Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees

[1994] FCA 97

$7 49

JUDGMENT No. ........ ........ .. I ........ ....

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOU TH WALES DISTRICT REGISTRY ) No. G323 of 1993

GENERAL DIVISION 1

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :  DIANNE KERRI RILEY
Applicant

AND	COMMISSION FOR THE SAFETY REHABILITATION AND C O M P E N S A T I O N 0 F COMMONWEALTH EMPLOYEES
Respondent

CORAM :	Beaumont J.
m:	B March 1994

MINUTE OF ORDERS

THE COURT ORDERS:

1.    Appeal against Order 2 made by the Tribunal allowed, with costs; set aside Order 2; in lieu thereof, order that respondent pay the applicant's costs pursuant to s.67(9) of the Act.

2.   Appeal against Order 1 made by the Tribunal is dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

3.   Order that the parties are at liberty to set-off costs.

, I . . ,

, . I .

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW SOU	TH WALES DISTRICT REGISTRY	)	No.	G323 of 1993
1

GENERAL DIVISION 1

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  DIANNE KERRI RILEY
Applicant

AND	COMMISSION FOR THE SAFETY REHABILITATION AND C O M P E N S A T I O N 0 F COMMONWEALTH EMPLOYEES
Respondent

CORAM :	Beaumont J.
DATE :	8 March 1994

REASONS FOR JUDGMENT (No. 2 )

(On appeal against Tribunal's Order (No. 2 ) in

respect of costs1

I will deal now with the other ground of appeal that has been argued and that is ground 14 of the notice of appeal. The context is a special order made in respect of part of the costs of the proceedings before the Tribunal.

Before going to the Tribunal's reasons on the point, reference should be made to the relevant provisions of the Safetv. Rehabilitation & Com~ensation Act 1988. Costs of proceedings before the Administrative Appeals Tribunal are dealt with by s.67 of that Act. For present purposes, the relevant parts of this provision are sub-s.(8), (9) and (13) which are as follows:

" ( 8 ) Where, i n a n y proceed ings i n s t i t u t e d by the

c l a i m a n t , the ~ d m i n i s t r a t i v e Appeals Tr ibuna l makes

a d e c i s i o n :

( a ) v a r y i n g a r e v i e w a b l e d e c i s i o n i n a manner

favourab le t o the c la iman t ; or

(b) s e t t i n g a s i d e a r e v i e w a b l e d e c i s i o n and making

a	d e c i s i o n	i n	s u b s t i t u t i o n	for	the	rev i ewab le
decision	t h a t	i s	more	favourab le	t o	the

c la iman t t h a n the rev i ewab le d e c i s i o n ;

the Tr ibuna l may, s u b j e c t t o this s e c t i o n , o r d e r

t h a t the c o s t s o f those proceedings i n c u r r e d by the

c l a i m a n t , o r a p a r t o f those c o s t s , s h a l l be pa id by

the responsible a u t h o r i t y .

( 9 ) Where the A d m i n i s t r a t i v e Appeals Tr ibuna l g i v e s

a d e c i s i o n s e t t i n g a s i d e a r ev i ewab le d e c i s i o n and

r e m i t t i n g the c a s e for re -de t e rmina t i on by the

d e t e r m i n i n g a u t h o r i t y , the Tr ibuna l s h a l l , s u b j e c t

t o th i s s e c t i o n , o r d e r t h a t the c o s t s o f the

proceed ings b e f o r e i t i n c u r r e d by the c la iman t s h a l l

be paid by the responsible a u t h o r i t y .

( 1 3 )	W h e r e	the	A d m i n i s t r a t i v e	Appeals	Tr ibuna l
o r d e r s	a	responsible	a u t h o r i t y t o pay	c o s t s	i n c u r r e d
by a	c l a i m a n t ,	the	Tr ibuna l may,	i n the	absence o f

agreement be tween the p a r t i e s a s t o the amount o f

the costs,	t a x or sett le the amount o f the c o s t s or
o r d e r t h a t	the c o s t s be taxed by the R e g i s t r a r or a

Deputy R e g i s t r a r o f the Tr ibuna l . "

I n i t s r easons , the Tr ibuna l d e a l t w i t h the q u e s t i o n

o f c o s t s a s f o l l o w s :

"51. As we propose t o set a s i d e the rev i ewab le

d e c i s i o n , we a r e bound by sub - sec t i on 67(9) o f the

Act t o o r d e r the responden t t o pay the a p p l i c a n t ' s

c o s t s . In o u r v iew, the sub - sec t i on does n o t mean

t h a t a n y c o s t s t h a t were i n c u r r e d , no m a t t e r how

unreasonable , must be pa id . O b v i o u s l y the quantum

o f	costs	i s a	m a t t e r	w i t h i n	the	d i s c r e t i o n	o f	th i s
Tr ibuna l .	A	good	dea l	o f	the	second	day ' s	h e a r i n g

was t a k e n up i n r e p e t i t i o u s argument concern ing the

a d m i s s i b i l i t y o f the report o f D r . Champion.

Because o f t h i s the responden t was pu t t o g r e a t e r

expense. The h e a r i n g shou ld have been completed

w i t h i n the f irst h a l f o f the second day. I n o u r

v iew, therefore, only one h a l f o f the costs o f the

second	day ' s	proceed ings	should	be	a l lowed .	F o r
r easons	which	were	o u t l i n e d	on	the	t h i r d d a y and

which were recorded , we c o n s i d e r t h a t n o f u r t h e r

costs should be ordered for a n y expenses i n c u r r e d a f t e r 28 October 1992, nor shou ld costs be ordered f o r a n y expenses i n c u r r e d i n or about o b t a i n i n g the

report o f D r . Champion. T h i s o r d e r for c o s t s i s

made n o t only because the conduct o f the a p p l i c a n t ' s

l e g a l a d v i s e r s u n n e c e s s a r i l y pro1 onged the h e a r i n g

and i nc reased the c o s t s , b u t a l s o because we wish t o

e x p r e s s	o u r	v i e w	t h a t	the	forensic	t a c t i c s employed
a r e	t o t a l l y	i n a p p r o p r i a t e	i n	this	Tr ibuna l .	The

o r d e r o f the Tr ibuna l w i l l therefore be a s f o l l o w s -

1. The r e v i e w a b l e d e c i s i o n i s set a s i d e and the

m a t t e r	i s r e m i t t e d	t o the	responden t	for	re-
de t e rmina t i on	i n	accordance	w i t h	the	d i r e c t i o n
t h a t	the	a p p l i c a n t	c o n t i n u e s	t o	be

i n c a p a c i t a t e d for work, b u t t h a t for t h e

purposes o f S 19 o f the Act , the amount she i s

a b l e t o e a r n i n s u i t a b l e employment i s t h a t

which the employer o f f e r e d her f o r working 8

hour s per	d a y i n the f u s e section and which she
f a i l e d	t o a c c e p t .

2. The responden t i s ordered t o pay the

a p p l i c a n t ' s costs o f the f irst d a y i n

accordance	w i t h this T r i b u n a l ' s C o s t s P r a c t i c e
Direction,	one h a l f o f her costs o f the second

day, n o costs i n respect o f a n y other

subsequent work and no costs i n c u r r e d i n or

about o b t a i n i n g the report o f D r . Champion."

On behalf of the applicant it is submitted that there was no relevant power in the Tribunal to deprive her of the costs mentioned in the order made by the Tribunal. In my opinion, there is substantial force in the submission. It is clear, and indeed common ground, that the provisions of 8 . 6 7 constitute a code in the area of costs. For present purposes the provisions of that section which are of immediate relevance are in my view sub-ss.(9) and (13).

On behalf of the respondent, reliance was placed upon the provisions of sub-s.(8), but for the reasons given in the course of argument, I am of the view that this sub-section can have no application in the present case. However, I am of the opinion that the language used in sub-s.(8) does throw some light upon the true interpretation of sub-s.(9). It will be recalled that in sub-S. (8) provision is made that the Tribunal may, subject to 6.67, order that the costs of the proceedings incurred by the claimant, or a Dart of those costs, shall be paid by the responsible authority. This language may, I think, be usefully contrasted with the terms of sub-S. (9) in two respects: In the first place, the language of sub-s.(9) is mandatory, that is to say the Tribunal "shall" order that the costs "shall" be paid by the responsible authority. In the second place, sub-s.(8) makes reference to the possibility that only a part of the costs incurred shall be paid. Again this may be compared with the

terms of sub-S. which referred merely to " t h e costs o f t h e

proceedings " .

This, in my view, suggests that there is no power in the Tribunal in its discretion to order that merely part of the costs of the proceedings be paid by the responsible authority.

It is true that by sub-S. (l3), the Tribunal may tax
or settle the amount of the costs; or it may order that the
costs be taxed by the Registrar or a Deputy Registrar of the
Tribunal. That is to say, it would have been open to the
Tribunal itself to tax or settle the amount of the costs.
Alternatively, the Tribunal could have ordered that the costs
be taxed by the Registrar or a Deputy Registrar. In my
opinion, this power was not relevantly exercised in the
present case. Rather, as I would read the reasons of the
Tribunal, the Tribunal took the view that it has a discretion,
one which is often exercised in the ordinary course of

judicial proceedings, to deprive a party of a portion of his

or her costs. I accept that the language used by the Tribunal
is not entirely clear on the point. Certainly the Tribunal
did refer to the quantum of costs as being a matter within its
discretion. It may be arguable that what the Tribunal was
intending to do was to tax or settle the amount of the costs
in this particular respect, but I think that the better
analysis is that the Tribunal was not embarking upon that
exercise, which would involve procedure of a more formal kind.

As I have said, I have come to the conclusion that the	Tribunal was purporting to exercise a power to deprive a party
of a part of her costs. In my view, there was no power in the Tribunal to do this.
On the other hand, there was nothing at all wrong or improper, or excessive in law, in the Tribunal's making
observations on the particular matter for the benefit of the taxing officer. The point of course is, that such
observations are not in law binding on the Registrar in the absence of any power to bind.
It follows, in my view, that order 2 made by the Tribunal should be set aside. I so order; in lieu thereof it will be ordered that the costs of the proceedings incurred by the applicant shall be paid by Comcare.
I order that the respondent pay the applicant's costs of ground 14 of the grounds of appeal (that is, the present question) but I further order that the applicant pay the respondent's costs of the other grounds of appeal.

I certify that this and the preceding five

( 5 ) pages are a true copy of the Reasons

for Judgment herein of his Honour Mr.

Justice Beaumont.

Associate /$@L@ $;-.I Dated: 8 March 1994