribunal stated that it accepted "the evidence

of Dr Kelly, supported

by Dr Warfold,

as to the claimant's

personality; thaL also accords with the evidence of Mr Profirt".

On my reading of its reasons for decision the Tribunal also

accepted the evidence of Dr Kelly that:

11 the claimant k d

the willi.ng horse' syndrome; . . .

on one occasion the

clamant seemed ovcr ly ansious

and upset about the quality

or the tclcvision

4 .

picture he was watching and

it seemed to him that

the claimant was, whether he was required to do this

or not, carrying the job into his home.

Although the Tribunal found on the evidence that there

was no

objective stress" from the

work, it found that the

claimant's "attitude to his work and his attitude to the

people at work" was "stressful" to him. However, the Tribunal

was not prepared to find

on the evidence before

it that that

II subjective" stress was

a contributing factor to the aggravation

acceleration or recurrence of the disease of the deceased. The

Tribunal, in its reasons for decision, referred

to a previous

casein which it had allowed

a claim where there had been "pre-

existing hypertension" and pointed out that, in the present case, the deceased was not suffering from any pre-existing hypertension. The Tribunal considered the evidence given by

two cardiologists - neither of whom had examined the deceased -

who were called on behalf of the applicant and another

cardiologist called by the

A.B.C.;

it then expressed the view that

"on the balance of probabilities, the claim has not been proved

and I so find" .

Mr Nathan contended that the Tribunal had

drawn a

distinction between "objective" stress and subjective"

stress

11 11

and had wrongly treated the subjective s':ress

as being

irrelevant. It is true that the Tribunal referrcd more than

0 ~ ~ 2

to the distincti.cn, but it did

not treat subjective

stress" a s being irrelevant. Its finding that

obJective

Stre5S~~

had not !*been shown

existft

was directed 0 1 2 1 ~

t ~ ~ ~ a r d ~

the attempt by counsel for the claimant to rely upon Adelaide

Stevedoring Co. Ltd. v. Forst

( 1 9 4 0 )

6 4

C.L.R. 538 .

The Tribunal

referred to the well

known passage by Rich A.C.J. in that case

(at p.563) as to the

approach a court should take to conflicting

expert medical evidence". The Tribunal decided that that

approach was not open

to it on the facts found by it in the

present case, saying

that:

11 ... on the sequence of events where the claimant

had

been doing the same work for

20 years, was a high

risk for other reasons

and where the infarction took

place at home five days after the claimant was last

at work the presumptive inference inspired in the

mind of any commonsense person uninstructed

pathology does not support the

link between stress

at work and the infarction at home.

In my opinion the Tribunal did not err in law in

its

approach to the questions before

it, did not treat as irrelevant

the evidence as to subjective stress''

and did not misdirect

itself. As to the grounds of appeal which were nct abandoned",

perhaps I should add that there

was, in my view,evidence

support both the findings and the decision of the Tribunal. Accordingly the appeal is dismissed and the decision of the Compensation Tribunal is affirmed.

Mr Nathan and Mr Crossley each asked for an order for

costs if his clisnt succeeded. Mr Nathan, however, submitted that the court should not order that the applj-cant pay costs

if she were unsuccessful

in her appeal. The court's poxer to

award costs

is conferred by

s . 4 3 of the Federal Ccurt

6 .

Australia Act 1976:

"43.(1)

The Court or

a Judge has jurisdiction to

award costs in all proceedings before the Court

(including proceedings dismissed for want

jurisdiction) other than proceedings

in respect.

of which any other Act provides that costs shall

not be awarded.

(2) Except as provided by any other

Act, the

award of costs is in the discretion of the Court

I t

or Judge.

NO "other Act provides 'that costs shall	not be awarded" in
this matter.

The Compensation (Commonwealth Government Employees)

_.	Act 1971 contains various provisions dealing with the question

of costs. Section 85 deals with the subject of costs

incurred by a party in relation to proceedings before

compensation Tribunal". Section

20(5) and ( 6 ) make the

Commonwealth "liable to reimburse"

a claimant in certain

circumstances. Section

93 expressly provides that a

prescribcd

Court to which

an application for

a judicial review

of a

determination is made

... may, in its discretion, ordcr that

the costs of the application incurred by any party, or

a part

of those costs, shall be paid by another party

... . IL was

conceded by Mr Nathan that s.93 empowers

a prescribed court

to order an unsuccessful claimant to pay costs.

Having regard to the express provisions of the statutes

to which I have referred,

in my opinion this court, when

hearing an appeal under

s . 9 5 ,

has power to order

unsuccessful applicant to pay costs. The position may be contrasted with that under the Conciliation and Arbitration

Act 1904. Section 197A of that Act provides that, in

relation to all proceedings under

that Act before a variety

of courts and tribunals,

a party "shall not be ordered to

pay any costs incurred by any other party to that proceeding

except where the party'against whom the order is made

instituted the proceeding vexatiously or without reasonable

cause".

Further, there is nothing in the legislation

to suggest

that the court should

not apply the ordinary principles

exercising its discretion in relation to an application for

costs. Neither counsel referred me to any authorities on

the question of costs. I consider that I should follow the

views expressed by the House of Lords in Donald Campbcll

Co. Ltd v. Pollak (1927) A.C. 732 in the following passage

where Viscount Cave L.C. (with whose judgment Viscount

Dunedin and Lord Phillimore agreed) said (at pp.811-512):

I t A

successful defendant

in a non-jury case has

doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintif€: but

he has no right to costs unless and until the

Court awards them to

him, and the Court has

absolute and unfettered discretion

to award or

not to award them. This discretion, like any other discretlon, must of cmrse be exercised

judicially, and the judge ought not

t o exercise

it against the successful party except

for some

reason connected with the case.

... f a c t s

connected with or leading up to thc litjgation

which have been proved before him or whi.ch

he has

himself observed during the process of the

case, . . .

This case and other cases dealing with the circumstances in

which it may be proper to refuse costs to

a successful

defendant were cited by Fisher J. in Trade Practices

Commission v. Nicholas Enterprises Pty Ltd

& ors (1979) 28

A.L.R.

201 at pp.206-210 and by Franki J. in L.

K. Jewellery

Investments Pty Limited

v. Percy Marks Pty Limited

& ors

(29 February 1980

- unreported).

Mr Nathan did not rely upon any facts connected

with or leading up to the litigation" as

a ground for refusing

to grant costs

to the respondent to this appeal. His submission

was based on general social considerations, as to the

l 1

undesirability of an employee being shut out because of

the fear of costs". Those considerations, however, are

matters for the legislature and do not form a sufficient

ground for the exercise of

a discretion as to costs which

must be exercised judicially. Accordingly, the applicant

is ordered to pay the respondent's costs of the appeal.

. . _

. \--.

, .

I N THE	FEDERAL	COURT OF .ACSTR.\LIA	)
>

VICTORIA DISTRICT REGISTRY

)

VG No.

40 of l 9 7 9

GENERAL DIVISION

)

On a p p e a l fro?] the inamonwcrt i L11 Eiup1o:;ees

Compensation

Tr:.Luual

BETWEEN :

BARBARA

ELIZABETH CLARhE a.? E x e c u t r l s

of the Estate of P.9BI.L' J.AM%S €iUKLE'I

CLARKE

( d e c e a s z d )

A p p l i c a n t

a n d

AUSTRALIAN

BROADCASTIYG

COI.2*iISSIOS

Respondent

O P . D E 2

Judge mak ing Orde r :

KEELY

Date

O r d e r :

O c t o b e r

icJ:,C

Where made:

Mrlbourn?

THE

COURT

ORDERS

THAT:

T h e

a p p e a l

be di.;missed.

T h e

d e c i s i o n

L;;c

Con,pmsntInl :

T'rib.lnn1

af f i n n e d .

3 .

T h e

a p p l i c a n t

pi\;

t o thc

~ c s p c ~ ~ r ! c a L

it- C Q ~ L ?

t h i s

a p p e e l .

IN THE FEDERAL COURT OF AUSTRALIA	)
)

VICTORIA

DISTRICT

REGISTRY

)

No.

40 of 1979

GENERAL DIVISION

On appeal from the Commonwealth Employees'

Compensation Tribunal

BETWEEN

BARBARA ELIZABETH CLARKE as Executrix of the Estate of ROBIN JAMES HLNTLEY CLARKE (deceased)

Applicant

and

AUSTRALIAN BROADCASTIXG COMMISSION

Respondent

REASONS FOR JUDGMEKT

28 October 1980

KEELY J.

This is an appeal against the decision of the

Commonwealth Employees' Compensation Tribunal giver,

13 September 1979, which affirmed a determination.

datcd

4 January 1079, made by the deputy chief dclegstc

of the

Commissioner for Employees' Compensation (the

Co!r:rrli.-sioncr).

The appeal is brought

by Barbara ElizaheLh Clarkc (tht3-

applicact) as executrix

of the estate of %h& late R O ~ > I ~ ~

James hntley Clarke (the deceased). 'The Cornnli ~ S i c ~ n x

?LI?

2 .

determined that the myocardial infarction suffered by the

then applicant (the deceased) "was

due to the natural

progression of a pre-existing or underlying condition and

that accordingly the Australiar, Broadcasting Commission (the

A.B.C.) was not liable to pay the claimant compensation". The grounds of appeal set out	m the notice of appeal were
as follows:

I 1 The decision and order were wrong in law.

2 .

The decision and order were against the

evidence and the weight of the evidence.

The Tribunal failed

to apply the proper

test as to whether the deceased's employment

with the Australian Broadcastjng Commission

was a contributing factor to stress and the

myocardial infarcticn suffered by the deceased.

- 4.

"The Tribunal failed to consider the evidence

given by medical experts called

on behalf of

the deceased and/or

to give any or any

sufficient weight thereto.

II The Tribunal was wrong

in law and there

was no

or no sufficient evidence to support the Finding

that the job performed

by the dsLeased was not,

viewed objectively, stressful.

6. 11 The Tribunal wzs wrong in law a d there was no

or no sufficient evldexe t o support the finding

that the deceased's work was nnt stressful to

him.

Nathan of counsel

C111 behalf of thc: applicnnl, conceded

that the right of appeal to

thls court was an appeal on a

question of law only'' by virtue

of s.9.5(1) of the Compensation

(Ccrnmanwealth Government Emplovces) .\c t 1771 (the Act).

stated that, without

abandoning ~ I I Y

of the grounds

o E ~ p ; x : l ,

the substantial ground

of appc.;i \<as thnc:

11 the tribunal erred as

a matter of law in applying

an objective criteria of work related strcss as being the measure by which one assessed whether

there had been

an aggravation and acceleration

of the disease process".

Mr Crossley of counsel on behalf of the respondent	A.B.C.
conceded that:

"if this man was affected by his work

... such

that on the medical evidence there was

a finding

of causal connection between the pressure of that

work and the myocardia1 infarction, then the

appeal would succeed".

Mr Nathan contended that the Tribunal had misdirected

I 1

itself by treating as irrelevant to its function evidence as to whether subjectively the worker was affected by work

stresses".

I am unable to accept that contention. The

Tribunal's reasons for decision show, in my view, that

it did

not treat the evidence as to the claimant's subjective stress

as being irrelevant. For example, the Trlbunal expressly

accepted the evidence of Mr Profj

tt - who had worked under

the deceased and had subsequently taken over his position

11 as to the claimant's manner

of working and his reactions to

I 1

that work". The Tribunal

stated that it accepted the cvidencc

of Dr Kelly, supported by Dr Warfold, as

t o Lhe clai-nant's

personality; that also accords with thz evidence

of W Proiitr".

@n my reading of its reasons for decision the 'I'ribumal

a l s o

accepted the evidence

o f Dr Kelly that:

I 1 the cleinant had the

wi-lllq horLc'

syncl?-rll-lt-: " . .

on one ocxasion the claiwant seemed

o \ - e ~ l y

anuiou.;

and upset about thc quality

n f tlic tele-:lsj.oll

4 .

picture he was watching and

it seemed to him that

the claimant was, whether he was required

to do this

or not, csrrying the job

i.nto his home.

Although the Tribunal found on the evidence that there

was no

objective stress" from the

work, it found that the

claimant's "attitude to his work and his attitude to the

people at work" was "stressful" to him. However, the Tribunal

was not prepared to find on the evidence before it

that that

II subjective'' stress was

a contributing factor to the aggravation

acceleration or recurrence of the disease of the

deceased- The

Tribunal, in its reasons for decision. referred

to a previous

casein which it had allowed

a claim where there had been pre-

existing hypertension" and pointed out that,

in the present

case, the deceased was not su€fering from any pre-existing

hypertension. The Tribunal considered the evidence given by

two cardiologists

- neither of whom had examined Lhe deceased

who were called on behalf of the applicant and another

cardiologist called by the	A.B.C.;	it then espressed the view	t h a c
II

on the balance

of probabilities, the claim has not

been proved

and I so find" .

Mr Nathan contended that the Tribunal hed drawn

11 I,

distinction between objective" stress and subjecti\-c"

strcss

11 II

and had wrongly treated the

sub~ective

stress as bcing

irrelevant. It is true that the Tribunal referred

I ~ O T P t l u n

I t

once to the d j sti17ction, but

j t did not treal; S&

Icctivc

1 1

stress" as being irrelevant.

Tts

'Cinding

t i x t

o!: j j?ct i

v ' ~ -

streSSlt

had not II been shown t-n

y,t" \,,ss d i r r (.f.2(! ?111> :-aiC:lrci''

5 .

the attempt by counsel for the claimant

to rely upon Adelaide

Stevedoring Co. Ltd. v. Forst (1040)

6 4 C.L.R. 535.

The Tribunal

referred to the well known passage by Rich A.C.J.

in that case

(at p.563) as to the approach a court should take to conflicting

expert medical evidence". The Tribunal decided that that

approach was not open to it on the facts found by it in the

present case, saying that:

II ... on the sequence of events where the claimant had

been doing the same work for

20 years, was a high

risk for other reasons and where

the infarction took

place at home five days after the

c1ai:nant was l s s t

at work the presumptive inference inspired in the

mind of any commonsense person uninstructed in

pathology does not support the

link between stres?

1 1

at work and the infarction at home.

In my opinion the Tribunal

did not err in law in its

approach to the questions before

it, did not treat as irrelevant

I t

the evidence as to subjective stress" and did not misdirect

itself. As to the grounds of appeal which were

not abandonel".

perhaps I should add that there was, in my view, evidence

L 3

support both the findings and the decision

of the Tribunal.

Accordingly the appeal is dismissed and the decision of the

Compensation Tribunal is affirmed.

Mr Nathan and Mr Crossley each asked for an order

f o r

costs if his client succeeded. Mr Nathal,

hovcuer,

submit tcd

that the court should not order

that the applicant pay costs

if she were unsuccessful in her appeal.

'The court's F O ~ C ~

award costs is conferred by

s.43 of r-he -- Fndernl Court

Australia Act 1976:

11 43.(1)

The Court or

a Judge has jurisdiction

award costs in

all proceedings before the Court

(including proceedings dismissed for want

jurisdiction) other than proceedings

in respect

of which any other Act provides that costs shgll

not be awarded.

(2) Except as provided by any other

Act, the

award of costs is in the discretion

of the Court

or Judge.

NO "other Act provides that costs shall	not bc awarded" in
this matter.

The Compensation (Commonwealth Government Emplovees)

-	Act 1971 contains various provisions dealing with the question

of costs. Section

85 deals with the subject of

costs

incurred by a party in relation to proceedings before

Compensation Tribunal". Section 20(5) and (6) make the

Commonwealth "liable to reimburse"

a claimant in certain

circumstances. Section 93 expressly provides that a "prescribcd

Court to which

an application for

a judicial review 3f a

determination is made ... may, in its discretion, order that

the costs

of the application incurred by any party,

car a part

of those costs, shall be paid by another party . . . .

conceded by Mr Nathan

that s . 9 3 empowers a prescribed court

to order an unsuccessful claimant to pay costs.

Having regard to the express provisions

the

s t n t u t c s

to which I have referred, in my opinion ihis court,

when

hearing an appeal under

S . 95, has powcr

o rdslr

,211

unsuccessful applicant to pay costs. The position may be contrasted with that under the Conciliation and Arbitration

Act 1904. Section 197A

of that Act provides thzt, in

relation to all proceedings under that Act before

a variety

of courts and tribunals,

a party "shall not be ordered to

pay any costs incurred by

any other party to that proceeding

except where the party against whom the order

is made

instituted the proceeding vexatiously or without reasor.ab?e

cause".

Further, there is nothing

in the legislation to suggest

that the court should not apply the ordinary prlnciples

exercising its discretion in relation

to an application for

costs. Neither counsel referred me to any authorities

the question of costs.

I consider that I should follow thc

views expressed by the House of Lords

in Donald Campbell 6.

C o . Ltd v. Pollak

(1927) A.C. 732 in the following passage

where Viscount Cave L.C. (with whose

Judgment Viscount

Lhmedin and Lord Philljmore agreed)

said (at pp.811-312):

11 A successful defendant in

a non-jury case has no

doubt, in the absence of special circumstances,	a
reasonable expectation of obtaining an or-c!cr f o r the payment of his costs by the plaintiff; but

he has no right

to costs unless and

un::11 the

Court awards them to

him, and the Court has an

absolute and unfettered discrction to award

not to award them. This

discretion. l j k e any

other discretion, must

of course be cxerc1sc.d

judicially, and the judge

ought not tc cxc'rclsc

it against the successful party

txtcer)t for 3o.w

reason connected with

the casc.

. . .

f ac t s

connected with or leading up t.o

tllo

1 1 1 - ~ ~ : 1 ~ i o f i

which have been

proved bcrorc hi:, 0:' \<P,qLLh !,c >

himself observed during the process of the

case, ... .

This case and other cases dealing with the circumstances in

which it may be proper to refuse costs to

a successful

defendant were cited by Fisher

J. in Trade Practices

Commission v. Nicholas Enterprises Pty Ltc!

G ors (1979) 26

A.L.R.

201 at pp.206-210 and by Franki

J. in L. K. Jewellerv

Investments Pty Limited v. Percy Marks Ptv Limited

o r s

(29 February 1980

- unreported).

Mr Nathan did not rely upon any facts connected

with or leading up to the litigation" as a ground for refusing

to grant costs to the respondent to this appeal. His submission

wag based on general social considerations, as to the

undesirability of an employee being "shut out because of

the fear of costs". Those considerations, however, are

matters for the legislature and do not fonn a sufficient

ground for the exercise

of a discretion as to costs which

must be exercised judicially. Accordingly, the applicant

is ordered to pay the respondent's costs

s f the appeal.

[1980] FCA 150

28 Oct 1980

Key Legal Topics

Areas of Law

Administrative Law

Civil Litigation & Procedure

Legal Concepts

Jurisdiction

Costs

Appeal