Mitchell and Comcare
[2003] AATA 750
•5 August 2003
Administrative
Appeals
Tribunal
DIRECTION AND REASONS FOR DIRECTION [2003] AATA 750
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/373
GENERAL ADMINISTRATIVE DIVISION )
Re LESLIE WILLIAM MITCHELL Applicant
And
COMCARE
Respondent
DIRECTION
Tribunal Dr EK Christie, Member Date5 August 2003
PlaceBrisbane
Direction The Tribunal directs that:
(a) An award of costs cannot be made in relation to a medical appointment with Dr Cameron that was not attended by the applicant on 26 February 2003.
(b) However, the question of an award of costs can be the subject of submissions by the parties when a determination is made.
(Sgd) EK Christie
Member
CATCHWORDS
WORKERS’ COMPENSATION – costs – whether respondent can recover the costs of a cancellation fee which arose when the applicant failed to attend a scheduled medical appointment – section 67 of the Safety, Rehabilitation and Compensation Act 1988
PRACTICE AND PROCEDURE – costs – whether Tribunal has jurisdiction to make the order sought by the respondent – principles relevant to the making of costs orders
Safety, Rehabilitation and Compensation Act 1988 s 67(1)
Administrative Appeals Tribunal Act 1975 s 3(3)
Hooper Baillie Associated Ltd v Nation Group Pty Ltd [1992] NSWLR 194
Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336
Capolingua v Phylum Pty Ltd (1991) 5 WAR 137
Re Rodriguez and Telstra Corporation Ltd (2001) 67 ALD 109
Re Van de Vreede and Commonwealth (1983) 5 ALN 232
Comcare v Labathas (1995) 61 FCR 149
Re Commonwealth and Nolis (1983) 5 ALD 315
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11REASONS FOR DIRECTION
5 August 2003 Dr EK Christie, Member Facts
1. The general facts to this matter are:
(a)A conciliation conference took place on 29 July 2002 before Dr Christie, Member. The applicant attended the conciliation along with his solicitor. The respondent was represented at the conciliation by his instructing solicitor and Mr P Ontong (MRCS).
(b)It was ultimately agreed between the parties that the applicant would be examined by a Consultant Neurologist. The respondent agreed to pay for the costs of the examination and for the preparation of a report by the specialist. It was also agreed between the parties that the questions to the specialist would be formulated on a joint basis.
(c) On 23 October 2002, Dr Christie, Member issued a direction that:
(i)on or before 31 October 2002, the respondent was to provide to the applicant the names of three neurologists; and
(ii)on or before 7 November 2002, a list of agreed questions were to be prepared by both parties.
(d)On 24 October 2002, a letter was sent to the applicant’s solicitor providing a panel of three specialists and asking the applicant to choose a specialist. On 6 November 2002, the applicant’s solicitors provided a letter advising that their client had chosen Dr Cameron.
(e)The parties both agreed on the scope of the questions to be addressed by Dr Cameron in his report. Ultimately, there was to be a disagreement by the applicant’s solicitor as to the form of the letter tp be sent to Dr Cameron – but not the content (that is, the substantive issues specified in the questions).
(f)The applicant’s solicitor’s position was that he had notified a secretary in the respondent firm that he was unhappy with the letter and sought to discuss the issue with the respondent’s solicitor. However, no further response was received from the respondent’s solicitor until a letter was received advising notice of the medical appointment for Mr Mitchell.
(g)As a consequence of this, the applicant’s client failed to attend his appointment with Dr Cameron set down for 26 February 2003. Dr Cameron, issued a non-attendance fee and will not agree to a further appointment until the non-attendance fee is paid.
2. The respondent now seeks a direction from the Tribunal that the applicant and/or his solicitors pay the costs of the non-attendance fee.
Legal Principles
(a) Conciliation Conferences/ADR
3. The then President of the Tribunal (Mathews J) issued a Practice Direction for Conciliation Conferences on 18 May 1998. This Practice Direction applies to all applications in the compensation jurisdiction of the Tribunal throughout Australia where the applicant is represented. The Practice Direction reads:
“If at the end of the conference process in the compensation jurisdiction a matter has not settled, then a compulsory conciliation conference will be listed unless a Member or Conference Registrar certifies that the matter is one where such a conference should not be held (e.g. the application only involves a point of law). A conciliation conference will not be listed unless both parties have lodged and exchanged all material as required by this practice direction or by other specific direction of the Tribunal…
If the matter fails to settle at a conciliation conference, the matter will proceed to a hearing unless both parties and the Tribunal agree that a mediation should be held.”
4. The following judicial statements on ADR/Conciliation are relevant to the outcome of this direction hearing:
(a)“An agreement to conciliate or mediate is not to be likened…to an agreement to agree…” per Giles J in Hooper Baillie Associated Ltd v Nation Group Pty Ltd [1992] NSWLR 194.
(b)“I understand that settlement conferences are held by the Administrative Appeals Tribunal in almost every apparently contested case. It is thus not the situation that the parties necessarily go to such conferences with the intention of settling their disputes or even in the hope of doing so…” per Young J in Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336.
(c)“Where at a mediation conference, a party … adopts an obstructive or unco-operative attitude in regard to attempts to narrow the issues, and where it is subsequently shown that, but for such conduct, the issues would probably have been reduced, the extent to which the trial is in consequence unnecessarily extended is a relevant factor when deciding on appropriate award of costs…” per Ipp J in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137.
(d)In Re Rodriguez and Telstra Corporation Ltd (2001) 67 ALD 109, the Tribunal held that “the express limitations and the framework of the [SRC] Act point to the reasonableness of the applicant’s conduct being relevant to the exercise of the Tribunal’s discretion with respect to an order for costs. The applicant’s rejections of the respondent’s offers were not unreasonable. If the respondent was in breach of the model litigant policy, that matter should be considered during the taxation of the costs. The complexity of the proceeding was no justification for an award of costs on a different basis from that normally ordered.”
(b) Costs – Jurisdiction of the Administrative Appeals Tribunal (“AAT”)
5. The AAT has power to award costs in relation to applications brought under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). The general rule [subsection 67(1)] is that each party bears their own costs – but this is qualified in many ways. If the AAT makes a decision that is more favourable to the applicant than the decision under review, it may order that all or part of the costs of the proceeding be paid by the responsible authority.
6. The following common law principles on the question of costs in the compensation jurisdiction of the AAT are relevant to the outcome of the direction hearing in this matter:
(i)In Re Van de Vreede and Commonwealth (1983) 5 ALN 232 the Tribunal indicated that, under the Compensation (Commonwealth Government Employees Act 1971 (and presumably under subsection 67(8) of the SRC Act), generally costs should follow the cause and an applicant should be deprived of costs only to the extent that the costs had been unnecessarily incurred, or where the applicant had caused the respondent to incur unnecessary costs. An applicant ought not to be deprived of costs simply because of a failure to comply with certain procedures of the Tribunal – unless that failure had resulted in unnecessary costs being incurred by the applicant or by the respondent.
(ii)In Comcare v Labathas (1995) 61 FCR 149 the Federal Court held that the costs incurred in relation to internal decision-making could not be recovered as they are costs of proceedings other than the Part VI proceedings for which subsection 67(8) costs are payable.
(iii)In Re Rodriguez and Telstra Corporation Ltd (2001) 67 ALD 109, the Tribunal stated:
“In general terms and in the context of this case, the Tribunal may make an order for costs in proceedings instituted by a person in respect of whom a determination is made (that is, the ‘claimant’, s 60(1) where the tribunal makes a decision varying a reviewable decision in a manner favourable to him or her or setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision (s 67(8)(a) and (b)).”
The Court commented, however, that there is no temporal limitation in section 67(8) of the SRC Act; thus it is possible that costs incurred in advance of the determination reviewed by the Tribunal, for the purpose of a projected appeal to the Tribunal, could be recovered as costs of the proceedings. The Court commented:
“There may be circumstances in which costs can be incurred well before a reviewable decision is given and can be incurred not for the reviewable decision or, for that matter, for the original determination, but for the purposes of a projected appeal to the tribunal. I refrain from attempting to exemplify situations in which this may be so. It is only necessary to acknowledge the possibility of this. But having so concluded that preliminary expenses cannot be subjected to a temporal limitation, I must add that it would in my opinion require distinctive circumstances indeed before it could properly be said that expenses incurred (a) before the original determination, or (b) before the reviewable decision, were not incurred for those proceedings but were incurred despite them for a projected Pt VI proceedings. What in my view is not sufficient to attract the characterisation of ‘costs of the proceedings’ for s 67(8) purposes is the mere proof that the prior incurred costs were useful in the Pt VI proceedings.” (at 158)
(c)The Award of Costs
7. The following legal principles are also relevant to the question of when costs may be awarded:
(i)“Costs can only be awarded to a party to a determination” [Tribunal emphasis] Re Commonwealth and Nolis (1983) 5 ALD 315.
(ii)Subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines “decision” as including:
§ making, suspending, revoking or refusing to make an order or determination;
§ giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
§ issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
§ imposing a condition or restriction;
§ making a declaration, demand or requirement;
§ retaining, or refusing to deliver up, an article;
§ doing or refusing to do any other act or thing.
(iii)The above statutory definition would be capable of applying to decisions that do not have a quality of finality. However, as Mason CJ explained, in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 23, the definition must be more narrowly construed. The Chief Justice was considering the nature of a reviewable decision under the Administrative Decisions (Judicial Review Act 1977 (Cth). The Chief Justice said:
“To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation o the processes of administrative decision-making and set at risk the efficiency of the administrative process.
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.”
Consideration of the Issues
8. The Tribunal makes the following findings:
(a)It can be concluded that on legal analysis of the ADR/Conciliation process (Hooper Bailie and Nodnara cases), together with the interpretation of the meaning of “decision” (Bond’s case), the medical appointment not attended by the applicant does not have the quality of finality to warrant the description of a determination. Rather, it would represent a medical conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision, that is, an “intermediate decision”. The SRC Act does not contain any provision for the Tribunal to make any other finding on this point.
(b)Any question of an award of costs for the medical appointment not attended by the applicant can only be considered when a determination is to be made. The principles in Van de Vreede, Rodriguez and Labathas are relevant considerations in this regard.
Direction
9. An award of costs cannot be made, at this stage, in relation to a medical appointment with Dr Cameron that was not attended by the applicant on 26 February 2003.
10. However, the question of an award of costs can be the subject of submissions by the parties when a determination is made.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .......................................................................................
AssociateDate of Directions Hearing 27 June 2003
Date of Direction 5 August 2003Solicitor for the Applicant Mr J Wall, Gilshenan and Luton
Solicitor for the Respondent Mr P Crethary, Dibbs Barker Gosling
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