Administrative Law - Judicial Review - Grounds of Review - Error of Law - Statutory construction - Time limits - Notice of objection to bill of costs delivered to successful party but not delivered to Registrar within time limit - Unsuccessful party taken to admit items in bill of costs - No error of law - Appeal dismissed

Workers Rehabilitation and Compensation Regulations 2021, r 16_._

Judgment Number: [2023] TASSC 16

1. This appeal from a decision of the Tasmanian Civil and Administrative Tribunal ('the Tribunal") raises a short point of statutory construction regarding the proper interpretation of Regulation 16 of the Workers Rehabilitation and Compensation Regulations 2021 ("the regulations").
2. Regulation 16 deals with the topic of an objection to a bill of costs served by a successful party on an unsuccessful party after a proceeding before the Tribunal concerning a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act").
3. Regulation 16 provides that:

(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.

(a) specify the items objected to on the bill of costs; and

(b) specify detailed reasons for each objection; and

1. On 9 March 2022, the respondent sought compensation under s 71 of the Act for permanent impairment resulting from an injury which entitled her to compensation under that Act.
2. On 20 June 2022, the Tribunal made orders including an order that it determined the degree of relevant impartment as "25% of the whole person" and that the employer (the appellant) "pay the worker's costs as agreed and taxed".
3. After failed negotiations about what constituted a reasonable amount for the respondent to claim as legal fees in her claim for costs, the appellant requested a bill of costs from the respondent.
4. Regulation 15 of the regulations deals with the topic of a bill of costs. It provides as follows:

If costs are not agreed between the parties, the successful party to whom costs have been awarded by an order of the Tribunal may serve a bill of costs on any other unsuccessful party.

Unless the Tribunal otherwise orders, the fees in a bill of costs are to be at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules."

1. On 14 September 2022, the respondent served a bill of costs on the appellant. On 27 September 2022 (inside the 14 day period provided in r 16) the appellant delivered to the respondent a notice of objection but did not serve a notice of objection on the Registrar until 29 September 2022 (outside the 14 day period provided in r 16).
2. The appellant conceded that it delivered the notice of objection outside the time limit provided in r 16.
3. The parties requested the Tribunal to determine whether the time limit in respect of delivery of the notice of objection in r 16 was an obligatory requirement or merely a directory requirement not subject to such compliance in order for a notice of objection to be treated as valid and engaging a dispute as to the contents of the bill of costs which dispute would be determined by the Tribunal.
4. The Tribunal held that the words in r 16 "is taken to admit each item" make r 16(1) a "deeming provision" requiring strict interpretation. As was said by Fisher J in the Federal Court of Australia in Federal Commissioner of Taxation v Comber [1986] FCA 92; (1986) 10 FCR 88 at 96:

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

1. The Tribunal determined that it had no power to go behind a deeming provision and considered that it did not have jurisdiction to order an assessment or conduct any review of the bill of costs. The appellant has appealed from that determination to the Court.
2. The first ground of appeal contends that the Tribunal erred in law by construing r 16 in the way it did as it was obliged to do and treat the appellant as having admitted the bill of costs delivered to it.
3. The second ground of appeal asserts that the Tribunal was wrong in treating compliance with r 16 as a condition precedent to the assessment of costs under r 17.
4. The third ground of appeal contends that the Tribunal was in error in not determining that r 17 was engaged and that an assessment of the bill of costs was required to be undertaken by the Registrar.
5. Regulation 17(1) provides:

(1) After receiving a notice of objection under regulation 16 , the Registrar is to -

(a) fix a date, time and place for an assessment of costs; and

1. Counsel for the appellant also relied on s 59(1) of the Act which, so far as is material, permits the Tribunal to "make such order as to costs as it considers appropriate in any proceeding, in relation to this Act that are before it".
2. The difficulty with reliance on r 17 of the regulations and on s 59 of the Act is that they assume the existence of receipt of a valid notice of objection in relation to r 17 and a proceeding as to a dispute about costs validity before it under s 59. The answer to each issue depends on the proper construction of r 16.
3. Counsel for the appellant submitted that the time limits for dealing of the notice of objection are directory and not obligatory. Counsel contended that the general object of the Act concerning keeping costs of proceedings to a minimum is served by considering the time limit in r 16 as merely directory.
4. The chief objects of the Act are contained in s 2A thereof. Paragraph (d) refers to establishing a scheme which "provides an effective and economical mechanism for resolving disputes relating to the treatment and management of, and compensation in relation to workplace injury. Paragraph (p) refers to a scheme which is "fair, approachable, efficient and effective". None of those objects is impugned by strict time limits dealing with the delivery to the Registrar of a notice of objection to a bill of costs.
5. At p 384 in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the plurality said

"The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

1. In Project Blue Sky at p 385 the plurality observed that an application of strict grammatical meaning would bring the statutory provision in question in conflict with Australia's international obligations. No such problem arises on the facts of this case or any problem which shows that a strict interpretation of r 16 would violate an object of the Act. On the contrary the objects of the Act are promoted by strict compliance with timelines to provide certainty and enhance the efficiency of the process dealing with the bill of costs.
2. Counsel for the appellant submitted that substantial compliance with r 16 was sufficient and that so much was achieved by service on the respondent within 14 days although not on the Registrar. Counsel conceded that if so much had been the intention of r 16, the words "and/or" would have been inserted after the word "Registrar" instead of the word "and".
3. I agree with the submission of counsel for the respondent that r 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 Act demands a different construction. There is no "cannon of construction" offended by such an approach as occurred in Project Blue Sky. Here the "cannon of construction" concerning strict interpretation of deeming provisions supports the construction of r 16 advanced by the respondent.
4. 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.
5. During the course of argument counsel for the parties referred to cases where courts had interpreted limitation periods provided in legislation. Little assistance can be gained from considering other statutory schemes. Some of them, as in Acton View Pty Ltd v Resource Management Appeal Tribunal [2021] TASSC 31 (per Blow CJ), deal with statutory schemes which allow for applications to apply to extend time within which to perform a particular act. However Acton View Pty Ltd is of assistance in that at [23] his Honour observed that statutory time limits may be imposed upon the enforcement of rights, relying on the judgment of French J in Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778 (2000) 94 FCR 269. Here the enforcement of a right to seek a challenge to a bill of costs was subject to a time limit.
6. I agree with the submission of counsel for the respondent that the 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. Regulation 17 is not engaged without compliance with the conditions precedent regarding the delivery of a notice of objection to the persons named within the period set out in r 16. Also so much is the case where a limitation period is imposed on a right to bring a claim in a court. A limitation of that sort does not invalidate the claim or stand in the way of granting a remedy. It is a gateway to making a claim.
7. Having regard to the foregoing, I consider that the order of the Tribunal made on 7 November 2022 that the employer is taken to admit each item on the bill of costs and the Tribunal is without jurisdiction to order an assessment or conduct a review of the bill of costs, was an order which in the circumstances is unimpeachable.
8. The Tribunal did not err in law in giving r 16 its plain and literal meaning because that meaning did not conflict with any object of the Act or any cannon of construction. 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.
9. The Court orders as follows:

(a) The appeal is dismissed. > > (b) The appellant is to pay the respondent's costs of the appeal.