Menz and Border Express Pty Ltd
[2013] AATA 143
•15 March 2013
[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.
........................................................................
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
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.
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.
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
Mrs Menz’s application for witness expenses cannot be accepted.
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.
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 Menz was a witness called by Mr Menz’s legal team, not by the team for Border Express.
Nor, according to the Tribunal records, was Mrs Menz summoned to give evidence. Her appearance before the Tribunal as a witness was a matter organised, presumably, by Mr Menz’s legal team. It is also understandable that she would give evidence, if asked, on behalf of her husband and this would have supported the finding that she was not summoned to do so.
That information is relevant since the prescribed costs orders which can be made by the Tribunal are contained in the Administrative Appeals Tribunal Regulations 1976 (Cth) regulation 16 and Schedule 2.[1] The regulation refers only to ‘a person summoned to appear as a witness’. Regulation 16 states:
Witness expenses
A person summoned to appear as a witness before the Tribunal shall be paid such fees, and allowances for expenses, in respect of his attendance, in accordance with Schedule 2, as determined by the Tribunal or by a presidential member.
[1] Authorised by the Administrative Appeals Tribunal Act 1975 (Cth) s 70(2).
Schedule 2 sets out the amount of such expenses. That amount varies according to whether the witness is providing evidence ‘because of his or her professional, scientific or other special skill or knowledge’[2] when the amount takes into account whether the person is being paid wages, salary or fees or not.[3] The witness expenses of a person who has not been summoned to appear because of their professional or other expertise is also paid at a differential rate depending on whether they are receiving wages, salary or fees or not.[4]
[2] Regulation 16, Schedule 2, 1(a).
[3] Id 1(a), (b).
[4] Id 2(a), (b).
In the case of both classes of witnesses who are summoned the expenses payable are for transport, meals and accommodation, if required to be absent overnight from the person’s usual place of residence.[5]
[5] Id 3.
Regulation 16 is the only authority possessed by the Tribunal to order costs for witnesses. Mrs Menz was not summoned as a witness, so her claim falls outside the powers given to the Tribunal.
Costs under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 67
Costs orders may be made under section 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The Act does not define ‘costs’. However, the long accepted principle in the law is that the term applies only to a solicitor’s professional fees or disbursements for work done, as well as barristers’ fees, search fees, fees for reports by doctors or other experts, and photocopying.[6] Mrs Menz is not seeking reimbursement of such costs.
[6] Cachia v Hanes (1994) 120 ALR 385 at 387.
The principle underlying section 67 is that ‘the costs incurred by a party to proceedings…shall be borne by that party’.[7] The section refers only to the costs of ‘a party’, that is, the person or persons bringing the claim or against whom the claim is being sought. In other words it would apply only to costs incurred by Mr Menz and in any event, section 67 does not cover the kinds of expenses being sought by Mrs Menz.
[7] The Act s 67(1).
There are exceptions in section 67 to the underlying principle. Section 67(8) is one such exception. That section provides in effect that if a claimant receives a favourable outcome following a hearing before the Tribunal, the Tribunal may ‘order that the costs of those proceedings incurred by the claimant, or a part of those costs’ shall be paid by the other party or parties to the claim. The reference is to a ‘claimant’ which would again mean Mr Menz, not Mrs Menz. In addition, the option to make a costs’ order relates only to ‘the costs of those proceedings incurred by the claimant’, that is, their legal and other experts’ costs, not their witness expenses.
The matter is not advanced by the terms of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction. Part 6.8 refers to costs and states as relevant:
Unless the order states otherwise, the costs payable may include:
·witness expenses at the prescribed rate;
·all reasonable and proper disbursements; and
·professional costs allowable in accordance with any scale of costs determined by the Tribunal, or, if there is no such scale, 75 per cent of all professional costs, including counsel’s fees, which would be allowable under the Federal Court scale.
In the absence of any order to the contrary, costs will be assessed on a party and party basis.
The first dotpoint is the only one which refers to ‘witness expenses’ and the requirement that these be decided at the ‘prescribed rate’ signals that the reference is to the AAT Act’s regulation 16 and Schedule 2. There is no provision for costs in the Safety, Rehabilitation and Compensation Regulations 2002 (Cth). The remaining dotpoints refer to legal and professional costs. In any event, the document is a Guide only and has no statutory force.
Conclusion: Mrs Menz
The general principles that parties bear their own costs, other than professional legal or other experts’ costs, and that witnesses’ costs are only payable in accordance with the AAT Regulations if the witness is summoned means that the Tribunal has no authority to order payment of the expenses claimed by Mrs Menz. That means Mrs Menz’s claim is unsuccessful.
Mr Menz’s expenses
The claim relates also to the expenses of Mr Menz for travel, accommodation and meals. Mr Menz was summoned to produce documents but not to attend the hearing. Mr Menz was a party to the matter being heard and appeared as a witness.
Mr Menz was not summoned to give evidence. Accordingly he cannot claim witness expenses under Administrative Appeals Tribunal Regulations 1976 (Cth) regulation 16, Schedule 2.
Costs under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 67
Mr Menz was a party to the proceedings and those proceedings were successful. That means the exception to the general principle referred to earlier applies. However, the exception applies only to legal costs and the costs for other experts, not the expenses being claimed by Mr Menz.
That conclusion is reinforced by the terms of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction Part 6.8, for the reasons discussed earlier. In other words, the Tribunal has no authority to order the payment of Mr Menz’s expense for attendance at the hearing.
Conclusion
These findings mean that the application by Mr and Mrs Menz for payment of their witness expenses has not been successful.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ........................................................................
Associate
Dated 15 March 2013
Date of final submission 7 February 2013 Advocate for the Applicant Mrs Maree Menz Counsel for the Respondent Mr David Richards Advocate for the Respondent Ms Madelaine August Solicitors for the Respondent Moray & Agnew Lawyers
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