Rodriguez and Telstra Corporation Limited - [2001] AATA 1053

CATCHWORDS – COSTS – whether costs order should be made on a party and party basis or on an indemnity basis – whether offers of settlement should be taken into account in determining costs – whether conduct of parties should be taken into account in determining costs – whether costs order should be in accordance with the Tribunal's General Practice Direction – whether costs order should include counsel's fees – whether costs order should include senior counsel's fees – order for costs.

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 19, 24, 25, 26, 27, 38, 58, 60, 62, 64, 66 and 67
Evidence Act 1995 s. 131

Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Mifsud and Australian Postal Corporation ([1999] AATA 782, unreported, 19 October, 1999)
Miller v Australian Telecommunications Commission (1985) 5 FCR 480
Maley v Comcare ([1998] AATA 543, 21 July, 1998)
Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177; 71 ALR 287
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Stanley v Phillips (1966) 115 CLR 470

DECISION AND REASONS FOR DECISION [2001] AATA 1053

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/1286
GENERAL ADMINISTRATIVE DIVISION     )

ReGABRIEL RODRIGUEZ
Applicant

AndTELSTRA CORPORATION LIMITED
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
  Dr K P Kennedy OBE (Member)
Date:  3 December, 2001
Place:  Brisbane

Decision:The Tribunal decides that:
1.The respondent pay the applicant the costs of the proceedings No. Q97/66 in accordance with the following provisos:
(a)the proceedings encompass both the hearing and re-hearing;
(b)the costs be assessed on the basis of 75% of all professional costs, including counsel's fees, which would be allowable under the Federal Court Scale together with witness expenses at the prescribed rate and all reasonable and proper disbursements; and
(c)counsel fees for senior counsel are not allowable.

2.Those costs are to be agreed between the parties or, should they fail to agree, are to be taxed by the Registrar, a District Registrar or a Deputy Registrar of the Tribunal.
S A FORGIE
Deputy President

REASONS FOR DECISION

Earlier this year we (together with Miss Brennan, who was then a member of the Tribunal) considered an application by the applicant, Mr Gabriel Rodriguez, for review of three decisions made by the respondent, the Telstra Corporation ("Telstra"). Those decisions were generally concerned with whether or not compensation was payable to Mr Rodriguez under the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"). In the first of those decisions, Telstra denied liability to pay Mr Rodriguez compensation in respect of an aggravation of pre-existing cervical spondylosis on and from 4 March, 1994. That aggravation was of pre-existing cervical spondylosis arising out of an incident on 11 June, 1992. In the second, Telstra denied liability in respect of a permanent neck disability arising out of the same incident on 11 June, 1992. In the third, Telstra denied liability in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 1053
Decision Date: 3 December 2001

CaseChat Overview and Summary

In the matter of Rodriguez and Telstra Corporation Limited, the Administrative Appeals Tribunal (AAT) considered an application by Mr Gabriel Rodriguez for review of decisions made by Telstra Corporation denying compensation claims under the Safety, Rehabilitation and Compensation Act 1988. The AAT had previously affirmed Telstra's decisions, but the Federal Court remitted the matter for reconsideration of Mr Rodriguez's claim for compensation regarding a major depressive disorder. The AAT set aside Telstra's decision, found the disorder to be an injury under the Act, and adjourned consideration of costs. The issue before the AAT was whether Telstra should be ordered to pay Mr Rodriguez's costs and, if so, the terms of that order.

The AAT considered the complexity of the case, the conduct of both parties, and offers of settlement made by Telstra. Although both parties had entrenched positions, the AAT found that neither could claim the high moral ground. The AAT concluded that it had the power to order costs only in relation to the application concerning the major depressive disorder, as that was the only proceeding in which it made a decision more favourable to Mr Rodriguez. The AAT decided to make an order for costs, considering factors such as the reasonableness of the parties' conduct, the relevance of the costs to the proceedings, and the offers of settlement.

The AAT rejected the argument that costs should be awarded on an indemnity basis instead of a party and party basis, stating that such a decision should be based on the principles of the authorities rather than the trade-off between the removal of a claimant's right to interest and efficient hearings. The AAT also found that the complexity of the case did not justify an award of costs on a different basis from that normally ordered and that the engagement of two counsel was not necessary for the proper attainment of justice. As a result, the AAT decided that Telstra should pay Mr Rodriguez's costs of the proceedings on a party and party basis, with certain provisos, and that those costs should be agreed upon by the parties or, if necessary, taxed by the Registrar, a District Registrar, or a Deputy Registrar of the Tribunal.

Orders