Salters and Telstra Corporation Limited - [2003] AATA 1037

CATCHWORDS – PRACTICE AND PROCEDURE – COSTS – whether respondent should pay applicant’s costs of the proceedings or part of the proceedings – discretion of the Tribunal – costs awarded.

Safety, Rehabilitation and Compensation Act 1988 ss. 14, 38, 58, 60, 62, 66 and 67

Miller v Australian Telecommunications Commission (1985) 5 FCR 480

Comcare v Labathas Comcare v McMahon (1995) 133 ALR 744

Western Australian Cricket Association (Inc) [1986] ATPR 40-748
Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211

Smallacombe v Lockyer Investment Co Pty Ltd (1993) 114 ALR 568
Calderbank v Calderbank [1975] 3 All ER 333

Messiter v Hutchinson (1987) 10 NSWLR 525

Mifsud and Australian Postal Corporation [1999] AATA 782
Christina Beer and Australian Telecommunications Commission, AAT 5974, 20 June 1990

DECISION AND REASONS FOR DECISION [2003] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/809
GENERAL ADMINISTRATIVE DIVISION     )

ReDAVID McCAULEY SALTERS
Applicant

AndTELSTRA CORPORATION LIMITED
Respondent

DECISION

Tribunal:Deputy President S A Forgie
Dr K P Kennedy, OBE (Member)

Date:14 October, 2003
Place:Melbourne
Decision:The Tribunal orders:

1. the respondent pay the costs of the proceedings incurred by the applicant except in so far as they relate to:
(1)the directions hearings held on 29 and 30 May, 2001; and
(2)counsel’s and solicitors’ fees relating to one day of the hearing;

2. in the absence of agreement between the parties as to their quantum, the costs are to be taxed on a party and party basis and on the basis that:
(1)witness expenses are taxed at the prescribed rate;
(2)the applicant is entitled to all reasonable and proper disbursements; and
(3)professional costs, including counsel’s fees, are to be taxed at the rate of 75% of those that would be allowable under the Federal Court Scale of Costs; and

3. either party has liberty to apply.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 27 July, 1999, the applicant, Mr David McCauley Salters, applied for review of a reviewable decision of the respondent, Telstra Corporation Limited (“Telstra”) dated 9 June, 1999. That reviewable decision affirmed an earlier decision dated 3 March, 1999 that Telstra was not liable to pay Mr Salters compensation under s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) in respect of major depression. Submissions were made on a preliminary matter and a decision given on 23 August, 2000. Notices advising that the hearing of the application would be held on 17, 18 and 19 April, 2001 were sent to the parties on 20 December, 2000. A later notice was sent on 1 June, 2001 advising of the further hearing dates of 23 and 24 July, 2001.

A decision was made on 8 February, 2002 to:

“1. set aside the decision of the respondent dated 9 June, 1999; and
2.substitute a decision that:
(a)the respondent is liable to pay compensation in accordance with the Safety Rehabilitation and Compensation Act 1988 in respect of Major Depressive Disorder from 15…

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: [2003] AATA 1037
Decision Date: 14 October 2003

CaseChat Overview and Summary

In the case of Salters and Telstra Corporation Limited, the applicant, Mr. Salters, sought compensation for major depression under the Safety, Rehabilitation and Compensation Act 1988. The matter was heard by the Administrative Appeals Tribunal, with Deputy President S. A. Forgie and Dr. K. P. Kennedy. The Tribunal ultimately found in favor of the applicant, setting aside the respondent's decision and substituting a decision that Telstra was liable to pay compensation for major depression from 15 April 1998 to 13 December 1999. The issue before the Tribunal was whether Telstra should be ordered to pay Mr. Salters' costs of the proceedings or part of them.

The Tribunal found that the conduct of Mr. Salters' case was such that it unreasonably prolonged the proceedings. This was due to various factors, including the failure to provide witness statements and medical notes to Telstra in accordance with s. 66 of the SRC Act, the unavailability of medical witnesses, and the absence of a psychologist's report. The Tribunal concluded that Telstra should not be required to pay Mr. Salters' costs for the directions hearings and one day of hearing but should otherwise pay his costs in the usual manner. The costs were to be taxed on a party and party basis, with professional costs taxed at 75% of the Federal Court Scale of Costs.

The Tribunal's decision was based on the principles applicable in awarding costs, such as the reasonableness of the claimant's conduct and the exercise of discretion in the context of the specific case. The Tribunal considered the overall conduct of the case, including the failure to comply with s. 66, the unavailability of witnesses, and the offer of settlement made by Telstra. The Tribunal concluded that Telstra's costs liability should be limited to the costs of the proceedings that were reasonably incurred and that the costs should be taxed in accordance with the principles set out in the General Practice Direction.

Orders