Transport Accident Commission v O'Reilly
[1998] VSCA 106
•13 November 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 6416 of 1997
TRANSPORT ACCIDENT COMMISSION Appellant v WILLIAM O'REILLY Respondent
No. 6803 of 1997
TRANSPORT ACCIDENT COMMISSION Appellant v GLENDON IAN CAVANAGH Respondent
No. 7055 of 1997
TRANSPORT ACCIDENT COMMISSION Appellant v BARBARA MOORE Respondent
No. 8167 of 1997
TRANSPORT ACCIDENT COMMISSION Appellant v AMANDA JENNIFER DAVEY Respondent
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JUDGES: TADGELL, ORMISTON and CALLAWAY, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 25, 26, 27 August 1998 DATE OF JUDGMENT: 13 November 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 106
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COSTS - Administrative Appeals Tribunal - Discretion conferred by statute - Costs need not follow event.
APPEAL - Appeal on question of law - Exercise of discretion to award costs - Whether error of law.
Administrative Appeals Tribunal Act 1984, ss.50(1), (2), 52(1), (3).
Transport Accident Act 1986, ss.1, 11, 12, 47(7)(b), (7B), 70(3), 79(2), 83, 93, 132(4).
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APPEARANCES: Counsel Solicitors For the Appellant Mr A.G. Uren Q.C., TAC Law Pty. Ltd. Mr D.F.R. Beach and
Mr P.H. SolomonFor the Respondents O'Reilly Mr J.A. Riordan Riordan & Partners Cavanagh Mr M.A. Dreyfus Slater & Gordon Moore and Davey Mr D.C. Pulling Maurice Blackburn & Co.
TADGELL, J. A.:
The Court heard together four separate appeals by the Transport Accident Commission, each against a decision of the Administrative Appeals Tribunal with respect to costs. Two of the four respondents before us had claimed compensation for injury under the Transport Accident Act 1986. The other two, being each entitled to compensation under the Accident Compensation Act 1985 for injury suffered in a motor accident during the course of employment (and being therefore ineligible by reason of s.38 of the Transport Accident Act for compensation under that Act), applied to the Commission under s.47(7)(b) of that Act for a determination of the degree of impairment as a result of a "transport accident" with a view to recovering damages at common law. The Commission's decision had in each of the four cases induced the injured person to seek a review of it by the Tribunal. In each of the two cases in which compensation had been claimed under the Transport Accident Act the Tribunal confirmed the Commission's decision to disallow the claim but did not accede to the Commission's application that the unsuccessful applicant be ordered to pay the Commission's costs of the review. The Tribunal ordered instead that costs should lie where they fell. In one of the other two cases the Tribunal gave leave to the applicant to discontinue the review proceeding and in the other the applicant discontinued without leave; but in each of these two cases the Tribunal made an order that the Commission pay the applicant's costs.
The Commission now contends that each of the four orders with respect to costs was wrong and should be set aside and that, where appropriate, there should be a remitter for the making of a proper order. On 1 July this year, after the present appeals had been instituted but before they were heard, the Administrative Appeals Tribunal Act 1984 (which I shall call "the AAT Act") was repealed and the Administrative Appeals Tribunal ("the AAT") ceased to exist by virtue of s.310 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Act 52 of 1998). On the same day, by virtue of the Victorian Civil and Administrative Tribunal Act 1998 (Act 53 of 1998) the Victorian Civil and Administrative Tribunal ("the VCAT") was established to perform the functions of the AAT, among others. Any remitter would therefore be to the new Tribunal: Act 52 of 1998, s.312. Notwithstanding its repeal, I shall sometimes find it convenient in the course of these reasons to refer to the AAT Act as though it is extant.
Each of the impugned decisions was made last year by a deputy president of the AAT, so an appeal lay as of right to the Court of Appeal on a question of law: AAT Act, s.52(1) and (3). Section 52(1), in providing for an appeal "on a question of law", is to be taken to refer to a question of law that was involved in the decision the subject of the appeal: Transport Accident Commission v. Hoffman [1989] V.R. 197, at 199. Each of the Tribunal's decisions in question about the incidence of costs was necessarily pronounced in the exercise of a discretion and it is not immediately obvious that a question of law was involved in any of them. The essential theme of the argument for the Commission in each appeal was, however, that the Tribunal's statutory power to award costs is so confined that, prima facie at least, an award should follow the event, as in litigation in courts of law. The four subject decisions of the Tribunal did not proceed on that footing, and I think it can be accepted that the failure so to proceed involved a question of law, namely that of the correctness of the Tribunal's so proceeding, depending as it does upon the proper interpretation of its statutory power to award costs.
The costs philosophy concerning proceedings entertained by the AAT was not constant throughout its thirteen and a-half-year existence. When first enacted s.ss.(1) and (2) of s.50 of the AAT Act were in these terms -
"50(1) Subject to and in accordance with the regulations, the Tribunal may make such orders (if any) as to the costs in respect of a proceeding relating to a decision under a taxing Act as it thinks fit.
(2) In relation to any other proceeding, if the Tribunal is of opinion in a particular case that there are circumstances that justify it in doing so, the Tribunal may make such orders as to costs as the Tribunal thinks just."
When the Accident Compensation Act was enacted in 1985 there were added to s.50(1) of the AAT Act after "taxing Act" the words "or Part VII of the Accident Compensation Act 1985". The intention of s.50 immediately after that amendment was tolerably clear: in respect of proceedings relating to a decision under a taxing Act or Part VII of the Accident Compensation Act the Tribunal was empowered by s.s.(1) to make orders as to costs "as it thinks fit"; and otherwise an order for costs might be made as the Tribunal thought just only if it were of opinion in a particular case that there were circumstances justifying it in doing so: s.s.(2). When the Transport Accident Act 1986 was first enacted, therefore, a proceeding brought pursuant to it and coming before the Tribunal might have been the subject of a costs order of a kind authorised by s.50(2). So much could be derived from the terms of s.50(1) and (2) themselves but was confirmed by s.132(4) of the Transport Accident Act, which read -
"(4) Section 50(2) of the Administrative Appeals Tribunal Act 1984 has effect in relation to proceedings before the Tribunal relating to decisions under this Act subject to any regulations in force under sub- section (1)(g) of this section."
Section 50(2) of the AAT Act did not express the sole criterion for the Tribunal's exercise of an authority to make orders for costs in relation to proceedings under the Transport Accident Act. Section 79 of the latter, as originally enacted, provided that -
"If an applicant fails, without reasonable excuse, to give the further and better particulars requested by the Commission or fails to give them within a reasonable time, the Tribunal [semble upon an application pursuant to s.77 for review of a decision of the Commission] may take the failure into account when making an order for costs in respect of the proceedings."
What, if anything, that provision added to the Tribunal's power conferred by s.50(2) of the AAT Act is unclear. It did at least show, however, that s.50(2) was not to be treated as alone governing an order for costs in a proceeding under the Transport Accident Act. The Tribunal's power to award costs in relation to proceedings brought under the Transport Accident Act remained governed by s.50(2) and s.79 until 24 May 1988. On that date s.19(2) of the Transport Accident (Amendment) Act 1988 (Act 32 of 1988) took effect to amend the original s.79, by calling it s.s.(1), making presently immaterial amendments to it and adding, as s.s.(2) of s.79, the following provision -
"Subject to the regulations, the Tribunal may make such orders as to costs in respect of a proceeding under this Act as it thinks just, including an order requiring a representative of a party who appeared before the Tribunal to pay costs."
Section 79(2) remains in that form save that the reference to "the regulations" (which, it seems, were never made) was deleted by Act 52 of 1998, s.311 and item 95 of Schedule 1. It looks at first sight as though the intention of the Parliament in enacting the new s.79(2) might have been that it, along with s.79(1), instead of s.50(2) of the AAT Act, should govern the making of orders for costs by the Tribunal in respect of "a proceeding under this Act" - scil. the Transport Accident Act. Section 132(4) of the Transport Accident Act, however, was left to remain when s.79(2) was enacted. Harper, J. in Transport Accident Commission v. Tavares (1996) 9 V.A.R. 251, at 256, offered the opinion that the continued existence of s.132(4) was "only explicable on the basis that Parliament overlooked it when inserting s.79(2)" and that -
"By inserting s.79(2) the legislature clearly intended that the costs of proceedings under the Transport Accident Act should be dealt with on a different basis than that which was (and is) required by s.50(2) of the Administrative Appeals Tribunal Act."
His Honour appears to have reasoned that s.79(2) and s.132(4) could not live together, and that the former must be taken to have impliedly repealed the latter or that the former prevailed by virtue of s.83 (now repealed by Act 52 of 1998, as was s.132(4) itself). This view seems to assume that s.79(2) applies to all proceedings brought before the AAT under the Transport Accident Act. If I may say so, the assumption derives some justification from the apparently general terms in which s.79(2) is drawn. Section 79(2) never did apply, however, to proceedings by way of review by the AAT brought pursuant to s.70(3) of the Transport Accident Act, for s.82 excluded its application. There would seem, therefore, to have been work for s.132(4) to do throughout its life until its repeal. Until 1994 the AAT had no jurisdiction to review the determination by the Transport Accident Commission under s.47(7) of the Transport Accident Act of a degree of impairment of a person not entitled to compensation under the Transport Accident Act: Transport Accident Commission v. Clarke [1994] 1 V.R. 117. That lacuna was rectified by s.32 of Act 84 of 1994, which inserted s.s.(7B) into s.47 of the Transport Accident Act: and at the same time s.82 of the latter was amended, by way of the insertion of s.s.(2), with the effect that s.79(2) applied to proceedings in the AAT authorised by s.47(7B).
Leaving aside the last clause of s.79(2) of the Transport Accident Act, referring to a representative of a party, and the expression "(if any)" in s.50(1) of the AAT Act, the only relevant distinction between the two provisions is between "just" and "fit". This, I think, is in the context a distinction without a sensible difference. The practical effect, therefore, of the enactment of s.79(2) in 1988 was to equate the power of the AAT to award costs in respect of a proceeding under the Transport Accident Act to which s.79(2) applied and its power under s.50(1) to award costs in respect of a proceeding relating to a decision under a taxing Act or Part VII of the Accident Compensation Act 1985. At that stage of the development of the AAT (i.e. before an amendment of s.50(2) by Act 62 of 1991 with effect from 8 January 1992 to which I shall presently refer) its power to award costs was to make such orders as it thought fit (or just) in respect of proceedings relating to decisions under taxing Acts or Part VII of the Accident Compensation Act or certain decisions under the Transport Accident Act; and to make such orders as to costs as it thought just in relation to any other proceeding if it was of opinion in a particular case that circumstances justified it in doing so. The distinction between the power conferred by s.50(1) and s.79(2) on the one hand and that conferred by s.50(2) on the other was, as it seems to me, substantial. As I understand it the power conferred by s.50(2) was exercisable only where the circumstances of a particular case justified the making of a costs order whereas s.50(1) and s.79(2) did not contemplate that the very making of a costs order should be justified by circumstances. This interpretation of s.50(2) seems to be reinforced by the amendment made in 1992 (by Act 62 of 1991) which added to that sub-section after "any other proceeding" the words "each party is to bear its own costs but", thus emphasising that, in the absence of justifying circumstances, no order of any kind with respect to costs could be made. I therefore respectfully agree with Harper, J. in Transport Accident Commission v. Tavares, supra, at 256-7 that -
"There is an inconsistency between s.79(2) of the Transport Accident Act and s.50(2) of the Administrative Appeals Tribunal Act. In cases to which s.79(2) applies, the Tribunal may make such orders as it thinks just. By contrast, in cases to which s.50(2) applies, the Tribunal must, in general, allow costs to lie where they fall."
Section 50(2) imposes a prerequisite to the exercise of the power that it confers, namely that the Tribunal should be satisfied that there are circumstances justifying a party’s receiving an order for costs rather than bearing its own. I derive from s.50(2), either as originally enacted or as amended, no inhibition, however, in the exercise of the power. That is to say, if and when the Tribunal makes an order for costs under s.50(2) - the prerequisite to the exercise of the power to do so having been met - the exercise carries a wide discretion. The addition of the words to s.50(2) in 1992 did not alter or add to the meaning of s.50(1) or s.79(2), neither of which ever did carry any assumption that each party should bear its own costs.
Reliance was placed for the appellant on the decision of the New South Wales Court of Appeal in Ohn v. Walton (1995) 36 N.S.W.L.R. 77. In the judgments in that case are to be found some general statements about the exercise in favour of a successful party to proceedings of a wide discretionary power to award costs. The question at issue was whether, upon the dismissal of a complaint against a medical practitioner following an inquiry under the Medical Practitioners Act 1938 of New South Wales, the Medical Tribunal had erred in declining to award costs against the complainant, who was the authorised delegate of the Director-General of the New South Wales Department of Health. The Tribunal had by virtue of its constituting statute an unfettered power to award costs. Gleeson, C.J., at 79, appears to have assimilated disciplinary proceedings before the Medical Tribunal to curial proceedings, whether civil or by way of summary prosecution "in which orders for costs may be made". By reference in particular to the decision of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534 his Honour noted that "... the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made". His Honour laid it down that -
"When legislation confers a power to order costs it is, in the absence of any contrary indication, to be understood as conferring a power to be exercised for that purpose.
Two things follow:
(1)
The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement.
(2)
The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated".
His Honour concluded, without elaboration, that the Medical Tribunal had been wrong not to apply those principles in the case at hand and that, had they been applied, they would have resulted in an order for costs in favour of the practitioner. Powell, J.A., who expressed the same conclusion, regarded the position of the Medical Tribunal as "strongly analogous to that of a court in the conventional sense"; and held, at 81, that "... the principles which are to guide the Tribunal in the exercise of its discretion to award costs should be akin to those applied by a court in similar cases, it following that, in ordinary circumstances where a complaint against a medical practitioner has failed, the Tribunal should make an order for costs in the practitioner's favour". Cole, J.A., at 84-5, quoted passages from the judgments of Mason, C.J. and McHugh, J. in Latoudis v. Casey, which he took to be of "general application and should be applied by a tribunal such as the Medical Tribunal, absent contrary legislation or regulation ...". Mason, C.J., in one of the passages quoted, had said that "... in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant" in order to give effect to a fundamental principle that costs are generally awarded by way of indemnity to a successful defendant. McHugh, J., in the passage quoted, had said that "civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case".
It is, with respect, entirely understandable that the general principle for which Latoudis v. Casey stands - that in general an award of costs is to be seen as compensatory of a successful party, not punitive of an unsuccessful party - was held to apply in Ohn v. Walton and to govern the decision in that case. Moreover, the analogy between the position of the Medical Tribunal and that of a conventional court to which Powell, J.A. referred, and which each of the other judges by implication acknowledged, is readily discernible. It is less evident, however, that the principles applied in Ohn v. Walton are necessarily of general application to any and all proceedings "in which orders for costs may be made". I should not understand the judgment of Gleeson, C.J., despite his Honour's use of that formulation, as intending to embrace a rule of such amplitude. In any event it was unnecessary to lay down any such rule in order to decide the case at hand. It is one thing to say that the principles enunciated in the case of Latoudis v. Casey are of general application to analogous cases, but it is another altogether to say that all cases requiring the exercise of a discretionary power to award costs are analogous to that case. Manifestly they are not, as the High Court recently had occasion to recognise in Oshlack v. Richmond River Council (1998) 152 A.L.R. 83.
In Oshlack an individual representative of a group called the Lismore Greens had unsuccessfully sought in the New South Wales Land and Environment Court a declaration that a municipal council's consent to the subdivisional development of land constituting a koala habitat was void as against the developers. By statute the costs of the proceeding were "in the discretion of the Court". In the exercise of his discretion the primary judge refused to order the unsuccessful party to pay the costs of the council and the developers, largely on the ground that the proceeding had been commenced in the public interest. The Court of Appeal allowed an appeal by the council on the footing that the reasoning of the majority in Latoudis v. Casey, supra, entitled the council to its costs, the factor of the public interest being irrelevant to the matter. In the High Court Brennan, C.J. and McHugh, J. would have dismissed the appeal, on the footing that Latoudis governed the exercise of the primary judge's discretion; but Gaudron and Gummow, JJ. (jointly) and Kirby, J. distinguished it, apparently confining its application to cases of its own kind, namely those in which summary criminal proceedings have terminated in favour of a defendant, who should then ordinarily expect to receive compensation for costs. Gaudron and Gummow, JJ., at para.40, denied an absolute rule with respect to the exercise of a wide statutory power as to costs, such as that exercised by the primary judge, that "in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party". Their Honours also denied "any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party": ibid. Moreover, at para.43, their Honours denied "any absolute proposition that the sole purpose of a costs order is to compensate one party at the expense of another". Their Honours appear, at para.45, to authorise the construction of a wide statutory discretion as to costs by reference to the species of litigation in which it is being applied, so that "the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation". Taking that approach, their Honours regarded the nature of the litigation in the Land and Environment Court as justifying resort by the judge to the factors on which he relied for his decision as to costs.
Kirby, J., at paras.126 and 127, also accorded Latoudis a circumscribed application, declaring that it -
"... does not, and could not, lay down a general rule that the only consideration to be taken into account in the exercise of a statutory costs discretion is the compensation of the successful party for the recoverable expense to which it has been put by the litigation. ... Latoudis resolved a conflict of legal authority which had arisen in several Australian jurisdictions concerning the approach to be taken to a discretion conferred by legislation upon courts of summary jurisdiction to award costs in criminal proceedings terminated in favour of the defendant."
At para.132 Kirby, J. denied that Latoudis stood for -
"... a general rule governing the exercise of all unqualified statutory cost discretions, whatever the terms in which they were stated, whatever the context concerning the court and the purpose for which they were provided and whatever the peculiarities of the jurisdiction in which costs orders would play a part."
Kirby, J. did acknowledge, at para.134, that the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for costs incurred; and, because of that, "legal costs will usually be ordered in favour of the successful party. ... But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this will be incompatible with statutory language expressed in ... " the wide general terms of the statute under consideration. Accordingly -
"... although there are 'rules' or ordinary principles which will guide the donee of power in the exercise of the discretion, they cannot extinguish the element of discretion. They must not be allowed to harden into rigid or inflexible requirements."
Kirby, J. concluded that, given the statutory context and the clear purpose of the Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, "a rigid application of the compensatory principle in costs orders would be completely impermissible".
A reference to the reasons of the majority in Oshlack, and especially to the portions I have quoted, demonstrates that the general statements in Ohn v. Walton on which the appellant relied require qualification. In particular, a broad and unqualified statutory power to award costs may be exercisable in a particular case by reference to the nature of the proceeding and without any necessary presumption that a successful party should receive or that an unsuccessful party should suffer an order for costs.
It was fundamental to the appellant's submissions to us in each of the four appeals that there were no distinguishing features between the AAT and a court of law such as to justify a difference in the way in which the Tribunal and a court of law should exercise a discretionary power to award costs. That cannot be right as a general proposition: the powers of the AAT to award costs derived from a series of statutes couched in various terms. The applicable statute was ascertained by reference to the nature of the administrative decision that was the subject of review. By comparison, the nature of the discretionary statutory power given to a court to award costs in curial proceedings does not usually vary according to the nature of the particular case. The power of a court in this State to award costs is for the most part conferred by s.24 of the Supreme Court Act 1986, s.78A of the County Court Act 1958 or s.131 of the Magistrates' Court Act 1989, all of which are in essentially similar terms. The power of the AAT to award costs, apart from the provisions of s.50 of the AAT Act and s.79(2) of the Transport Accident Act, was to be found in such disparate enactments as the following: ss.58 and 69 of the Planning Appeals Act 1980; ss.58 and 61A of the Freedom of Information Act 1982; ss.98AA(8) and (9) and 99AD of the Accident Compensation Act 1985; s.91 of the Land Acquisition and Compensation Act 1986; s.150(4) and (5) of the Planning and Environment Act 1987; s.88(3) of the Mineral Resources Development Act 1990 and s.44(2) of the Architects Act 1991. Some of these provisions - s.79(2) of the Transport Accident Act 1986 is not among them - were repealed or substantially amended by Act 52 or Act 53 of 1998; and ss.109-111 of Act 53 of 1998 confer on the VCAT powers to award costs (in cases not otherwise provided for in separate Acts) that differ substantially from the powers that were conferred by s.50 of the now repealed AAT Act. The various provisions which conferred on the AAT power to award costs were far from uniform. Some, such as s.50(2) of the AAT Act and s.58 of the Planning Appeals Act, required in terms that ordinarily costs should lie where they fell but provided that the Tribunal might award costs if circumstances justified it; some, such as s.58 of the Freedom of Information Act, required in terms that ordinarily costs should lie where they fell but that the Tribunal might order that an applicant have an order for costs against the respondent, but not vice versa; s.88(3) of the Mineral Resources Development Act 1990 provided (and still provides) in effect that ordinarily a licensee must pay the costs of all parties, subject to exceptions allowing for the making of a discretionary costs order; the Accident Compensation Act 1985, by s.99AD, requires that in cases where it applies the Tribunal must award costs against the person against whom a determination is made; s.150 of the Planning and Environment Act 1987 confers a very limited discretionary power to order costs in favour of a person who has suffered loss or damage as a result of proceedings brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage.
Some, but not all, of these special statutory provisions that conferred powers on the AAT to award costs subsist to confer like powers on the VCAT. Otherwise, s.s.(1) of s.109 of Act 53 of 1998 provides (in substance as s.50(2) of the AAT Act did but, it might be said, less elegantly) that "... each party is to bear their own costs in the proceeding", subject to a limited power to make an order for costs conferred by s.s.(2) but subject to the hedges imposed by s.s.(3).
It is to my mind very clear that the diverse and disparate powers of the AAT to award costs were generally not to be assimilated to those of courts of law. Moreover, so far as appears from its own decisions to which we have been referred, the AAT was never disposed to proceed as though they were. In particular, it seems perspicuously plain that the AAT's powers to award costs were not designed pre-eminently to create or justify any expectation by a successful party to be compensated by an order for costs against an unsuccessful party or otherwise. This was, in my opinion, especially so in the case of proceedings for review by the AAT of decisions of the Transport Accident Commission, notwithstanding the width and generality of the power to award costs conferred by s.79(2) of the Transport Accident Act in cases to which it applied. That s.50(2) of the AAT Act applied to govern the matter of costs in review proceedings authorised by s.70(3) of the Transport Accident Act fortifies that opinion. Several other factors also fortify it, as I shall briefly mention.
The fundamental purpose of the enactment of the Transport Accident Act, as stated in its s.1, was "to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents" - being incidents "directly caused by the driving of a motor car or motor vehicle, a railway train or tram": s.3(1). As is well understood, it is a no-fault scheme and it provides for a curtailment of the common law rights of persons in whose favour it applies: s.93. That is to say, beneficiaries of the scheme cannot unilaterally opt out and resort to the common law. The objects of the Transport Accident Commission, set out in s.11 of the Act, include the management of the scheme as effectively, efficiently and economically as possible, and "to ensure that appropriate compensation is delivered in the most socially and economically appropriate manner and as expeditiously as possible". Section 12 provides that the Commission's functions include the administration of the Transport Accident Fund, which it is required by s.27(1) to establish and maintain, and out of which it is to pay compensation to persons entitled to it: s.27(3) and s.12(1)(d). Another function of the Transport Accident Commission is "to defend proceedings relating to claims for compensation": s.12(1)(c). This no doubt refers to common law proceedings authorised by or under s.93. It may also cover proceedings by way of administrative review of the Commission's decisions. Assuming that it does, I should not regard it as providing an indication that the proceedings of that kind before the AAT (or indeed, now, the VCAT) are to be likened to civil litigation for the purpose of an exercise of a discretionary power to award costs. Such a proceeding by way of review is - or is likely in many respects to be - an element of the management by the Commission of the transport accident compensation scheme established by the Transport Accident Act. As I had occasion to point out in Transport Accident Commission v. Bausch, unreported, C.A. 10 March 1998, at 18-19, the scheme "necessarily carries with it an entitlement on the part of a disappointed claimant to have an administrative decision by the Commission properly reviewed by the Tribunal; and that carries a corresponding obligation on the part of the Transport Accident Commission, as the primary administrative decision-making body, to assist the Tribunal in making the review." The Commission is a party to the review proceeding (s.32(1)(b) of the AAT Act) but the review is in no sense to be treated as raising a lis or amounting to an adversarial contest. The review proceeding is not to be regarded as brought in invitum; nor is the Commission akin to a defendant or respondent in civil litigation or in summary proceedings, or a respondent to disciplinary proceedings as in Ohn v. Walton. A proceeding by way of review by the AAT of a decision of the Transport Accident Commission is not, in my opinion, to be treated as a litigious proceeding at all of the kind spoken of by McHugh, J. in Latoudis, at 566, when his Honour said -
"An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out of pocket expenses reasonably incurred in connection with the litigation ...".
His Honour went on, at 567, to observe that the rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for the costs incurred in bringing or defending the action. Insofar as the appearance of the Transport Accident Commission before the AAT is to be seen as an incident of the management of the statutory scheme, the proceeding cannot be regarded as analogous to a curial proceeding. For this reason, and because the AAT is or was not a court, the practice of the courts over the years in exercising their powers to award costs is of doubtful relevance: cf. Walton v. McBride (1995) 36 N.S.W.L.R. 440, at 470, per Cole, J.A. In such a case it is by no means obvious that in the ordinary run of proceedings it would be just and reasonable that the Commission should be reimbursed for the costs it incurs in the management or administration of the scheme. It might be said with equal justification that a person making a claim pursuant to the statutory scheme, and reasonably and in good faith pressing it, albeit unsuccessfully, within the limits provided by the constituting statute, should not on that account necessarily be out of pocket. In those circumstances it might be reasonable to regard the Transport Accident Commission as having incurred administrative costs in the management of the scheme rather than as a "successful party" to whom costs should be paid by the applicant. That of course is not to say that, a power to award costs having been given to the AAT, an unsuccessful applicant might not suffer an order for costs in an appropriate case. The task of deciding what is an appropriate case is, however, that of the AAT, without any predisposition against the unsuccessful applicant. Parity of reasoning should, in my opinion, lead to a conclusion that a successful applicant should not necessarily receive an order for costs and that an unsuccessful applicant should not necessarily be denied an order for costs. The practice of the AAT appears to have been consistent with this view.
In the course of a forcefully argued written reply, counsel for the appellant sought to distinguish the nature of the AAT's discretion to award costs in cases dealing with a claim for compensation under the Transport Accident Commission Act and in cases where compensation is not so sought. The submission was in effect that, at least in the cases of the two respondents who, with a view to claiming common law damages, had applied to the Commission for a determination of the degree of impairment, the Commission should not in principle be in a different position, upon a review before the Tribunal, from any other defendant or insurer. Counsel pointed out that, had application been made to a court under s.93(4)(d) of the Transport Accident Commission Act for leave to bring proceedings at common law, s.93(12)(a) would prima facie have required an award of costs against the unsuccessful party. Again, if a common law claim for damages should fail, s.93(12)(b) requires prima facie that costs follow the event. I do not consider that the distinction sought to be made is sufficient to place the Transport Accident Commission in a position equivalent, so far as concerns costs, to that of the common run of litigants. The Commission comes before the AAT, upon a review of a decision made under s.47(7)(b), not in any real sense as a reluctant party but essentially as a functionary whose decision, made in the ordinary course of administration of a statutory scheme, is in that capacity subject to a routine review. Admittedly the scheme is not, so far as is relevant to this point, a no- fault compensation scheme; but it is one an incident of which is to deny a common law right to claim damages unless a statutory prerequisite is met. My comments in the last paragraph about reimbursement of the Commission's costs incurred in the administration of a statutory scheme can apply equally to all four of the cases which have produced these appeals. Moreover, the provisions of s.93(12), on which counsel for the appellant relied, may very well support the view I take: applications to or common law proceedings in a court, as contemplated by the statutory scheme, are the subject of particular provisions in the Transport Accident Act as to costs, whereas an application to the AAT by way of review under s.47(7B) of an assessment under s.47(7)(b) is subject to no such particular provisions but to the provisions of s.79(2).
It follows that I would reject the fundamental submission made on behalf of the appellant: the AAT did not in my opinion err in law in any of the four review proceedings by failing to make an order against the applicant on the ground that the administrative decision the subject of review was not upset. While relying in all four appeals on the fundamental argument that I have rejected, the appellant alleged other errors that were not common to all. I shall therefore deal as briefly as may be, so far as necessary, with each case individually.
Transport Accident Commission v. O'Reilly
William O'Reilly made a claim under the Transport Accident Act for compensation for injury sustained on 14 December 1992 at the age of about 38 years. He was on that date a passenger in a very old seven or eight tonne Dodge truck which overturned at the Granite Park speedway at Seymour. A 1,000 gallon water tank was mounted on the back of the truck, whose function was to water the track preparatory to its use. The truck was being driven by the tenant of the speedway at about 20 kms. per hour when a tyre went flat and the heavy, unstable load surged, causing the vehicle to capsize. The truck, in very poor repair, was kept and used only at the speedway and was neither registered nor roadworthy. The claim for compensation was rejected by the Transport Accident Commission and the applicant sought a review of the decision by the AAT. A preliminary issue was put to the Tribunal, apparently by consent, namely whether the incident in which the applicant was injured constituted a "transport accident" within the meaning of the Transport Accident Act. This resolved itself essentially into a question of fact - whether the Dodge truck was a "motor vehicle" which, according to the relevant statutory definition, means "a vehicle which is used or intended to be used on a highway or in a public place and which has its own motive power ...": Road Safety Act 1986, s.3(1). Applying established authority, the learned deputy president of the Tribunal decided that the agreed evidence "does not establish that this truck was intended for use on the highway nor does the evidence establish actual or intended use in a public place". It followed that the incident was not shown to be a "transport accident" and the proceeding was to that extent disposed of adversely to the applicant. The Commission sought an order that the applicant pay the Commission's costs. The deputy president observed that while an applicant under the Transport Accident Act who is successful before the Tribunal might expect to receive an order for costs, there is "a certain disconformity" in the manner in which the Tribunal was wont to exercise its discretion under s.79(2) of the Transport Accident Act. This the deputy president explained by saying that -
"... an applicant was seeking a statutory entitlement, namely compensation and that if such an applicant were successful, the benefit of that compensation would be diminished if he was not offered an indemnity were his costs obtained. The same principle does not appear to apply in favour of a successful respondent".
The deputy president compared s.79(2) of the Transport Accident Act and s.50(2) of the AAT Act and recognised that "... s.79(2) would appear to suggest a greater operation for the principle that costs follow the event than it can possibly have in circumstances where s.50(2) applies"; but that nevertheless s.79(2)
"... operates in the context of the general principles which govern this Tribunal and one of those principles is that the Tribunal should provide an inexpensive and expeditious means whereby citizens may resolve their disputes with governmental authorities. The Tribunal would cease to perform that role if the same threat of costs in the event of an adverse result applied to unsuccessful applicants in this Tribunal as it applies to unsuccessful plaintiffs in the court system. In my view, therefore, there are good reasons for applying the favourable treatment to applicants which the respondent's submissions today have identified".
Recognising that the substantive question that he had been asked to resolve had been a very difficult one, the deputy president said -
"... the application of the definition of motor vehicle and hence the definition of transport accident is one of the most difficult and vexing questions that has to be addressed in this jurisdiction. The present matter was accordingly a fair fight and I think that there is nothing which should be faulted in the conduct of the applicant in prosecuting this claim."
The deputy president concluded, therefore, that "a just order is that there be no order as to costs".
The appellant's specific criticisms of these reasons were in effect three (and I summarise them): first, that it was not open to the AAT to exercise its discretion as to costs by reference to different considerations in the case of the Transport Accident Commission than in the case of applicants for compensation under the Transport Accident Act; secondly, that the Tribunal was wrong to pay heed to a "principle" that it provide "an inexpensive and expeditious means whereby citizens may resolve their disputes with governmental authorities"; and, thirdly, that the Tribunal had been wrong to be influenced by conduct of the applicant which should not be "faulted" in the prosecution of his claim.
The exercise by the deputy president of his discretion by making no order as to costs does not in my opinion reveal any error of law. It was perhaps unnecessary or inappropriate to suggest that any of the factors which influenced the decision should be labelled as a "principle". Labels, however, are by the way; and a merely inappropriate designation bespeaks no appellable error. The deputy president was entitled, in the exercise of a broad discretion, to have regard to the considerations that he mentioned: they were in my opinion not irrelevant in the context of the scheme of compensation, and the review of administrative decisions in the implementation of them, for which the Transport Accident Act provides. In particular, the deputy president was entitled to consider whether it was just in the circumstances that the Commission should receive compensation for its costs; and it was well within his decision to decide that it should not. I would therefore dismiss the appeal.
Transport Accident Commission v. Cavanagh
Glendon Ian Cavanagh made a claim under the Transport Accident Act for compensation for injuries sustained on 26 June 1995 at the age of 35 years. He alleged that on that date he was riding a bicycle in Manningham Road, Doncaster when one McNamara deliberately drove a motor car into him, causing the injuries. The claim was rejected by the Transport Accident Commission on the footing that the applicant's injuries were not directly caused by the driving of a motor vehicle, motor car, train or tram and were therefore not the result of a "transport accident". Mr Cavanagh sought review of the decision by the AAT. He gave oral evidence and called as a witness a bicycle repairer, and McNamara also gave oral evidence and called as witnesses a passenger in his car and an independent witness, a retired policeman, who observed something of the incident on which the applicant relied. The incident was described by the learned deputy president of the Tribunal as a product of the contemporary phenomenon known as "road rage". The applicant's and the motor car driver's versions of it, the finer details of which I need not rehearse, were wholly at odds. The former alleged in substance that he attempted to remonstrate with McNamara about his manner of driving and his attitude towards him as a cyclist, and that McNamara drove his car on to the footpath, knocking him from his bicycle. McNamara's version was to the effect that he had verbally abused the applicant for his manner of cycling, after which the applicant rode up on the passenger side of the car and struck a window twice with his right elbow so forcefully that McNamara thought that the glass would break. According to McNamara the applicant then dismounted and threw his bicycle down on to the nature strip, came back to the car and punched the left-hand side of the bonnet with both fists with great force - enough to dent the bonnet - and then returned to the left side of the car and punched the exterior mirror with his left fist twice and then again with his right fist, breaking the mirror. He then proceeded to punch the passenger side window with his right or left fist several times with full force. McNamara said he then turned the car into the driveway of a garage and stopped about 10 metres in front of the applicant, who came running towards the car, and then drove away.
Some aspects of McNamara's account were confirmed by his witnesses but the Tribunal found parts of his evidence to be "unconvincing". The deputy president expressed himself to be satisfied, however, that the evidence of McNamara's witnesses excluded any deliberate assault by him, either on the applicant or his bicycle, and confirmed physical aggression on the part of the applicant. The deputy president found that, in the light of the other evidence, the applicant's explanation of the way in which he incurred his injuries (which included a broken bone in his left hand) was "simply not credible". In the result the deputy president was not satisfied that there had been a "transport accident"; and he found alternatively that the cause of the applicant's injuries was uncertain, and that "they no more probably resulted from a transport accident than from some other cause including the applicant's own conduct". The Commission's decision was accordingly confirmed.
The Commission sought an order for costs against the applicant, apparently contending that, because of the divergence of the two versions of the incident, the applicant could not have had a genuine belief in his claim. The deputy president refused the application for costs, saying that he had not determined that the applicant was not genuine in the pursuit of his application or "that his case was without any merit". By this the deputy president may have meant that he had not determined that the applicant's bringing of his case was without any merit, for he went on to say that "... it was uncertainty as to what had occurred ... which gave rise to the decision on the merits". The learned deputy president concluded by saying -
"In the Tribunal's view, inconclusiveness of the evidence resulting in failure by the applicant in his application does not necessarily warrant an order for costs against an unsuccessful applicant ... In this case, in the light of uncertainty as to each of the versions of what occurred and in the absence of other persuasive factors, the fair and reasonable course and consequently the just course, is to make an order that each party should bear its own costs ...".
Some of the specific criticisms of the deputy president's reasons offered on behalf of the appellant were similar to those in the case of O'Reilly. In addition, however, it was contended in this Court that the Tribunal ought to have taken into account, as justifying an order for costs against the applicant, a number of specific factors. I quote from the notice of appeal the following, which were repeated in a written outline of argument and were not the subject of oral elaboration -
"(a)
the reason why the applicant had not satisfied the onus of proof was because his own evidence had not been accepted as being true;
(b)
the applicant's account of the events which he alleged caused his injury was not, in the context, credible and was contradicted by other credible witnesses;
(c)
the applicant's behaviour in and in relation to the events which he alleged caused his injury was unmeritorious;
(d)
the risk of orders for costs being made against unsuccessful applicants may have a beneficial effect, in the public interest, in deterring the making of unjustified claims;
(e) the making of the claim was the applicant's own choice; (f)
the appellant defended the application in pursuance of a public duty, and was justified in so doing;
(g)
the seeking of a statutory benefit by way of appeal to a statutory Tribunal which has a power to award costs is not relevantly different from seeking a benefit by way of a proceeding in a court of law;
(h)
the costs of defending the claims of unsuccessful applicants who do not make any payment towards those costs are ultimately borne by persons entitled to benefits, or by the public."
Insofar as the criticisms of the deputy president's reasons were akin to those offered in the case of O'Reilly I should answer them as I have in that case. I have already dealt with (g); and I should characterise (a) to (f) and (h) set out above as in the nature of argumentative debating points. None raises a question of law; and they do not, individually or together, show any other error which could entitle this appeal to succeed. Having regard to the limited right of appeal that s.52 of the AAT Act confers, a suggestion in this Court , for example, that (c) above could do so is absurd. In any event it does not appear that the deputy president did not take account of these considerations in reaching his decision. I would also dismiss this appeal.
Transport Accident Commission v. Moore
Barbara Moore made a claim against the Transport Accident Commission for compensation for a spinal injury sustained during a transport accident on 19 August 1992 during the course of her employment, when she was aged 42 years. Because of her entitlement to benefits under the Accident Compensation Act, the Commission did not accept her claim: Transport Accident Act, s.38(2). On 31 October 1994 her solicitors asked the Transport Accident Commission to conduct an impairment assessment with a view to her commencing a common law action for damages: Transport Accident Act s.47(7)(b) and s.93. Acting on the opinion of an orthopaedic surgeon, the Commission made a "whole person" assessment of the applicant's impairment of 14%. The assessment having fallen short of the 30% assessment of impairment which would have entitled her (pursuant to s.93 of the Transport Accident Act) to bring a common law action, she sought a review by the AAT. The applicant underwent a number of medical examinations during 1996 but the result of only one justified a whole person impairment assessment in excess of that made by the Commission - and that one justified an assessment of only 28%. There were also two reports which respectively indicated psychological impairment of 8% and of 1%. On 21 April 1997 the AAT permitted the applicant, with the consent of the Commission, to withdraw her application, but she sought an order for costs against the Commission. Written submissions were filed on behalf of both the applicant and the Commission, the contention of the latter being that there should be no order as to costs. The learned deputy president on 18 August 1997 acceded to the applicant's submission, provoking an appeal to this Court.
According to the deputy president the reason given for withdrawal of the application for review was that the matter had settled, all issues being agreed save for the question of costs. She cited the following passage from the judgment of Harper, J. in Tavares, supra, at 259 -
"The true principle is that the Tribunal should make such orders as it thinks just. The application of this principle to the facts of the case may or may not result in costs lying where they fall. ... Thus, for example, the Tribunal may (it is a matter for the Tribunal) think that ease of access to it is a matter which should be taken into account. Equally, however, the Tribunal should not fetter its discretion by concentrating on that consideration, or upon whether or not fraud has been shown, to the exclusion of other factors which properly impinge on the question whether the order is, in terms of s.79(2), 'just' ... "
The deputy president continued -
"It has long been held in this jurisdiction that costs do not necessarily follow the result. The general principle is that this Tribunal should be of easy access and that genuine Applicants should feel free of any intimidation by reason of the fact that their opponent is better able to bear a burden of costs than they themselves might be. In the event that there is a legitimate dispute the Tribunal should be empowered to consider the effect and justice of an award of costs. Withdrawal of itself is not a crucial detriment to an award of costs in favour of the applicant, even as success is not the first criteria. What is paramount is the legitimacy of the application ...".
Counsel for the respondent Moore submitted below that the touchstone in the application of both s.50(2) of the AAT Act and s.79(2) of the Transport Accident Act was to do "what is just"; and that the passage cited by the deputy president from Tavares was therefore apposite equally to both provisions. Accordingly, so it was submitted, were it unjust in the circumstances to make no order as to costs an order for costs would be made; and a failure to make an order for costs could only be appropriate if it were just that there be no order. Of course the submission is in a sense valid, but only in a limited sense. Every officer who is required to act judicially will properly strive to do what is just; but s.50(2), when it applies, requires the Tribunal ordinarily to treat justice as served without the making of an order for costs, and to make none unless circumstances should justify it.
In this case the deputy president regarded the respondent Moore as having been justified in seeking a review of the Commission's decision because, being "genuinely aggrieved" by the assessment of impairment of 14%, a "higher result was ultimately achieved" by her seeking a review of the assessment, albeit not the result of 30% that she had sought. The deputy president said -
"That the ultimate best result or 100% success has not been achieved is irrelevant in the view of this Tribunal where the Applicant has properly and dutifully conducted her case to achieve a better result. After all the mandate of this Tribunal is to provide the 'better or preferable decision'. ... That this has been achieved by an agreement between the parties can only be cause for commendation. The application was made to pursue a just cause, the applicant clearly found herself with a just outcome and has acted generally in a reasonable and bona fide manner ... "
There was in my opinion no warrant for a conclusion or assumption that "a higher result was ultimately achieved" by the respondent Moore. The medical report that might have justified a finding of a higher degree of impairment had not been the subject of independent assessment or adjudication. There is nothing to indicate that, had it come to the point, the report must have been accepted. Nor does it appear that, by consenting to the withdrawal of the application for review, the Commission conceded a degree of impairment exceeding that which had been assessed. It does not follow, however, that the deputy president's decision must be set aside. Had it appeared that the decision depended for its validity on a finding of fact which was unsupported by evidence, it might be said that there had been an error of law because of which the decision could not stand. The finding (as I think erroneous) that a "higher result was ultimately achieved" was, however, scarcely sufficient of itself to bring down the decision. I had at one time sympathy for the submission on behalf of the Commission that there was no evidence before the deputy president to warrant findings of fact that the application had been "made to pursue a just cause", that the applicant had "properly and dutifully conducted her case to achieve a just result" or that she had acted "generally in a reasonable and bona fide manner". The correspondence between solicitors appears, however, to have been regarded on either side as evidence on which reliance might be placed. I should not be prepared to say, regarding the correspondence in that way, that the deputy president was not entitled to make these findings, on which she evidently relied, or that they could not support her decision. I cannot say that I should necessarily have made the same findings or that, if I had, I should necessarily have treated them as justifying an order for costs in favour of the respondent Moore against the Commission. That, however, is beside the point. The appeal to this Court lies only on a question of law. The decision below is to be set aside only if by reason of an error of law it cannot be allowed to stand. If supportable by reference to findings of fact, albeit findings which are merely doubtful rather than unsustainable, the appellant does not deserve to have it set aside upon an appeal of this kind. I have come to the conclusion, admittedly with some hesitation, that this is such a case. I would therefore dismiss the appeal.
Transport Accident Commission v. Davey
This matter has some similarity to that of Moore: it concerned an application for review by the AAT of a decision of the Transport Accident Commission to "... finalise impairment at 1% whole person impairment and to assess that impairment as stabilised". The application was unilaterally withdrawn. The same deputy president who had dealt with the case of Moore made an order for costs in favour of the applicant against the Commission, provoking an appeal to this Court which was argued by the same counsel on either side who argued Moore's case.
Amanda Jennifer Davey suffered injury in a transport accident in the course of her employment on 18 June 1993 at the age of 27 years. Being eligible for compensation under the Accident Compensation Act, she made no claim for compensation under the Transport Accident Act but, on 21 June 1994, sought a determination of impairment and requested the Commission to "give immediate consideration to the question of 'serious injury'" pursuant to s.93(2) of the Transport Accident Act so that she might bring proceedings at common law. The Commission assessed the applicant's level of impairment at 1%, of which her solicitors were advised by letter dated 24 May 1995. Notice of application for review was lodged with the AAT on 9 May 1996. By letter dated 3 June 1997 the applicant's solicitors wrote to the solicitors for the Commission to say -
"We note that the initial decision by TAC dated 24th May, 1995 was to determine impairment at 1% whole person impairment. We respectfully submit that on any view, this was an inappropriate decision.
We note, however, that the evidence obtained on behalf of the Applicant does not indicate that the injuries will be assessed at 30% whole person impairment or more. In the circumstances we have received instructions to withdraw the Application for Review; however, prior to withdrawing it, we would seek a Consent Order that the Respondent pay the Applicant's costs."
The application was subsequently withdrawn but no agreement was reached about costs, the question of which was debated before the Tribunal on 13 November 1997. On that day the deputy president ordered that the Commission pay the respondent Davey's costs. Elaborate reasons for that order were handed down on 10 December 1997 but neither the reasons nor the authenticated order specifies with any precision what costs of the respondent Davey were ordered to be paid. Presumably it was intended that the order should cover the entire costs of the applicant's review proceeding.
The deputy president treated the AAT's power to award costs as arising indifferently from s.79(2) and s.50(2) of the AAT Act: reasons, p.2. This approach was confirmed later in the reasons, where the deputy president treated her decision in the case of Moore as affording guidance, as the following passages exemplify -
"Note is also taken of the fact in this matter, as it was in the Moore matter, that costs are awarded whether it be pursuant to s.50(2) of the Administrative Appeals Tribunal Act 1984 or the Transport Accident Act 1986 section 79(2) on the basis of just grounds and not as a result of the outcome. (p.35)
... Clearly what is of paramount importance is the legitimacy of the application... and in that context the withdrawal of an application is not fatal and success not the only or even the first criteria (see Re Moore).
... Insofar as the juxtaposition of s.50(2) of the Administrative Appeals Tribunal Act 1984 and s.79(2) of the Transport Accident Act 1984 is concerned, this Tribunal is mindful of the fact that it is left (by both provisions) to this Tribunal to determine each matter individually on its merits when deliberating on the issue of an award of costs, and to make such an award as it 'thinks just' in light of the circumstances.
There is no disparity between those two provisions - no conflict ...".
(p.39)
The assimilation of the costs powers conferred by s.50(2) and s.79(2) was an error of law. As in the case of Moore, the error does not appear to me to lead necessarily to a conclusion that the order for costs in favour of the respondent Davey should be set aside.
The circumstances following the applicant's request to the Commission to make an impairment assessment and to consider whether she had suffered a "serious injury" rendered the factual milieu of the case rather more complicated than that of Moore. The applicant was to some extent, it seems, inconvenienced or delayed by some misunderstanding or lack of communication between the Transport Accident Commission and those responsible for administering the WorkCover scheme. She was in need of some surgery before it could be said that her injuries had stabilised. There was an argument in the bureaucracy about liability to pay for the surgery, so it was delayed - perhaps unreasonably delayed - until 2 May 1996 and the applicant undertook to cover the expense herself. By that time the solicitors for the applicant considered that it would be prudent to protect her rights by seeking a review of the Commission's assessment that had been notified by the letter of 24 May 1995. The application for review was accordingly filed in May 1996. After the surgery the applicant was further medically examined on her own behalf and on behalf of the Commission. The report of one of her own doctors supported an impairment of 14%, one of those engaged by the Commission of 3% and another engaged by the Commission also (on one view) of 3%. It was in the light of this information, when it became clear that the applicant's whole person impairment would not reach the threshold of 30% required for the determination that she had suffered a "serious injury" in terms of s.93(3), that she gave instructions to withdraw the application for review.
Counsel for the Commission submitted to the AAT that there was never any reasonable prospect that the applicant's impairment might properly be assessed at 30% or that her injury might be regarded as a "serious injury". Given that the only useful purpose of seeking a review by the AAT was to achieve an impairment assessment of 30% or a serious injury certificate, the application was, it was submitted, wholly unjustified, as was an order for the applicant's costs of it. For the applicant it was submitted before the AAT that the Commission's assessment of 1% impairment in May 1995, before the requisite further surgery had been performed, had been premature and therefore inappropriate. The Commission's response was that the assessment had been made because the applicant had pressed for it; but the applicant countered by contending that the chief issue to be considered by the AAT had been the question of stabilisation of the injury; and that that could not have been answered until after the delayed surgery had been performed.
After reviewing the not inconsiderable correspondence between the solicitors for the parties before and after the filing of the application for review, and leading up to the withdrawal of the application, the learned deputy president appears to have regarded the Commission as having to some extent fallen short of its statutory obligations in dealing with the applicant's case. At p.37 of her reasons she said -
"It is the view of this Tribunal that in this matter, as in that of Re Moore,
the applicant -1. was genuinely aggrieved at the decision of the respondent;
2. was entitled to apply for a review of the respondent's decision;
3. was pursuing a matter on just grounds;
4. at all times acted reasonably in the pursuit of her application;
5. was finally satisfied at the outcome albeit it was not the one hoped for;
6. acted reasonably in withdrawing the application as soon as was practical; and in this matter
7. undertook the review process to protect her legislative rights in light of the respondent's failure to co-operate or act in a manner which may have consoled the applicant that her legislative rights would in fact not be in jeopardy."
As in the case of Moore, there appears to me to have been a want of evidence to sustain at least some of these findings. Finding 7 might have been open upon the correspondence which, it seems, was regarded on either side as evidence on which reliance might be placed. The deputy president also found (at p.38) that -
"... where the respondent has not given proper consideration to the applicant's case, the decision may be deemed defective and justice deems it appropriate to make an order for costs in favour of the applicant. It is not a detraction from the power of this Tribunal to make such an order by reason only of the fact that the application was withdrawn ...".
Insofar as this was a finding of fact it might also have been open. Without deciding that it was, I should not be prepared to say that it was not, or that the decision might not be supported by reference to it.
As in the case of Moore, I cannot say that I should necessarily have made an order for costs as the deputy president did. For reasons similar to those I have stated in that case, however, I cannot conclude here that the order was unsustainable as a matter of law. I would accordingly dismiss the appeal.
ORMISTON, J. A.:
These are yet another series of appeals relating solely to costs. If they were from a court, leave would be required but, at least in two of them, sufficient errors of law have been disclosed which would have justified the grant of leave. It is, however, unfortunate that so many appeals of this kind are brought and that it has seemed to one party or the other necessary to bring an appeal, where the dispute is merely peripheral to the main proceeding. Even in the High Court this year at least four decisions relating to costs have been given: Oshlack v. Richmond River Council [1998] H.C.A. 11; 72 A.L.J.R. 578; South-west Forest Defence Foundation Inc. v. Director of Department of Conservation [1998] H.C.A. 35; 152 A.L.R. 83; A.G. (Cth) v. Tse Chu-Fai [1998] H.C.A. 36; and Re J.J.T.: ex parte Victoria Legal Aid [1998] H.C.A. 44; 72 A.L.J.R. 1141. The present rash of appeals may have arisen from two factors: one, that costs of parties, even in relatively limited disputes, have become higher both in absolute and relative terms; and two, that successful parties have become dissatisfied when the discretion to award costs has been exercised against them, although the power to make the award is almost invariably expressed in broad and disarmingly simple terms.
The present cases are different only in that the dissatisfied party is an impersonal corporation set up by statute, namely the Transport Accident Commission. However, for the reasons expressed by Tadgell, J.A., its dissatisfaction has, for the most part, been misplaced. The discretion granted to the Administrative Appeals Tribunal (in the present four cases) and, since July this year, to the Victorian Civil and Administrative Tribunal, which has now taken over the function of hearing these appeals under the Transport Accident Act, is wide enough to justify each of the orders made, being derived from s.s.(2) of s.79 of the Transport Accident Act 1986 enabling the Tribunal to make costs orders "as it thinks just". Indeed it should be noted that one of the principal areas of confusion as to the power to make costs orders exhibited in at least two of the decisions appealed from, namely the differences between s.79(2) and s.50(2) of the Administrative Appeals Tribunal Act 1984, has now been explicitly overcome, inasmuch as by paragraph 92 of the First Schedule to the Victorian Civil and Administrative Tribunal Act 1998 it is provided: "Nothing in s.109 applies to a proceeding under the Transport Accident Act 1986". (Section 109 in the later Act is the section which gives the general power to the Victorian Civil and Administrative Tribunal to make orders as to costs.) However, as Tadgell, J.A. has pointed out, the misconceptions of the Deputy President of the AAT as to this issue are of no practical consequence inasmuch as the Deputy President exercised the Tribunal's powers on the widest possible basis and seemingly paid little heed to the restriction imposed on awarding costs contained in s.50(2) of the Administrative Appeals Tribunal Act 1984.
As I have said, I agree with the analysis of s.79 and as to its operation in circumstances such as the present made by Tadgell, J.A. The width of the discretion which he accepts follows from a long series of cases which are most recently exemplified in the judgments of the majority (Gaudron, Gummow and Kirby, JJ.) in Oshlack's case. Some time ago I referred with some dissatisfaction to the width of the "discretion" as interpreted by the courts and the difficulty that a dissatisfied party has in overcoming them in Verna Trading Pty. Ltd. v. New India Assurance Co. Ltd. [1991] 1 V.R. 129 at 174-175. So long as the broad discretion invested in courts continues to be recognised, it might now be thought preferable to work out some principles (by way of guidelines) of the kind espoused by Atkin, L.J. in Ritter v. Godfrey [1920] 2 K.B. 47 at 60 but which were so stringently disapproved by Viscount Cave, L.C. in Donald Campbell & Co. Ltd. v. Pollak [1927] A.C. 732 at 811-812. However, having regard to the course of authority, it does not seem at this stage either practical or open to the Court to take such a step, notwithstanding that some carefully expressed guidelines might be of value to litigants and, in particular, their advisers. Nor would such guidelines be inconsistent with a proper understanding of the word "discretion" as appearing in the majority of statutory provisions relating to court costs, such as s.24 of the Supreme Court Act 1986, with which the provision in s.79(2) of the Transport Accident Act may fairly be assimilated.
The concept of "discretion" (in s.24 and similar sections) there appearing was adapted from the like power assumed by the Lord Chancellor to be inherent and applied by the Court of Chancery well before the passing of the Judicature Acts. A contrast was intended to be made with the rigid statutorily-introduced "costs follow the event" provisions which then applied in common law courts: cf. Latoudis v. Casey (1990) 170 C.L.R. 534 and Oshlack's case, passim. It would, however, be foolish to assume that, by the adoption of the Chancery practice, it was then intended that there should be an entirely free hand given to judges in awarding costs. In truth what was desired was only to avoid the black and white rules applicable in common law courts, for the Chancery "discretion" was already one which for many practical reasons was encrusted with rules or guidelines as to its exercise. One has only to look at the Chancery practice books which stated the rules as to costs before the passing of the Judicature Acts to see to what extent "rules" for the exercise of the Court's discretion had already been laid down. Those "rules" continue to apply to equitable proceedings in all Judicature Act courts, with a resulting degree of certainty designed to be of practical use, albeit subject at all times to the courts' discretion. The various "rules" applied in the High Court of Chancery before the Judicature Act may be seen, for example, in Daniell's Chancery Practice (5th ed., 1871, vol. II, pp.1238-1328) and in Morgan and Davey's Treatise on Costs in Chancery (1865). Apart from the not unfamiliar "rules" with respect to trustee applications, mortgage suits and the like, one will there see that the "rule" giving costs of a suit to the victorious party was already, and had for many years been, the rule in the Court of Chancery, by adaptation of the rule of the civil law: "victus victori in expensis condemnatus est" (Cod. 3, 1, 13): at p.1243. The continued application of the many equity costs "rules" may also be seen in the almost identical chapter in the most recent (but curiously much ignored) 8th edition of Daniell's Chancery Practice at pp.1021-1109, the reference to the prima facie rule in favour of the successful plaintiff appearing in this edition at p.1027.
Nevertheless, whatever be the nature of the discretion as understood in the Court of Chancery, it has been accepted for many years that it is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party. On the present occasion that is why I agree that none of these appeals should succeed, although for myself I cannot accept that on the facts the orders made in the cases relating to Moore and Davey were appropriate exercises of the Tribunal's jurisdiction as to costs.
I do agree, however, that there are factors in cases such as the present which can be taken into account by the Tribunal in considering the exercise of its powers under s.79 of the Transport Accident Act. Tadgell, J.A. has pointed out correctly, in my respectful opinion, that the nature of the applications for review under that Act differs significantly from ordinary litigation inasmuch as the respondent is always the Commission and not the person responsible for the accident. It is both the maker of the impugned decision and the body which will have to pay if the applicant succeeds, either immediately or by indemnification, as counsel for the Commission conceded. This is not an uncommon aspect of applications and appeals to administrative review tribunals, but the Commission's dual role invites investigation on both levels in order to determine how the power to award costs might be exercised. Although "public" funds are an issue, an applicant for compensation or a relevant "assessment" has no choice other than to apply to the Commission. So far as I can understand the scheme of the Act, in its many manifestations over the years, there is no right to any costs or reimbursement for any expenses related to legal fees at the stage of making the original application to the Commission. Thus an order after a review could never deal with an earlier "order", "decision" or "determination" relating to the applicant's costs before bringing the application to either the former or the present Tribunal. (For present purposes one may assume "proceeding" in s.79(2) refers only to the application for review.)
One consequence of this, however, is that in considering questions of costs one may fairly have regard to the overall behaviour of the respondent Commission on an application to review. There is no existing order for costs which can be corrected, so that it is not possible for the former or present Tribunal, by varying or revoking the existing decision, to substitute different orders for costs in its place which might otherwise reflect the Tribunal's disapproval of the way in which the Commission acted at that earlier stage of an application for compensation or the like. It can only reflect its disapproval in the costs ultimately ordered pursuant to O.79(2) on the application for review.
In making that decision, therefore, I can see no reason why either the former or present Tribunal should not take all the acts of the Commission into account, not merely those acts of the Commission which occurred after the application for review was made. Cf. Comcare v. Labathas (1995) 61 F.C.R. 149. It would likewise follow that the purpose in bringing an application for review may, in certain circumstances, be relevant to an award of costs pursuant to s.79(2), especially if that purpose arises out of the way in which the Commission has responded to the claim.
I agree with the conclusions reached by Tadgell, J.A., and his reasons for them in dealing with the appeals against O'Reilly and Cavanagh. Like each of the other members of the Court I have had greater difficulty in resolving the appeals relating to the applicants Moore and Davey. The conclusion reached by the Deputy President in each case was, quite frankly, the very opposite of that which I would have reached. Moreover, on a careful reading of her reasons it would appear that she has made a fundamental error in considering the operation of the costs provisions of the two Acts. Either she has treated s.50(2) of the Administrative Appeals Act as laying down the guiding rule or she has concluded that there is effectively no difference between the two provisions so that in substance she has ignored the effect of s.79(2) of the Transport Accident Act. This may be seen in particular from her reliance on the reasons given by her in two earlier decisions in the applications of Latham (9 September 1991) and Troy (21 January 1992), in each of which s.50(2) is treated as laying down the guiding principle and s.79(2) is given but passing reference. Those reasons, especially the elaborate reasons in Latham, relied on numerous earlier decisions before the significant amendment to s.79(2) in May 1988. That view of s.50(2) in this context was erroneous, but fortunately its successor, s.109, in the Victorian Civil and Administrative Review Act is now explicitly said to be not applicable to applications under the Transport Accident Act: see above, para.2. On the other hand in many ways there may be a distinction without a difference, at least in relation to the matters with which this Court has here to deal. In each case it would appear that the Deputy President has thought it appropriate to ascertain what would be just in all the circumstances. Her reasons may otherwise be said to demonstrate erroneous factual conclusions, but that gives no right of appeal to this Court.
There may also be thought to have been an error of law inasmuch as the Deputy President asserted that an applicant has "an unfettered right to file an application and take the opportunity in this jurisdiction to review the determination". Of course, merely because a person suffers a transport related injury and receives an adverse determination does not mean that that person invariably has the right to bring an application for review, but I think the Deputy President was seeking to indicate that the question of rights under this legislation is affected by matters controlled by medical assessments and the like and that there is no immediate solution to every case, especially when the injury has not yet stabilised and various opinions are held as to an applicant's condition. In the case where this observation was made, that of Davey, the applicant was indeed in a quandary in that an assessment had been made and the time limit for application for review was and is only 12 months. I do not think the suggested error was of any real consequence.
For the rest each of the errors ascribed to the Deputy President's reasoning is, at bottom, merely an error of fact. Merely because this Court would not agree with those conclusions as to matters of fact does not entitle it to reverse a decision of the Tribunal.
Otherwise, for the reasons stated by Tadgell, J.A., I would dismiss each of the
appeals.
CALLAWAY, J. A.:
I agree with the learned presiding judge that each of these appeals should be dismissed and, subject to the following comments in relation to Transport Accident Commission v. Moore and Transport Accident Commission v. Davey, for the reasons given by his Honour.
The AAT's power to award costs in each of those matters was to make such order as it thought just: Transport Accident Act 1986, s.79(2). In Transport Accident Commission v. Moore the Transport Accident Commission submitted, and the learned deputy president appears to have accepted, that the governing provision was s.50(2) of the Administrative Appeals Tribunal Act 1984. That, too, conferred a power to make such orders as the Tribunal thought just, but only if the Tribunal was of opinion in a particular case that there were circumstances that justified it in doing so. To that extent there was an inhibition in s.50(2) that was not present in s.79(2). Unless the inhibition was overcome, each party was to bear its own costs. It was also submitted on behalf of the Transport Accident Commission, and expressly accepted by the deputy president, that s.50(2) was more restrictive than s.79(2). Although the inhibition is relatively slight, that is, with respect, correct. In Transport Accident Commission v. Davey the deputy president said that it was conceded that the question of an appropriate order for costs was addressed in s.50(2) and also in s.79(2). Later in her reasons she said that, as in Transport Accident Commission v. Moore, costs were to be awarded on the basis of just grounds and not as a result of the outcome, whether that was done pursuant to s.50(2) or s.79(2), and later still that there was no disparity or conflict between the two provisions.
In each case, therefore, the deputy president laboured under a misapprehension that involved an error of law. The error was either that s.50(2) applied or that there was no difference between the two provisions, but the error did not affect the decision. In the first place, it is abundantly clear that the deputy president was of opinion in each case that there were circumstances that justified the AAT in making an order for costs. Her decision would have been no different if she had known that there was no such preliminary hurdle. Secondly, a reading of the reasons themselves shows that in each case the only substantive question addressed was what order would be just. Moreover the error was an error in favour of the appellant.
I am not at all sure that I should myself have made the orders that were made in favour of Moore or Davey but, if the deputy president did make other errors in the course of coming to her conclusions, I do not consider that they are appellable having regard to the accepted construction of s.52(1) of the Administrative Appeals Tribunal Act.
This case does not require us to consider in any detail the difficult issues discussed by Phillips, J.A. in S. v. Crimes Compensation Tribunal [1988] 1 V.R. 83, but a question of law is not involved in a decision simply because a tribunal makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound. It depends on the nature of the decision and the character and significance of the finding or conclusion. Compare, for example, Minter Ellison v. Lifeline Properties Pty. Ltd. (unreported, Court of Appeal, 25th September 1997). A fortiori it is usually insufficient that a tribunal gives too much, or too little, weight to a finding of fact that is supported by evidence if the appeal is limited to an appeal on a question of law. The statement of Herring, C.J. in Young v. Paddle Bros. Pty. Ltd. [1956] V.L.R. 38 at p.43, on which counsel for the appellant relied, develops the proposition at p.41, repeated on p.43, that the decision of the magistrate was like the verdict of a jury. The question whether a verdict is perverse or unsafe is not a question of law in the sense intended by s.52(1), notwithstanding that the person affected by it is "entitled as a matter of law" to have it set aside or quashed. The cases on assessment of damages, whether by a judge or a jury, are to the same effect: see, for example, Public Transport Corporation v. Sartori [1997] 1 V.R. 168 at pp.176-181 and Martin v. Crimes Compensation Tribunal (1997) 91 A.Crim.R. 301 at pp.302-303. Moreover, as Mason, C.J. said in Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 at p.356, want of logic is not synonymous with error of law.
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