Prasad v Chief Commissioner of State Revenue

"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The application was subsequently withdrawn but no agreement was reached about costs, the question of which was debated before the Tribunal on 13 November 1997.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.

143. 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)

147. 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.

150. 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.

153. 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.

156. 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.

163. 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.

168. 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.

171. 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.

174. 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] VicRp 12; [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.

177. 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] HCA 59; (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.

180. 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.

183. 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.)

186. 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.

189. 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] FCA 1702; (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.

192. 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.

195. 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.

198. 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.

201. Otherwise, for the reasons stated by Tadgell, J.A., I would dismiss each of the appeals.

207. 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.

210. 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.

213. 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.

216. 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.

219. 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] VicLawRp 6; [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] HCA 33; (1990) 170 C.L.R. 321 at p.356, want of logic is not synonymous with error of law.