Rahimovski and Commonwealth Bank of Australia
[2013] AATA 755
•23 October 2013
[2013] AATA 755
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4721
Re
Resat Rahimovski
APPLICANT
And
Commonwealth Bank of Australia
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 23 October 2013 Place Melbourne 1. In accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is remitted to the respondent for reconsideration in accordance with these reasons for decision.
2. The decision is to be reconsidered within 14 days of the date of this decision.
............................[sgd]............................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – permanent impairment - time at which the Tribunal is to be satisfied that the injury has been suffered – appropriate order for costs – decision under review remitted to the respondent for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 26, 37, 42D, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 26, 53, 54, 62, 64, 67
CASES
Fuad and Telstra Corporation Limited [2004] AATA 1182
Lees v Comcare [1999] FCA 753
Re Scott and Commissioner for Superannuation (1986) 9 ALD 491Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
INTRODUCTION
In this application the parties have agreed that only two issues are in dispute between them and have asked that those issues be determined. The parties will then file an agreement which will enable the Tribunal to finalize the matter.
Mr Rahimovski has been an employee of the Commonwealth Bank since 2007. In 2010 he lodged a claim for an injury suffered at work and he has received compensation in respect of that injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In 2011 Mr Rahimovski made a claim for further compensation in respect of the injury on the ground that it had resulted in his suffering a permanent impairment. The Bank refused this claim.
Mr Rahimovski has applied to the Tribunal to review the Bank’s decision to refuse his claim for compensation for permanent impairment.
ISSUES
The two issues are:
(1)When deciding whether the Bank is liable under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation in respect of an injury resulting in a permanent impairment, at what time is the Tribunal required to be satisfied that Mr Rahimovski has suffered such an injury?
(2)What is the appropriate order for costs in this application?
The facts are not in dispute and may be stated very briefly in relation to the first issue. I will set out the history of the application in more detail in relation to the issue as to costs.
ISSUE 1: WHEN DECIDING WHETHER THE BANK IS LIABLE UNDER S.24 OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) TO PAY COMPENSATION IN RESPECT OF AN INJURY RESULTING IN A PERMANENT IMPAIRMENT, AT WHAT TIME IS THE TRIBUNAL REQUIRED TO BE SATISFIED THAT MR RAHIMOVSKI HAS SUFFERED SUCH AN INJURY?
Facts
In February 2010 the Bank accepted liability to compensate Mr Rahimovski in respect of an injury (post-traumatic stress disorder) arising out of his employment. This liability arose under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In February 2011 Mr Rahimovski made a claim for compensation under section 24 of the Act on the basis that his injury had resulted in a permanent impairment. On 6 July 2011 the Bank determined to deny liability on the ground that the impairment was not permanent.[1]
[1] T49.
Through his Solicitors, Mr Rahimovski requested that the determination be reviewed. On 16 September 2011 the Bank affirmed the determination. In accordance with section 64 of the Act this decision was reviewable by this Tribunal.
On 3 November 2011 Mr Rahimovski applied to the Tribunal to review the Bank’s decision.
The parties agree on the following:
·Mr Rahimovski had not suffered a permanent impairment as at 16 September 2011, being the date of the reviewable decision in this matter;
·Mr Rahimovski had suffered a permanent impairment by 18 October 2012, a date after he applied to the Tribunal for a review of the Bank’s decision;
·Mr Rahimovski continues to suffer the permanent impairment.
REASONING
Previous decisions of the Tribunal
It is surprising that it appears that this issue has not been dealt with previously. Counsel has been unable to refer me to a decision specifically addressing the question. However, a perusal of many of the Tribunal’s decisions dealing with claims for compensation for permanent impairment indicates that the Tribunal has frequently made findings that an applicant was permanently impaired at the date of the Tribunal’s decision without referring to the situation at an earlier time. While this does not of itself resolve the issue, consistency in Tribunal decision-making is a factor to be considered.[2]
The statutory provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
[2] Re Scott and Commissioner for Superannuation (1986) 9 ALD 491, 499.
The High Court has made it clear that in certain matters the Tribunal should decide the question before it on the basis of the evidence available to it at the time it makes its review and is not restricted to the evidence which was available at the time the reviewable decision was made.[3] To decide whether it is appropriate to consider evidence available at the hearing, it is necessary to consider carefully the statutory provisions which govern the making of the decision under review.
[3] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
At paragraphs 43 and 44 of the judgement Kirby J said, in part:
43. …although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a “decision”, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.
44. Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events.[4]
[4] (2008) 235 CLR 286, 300.
The issue before the High Court was not the one I have to decide in this application. I have to decide the time at which I must be satisfied that Mr Rahimovski suffered a permanent impairment. Nevertheless the principle that one must consider the relevant wording of the statute under which the reviewable decision was made is equally applicable to the determination of the question before me.
Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides in part:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
Subsection 24(2) sets out matters to which the decision-maker shall have regard in determining whether an impairment is permanent. There is nothing in this or the other subsections of section 24 which suggest that the Tribunal, as a decision-maker, should decide whether the impairment is permanent at any time other than the time of making its decision. It is to be noted that subsection 24(2) is expressed in the present tense.
The structure of the provisions relevant to the making of decisions under the Act was considered in detail by the Full Court of the Federal Court in Lees v Comcare.[5] At paragraph 27 the Full Court said:
… s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "[s]ubject to" Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).
An additional section in accordance with which compensation is payable is section 16 which provides for compensation in respect of medical expenses.
[5] [1999] FCA 753.
As has been pointed out on many occasions, the Act provides for a three-tier decision-making process of which this Tribunal provides the third tier. On this point the Full Court said:
32 Part VI of the Act is headed "Reconsideration and Review of Determinations". It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
…
34 The definition of "determination" makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.[6]
[6] Lees v Comcare [1999] FCA 753.
If it is shown that an applicant had not suffered the claimed injury at the time the claim was made, the Tribunal will not have jurisdiction to review a claim for a new injury which has not been considered under the three-tier process. In this situation the Tribunal does not rely on the evidence before it to determine that the applicant had suffered an injury by the time of the hearing, even if this may be the case. If the Tribunal was to decide whether an applicant had suffered an injury at the time it heard the matter, it may permit the applicant to avoid the requirements of giving to his or her employee notice of the injury under section 53 of the Act and to avoid the three-tier decision-making process.
The manner in which the Tribunal considers claims under the sections of the Act which determine the amount of compensation payable for medical expenses (s.16) and loss of earnings (s.19) differs from that by which it considers claims to determine liability (s.14) in one respect. A claim under each of the above three sections is to be made to Comcare or a licensee in accordance with section 54; all claims are to be reviewed at the first two tiers of the review system. However when determining a claim for medical expenses and/or loss of income the Tribunal receives evidence and determines the amount of compensation payable as at the date of hearing. It is often the case that the determination will include expenses and/or loss of income incurred in a period after the reviewable decision was made. The crucial requirement is that a claim for such compensation has been made and has been the subject of a reviewable decision – it is not necessary that a claim for each item of medical expense or of each period of incapacity has been the subject of a reviewable decision.
The distinction between a claim under section 14 on the one hand and sections 16 and 19 on the other is that the former is to determine liability to pay compensation for an injury, under the latter sections it is to determine the amount of compensation payable in respect of that injury. This distinction was explained by the Full Court of the Federal Court as follows:
… The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.[7]
Clearly the Full Court regarded claims under section 24 as akin to those under sections 16 and 19 which also determine “the nature and extent of the liability to pay compensation in respect of an injury …”[8]
[7] Lees and Comcare [1999] FCA 753, [48].
[8] [1999] FCA 753, [48].
It follows that, provided a claim that an injury to an employee has resulted in permanent impairment together with a claim for an amount of compensation has been considered in a reviewable decision, I can review this decision and consider whether permanent impairment has been established at the time I make a decision. I am not restricted to deciding this issue and/or the amount payable at the time the reviewable decision was made. This is consistent with the interpretation that has been placed on the other sections which determine the nature and extent of the liability.
In this matter the review officer, in making the reviewable decision, did have before him a claim that the injury to Mr Rahimovski had resulted in a permanent impairment and a claim for the amount of compensation payable. The claim was submitted on the form provided by the Bank.[9]
[9] Document no.37 filed in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
The Executive Manager who made the reviewable decision (which affirmed the decision to refuse payment of compensation), did so on the following basis:
1. there is reasonable rehabilitative treatment available;
2. the employee has not yet undertaken the available treatment;
3. the rehabilitation treatment is not overly invasive or otherwise a type that has a high degree of risk to the employee without any significant likelihood of benefit;
4. the Fazlic rule has not been satisfied and the employee has not sought to mitigate his own degree of impairment.[10]
[10] T-58, p 5.
Although the review officer did not refer to a claim for an amount of compensation, this does not mean that this issue was not before him. In view of the decision he made it was simply unnecessary that he consider the amount of compensation which would have been payable had he decided that Mr Rahimovski had suffered a permanent impairment.[11]
[11] See Fuad and Telstra Corporation Limited [2004] AATA 1182, para.5.
The situation before me is to be contrasted with the situation before the Tribunal and the Federal Court in Lees v Comcare to which I have referred. In the Lees matter the only application which had been considered by the review officer was a claim for compensation for travel expenses related to attendances for treatment, that is, a claim under section 16. The review officer had not considered a claim for permanent impairment under section 24 and no such claim was before him at the time he made the reviewable decision. The Full Court held that the Tribunal did not have jurisdiction to consider the claim for permanent impairment. As I have already found, in this matter a claim for permanent impairment was before the review officer, both as to the existence of a permanent impairment and as to the compensation payable.
The requirements of good public administration
It is in the interests of good public administration that claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) be dealt with as quickly and efficiently as possible. It must be remembered that (subject to an appeal to the Federal Court on a question of law) this Tribunal makes the final decision in the three-tier administrative process. In my view there is no sound reason why the Tribunal should be restricted to deciding the existence or otherwise of permanent impairment and/or the amount of compensation payable as at the date of the reviewable decision. In almost all cases this would restrict the Tribunal in deciding the issues to a time many months before it came to decide the matter. If the Tribunal was so restricted, an applicant who was able to establish that he or she was permanently impaired at the time of the Tribunal’s decision (but not earlier), would be required to recommence his or her claim and incur the time and expense of pursuing a new claim through the three-tier review process. This would delay the finalization of the claim considerably and increase the expense to both the claimant and the respondent. If a similar restriction applied to the determination of the compensation payable, the claimant would be unable to be compensated for any increase in the degree of impairment which occurred between the date of the reviewable decision and the date of the Tribunal’s decision. Again, unnecessary time and expense would be incurred in finalizing the claim.
The provisions of the Administrative Appeals Tribunal Act 1975 (Cth)
Subsection 43(1) provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
In accordance with subsection 43(6) a varied or substituted decision “shall, for all purposes …[other than for purposes not relevant here] be deemed to be a decision of … [the maker of the reviewable decision] and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
There is nothing in these, or any other provisions of the Administrative Appeals Tribunal Act which indicate that a decision of the Tribunal should be made as at a time other than the time of the making of the decision itself. Of course, the enabling legislation may indicate the time at which the decision is to be made[12], but as I have decided, this is not the case with the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[12] Such as the entitlement to certain pensions - see for example section 109 of the Social Security (Administration) Act 1999.
Conclusion
As it is agreed that Mr Rahimovski has suffered an injury which at present has resulted in a permanent impairment, the Bank is liable to compensate him in respect of that injury in accordance with sections 24 and 26 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
ISSUE 2: WHAT IS THE APPROPRIATE ORDER FOR COSTS IN THIS APPLICATION?
In February 2011 Mr Rahimovski made his claim for compensation under section 24 of the Act on the basis that his injury had resulted in a permanent impairment. After considering various medical reports (including a report from Mr Rahimovski's treating psychologist) the Bank determined to deny liability on the ground that the impairment was not permanent. This determination was made on 6 July 2011.[13]
[13] T49.
Mr Rahimovski requested that the determination be reviewed. On 16 September 2011 the Bank affirmed the determination.
On 3 November 2011 Mr Rahimovski applied to the Tribunal to review the Bank’s decision. It is this application which is now before me.
Immediately upon the application being made to the Tribunal the Bank (being the decision-maker) was restricted in its powers to alter the reviewable decision.
Section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) provides in part:
(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a) if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application—the enactment that authorised the making of the application expressly permits the decision to be altered; or
…
(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
(2)A reference in subsection (1) to the alteration of a decision is a reference to:
(a) the variation of a decision; or
(b) the setting aside of a decision; or
(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.
Section 62 of the Safety, Rehabilitation and Compensation Act1988 (Cth) does expressly permit a decision-maker to alter a decision before the Tribunal. I will refer to this provision in more detail later in these reasons.
On 7 March 2012 a Preliminary Conference was held in this application.
On 18 April 2012 the Bank wrote to Mr Rahimovski’s Solicitors. In part the letter read:
Resat Rahimovski and Commonwealth Bank of Australia
Our Ref: 09R3117021
AAT Matter No: 2011/4721At the teleconference on 7 March 2012 you advised that you were awaiting receipt of a medico-legal report of Dr Seward and that you hoped to be able to file and serve the report within the next few weeks. The Conference Registrar indicated that she would list the matter for a further teleconference after the report had been filed and served.
I note that I have not been served with Dr Seward’s report. I assume that the report has not been filed with the Tribunal and that this is why the matter has not been listed for a further teleconference.
Please file and serve this report.
On 25 May 2012 Mr Rahimovski's Solicitors wrote to the Bank in the following terms:
RE: RESAT (ROBERT) RAHIMOVSKI
IMPAIRMENT BENEFIT CLAIM
CLAIM NUMBER: 09R3117021
Further to this matter we enclose by way of service the medical report of Dr L N Seward dated 28 February 2012 and the non-economic loss form dated 5 April 2012.
The form which was enclosed was the standard Comcare “Compensation Claim for Permanent Impairment and Non-Economic Loss Form”. The following parts of the form were blank:
·Part A Employee’s Details
·Part B Treating Practitioner to Complete
Part B provided for the supply of details concerning the diagnosis and the impairment(s) claimed. To the extent that it required input from an Examining Practitioner, Part C of the form (headed Non-Economic Loss Questionnaire) was completed and signed by Dr Seward. It was dated 5 April 2012.
On receipt of Dr Seward’s report and the form referred to, the Bank obtained further expert opinion in relation to Mr Rahimovski’s claim.
On 20 July 2012 Mr Rahimovski’s Solicitors forwarded to the Bank a further medical report in relation to the impairment claim. The letter concluded:
Can the Commonwealth Bank accept our clients’ [sic] claim pertaining to the impairment benefit application?
We look forward to hearing from you.
On 18 October 2012 the Bank wrote to Mr Rahimovski. The opening paragraph of the letter read as follows:
I refer to your claim form for permanent impairment and non-economic loss benefits in respect of the injury sustained on 22 October 2009. The claim, subject of this determination, was signed by Dr Seward on 05 April 2012 and received in our office on 25 May 2012.
The letter advised Mr Rahimovski that the writer, a Case Manager, Workers’ Compensation, had determined that Mr Rahimovski was entitled to compensation for his permanent impairment, including compensation for non-economic loss. A copy of the determination and the reasons for it were provided with the letter.
On 16 November 2012 Mr Rahimovski’s Solicitors wrote to the Bank in the following terms:
We refer to the letter of 18 October 2012 in which you purport to determine our client’s entitlement to compensation for permanent impairment. Your letter asserts that a new claim is made in respect of the impairment.
We advise that no new claim was made. There is currently a dispute concerning our client’s entitlement to compensation for psychiatric impairment before the Administrative Appeals Tribunal. In the course of those proceedings we exchanged a medical report concerning the issue of impairment under cover of letter 25 May 2012 and to which we attached an assessment of the non-economic loss for the purposes of section 27 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). There was no new claim. You will plainly see that the pages referring to the making of a claim under section 24 were blank. The covering letter makes it clear that the report and non-economic loss assessment were sent to your representatives in the course of the AAT proceedings.
We refer you to section 26 of the Administrative Appeals Tribunal Act 1975. Once the impairment claim decision is before the AAT for review, the Respondent has no power to make further decisions in respect of that matter unless in a manner permitted by law.
The only way in which such a matter could be dealt with is by the making of an own motion reviewable decision.
No such decision is made and the Tribunal proceedings continue.
If you are prepared to enter into appropriate terms for an order to resolve the dispute please let us know. We suggest you do so prior to the hearing fixed for 21 November 2012.
The matter had been earlier listed for hearing on 21 November 2012. It did not proceed to hearing on that day as the parties agreed that the only issues in dispute between them was the issue as to the date at which the Tribunal should determine whether or not Mr Rahimovski had suffered a permanent impairment. I have been informed by Counsel for the parties that Mr Rahimovski has agreed to accept the amount referred to in the letter of 18 October 2012 as compensation for the permanent impairment he has suffered.
Discussion
The Bank argues that when Mr Rahimovski’s Solicitors submitted the partly completed claim form with the report of Dr Seward under cover of letter of 25 May 2012, he was making a new claim for compensation for permanent impairment. It argued further that as this was a new claim it was entitled to make a new decision which was not contrary to the provisions of section 26 of the Administrative Appeals Tribunal Act 1975, and was not a reconsideration under section 62 of the Safety, Rehabilitation and Compensation Act 1988.
I do not accept the Bank’s argument. In my view, in the circumstances in which it was forwarded, no reasonable person would consider the form submitted was submitted other than in furtherance of the application before the Tribunal. Parts A and B of the form were blank. The covering letter referred to the form as “the non-economic loss form”; it did not refer to it as a claim for permanent impairment. It is clear from the Bank’s letter of 18 April 2012 that the Bank understood that a report from Dr Seward was to be filed and served in the proceedings before the Tribunal.
As the Solicitors for Mr Rahimovski pointed out to the Bank in their letter of 16 November 2012, the Bank could have reconsidered Mr Rahimovski’s claim on its own motion under section 62 of the Safety, Rehabilitation and Compensation Act. That section provides in part:
(1)A determining authority may, on its own motion:
(a) reconsider a determination made by it;
…
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
Subsection 67(2) of the Act provides:
Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.
In the absence of an alternative explanation by the Bank, I accept the argument of Counsel for Mr Rahimovski that by purporting to make a decision on a “new” claim rather than reconsidering its earlier decision, the Bank was endeavouring to avoid being required to reimburse Mr Rahimovski for the costs incurred by him in connection with this application. It should be noted that further provisions of section 62 protect the Bank from having to pay costs when a reconsideration decision is made where it has given notice to a claimant that further information was required to determine the claim being made.
Further, in acting in the way in which it did, the Bank purported to act contrary to the provisions of section 26 of the Administrative Appeals Tribunal Act. This should have been apparent to those responsible for the conduct of the matter on behalf of the Bank. In any event action should have been taken to remedy the situation on receipt of the letter of 16 November 2012 from Mr Rahimovski’s Solicitors. As an alternative to making a reconsideration decision the Bank could have sought the agreement of the Tribunal and Mr Rahimovski to an alteration of the decision under review. Had this been done the Tribunal could then have determined the question of costs had it been necessary to do so.
Taking into account the matters to which I have referred I conclude that upon the making of a decision which sets aside the reviewable decision in this matter, the appropriate order under subsection 67(8)[14] of the Safety, Rehabilitation and Compensation Act will be that the costs of the proceedings incurred by the applicant shall be paid by the respondent. I have been advised by the parties that the amount of compensation payable is not in issue.
[14] Subsection 67(8) reads:
Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) 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;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
The decision under review will be remitted to the Bank in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
........................[sgd]...........................................
Associate
Dated 23 October 2013
Date(s) of hearing 1 July 2013 and 3 September 2013 Counsel for the Applicant Mr M Carey Solicitors for the Applicant John Dellios and Associates Counsel for the Respondent Mr D Richards Solicitors for the Respondent Workplace Advisory Group, Commonwealth Bank of Australia
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