Transport Accident Commssion v Busuttil [2001] VSC 325

11. On 31 December 1998 the plaintiff denied the defendant's claim.

14. On 22 April 1999 the plaintiff assessed the defendant's level of impairment at 20%.

17. On 11 November 1999 the defendant filed an application for review with the Tribunal in relation to both the decision to refuse the defendant's claim in respect of loss of earnings benefits and loss of earning capacity benefits and its decision in relation to the defendant's level of impairment.

20. On 16 October 2000 the defendant filed an originating motion in the County Court seeking leave to bring a proceeding seeking to recover damages in respect of his injuries.

23. On 5 February 2001 the plaintiff granted to the defendant a serious injury certificate.

26. On 22 May 2000 the defendant's application came before the Tribunal. As the plaintiff had granted the defendant a serious injury certificate it was pointless for the defendant to continue with his application for review of the plaintiff's level of impairment assessment and that day that application for review was dismissed. The application for review of the plaintiff's decision to refuse the defendant's claim in respect of loss of earnings benefits and loss of earning capacity benefits was adjourned, and the Tribunal made the order for costs to which I earlier referred.

29. The Tribunal delivered written reasons for its order as to costs on 28 June 2001. The paragraphs of the reasons relevant for present purposes read:

"14. After considering the submissions of both counsel and the material before me, I formed the view that orders should be made as indicated in paragraph 3 of my orders set out at the commencement of these reasons for decision. It was not in issue that this was a case of considerable complexity and involved serious injury to the applicant when he was aged 8. The extent of his impairment was such that he was granted a serious injury certificate by the respondent. In those circumstances, I think it reasonable that the applicant be awarded his costs on Scale C at least up to the granting of the serious injury certificate. However, I do not propose to make an award on Scale C having regard to the fact that the respondent was obliged to incur unnecessary expenditure by reason of the applicant's actions. In this regard, the failure of the applicant's solicitors to respond to the respondent's letters of 24 April and 2 May 2001 left the respondent with no alternative but to brief counsel in relation to the impairment issue. 15. In addition, in my view, by failing to seek an adjournment of the loss of earnings application until today, the applicant again put the respondent in a position where it had no alternative but to brief counsel and prepare a case on that issue. 16. Mr. Ramsay submitted that the costs issue was not addressed in either letter from the respondent to the applicant and he pointed to the fact that the respondent refused to pay the applicant's costs from the date of an offer of compromise made on 25 January 2001. Whether or not this was the respondent's position, it appears to me that the applicant should have informed the respondent that the impairment issue was not being pursued, leaving only the question of costs to be determined. 17. In all the circumstances I consider it reasonable that the applicant be awarded his costs, but only on Scale A, in relation to the respondent's decision of 22 April 1999."

33. The questions of law upon which the appeal is said to be brought read:

"(a) whether the Order contained in paragraph 3 of the Tribunal's Orders was an exercise of discretion as to costs which was unreasonable, or which was not open to be reached on the proper exercise of that discretion, in the circumstances as found by the Tribunal; (b) whether the Tribunal, in exercising its discretion, as to costs, was required to take into account, and did not take into account, the provisions of and the policy of s.74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998; (c) whether the Tribunal's discretion as to costs miscarried on the basis that it did not take into account a relevant matter, namely that the appellant had incurred costs which were thrown away by reason of the fault of the respondent."

"1. The Order contained in paragraph 3 of the Tribunal's Order was an exercise of discretion as to costs which was unreasonable, or which was not open to be reached in the proper exercise of that discretion, in the circumstances as found by the Tribunal; 2. The Tribunal, in exercising its discretion as to costs, was required to take into account, and did not take into account, the provisions of and the policy of s.74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998; 3. The Tribunal's discretion as to costs miscarried by reason of it not having taken into account a relevant matter, namely that the appellant had incurred costs which were thrown away by reason of the fault of the respondent."

41. In Transport Accident Commission v. O'Reilly and Others[1] the Court of Appeal held that the diverse and disparate powers of the Administrative Appeals Tribunal to award costs were generally not to be assimilated to those of courts of law and were not designed pre-eminently to create or justify any expectation by a successful party to be compensated by an order for costs against an unsuccessful party or otherwise. At p.457 Ormiston, J.A. said:

"Nevertheless, whatever be the nature of the discretion as understood in the Court or 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."

45. It is pertinent to bear those observations in mind when considering the present appeal.

48. It would seem to me that to contend in the present case that the Tribunal made an error of law in arriving at the decision it did concerning the costs of the application for review of the Commission's decision in relation to the defendant's level of impairment is simply untenable.

51. On any view of the matter the defendant was entitled to his costs of the review up to the date at which the plaintiff granted to the defendant a serious injury certificate. And in its reasons the Tribunal recognised that that was the case.

54. The Tribunal then was justifiably critical of the behaviour of the defendant in not responding to the plaintiff's letters of 24 April and 2 May and informing it that the application for review in respect of the impairment decision would be withdrawn or discontinued. And in its ultimate decision as to costs the Tribunal penalised the defendant for that behaviour by not giving him County Court Costs on Scale "C" but on Scale "A".

57. It is not to the point that I may have made a different order in the matter.

60. The first question of law upon which the plaintiff's appeal is brought is stated to be whether the Tribunal's order was an unreasonable exercise of its discretion or which was not to be reached in the proper exercise of its discretion.

63. Pursuant to the provisions of s.79(2) of the Transport Accident Act 1986 the Tribunal is empowered to make such order as to costs as it thinks just.

66. Whilst s.74 of the Victorian Civil and Administrative Tribunal Act 1998 gives it a discretion to make an order that an applicant pay all, or some part of the costs of the other parties to the proceeding in the event an applicant is given leave to withdraw an application, that provision does not override the provisions of s.79(2) of the Transport Accident Act.

69. In the present case the Tribunal considered that it was just to give the defendant his costs of the application for review but because of his behaviour, on a lower scale than that to which he would otherwise have been entitled, I do not consider that in doing so it can be said that it made an error of law.

72. The second question of law said to arise is whether in exercising its discretion as to costs the Tribunal was required to take into account and did not take into account the provisions of and policy of s.24(2)(b) of the Act.

75. There is no evidence that the Tribunal did not take into account the provisions of s.24(2)(b). Nor do I consider that the sub-section establishes a policy. It does no more than give the Tribunal a discretion to award costs against an applicant in the event the applicant withdraws his application if the circumstances justify the making of such an order.

78. In the present case the defendant was fully entitled to his costs of the review of the plaintiff's assessment of his level of impairment up to the date at which the plaintiff granted him a serious injury certificate. He was then entitled to be penalised for his failure to have immediately notified the plaintiff of his intention to withdraw or discontinue the application for review. He was, and I can find no error of law on the part of the Tribunal in relation to the matter.

81. The third question of law said to arise from the cost order of the Tribunal is whether its discretion as to costs miscarried on the basis that it did not take account of the fact that the plaintiff had incurred costs which were thrown away by reason of the fault of the defendant.

84. The short answer is no because it did - hence the order that the defendant's costs be taxed on Scale "A" rather than Scale "C".

90. The order of the Master made on 17 August 2001 is quashed.

93. The plaintiff's application for leave to appeal is dismissed.

96. I order that the plaintiff pay the defendant's costs of the appeal. I grant to the plaintiff the appropriate certificate pursuant to the provisions of the Appeal Costs Act in respect of its costs of the appeal and the costs of the appeal it is required to pay to the defendant.

[1] [1998] VSCA 106; (1999) 2 V.R. 436