Menz and Border Express Pty Ltd

[2013] AATA 143

[2013] AATA 143

DIRECTION AND REASONS AS TO COSTS

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/1613
Re	JAMES MENZ
APPLICANT
And	BORDER EXPRESS PTY LTD
RESPONDENT

DIRECTION AS TO COSTS

Tribunal	Professor RM Creyke, Senior Member
Date	15 March 2013
Place	Canberra

The application for costs is refused.

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Professor RM Creyke, Senior Member

Catchwords

COSTS – party costs other than legal costs – witness costs – whether summoned to give evidence – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 70(2)

Administrative Appeals Tribunal Regulations 1976 (Cth) reg 16, Schedule 2

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 67

Safety, Rehabilitation and Compensation Regulations 2002 (Cth)

Cases

Cachia v Hanes (1994) 120 ALR 385

Secondary materials

The Administrative Appeals Tribunal’s Guide to the Workers’ Compensation Jurisdiction

REASONS FOR DIRECTION

Professor RM Creyke, Senior Member

15 March 2013

1. In a letter to the Tribunal from Mrs Maree Menz, the wife of the applicant in the matter, Mr James Menz, sought ‘costs/expenses in relation to the matter Menz and Border Express Pty Ltd [2012] AATA 203’. The costs to which the letter refers are costs of Mr and Mrs Menz for the purposes of travel from Albury to Canberra and return, and for accommodation and meals for the three day hearing. In addition, the claim is for reimbursement of Mrs Menz’s wages for the days she was attending the hearing. The amount claimed is $2,505.31.

2. Mrs Menz contended that the matter was initially set down as a one day hearing, but extended to three days and it was one of the reasons she was making the claim. Mrs Menz claimed that ‘Border Express called me as a witness’, and that as Mr Menz was medically unfit to drive long distances, she was required to drive him to and from Canberra, and she also had to remain here to appear as a witness.

3. In her submission, Mrs Menz claimed she was basing her claim in part on a comment made by another member of the Tribunal at a conciliation conference held in Albury prior to the hearing.

   Mrs Menz’s expenses

4. Mrs Menz’s application for witness expenses cannot be accepted.

5. In the first instance, matters discussed or noted in a conciliation conference cannot be corroborated. In any event, matters discussed during a conciliation conference are confidential to the parties concerned.  For both reasons - the absence of any evidence of the comment, and the confidential nature of the proceedings - any such comment cannot be taken into account.

6. Mrs Menz also claimed that she had been called as a witness by Border Express. That does not appear to be correct. The Transcript of the proceedings on 4 November 2011 clearly records the question from the Tribunal ‘[I]s [Mrs Menz] being called by you or by Mr Richards [counsel for Border Express]’? In response, Mr Muller, counsel for Mr Menz, said ‘No, she will be called by me I think is appropriate’.  In other words, Mrs…