Transport Accident Commission v O'Reilly - [1998] VSCA 106

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. Solomon
For 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1998] VSCA 106
Decision Date: 13 November 1998

CaseChat Overview and Summary

The parties involved in this case were the Transport Accident Commission and O'Reilly, with the dispute concerning the award of costs following proceedings in the Administrative Appeals Tribunal. The case was heard in the Court of Appeal. The primary focus of the appeal was whether the tribunal had correctly exercised its discretion under statute to award costs, and whether such an exercise constituted an error of law.

The court was tasked with determining whether the tribunal had correctly interpreted and applied the statutory provisions governing costs in the Administrative Appeals Tribunal Act 1984 and the Transport Accident Act 1986. Specifically, the court needed to ascertain whether the tribunal's decision to award costs was made in accordance with the law and whether such a decision was reviewable for an error of law. This involved examining the statutory language and any relevant precedents to understand the scope of the tribunal's discretion.

In its reasoning, the court found that the tribunal had indeed exercised its discretion correctly and that the award of costs did not necessarily need to follow the event, as mandated by the statutes. The court held that the tribunal's decision to award costs was within its statutory powers and did not constitute an error of law. Consequently, the appeal was dismissed, and the tribunal's decision to award costs was upheld.

Orders