Slater and Telstra Corporation Limited
[2004] AATA 1207
•17 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1154
GENERAL ADMINISTRATIVE DIVISION ) Re GORDON SLATER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date17 November 2004
PlaceBrisbane
Decision The Tribunal directs that:
(i) each party bears their own costs in applications numbered Q1998/1300 and Q1999/1303;
(ii) in relation to application number Q01/1154, the respondent pay the applicant’s costs, those costs to be assessed on a party and party basis to the extent of 50% of all professional costs which would be allowable under the Federal Court Scale as well as all reasonable and proper disbursements, apart from those relating to travel and accommodation associated with the applicant’s attendance at the hearing on 31 May 2002; and
(iii) in the absence of agreement, a Registrar of the Tribunal is to tax the bill of costs.
. .......[Sgd]......
R G Kenny
Member
CATCHWORDS
COMPENSATION – costs - jurisdiction of Tribunal to make decision in July 2002 – costs of proceedings - lengthy litigation - initial Tribunal decision overturned by Federal Court - final Tribunal decision, on remittal from Federal Court, made in a manner favourable to applicant - further appeal to Federal Court dismissed - discretion to require respondent to pay applicant’s costs for the first Tribunal hearing not exercised - discretion to pay costs for the remittal hearing exercised – application of General Practice Direction - apportionment to 50% of professional costs – no reimbursement for travel and accommodation expenses
Safety, Rehabilitation and Compensation Act 1998 ss 8, 14, 19, 37, 67
Administrative Appeals Tribunal Act 1975 s 33, 43
Colburt v Beard [1992] 2 Qd R 67
Gourvelos and Telstra Corporation Ltd (1994) AATA 9158A
Lees and Comcare (1999) 56 ALD 84
Norton v Comcare [2000] FCA 1446
Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599
Re Slater and Telstra Corporation Ltd [2002] AATA 597
Slater v Telstra Corporation Ltd [2001] FCA 1417
Telstra Corporation Ltd v Slater [2001] FCA 356REASONS FOR DECISION
17 November 2004 Mr R G Kenny, Member Background
1. In 1996, Gordon Slater was injured while working for Telstra Corporation Ltd (Telstra). He has since pursued a compensation claim against Telstra under the Safety, Rehabilitation and Compensation Act 1998 (the Compensation Act).
2. The matter came before the Administrative Appeals Tribunal (the Tribunal) on 13 March 1998. There, the Tribunal determined that Mr Slater was partially incapacitated for work but fit for full-time work in suitable employment. The Tribunal remitted the matter to Telstra with a direction that it determine what would be suitable employment for Mr Slater pursuant to the terms of section 19 of the Compensation Act.
3. On 14 October 1998, Telstra determined a list of what it considered to be suitable employment. The decision-maker adopted seven occupations identified in a report prepared by Work Directions Australia (WDA) and added an eighth, namely, a clerical position. The decision-maker also determined that Mr Slater had no entitlement to compensation under section 19 of the Compensation Act. The decision was affirmed on 10 November 1998 and Mr Slater’s application for review of that decision came before the Tribunal in August 1999. On 12 November 1999, the Tribunal varied the decision in relation to what was suitable employment by limiting the range to the seven options identified in the WDA report and remitted the matter to Telstra to calculate compensation payments. It also directed Telstra to provide vocational counselling and a rehabilitation or some other form of program pursuant to section 37 of the Compensation Act, with the aim of retraining Mr Slater for his chosen occupation.
4. On 28 February 2001, the Federal Court upheld an appeal by Telstra: see Telstra Corporation Ltd v Slater [2001] FCA 356. The matter then went before the Full Court of the Federal Court (Tamberlin, Mansfield and Emmett JJ) which, on 11 October 2001, upheld the appeal in part and directed that “the matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law and in accordance with these reasons”: see Slater v Telstra Corporation Ltd [2001] FCA 1417.
5. The remittal hearing was held on 31 May 2002. In its decision on 19 July 2002, the Tribunal determined that, for the overall period from 1 October 1997 until June 2002, compensation was payable to Mr Slater only in the period from 1 October 1997 until 31 August 1998 at the rate of $19.82 per week: see Re Slater and Telstra Corporation Ltd [2002] AATA 597. It also determined that a rehabilitation program should not be made available to him. The Tribunal reserved its decision on the matter of costs.
Appearances and Evidence
6. In the present hearing, Mr Slater gave evidence and made submissions by telephone and, after the hearing, in writing. Mr R Dickson, of counsel, appeared for Telstra. The following material was taken into evidence:
exhibit 1 - minute of a Tribunal directions hearing on 10 April 2002;
exhibit 2 - minute of a Tribunal directions hearing on 30 April 2002;
exhibit 3 - a letter, dated 16 April 2002, by the applicant;
exhibit 4 - a letter, dated 7 March 2002, by Kevin Standish, solicitor;
exhibit 5 - an affidavit, dated 2 August 2004, by Paul Johnston; and
exhibit 6 - part of the transcript of proceedings from the Tribunal hearing on 25 August 1999.
7. Attached to his written submission, dated 22 October 2004, Mr Slater provided the following:
e-mail messages dated 17, 19 and 22 April 2002;
a letter, dated 15 April 2002, by Kevin Standish, solicitor;
a letter, dated 24 April 2002, by Mr Slater;
a letter, dated 4 March 2002, by the Deputy Registrar of the Tribunal; andan extract from the transcipt of the Tribunal proceedings on 31 May 2002.
Issues for Determination
8. This hearing relates to whether a costs order should be made in respect of proceedings of the Tribunal in August 1999 and in May 2002. Mr Slater submitted that consideration also needed to be given to a preliminary issue of whether the Tribunal had jurisdiction, in the hearing conducted on that latter date, to deal with the calculation of compensation payments to him.
Jurisdiction
9. Mr Slater submitted that, as it was not a primary decision-maker under the Compensation Act, the Tribunal had no capacity to make a decision in relation to compensation payments until the responsible authority, Telstra in this case, made a reviewable decision on that matter.
10. The Tribunal made its decision in relation to the merits of this matter on 19 July 2002, although there is authority for the view that the Tribunal is not functus officio until after it has made an order for costs: see Gourvelos and Telstra Corporation Ltd (1994) AATA 9158A. However, the Tribunal’s decision has since been affirmed by the Federal Court: see Telstra and Slater [2004] FCA 476. No further review of that decision has been sought by Mr Slater.
11. Part VI of the Compensation Act makes provision for the Tribunal to review the respondent’s decisions after a two-tiered process has been followed. This involves an initial determination under section 61 and a re-determination under section 62. The ambit and limits of the jurisdiction of the Tribunal in the third stage of review under section 64 of the Compensation Act were described by the Full Court of the Federal Court (Wilcox, Branson and Tamberlin JJ) in Lees and Comcare (1999) 56 ALD 84 at 93 as follows:
“39 In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”
12. In this matter, the initial determination and re-determination were made on 14 October 1998 and 10 November 1998, respectively. The methodology adopted by the decision-maker in undertaking the exercise required by section 19 of the Compensation Act in the re-determination was criticised by the Full Court: see Telstra Corporation Ltd v Slater [2001] FCA 356 at paragraph 18. Nonetheless, that decision-maker did make a decision that compensation was not payable to Mr Slater under the Compensation Act.
13. It is also the case that this matter was remitted to the Tribunal by the Full Court with specific directions. It said that, in order to determine whether Telstra had a liability to pay compensation, it was necessary to compare two amounts:
(a)the amount of Mr Slater’s normal weekly earnings with Telstra, as calculated under section 8 of the Compensation Act (NWE); and
(b)the amount per week (if any) that Mr Slater is able to earn in suitable employment (AE) as provided for under section 19 of the Compensation Act.
14. The Full Court referred to the task of the Tribunal at the hearing in August 1999 and said:
“20. The Tribunal concluded that Telstra's determination evidenced a basic and fundamental misconception of the requirements of the Act. In so far as the decision-maker failed to make such a determination, that was so. The appropriate course for the Tribunal, therefore, was either to make such a determination itself or to remit the matter to Telstra to enquire into and determine those two amounts in order to make a determination in accordance with s 19 of the Act. However, it does not appear to have adopted either course. To that extent, it erred in law.”
15. The Full Court also referred to the provision of vocational counselling and a rehabilitation program and said:
“21. In so far as the Tribunal directed Telstra to provide vocational counselling and to provide a rehabilitation program, the Tribunal appears to have misconceived the operation of s 37 of the Act. Section 37 confers a discretion on Telstra to make a determination that an employee should undertake a rehabilitation program and, where it so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. It is not obliged to do so. Mere failure to do so was not a neglect by Telstra of its statutory obligation.
22. On the other hand, there is no indication that the decision-maker turned her mind to the exercise of the discretion conferred by s 37 of the Act. The appropriate course for the Tribunal was to give consideration to that question and decide whether to exercise the discretion vested in Telstra or to remit the matters to Telstra to consider whether the discretion should be exercised. The Tribunal erred in so far as it found that Telstra had an obligation to provide a program.”
16. The Full Court made specific reference to what the Telstra decision-makers in the two-tiered process under Part VI of the Compensation Act had done. Nonetheless, it held that the appropriate course for the Tribunal was either to undertake the exercise required by section 19 of the Compensation Act itself or to remit the matter to Telstra to do so. In the decision of 19 July 2002, what the Tribunal did, in dealing with the matters remitted to it, was to give effect to that direction of the Full Court. At that hearing, Mr Slater’s legal representative, Mr Porter, submitted that the calculation should be made and also that a decision should be made in relation to rehabilitation. The Tribunal completed the calculation exercise required by section 19 of the Compensation Act and determined that compensation was payable to Mr Slater from 1 October 1997 until 31 August 1998 at the rate of $19.82 per week. It also determined that a rehabilitation program should not be made available to him under section 37 of the Compensation Act (see para 5 above).
17. Thereafter, Mr Slater appealed that decision of the Tribunal to the Federal Court where, on 23 April 2004, Spender J dismissed his appeal: see Telstra and Slater [2004] FCA 476. His Honour said (at para 54):
“In my opinion, the Tribunal properly addressed the matters remitted by the Full Court to it for consideration, and properly dealt with those matters.”
18. Then, at para 67, His Honour concluded:
“In my judgment the Tribunal carefully and comprehensively approached the task which the Full Court had remitted to it, and made findings which are unimpeachable for error of law. The findings made were open to it on the material before it. On the whole of the material, including the very extensive and detailed submissions of the applicant, I am not satisfied that any error of law has been demonstrated in the decision of the Tribunal, the subject of this application.”
19. I do not accept the submission of Mr Slater that the Tribunal did not have jurisdiction to deal with the matter at the hearing on 31 May 2002. Accordingly, the Tribunal must detemine the issue relating to costs.
Costs
20. The general rule in relation to costs in proceedings under Part VI of the Compensation Act is set out in sub-section 67(1). This is, the costs incurred by a party to proceedings are to be borne by that party. That position pertains subject to the remainder of the provision and an award of costs may be made in some circumstances. Insofar as relevant, sub-sections 67(8) and (9) of the Compensation Act read:
“(8) 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.
(9) Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority.”
21. The first of those provisions confers a discretion on the Tribunal to order the costs or part of the costs of proceedings to Mr Slater. That discretion may only be exercised where a decision favourable to him has been made. On the other hand, sub-section 67(9) of the Compensation Act admits of no discretion and costs must be awarded if the terms of that provision are met.
Submissions
22. The matter heard in the Tribunal on 31 May 2002 was allocated the file number Q01/1154. It is not disputed that an order for costs should take into account proceedings related to that file reference. Mr Slater submitted that, in addition, an order should be made in relation to all of the proceedings commencing with those before the Tribunal in August 1999 and decided on 12 November 1999 (Q98/1300 and Q99/1303). Mr Dickson submitted that these earlier matters were not before the Tribunal for consideration as to costs.
23. Mr Dickson submitted that, although the Tribunal in Q01/1154 set aside the decision under review and determined that compensation was payable to Mr Slater, this did not necessarily mean that the decision was made in a manner favourable to him. He referred to the relatively low amount of the weekly compensation payment, $19.82, which was ordered and the relatively short duration of the period in which the payment was to be made, from 1 October 1997 until 31 August 1998, amounting to a total of less than $1,000. He also submitted that a significant part of Mr Slater’s case had been that he was entitled to have overtime payments taken into account when calculating his NWE and that he should be provided with an oppportunity to undergo rehabilitation. Mr Dickson noted that he had been unsuccessful in both of these aspects. He submitted that no order for costs be made or, alternatively, that costs should be apportioned to reflect the minor extent to which the decision favoured Mr Slater. In support of his contentions, he cited the decision of the Full Court of the Supreme Court of Queensland in Colburt v Beard [1992] 2 Qd R 67. Mr Dickson also submitted that a scale of costs less than that provided for in the Tribunal’s General Practice Direction should be utilised.
24. Mr Dickson also submitted that, in the event that a costs order was made, it should not include any component of travel or accomodation expenses incurred by Mr Slater in travelling from the United Kingdom to Australia for the hearing in May 2002. He submitted that the decision to attend was one made by him without direction by Telstra or the Tribunal and that, in any event, his decision to attend the hearing was of no value because he did not give evidence.
25. Mr Slater submitted that he was entitled to all of his costs for the proceedings Q98/1300 and Q99/1303 and Q01/1154. He submitted that this included his travel and accomodation expenses associated with attending the hearing in May 2002 because he had been directed to do so by the Tribunal at telephone directions hearings held in April 2002. Whilst conceding that he did not give evidence at the hearing, Mr Slater submitted that this was the fault of the Tribunal or of Telstra who were in a position to call him as a witness but chose not to do so.
26. Mr Slater made reference to a letter, dated 27 July 1998, from Telstra Superannuation Pty Ltd, where he was advised that his claim for a total and permanent invalidity benefit had been successful (see annexure to exhibit 5). On 2 August 2004, Paul Johnston completed an affidavit (exhibit 5) where he stated that he was employed by GIO Australia and that he had been advised, on 3 June 2004, that Mr Slater’s claim had been succesful. He said that GIO Australia was separate from Telstra Superannuation Pty Ltd and that GIO Australia had no control over documents passing between Telstra Superannuation Pty Ltd and Telstra. He also said that he was not aware of the acceptance of the claim as at the date of the Tribunal’s hearing in May 2002. Mr Johnston stated that if he had been aware of the acceptance of claim he would have taken it into account in calculating Mr Slater’s NWE entitlements. It was contended by Mr Slater that Telstra was aware of this claim in 1999 and he referred to the transcript of the proceedings of the Tribunal in 1999 (exhibit 6) where it was noted as having been made in 1997. Mr Dickson submitted that this had no bearing on the matter of costs and I accept his submission in that regard.
Proceedings to which the Issue of Costs Relates
27. In Slater v Telstra Corporation Limited[2004] FCA 476, Spender J noted that Q01/1154 was the file number given to the matter remitted to the Tribunal and that this was concerned with aspects of the earlier proceedings before the Tribunal which had been allocated the file numbers Q1998/1300 and Q1999/1303 (at para 49). Therefore, the remitted proceedings Q01/1154 were a continuation of those in 1999 (Q98/1300 and Q99/1303). In deciding those matters in 1999, the Tribunal made no order as to costs and, in that situation, it can be assumed that the issue of costs was reserved: see Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599. In Norton v Comcare [2000] FCA 1446, Drummond J dealt with the situation of costs of a Tribunal hearing where the decision is overturned on appeal in the Federal Court and remitted for determination. His Honour said (at para 7):
“… the proceedings initiated by the applicant, which were initially dismissed by the Tribunal, remain on foot in view of the orders made by me on the appeal. If, on redetermination, the Tribunal finds in favour of the applicant and makes an order within s 67(8)(a) or (b) of the Safety,Rehabilitation and Compensation Act, then the discretion conferred by that provision on the Tribunal will be enlivened and it will then be for the Tribunal to decide whether to order ‘that the costs of those proceedings’ - ie, the proceedings originally commenced by the applicant – ‘incurred by the claimant, or a part of those costs, shall be paid by’ the respondent. In that event, it will be for the Tribunal to decide whether the applicant should recover the whole of his costs of the entire proceedings in the Tribunal or whether he should only have his costs of the rehearing or some other part of his costs of the entire proceedings in the Tribunal.”
28. I am satisfied that consideration may be given to the costs associated with the Tribunal proceedings from August 1999 onwards identified by file numbers Q98/1300, Q99/1303 and Q01/1154. Of course, that does not mean that costs will be ordered for all of those proceedings because, as noted by Drummond J in Norton v Comcare (above), this remains a matter of discretion for the Tribunal.
Relevant Provision in the Compensation Act
29. The relevant provision for determining costs in this matter is sub-section 67(8) of the Compensation Act. Sub-section 67(9) of the Compensation Act applies only where a decision is set aside and the matter is remitted to the decision-maker. That provision is not applicable to the 1999 proceedings because the decision under review was not set aside by the Tribunal at that time but, rather, was varied. A clear distinction is made in section 43 of the Administrative Appeals Tribunal Act1975 (the AAT Act) between the power of the Tribunal to vary a decision and to set a decision aside. Sub-section 67(9) of the Compensation Act is not applicable to the 2002 proceedings because the Tribunal at that time did not remit any matter to Telstra for re-determination.
Exercise of Discretion
30. The Tribunal in Q01/1154 determined that Mr Slater be paid compensation in the period from 1 October 1997 until 31 August 1998 at the rate of $19.82 per week. This was substantially less than what formed the basis of submissions to the Tribunal at that hearing. I accept the submissions of Mr Dickson that Mr Slater was unsuccesful in obtaining recognition of overtime payments and that he was not provided with counselling or rehabilitation. Nevertheless, the decision of the Tribunal placed Mr Slater in a more favourable position than he was in at the time of the reviewable decision where it had been decided that no compensation was payable to him.
31. In its decision in 1999 (Q98/1300 and Q99/1303), the Tribunal varied the decision under review by removing one form of employment, namely the clerical position, from the list in the decision under review. The Tribunal also directed that vocational counselling and rehabilitation be provided by Telstra. However, the decision in relation to forms of employment was overturned on appeal by Spender J and that part of his Honour’s judgement was not called into question by the Full Court. Further, the additional mode of employment added by Spender J was retained in the suitable employment options determined by the Tribunal in Q01/1154. While the initial removal of one employment option may be considered as being favourable to Mr Slater when the decision was made, its subsequent replacement and retention in the list of suitable employment options means that no such favourable component of the decision remained. Also, as a result of the decision in Q01/1154, counselling and rehabilitation were not necessary.
32. I am satisfied that there was no favourable outcome to Mr Slater which can be attributed to the 1999 hearing of the Tribunal and that the final decision in 2002 did not depend on any of the matters resolved in the earlier hearings. While it is the overall outcome which determines whether there has been a decision fovourable to Mr Slater, I am satisfied that the presumptive position provided for in sub-section 67(1) of the Compensation Act should apply to proceedings relating to file numbers Q98/1300 and Q99/1303. This means that there should be no order for costs in relation to them because of the absence of any contribution by those proceedings to the final result.
33. The discretion in sub-section 67(8) of the Compensation Act should be exercised for proceedings relating to file numbers Q01/1154. The Tribunal’s General Practice Direction makes provision for costs, in full or in part, under the Compensation Act in the following way:
“Unless the order determines otherwise, the costs payable may include:
§witness expenses at the prescribed rate;
§all reasonable and proper disbursements; and
§75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court Scale.
Costs will be assessed on a party and party basis.
Costs may be agreed between the parties. Where there is no agreement, a Registrar of the Tribunal will tax the bill, but may refer any question for the direction of the Tribunal. Either party may apply to the Tribunal for a direction on any question related to costs, before the taxation is concluded.”
34. I have noted the submissions of Mr Dickson that travel and accomodation costs should not be included in the costs order, that only a proportion of Mr Slater’s costs for Q01/1154 should be reimbursed, and that the scale of costs should be other than the Federal Court Scale.
35. Mr Slater submitted that, in telephone directions hearings in April 2002, he had been directed by the Tribunal to attend the hearing in May 2002. In evidence were minutes of the directions hearings conducted on 10 April 2002 (exhibit 1) and 30 April 2002 (exhibit 2). Mr Slater objected to the admission of these documents. As I read his written submission dated 22 October 2004, he objected because the authorship of the notes was uncertain and because of confusion over whether he or his legal representative, Mr Porter, took part in them. I accept that the identity of the minute-taker at the meeting on 10 April 2002 is not revealed on the document. But that is not the case with the notes relating to the second meeting. Section 33 of the AAT Act provides that the Tribunal is not bound by the rules of evidence and that it may inform itself on any matter in such manner as it thinks appropriate. The minutes form part of the record of Mr Slater’s involvement with the Tribunal and I am satisfied that they may be relied on in this matter. However, I accept Mr Slater’s contention that he appeared by telephone on his own behalf at the first of those hearings and that, at the second hearing, he was represented by his solicitor, Mr Porter.
36. Prior to the directions hearings, the Tribunal’s Registrar wrote to Mr Slater on 4 March 2002 requesting him to discuss with the respondent the prospect of the hearing in May 2002 being conducted “on the papers” in which case neither party would appear in person. The letter also advised that, if Mr Slater wished to lead further evidence, he should so advise the Tribunal so that a directions hearing could be held. The directions hearing of 10 April 2002 related to a request by Mr Slater that the matter be resolved in his absence on the papers. This was resisted by the respondent. At that hearing, there was discussion about the nature of Mr Slater’s case and the issue of whether he was incapacitated for employment. Mr Slater was unable to assist the Tribunal by advising whether or not he was able to engage in full-time employment or whether or not he would be contesting this at the May 2002 hearing. In that context, the Tribunal member ruled that Mr Slater would need to give evidence at the proceedings in May 2002 and the request for the matter to be determined on the papers was rejected at that time.
37. Before the second directions hearing on 30 April 2002, there was an exchange of letters by facsimile transmission between Mr Slater, the respondent and the Tribunal. In a letter, dated 15 April 2002, the respondent’s solicitor requested that Mr Slater advise if he would be contending at the hearing in May 2002 that he was not fit for full-time employment. The letter stated that, if he did so, the respondent would be seeking to have the matter adjourned. By letter to the Tribunal, dated 16 April 2002, Mr Slater sought a further directions hearing and this was held on 30 April 2002. In his letter, Mr Slater requested that the May hearing be conducted by written submissions. He stated that it was not necessary for his personal attendance because there was “no departure from the determined matters”. This was a reference to the matter remitted to the Tribunal which was based on his being “fit for full-time work in suitable employment”. Although not clearly stated, this suggests that Mr Slater would not be contesting his fitness for full-time employment. However, the minute of the directions hearing on 30 April 2002 indicates that this was not clarified by Mr Porter who appeared on Mr Slater’s behalf. The Tribunal member at that hearing referred to Mr Slater’s refusal at the earlier directions hearing to advise whether he was able to work and declared that there was “no clear picture as to what he is seeking”. The Tribunal then directed that statements of facts and contentions be filed by each of the parties.
38. On 17 May 2002, Mr Slater provided his statement of facts and contentions. Therein, he again referred to his inability “to engage in any form of gainful employment” (page 5) and to his having “no ability to earn in suitable employment” (page 8). This left open the matters that were considered in the directions hearings and which, if they were to be raised at the hearing a fortnight later, would require evidence to be taken from Mr Slater. It was only in that context of the need to give evidence that the Tribunal member made the observation that Mr Slater would need to attend the hearing. I am satisfied that this does not amount to an unconditional direction by the Tribunal to Mr Slater to travel from the United Kingdom to Brisbane for the hearing. I am also satisfied that there was no direction by Telstra to Mr Slater that he should attend the hearing. The references by the Tribunal member at the directions hearing indicated that, if issues pertaining to Mr Slater’s credit concerning his capacity to undertake employment were to be raised, then these were not matters that were capable of resolution on the papers. As things stood at that time, these were matters that may well have been placed in issue at the hearing. In the result, they were not. At the hearing in May 2002, the Tribunal accepted the submission of Mr Porter that permanent incapacity was not a matter that was before it at the time. Accordingly, no evidence was led on that issue.
39. Mr Slater was present throughout the hearing and was not called to give evidence. Given that he was legally represented, his giving evidence was not a matter for Telstra or for the Tribunal. He was represented by his solicitor and it must be assumed that a conscious decision was made by Mr Slater, or by his solicitor or by both of them, for him not to give evidence. This was so even though there were issues of credit concerning him before the Tribunal. Indeed, several findings adverse to Mr Slater were made by the Tribunal on matters which may have been able to be resolved differently if he had given evidence. In the result, I am satisfied that the travel and accommodation expenses associated with Mr Slater’s attending the hearing in May 2002 should not be included in the order for costs.
40. The task of the Tribunal in Q01/1154 was to calculate compensation payments in accordance with section 19 of of the Compensation Act and to ascertain, in Mr Slater's case, the relevant NWE and AE amounts. In so doing, reference had to be made to issues relating to overtime payments and this decision went against Mr Slater. However, the consideration of overtime payments was an integral part of the analysis and one which did not represent a discrete issue which would justify some apportioning of his costs.
41. The issue relating to rehabilitation constituted a discrete inquiry by the Tribunal and, again, the decision went against Mr Slater in that matter. In the context of awarding costs, it is significant to note the reason given by the Tribunal for this:
“85. …The original WDA report, dated 4 September 1998, recommended vocational counselling only at a cost estimate of $660. In the extension to that report (at exhibit A7), there were added the following: case management of up to 20 hours at $110 per hour and job assistance of up to 10 hours at $110 per hour. The adjusted total was $3,960. However, in this case, the applicant is living in England and that may also impact on the cost of any program to be made available by the respondent. That factor also impacts on the viability of the program. However, I find that the attitude of the applicant in this case as demonstrated by his unwillingness to complete the assistance plan put in place for him by WDA in 1997 as being highly relevant. On balance, I am satisfied that a rehabilitation program should not be made available to the applicant by the respondent.”
42. Clearly, the decision in respect of rehabilitation was based, in part, on the unco-operative behaviour of Mr Slater and I am satisfied that an apportionment of costs for the matter Q01/1154 should be made in relation to the rehabilitation component of the proceedings. I am also satisfied that an apportionment should be applied because the final decision relating to compensation, though favourable to Mr Slater, represented an amount that was substantlially below that which was the basis of submissions on his behalf at the hearing. This apportionment is appropriately accommodated by reducing the usual terms of an order, as provided for in the General Practice Direction, from 75% to 50%. I am also satisfied that the appropriate Scale of Costs is that nominated in the General Practice Direction.
Decision
43. In the result, I am satisfied that there should be no order for costs in relation to proceedings associated with matters numbered Q1998/1300 and Q1999/1303. I am also satisfied that, in relation to application Q01/1154, costs should be assessed on a party and party basis to include all reasonable and proper disbursements, apart from those associated with travel and accommodation costs of Mr Slater, as well as 50% of all professional costs which would be allowable under the Federal Court Scale. In the absence of agreement, the bill of costs is to be taxed by the Registrar of the Tribunal.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: …………………………..
Administrative Assistant
Date of Costs Hearing 12 October 2004
Date of Decision 17 November 2004The Applicant appeared in person by telephone
Counsel for the Respondent Mr R Dickson
Solicitor for the Respondent Sparke Helmore
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