Warner v Motor Accidents Insurance Board
[2019] TASSC 6
•20 February 2019
[2019] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Warner v Motor Accidents Insurance Board [2019] TASSC 6
PARTIES: WARNER, Paul Leslie Silos
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO: 1612/2018
DECISION
APPEALED FROM: Warner v Motor Accidents Insurance Board
[2018] TASMACT 3
DELIVERED ON: 20 February 2019
DELIVERED AT: Burnie
HEARING DATE: 30 November 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Traffic Law – Statutory restrictions or compensation in respect of motor vehicle accidents – Tasmania – Tribunal, Board etc – Motor Accidents Compensation Tribunal – Power to make order for costs – Whether right of appeal from order for costs.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), ss 28(6), 28(8)(c)(ii).
Motor Accidents Compensation Tribunal Regulations 2009 (Tas), reg 14.
Queensland Fish Board v Bunney [1979] Qd R 301; Martin v Wiggins [1984] Tas R 188; Motor Accidents Insurance Board v Bricknell [2017] TASFC 7, referred to.
Aust Dig Traffic Law [1318]
REPRESENTATION:
Counsel:
Appellant: A Gaggin
Respondent: R J Phillips, A Kendall
Solicitors:
Appellant: Murdoch Clarke
Respondent: Phillips Taglieri
Judgment Number: [2019] TASSC 6
Number of paragraphs: 21
Serial No 6/2019
File No 1612/2018
PAUL LESLIE SILOS WARNER v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT BLOW CJ
20 February 2019
This is an appeal from a decision of the Motor Accidents Compensation Tribunal, which was constituted by its Chairman, Mr R Webster: Warner v Motor Accidents Insurance Board [2018] TASMACT 3. The appellant, Paul Warner, was injured in a motor vehicle accident in November 2017. He submitted a claim for scheduled benefits to the respondent, the Motor Accidents Insurance Board, in accordance with the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). He sought payment of an account for $130 that he had received from his doctor. Initially the Board would not concede that his injury resulted from a motor accident, and would therefore not pay scheduled benefits. The appellant referred the matter to the Tribunal. The Board subsequently decided not to dispute the claim. The parties asked the Tribunal to make orders by consent declaring that the appellant was entitled to scheduled benefits, and ordering the Board to pay his costs of the referral to the Tribunal, "such costs to be taxed if not agreed pursuant to Part 1 of Schedule 1 of the Supreme Court Rules 2000". The learned chairman made the first order, but was not willing to make the costs order in the terms sought. He ordered the Board to pay the appellant's costs, but ordered that those costs were "to be taxed, if not agreed, at the rate of 85% of the fees set out in Part 1 of Schedule 1 of the Supreme Court Rules 2000".
The appellant has filed a notice of appeal in respect of that decision. He contends that the Tribunal should have made the costs order that was sought, rather than an order that obliged the Board to pay only 85% of the costs that would have been payable pursuant to the order sought.
Part 1 of Sch 1 of the Supreme Court Rules sets out a scale of solicitors' costs which, unless otherwise ordered, and subject to the discretion of a taxing officer, fixes the maximum amount recoverable by way of party and party costs in Supreme Court proceedings.
Regulation 14 of the Motor Accidents Compensation Tribunal Regulations 2009 contains provisions as to the costs of proceedings before the Tribunal. It reads as follows:
"(1) On determining a reference, the Tribunal may order a party to the reference to pay costs to another party to the reference and may fix the reasonable amount of those costs.
(2) If the Tribunal orders a party to a reference to pay costs to another party to the reference, that other party may recover those costs as if they were a judgment debt obtained in the court that —
(a) is nearest to the place where that other party resides or carries on business; and
(b) has jurisdiction in respect of the amount of those costs."
The appellant contends that the learned chairman erred in three respects:
· By incorrectly treating the dispute that was before the Tribunal as very small and not complex.
· By failing to give effect to the unambiguous terms as to costs agreed upon by the parties.
· By incorrectly concluding that making the order sought would result in inconsistency between the decisions of the Tribunal.
The Board's contentions in relation to this appeal can be summarised as follows:
· That reg 14 (above) is ultra vires and the Tribunal has no power to award costs.
· Alternatively, if the Tribunal does have the power to award costs, that this appeal is incompetent because the right of appeal from the determinations of the Tribunal to this Court applies only to substantive determinations on matters referred to it, and not to ancillary orders as to costs.
· That the decision of the learned chairman was an unimpeachable exercise of the Tribunal's discretion as to costs, if it had a power to award costs.
A power to award costs?
The Act does not contain a provision that expressly empowers the Tribunal to make an order that one party pay another party's costs. However s 28(8)(c)(ii) provides for the making of regulations that may make provision with respect to "fixing the amount of costs to be paid by a party to a reference to the Tribunal".
Section 28 is an important section in relation to many aspects of this appeal. It contains provisions as to the determination of claims for scheduled benefits by the Board, the reference of such claims to the Tribunal, and appeals from the Tribunal to this Court. It reads as follows:
"(1) The Board is to determine —
(a)whether or not a person is to be treated as a person within a class of persons to whom scheduled benefits may be paid; and
(b)the right of a person to be paid any scheduled benefit; and
(c)the amount of any scheduled benefit to be paid to a person.
(2) A person aggrieved –
(a)by a determination under subsection (1); or
(b)by a refusal or failure of the Board to make a payment by way of a scheduled benefit —
may refer the matter to the Tribunal.
(3) The Board may, at any time, refer any matter to the Tribunal affecting —
(a)the right of a person to a scheduled benefit; or
(b)the amount of any scheduled benefit.
(4) The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances.
(5) A determination under subsection (4) binds —
(a)the Board; and
(b)any other party to the reference to the Board.
(6) A person aggrieved by a determination made by the Tribunal under subsection (5) may appeal to the Supreme Court which may confirm, vary or rescind the determination.
(7) A determination of the Tribunal varied by the Supreme Court under subsection (6) has effect, as varied, as a determination by the Tribunal.
(8) Regulations made for the purpose of this section may —
(a)prescribe the manner in which any determination by the Board or the Tribunal is to be made; and
(b)prescribe the manner in which a matter shall be referred to the Tribunal and the time in which it can be so referred; and
(c)make provision with respect to —
(i) the exercise of rights of infants in relation to references to the Tribunal and the determinations on such references; and
(ii) fixing the amount of costs to be paid by a party to a reference to the Tribunal; and
(iii) the enforcement of orders of the Tribunal for the payment of costs; and
(iv) the discontinuance or dismissal of a reference to the Tribunal for want of prosecution."
When the Act was passed in 1973, it contained nothing in relation to the costs of proceedings before the Tribunal. Ever since the Act was passed, s 34 has empowered the Governor to make regulations for the purposes of the Act. The original version of s 28(8) related only to regulations relating to the exercise of the rights of infants in relation to references to the Tribunal. The Motor Accidents (Liabilities and Compensations) Act (No 3) 1977 effected an amendment by omitting the original s 28(8) and substituting a new subsection permitting the making of regulations containing provisions with respect to "fixing the amount of costs to be paid by a party to a reference" and "the enforcement of orders of the Tribunal for the payment of costs". There have been provisions to that effect in s 28(8) ever since.
If the Board is correct in contending that the Act did not empower the Governor to make reg 14, then s 28(8)(c)(ii) could only be interpreted as permitting the making of a regulation empowering the Tribunal to fix the amount of costs payable by a party to that party's own lawyers. That is to say, if a party could not be ordered to pay an opposing party's costs, a regulation with respect to "fixing the amount of costs to be paid by a party to a reference" could only apply in relation to the costs payable by a party to that party's own lawyers. That would be an absurd result. The primary role of the Tribunal is to determine disputes as to entitlements to scheduled benefits. It would be very strange if it were given a secondary role of determining disputes between legal practitioners and their clients as to allegations of overcharging in relation to proceedings that came before it.
It is quite clear that no court or tribunal has a power to award costs unless that power has been conferred by a statute or pursuant to a statute, but that such a power can be conferred either expressly or by necessary implication: In re Avonbank Dairy Co Pty Ltd [1962] Tas SR 121; Queensland Fish Board v Bunney [1979] Qd R 301 at 303; Spicer v Carmody (1948) 48 SR(NSW) 348 at 350; Martin v Wiggins [1984] Tas R 188 at 190. There is no reason why a power to make a regulation empowering a tribunal to award costs could not be conferred by necessary implication.
The Act is a piece of beneficial legislation. It was enacted for the benefit of persons who were injured or bereaved as a result of motor vehicle accidents: Motor Accidents Insurance Board v Bricknell [2017] TASFC 7 at [9]. Beneficial egislation should be interpreted liberally, for the benefit of those intended to be benefited, particularly when the words of a statute are ambiguous: R v Kearney; ex parte Jurlama (1984) 158 CLR 426 at 433; IW v City of Perth (1997) 191 CLR 1 at 12; Solicitors' Trust v Oxenbould [2013] TASFC 2, 22 Tas R 235 at [36].
Before the 1977 amendment, the Tribunal had no power to award costs. The first regulation that purported to give it such a power was introduced by the Motor Accidents Compensation Tribunal Amendment Regulations 1978. When Parliament legislated in 1977, an injured claimant with a right to scheduled benefits, if successful in the Tribunal, would have no choice but to bear his or her own legal costs. It seems likely that the 1977 amendment to s 28(8) involved a clumsy attempt to overcome the sort of injustice that successful claimants would be likely to suffer if they were unable to recover their costs of tribunal proceedings. Of course costs discretions usually operate both ways, and it was therefore appropriate for power to be conferred for the making of a regulation that could result in the Board recovering its costs when it was the successful party.
The fact that s 28(8)(c)(iii) provides for the making of regulations with respect to "the enforcement of orders of the Tribunal for the payment of costs", strongly suggests that the preceding subparagraph, s 28(8)(c)(ii), should be interpreted as conferring a power to make regulations empowering the Tribunal to order one party to pay another party's costs.
For these reasons, I consider that it is implicit in s 28(8)(c)(ii) that a regulation may be made empowering the Tribunal to fix the amount of costs to be paid to an opposing party by a party to a reference to the Tribunal. It follows that the making of reg 14 was authorised by s 28(8)(c)(ii), and that the Tribunal had the power to make an order for costs.
A right of appeal?
The Board contends that the relevant provisions in s 28 should be interpreted literally and that, if they are, it must be concluded that the right of appeal conferred by s 28(6) applies only to issues relating to eligibility for the payment of scheduled benefits or their quantum, and not to issues concerning legal costs. The argument can be summarised as follows:
· The right of appeal is conferred on a "person aggrieved by a determination made by the Tribunal under subsection (5)", and the Court is empowered to confirm, vary or rescind "the determination".
· The reference to "subsection (5)" must be interpreted as a reference to s 28(4). That is because s 28(5) relates to the effect of a determination by the Tribunal, whereas the power to make a determination is conferred on the Tribunal by s 28(4).
· Section 28(4) empowers the Tribunal to make a determination "on a matter referred to it".
· Matters of legal costs are not referred to the Tribunal. The matters that can be referred to the Tribunal are limited by s 28(2) and (3). Thus, the matters that may be referred comprise determinations by the Board as to eligibility for scheduled benefits or as to their quantum, refusals or failures by the Board to make payments of scheduled benefits, matters affecting the right of a person to a scheduled benefit, and matters affecting the amount of any scheduled benefit, but not any matter relating to legal costs.
The appellant contends that, when s 28(6) speaks of "a determination made by the Tribunal under subsection (5)", those words should be interpreted as referring not just to a determination by the Tribunal on a matter of entitlement to scheduled benefits or their quantum made under s 28(4), but also to any determination made by the Tribunal in relation to costs pursuant to a valid regulation.
Although s 28(8) has been affected by amendments in and since 1977, the earlier subsections in s 28 have not. The right of appeal conferred by s 28(6) was conferred years before the Governor was empowered to make regulations as to the costs of tribunal proceedings. It must follow that the right of appeal was limited to the sorts of determinations that the Tribunal could make when the Act first commenced, unless the wording of s 28(6) is wide enough to apply to determinations that the Tribunal was not originally empowered to make.
That would have been the position if the right of appeal had been conferred on any person aggrieved by any determination made by the Tribunal, but those words were not used. The right of appeal was conferred only on a person aggrieved by a determination made by the Tribunal "under subsection (5)". I accept that there has been an obvious mistake, and that "(5)" should be read as "(4)". The words "under subsection (5)" can only be interpreted as limiting the right of appeal to substantive determinations made by the Tribunal pursuant to s 28(4), and not applying to ancillary costs orders which could not be made by the Tribunal when s 28(6) was enacted, and which are not made pursuant to s 28(4).
It follows that the appellant did not have the right to appeal in relation to the costs order. The appeal must be dismissed as incompetent.
It may be that some or all decisions of the Tribunal as to costs can be challenged by proceedings under the Judicial Review Act 2000, or by proceedings for relief in the nature of certiorari. I express no view as to the availability of such remedies.
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