Practice and procedure - Costs - Objection to bill of costs - Whether time may be extended.

Statutory interpretation - Workers Rehabilitation and Compensation Regulations 2021 - Tasmanian Civil and Administrative Tribunal Rules 2021 - Whether statutory power to extend time excluded by implication.

Acts Interpretation Act 1931, s 5;

Magistrates Court (Civil Division) Rules 1998;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 3, 7A, 10, 115, Sch 1;

Tasmanian Civil and Administrative Tribunal Rules 2021, r 11;

Workers Rehabilitation and Compensation Act 1988, ss 2A, 59, 61;

Workers Rehabilitation and Compensation Regulations 2021, regs 15, 16, and Pt 2, Div 2.

Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 (Privy Council)

Burnett v FitzGerald and Browne [2017] TASSC 31;

Cobiac v Liddy (1969) 119 CLR 257;

Ellison v Sandini Pty Ltd (2018) 263 FCR 460; [2018] FCAFC 44;

Federal Commissioner of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88 (Full Court);

Fonteio v Morando Bros Pty Ltd [1971] VicRp 81; [1971] VR 658 (Full Court);

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458;

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1;

Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228;

Jenks v Dickinson (Inspector of Taxes) [1997] STC 853;

Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue [2014] NSWSC 1501;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34;

T v The State of Tasmania (Department of Education) [2022] TASCAT 130;

Tasmania v Triptree (2023) 35 Tas R 356; [2023] TASSC 16.

D C Pearce, Statutory Interpretation in Australia (10th ed, 2024, LexisNexis).

The decision has been anonymised for the purpose of publication.

1. This is a dispute about a bill of costs in a workers compensation matter. The Tribunal ordered that the employer pay the worker's costs of a referral under the Workers Rehabilitation and Compensation Act 1988 (WRC Act). The employer's objection to the worker's bill of costs was lodged out of time. The employer says that the Tribunal has the power to extend time. The worker says that the Tribunal does not.

1. Costs in workers compensation matters are governed by the WRC Act, s 59 and the Workers Rehabilitation and Compensation Regulations 2021 (WRC Regulations), Pt 2, Div 2. If costs are not agreed between the parties, the party to whom costs have been awarded may serve a bill of costs on the unsuccessful party: reg 15(1). Regulation 16, which addresses objections to bills of costs, provides:

(1) An unsuccessful party is taken to admit each item on a bill of costs unless that party delivers to the Registrar, and to the successful party, a notice of objection within 14 days after the date of service of the bill of costs. > > (2) A notice of objection is to - > > (a) specify the items objected to on the bill of costs; and > > (b) specify detailed reasons for each objection; and > > (c) include a copy of the bill of costs.

1. The worker served his bill of costs on the employer on 28 January 2025. The last day for the employer to file and serve a notice of objection was 14 days later on 11 February. The employer filed and served its notice of objection two days out of time on 13 February. Along with its notice, the employer filed an application to extend time under the Tasmanian Civil and Administrative Tribunal Rules 2021 (TASCAT Rules), r 11.

Rule 11

The Tribunal may extend or abridge the time in which an action, in relation to any proceedings, may be taken, or must be taken, under these rules, an Act or a relevant Act.

2. The WRC Act is a 'relevant Act' for the purpose of r 11: Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 3 and Sch 1. This includes the WRC Regulations: Acts Interpretation Act 1931, s 5(2).

1. Rule 11 is made under s 115 of the TASCAT Act. The section provides:

115. Relief from time limits > > (1) The Tribunal rules may provide for the Tribunal to extend or abridge a time limit for doing anything in connection with any proceedings, or the commencement of any proceedings, even though the limit is imposed under this Act or a relevant Act. > > (2) The extension - > > (a) may be authorised even though the time for complying has passed; and > > (b) may be given on conditions specified by the Tribunal.

1. Relevant also is the TASCAT Act, s 7A, which provides:

If there is an inconsistency between a provision of a relevant Act and a provision of this Act, the regulations or the Tribunal rules, the provision of the relevant Act prevails to the extent of the inconsistency.

1. The employer says that the TASCAT Rules, r 11 allows time to be extended. It says that the rule confers a general power to extend time and that there is no justification to exclude the WRC Regulations, reg 16 from its operation. It submits that Parliament intended to empower the Tribunal with the ability to extend time limits for any matters over which it has jurisdiction. It draws an analogy with cases relevant to the power to extend time generally (Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 and Burnett v FitzGerald and Browne [2017] TASSC 31) and says that this issue is no different.
2. The worker submits that time cannot be extended. He contends that the general power to extend time in r 11 of the TASCAT Rules is excluded by the wording of reg 16 of the WRC Regulations. In particular, he contends that reg 16(1) automatically deems a bill of costs to have been accepted unless a notice of objection is filed and served within time. He relies on Tasmania v Triptree (2023) 35 Tas R 356; [2023] TASSC 16 (Triptree). The worker also points to "adequate safeguards available to the [e]mployer", such as the enforcement provisions in s 61(6) of the WRC Act and the limited power to set aside a judgment in the Magistrates Court (Civil Division) Rules 1998 when enforcing a judgment debt such as one in respect of costs.

1. Ordinary principles of statutory interpretation must be the starting point. In SZTAL v Minister for Immigration and Boarder Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ said at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. The WRC Act's objects include providing "an effective and economical mechanism for resolving disputes": s 2A(d). Similarly, the Tribunal's objectives include ensuring that proceedings "are resolved as quickly as possible while achieving a just outcome" and "to keep costs to parties ... to a minimum...": TASCAT Act, s 10(1)(c) and (d). As Marshall AJ said in Triptree at [10] when considering the WRC Act's objects, they "are promoted by strict compliance with timelines to provide certainty and enhance the efficiency of the process dealing with the bill of costs". This is a matter in the worker's favour.
2. I consider later Marshall AJ's holding in Triptree that reg 16 is a deeming provision. At [11], his Honour referred to Fisher J's observation in Federal Commission of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88 (Full Court) at 96 that:

Deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to.

3. However, to my mind, that does not necessarily compel a conclusion that the Tribunal does not have the power to extend time. As Neuberger J (as his lordship then was) stated in Jenks v Dickinson (Inspector of Taxes) [1997] STC 853 (High Court) at 878:

That is not to say that normal principles of construction somehow cease to apply when one is concerned with interpreting a deeming provision; there is no basis in principle or authority for such a proposition. It is more that, by its very nature, a deeming provision involves artificial assumptions.

4. D C Pearce, Statutory Interpretation in Australia (10th ed, 2024, LexisNexis) at [4.18] notes that Neuberger J's remarks have been cited in Australia on several occasions. See: Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue [2014] NSWSC 1501 at [56] (White J); Ellison v Sandini Pty Ltd (2018) 263 FCR 460; [2018] FCAFC 44 at [209]- [210] (Jagot J); and Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228 at [41] (Beech-Jones J).
5. I therefore need to consider whether the deeming provision in the WRC Regulations, reg 16 is inconsistent with r 11 of the TASCAT Rules. If it is, the WRC Act prevails to the extent of the inconsistency: TASCAT Act, s 7A. The question of indirect inconsistency is largely coextensive with the question of the provisions' purposes and objects.

Triptree may be distinguished and is persuasive but not binding

1. There is some merit in the worker's contention that the words of the WRC Regulations, reg 16 contextually excludes the operation of r 11. The phrase "taken to admit unless" in reg 16(1) would appear to suggest that admission is automatic upon the expiry of the prescribed period of 14 days. Reg 16 provides relevant context and purpose to r 11. As I have already foreshadowed, Triptree provides some support for this. Marshall AJ said, at [24]:

[Regulation] 16, on its face, deems an unsuccessful party to have admitted each item in the bill of costs unless that party complies with the service requirements set out in the regulation. No object of the [WRC Act] demands a different construction.

One may ask what is the purpose of imposing a time limit on action to dispute a bill of costs if it can be disregarded with the Tribunal considering itself at large to extend time. Section 59 of the Act only applies to matters that are properly before the Tribunal. The consequence of a failure to comply with r 16 by the appellant meant that the Tribunal was not seized of jurisdiction to deal with a contest to the respondent's bill of costs by the appellant.

[T]he filing of a notice of objection to a bill of costs within 14 days on the Registrar and on the opposing party is an essential element of the right to object to a bill of costs... The Tribunal was correct to consider compliance with r 16 as a condition precedent to exercise of its jurisdiction under r 17, which consequently was not engaged in the circumstances.

4. I accept the employer's submission that Triptree may be distinguished. That case, both before the Tribunal[1] and on appeal, concerned whether the costs assessment process in reg 17 applied in circumstances where there was no objection to the bill under reg 16, with the consequence that the unsuccessful party was "taken to admit each item". The employer in that case contended that reg 16 was directory, not mandatory. Marshall AJ disagreed. His Honour held, at [29], that compliance with reg 16 was a condition precedent to dispute the bill.
5. The power to extend time in the TASCAT Rules, r 11 appears not to have been raised before the Tribunal or the Court. To that extent, the comments of his Honour which I have set out above must be regarded as obiter dicta. I am therefore not bound by them. But they remain persuasive and relevant to the context and purpose of the statutory provisions in this matter.
6. I think that Marshall AJ's reference at [25] to the 14-day period being "disregarded[,] with the Tribunal considering itself at large to extend time" should not be read as a reference to r 11 of the TASCAT Rules. I repeat that neither party seems to have raised the rule before Marshall AJ. With respect to his Honour, I interpret his reference to extending time to be a general reference to the Tribunal allowing an objection to a bill of costs outside of the limitation period. Put differently, I do not interpret his Honour's reference to be an observation as to the operation of r 11 or of how r 11 may be reconciled with reg 16.

1. Rule 11 on its face, read with s 115 of the TASCAT Act, appears to allow the Tribunal to extend time. There is no direct inconsistency between r 11 and reg 16. I do not understand the worker to contend to the contrary.

1. As I have endeavoured to explain, reg 16 and r 11 are not directly inconsistent. That is, reg 16 can be given effect even while allowing time to be extended under r 11. However, are they inconsistent indirectly? That is, applying the TASCAT Act, s 7A, does reg 16 impliedly exclude r 11? To my mind, the answer is 'no'. The context and purpose of the two provisions suggests that they may operate harmoniously.
2. First, the TASCAT Act, s 115(2)(a), read with r 11, suggests that time may be extended even after it has expired. In many cases, a deeming provision operates once time has expired. The fact that a provision is deeming does not, to my mind, necessarily exclude the power to extend time. See Jenks v Dickinson (Inspector of Taxes), discussed above at [13]-[14].
3. Second, as the employer points out, the power to extend time is fettered. There are well-established common law factors relevant to the discretion. One such factor is the length of the extension sought. With respect, I reject the worker's submission that r 11 would allow reg 16 "to be disregarded with the Tribunal considering itself at large to extend time". Factors relevant to the discretion act as a control or fetter. In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J, considering a provision similar to r 11, said at 480:

The grant of an extension of time under this Rule is not automatic. The object of the Rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is for the sole purpose of enabling the Court or Justice to do justice between the parties.

4. Third, the context of r 11 of the TASCAT Rules, read with s 115 of the TASCAT Act, suggests that it is intended to confer a broad power to extend time over a range of matters. There is little justification to read down that power. In contrast, some other provisions of the WRC Act expressly exclude particular provisions of the TASCAT Act. The employer referred to the WRC Act, s 59, which expressly excludes Div 10 of Pt 8 of the TASCAT Act which addresses costs in the Tribunal. Neither Parliament nor a subordinate rule maker has decided to expressly exclude r 11 from operating with respect to any provisions of the WRC Act. Contextually, this suggests that r 11 is intended to have a broad application.
5. Fourth, an analogy may be drawn with the maxim that a general provision does not impliedly repeal a specific provision. The maxim is otherwise called generalia specialibus non derogant. O'Connor J summarised it in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14 as:

Where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not apply.

6. Here, r 11 may be considered the general provision and reg 16 the special provision. In applying the principle, courts have traditionally been slow to find inconsistency. For example, in Cobiac v Liddy (1969) 119 CLR 257, Windeyer J said at 268 that the relationship between two Acts:

[M]ust depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims.

7. Attempts are generally made to reconcile provisions. Generally, the maxim will operate only where there is an irreconcilable conflict in that the two provisions cannot stand together: Fonteio v Morando Bros Pty Ltd [1971] VicRp 81; [1971] VR 658 (Full Court) at 662 and Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 (Privy Council) at 685.
8. The conflict between r 11 and reg 16 is, I think, reconcilable for the reasons that I have endeavoured to explain.
9. Fifth, I am not persuaded by the safeguards relied upon by the worker. I have summarised these above. I do not think that they are particularly relevant in considering the provisions' respective context and purpose. Alternative procedures such as options for challenging a judgment debt in the Magistrates Court (Civil Division) under the applicable rules are too speculative and tangential to be of much assistance in informing the context and purpose of reg 16 and r 11. I distinguish these safeguards from other safeguards in time-limited proceedings under the WRC Act, such as referrals under s 81A.[2]

1. Applying all these matters, including affording due weight to the seriously considered dicta in Triptree, I conclude that reg 16 and r 11 are not inconsistent. I further conclude that r 11 confers a power to extend time. It follows that the Tribunal has jurisdiction to exercise a discretion to determine the employer's objection.
2. This does not dispose of the proceeding. I need to determine the employer's application to extend time to object to the worker's bill of costs.

1. I direct that:
   1. The employer file and serve any evidence and submissions in support of its application to extend time within 14 days.
   2. The worker file and serve any evidence and submissions in opposition to the application to extend time within 28 days.
   3. The employer file and serve any submissions in reply within 35 days.
   4. The application to extend time be determined on the papers.
   5. Liberty to apply.

[1] T v The State of Tasmania (Department of Education) [2022] TASCAT 130.

[2] In the case of a referral under s 81A that is lodged out of time, the employer has alternative pathways under the WRC Act to dispute a claim notwithstanding that the employer is deemed to have accepted liability under s 81AB. See, for example, s 81(5).