ACT Department of Justice and Community Services and Comcare and Anor [2009] AATA 579 (4 August 2009)

Last Updated: 5 August 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1692

GENERAL ADMINISTRATIVE DIVISION

)

Re

ACT DEPARTMENT OF JUSTICE & COMMUNITY SERVICES

Applicant

And

COMCARE 1st Respondent NARELLE COADY

2nd Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 4 August 2009

Place Canberra

Decision

The Tribunal orders the Commonwealth authority to pay Ms Coady's reasonable costs on a party and party basis as agreed or taxed.

...................[sgd].................
Mr S. Webb, Member

CATCHWORDS

PRACTICE AND PROCEDURE - costs - application made by ACT Department - Commonwealth Authority - application withdrawn after conciliation conference and taken to have been dismissed - claimant seeking order for costs - discretionary power to make costs order not extinguished by dismissal - order for costs

Safety, Rehabilitation and Compensation Act 1988 ss 4, 4A, 62, 64, 67

Administrative Appeals Tribunal Act 1975 ss 3, 25, 33, 42A

Acts Interpretation Act 1901 s 33

Re Commonwealth Bank of Australia and Swann & Comcare [1995] AATA 307

Re Sanyo Australia Pty Ltd and Comptroller-General of Customs & Matsushita Electric Co Australia Pty Ltd & Akai Pty Ltd [1995] 9289A (1 August 1995)

Re Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park Authority (No 3) (1992) 16 AAR 319

Uniden Australia v Customs (1997) 74 FCR 190

Re Pavlovic and Telstra Corporation Limited [1994] AATA 187

Re Douglas Cyril Stevenson and Commonwealth of Australia (1987) 13 ALD 524

Lower v Comcare [2002] FCA 1394

Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Griffiths v Australian Postal Corporation [2008] FCA 19

Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319

Riley v Comcare (1994) 48 FCR 449

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227

Re Gourvelos and Telstra Corporation Limited (1994) AATA 9158A

Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862

Re ACT Department of Health and Nikolovski and Comcare (AAT 10826A, 13 November 1996)

Re Fu and Australian Postal Corporation [2003] AATA 864

Christie v Morauta (Professional Services Review Tribunal No 3 of 2000, 9 March 2001)

REASONS FOR DECISION

4 August 2009

Mr S. Webb, Member

1. This matter arises following the withdrawal of a substantive application for review of a reviewable decision by the ACT Department of Justice and Community Services (‘the Department’). Narelle Coady was the claimant and second respondent in those proceedings. She has applied for an order for costs she incurred in the proceedings pursuant to subs 67(8A) of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’). Her application is opposed by the Department. The first respondent, Comcare, neither supports nor opposes the application.
2. The parties informed me at the outset that there is no dispute that the Department, being part of the Australian Capital Territory, is taken to be a Commonwealth authority pursuant to subs 4(1) and 4A of the SRC Act. I agree, and I will proceed on that basis.
3. The relevant history of this matter follows. Ms Coady was an employee of the Department. She claimed compensation in relation to an injury. Comcare determined to reject the claimed injury. The matter was reconsidered pursuant to subs 62(1) of the SRC Act and Comcare accepted liability to pay compensation for the injury, described as ‘adjustment reaction with mixed emotional features’. On 21 April 2008 the Department lodged an application for review of the reconsideration decision on the basis that the injury resulted from reasonable disciplinary action and Ms Coady’s failure to obtain a benefit, and it is therefore excluded by operation of the definition of ‘injury’ at subs 4(1) of the SRC Act.
4. Ms Coady obtained legal representation in the ensuing Tribunal proceedings. On 23 July 2008 a preliminary conference was held at which all parties were represented. The conference registrar issued directions requiring certain things to be done by specified dates. The Department failed to comply with these directions and a non-compliance directions hearing was held on 25 September 2008. The Department failed to appear. The Senior Member presiding issued directions requiring the Department to show cause why the application should not be dismissed. On 16 October 2008 a further preliminary conference was conducted before a conference registrar. All parties were represented. The conference registrar issued directions requiring certain things to be done within a set timetable. On 8 December 2008 all parties participated in a conciliation conference. The matter did not settle. On 19 December 2008 all parties were represented in a telephone directions hearing. The Department advised that no settlement would be made. The presiding member set a timetable for Comcare and Ms Coady to file all further witness statements and evidence, and stood the matter over to 19 January 2009. On that date the parties agreed that the matter should be referred to a member for neutral evaluation, and the presiding member issued directions to that effect. A neutral evaluation was listed on 3 March 2009. On 20 February 2009 the Department’s solicitor informed the Tribunal that:

“I am instructed that my client seeks to withdraw its application in accordance with section 42A(1A) of the Administrative Appeals Tribunal Act 1975.”

In response to that notification, the Tribunal wrote to the parties, stating that:

“On 20 February 2009 the Applicant lodged written notification requesting that the above application be withdrawn pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Under section 42A(1B) of the AAT Act, the effect of the notification is that the Tribunal has dismissed the application without proceeding to review the decision.”

On 11 June 2009 Ms Coady’s solicitor wrote to the Tribunal in the following terms:

“As you know we act for the Third Party Narelle Coady. This matter was dismissed without proceeding to review pursuant to Section 42A(1B) of the Act.
Our client now requires the matter to be re-listed so that argument can be held in relation to costs pursuant to Section 67(8A) of the Safety, Rehabilitation and Compensation Act 1988.
It may be necessary for a Directions Hearing to be convened in this matter in relation to setting down the matter for Hearing.”

The matter was listed before me on 23 July 2009.

5. The Department submits that the Tribunal has no jurisdiction to consider the application, as the substantive matter was withdrawn pursuant to subs 42A(1A) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) and is taken to have been dismissed by operation of subs 42A(1B) of that Act. The Department relies on the decision of the Tribunal, differently constituted, in Re Commonwealth Bank of Australia and Swann & Comcare [1995] AATA 307. Furthermore, the Department asserts that the discretionary power to order costs pursuant to subs 67(8A) is only enlivened “following the successful making of an application for an order for costs by a party to a determination by the Tribunal to vary or set aside the decision under review”.[1]
6. As will appear, I do not agree.
7. The application made by the Department pursuant to s 25 of the AAT Act and s 64 of the SRC Act was for review of a decision; the particular decision was a reconsideration decision pursuant to s 62 of the SRC Act. Considering the terms of subs 42A(1A) of the AAT Act, it is clear that the applicant Department had the right to withdraw the application at any time. Furthermore, that right is not constrained or fettered in any way by any requirement to obtain the consent of other parties or the Tribunal, or in relation to public interest or other considerations.[2] Amendments to the AAT Act in 1993 put this beyond doubt. By operation of subs 42A(1B) of the AAT Act, the effect of the notice of withdrawal filed on 20 February 2009 is that the application is taken to have been dismissed.[3]
8. It is well established law that once an application is properly withdrawn, the court or tribunal has no power to hear or determine the application; the proceedings are brought to an end without any substantive decision, leaving the reviewable decision that was the subject of challenge unaltered.[4] In the terms of subs 42A (6), if the Tribunal dismisses an application “the proceeding to which the applications relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded”.[5] The word ‘proceeding’ is given definition by subs 3(1) of the AAT Act, and includes an application for review of a decision.
9. Thus it can be seen that the proceedings concerning the Department’s application were brought to an end on 20 February 2009. From that date, in effect, “there was no longer any proceeding before the Tribunal, upon which it could proceed to give a decision”.[6] But that is not the end of the matter.
10. Even though the proceedings concluded on 20 February 2009, the Tribunal may attend to ancillary matters in certain circumstances within the express terms of applicable legislation. In Re Environmental Images Pty Ltd and Australian Trade Commission (DP McMahon presiding), for example, the Tribunal rejected the proposition that the deemed dismissal of the application pursuant to subs 42A(1B) of the AAT Act meant that it was functus officio and could not make orders in respect of certain documents.[7]
11. Generally, the Tribunal’s jurisdiction is conferred upon it by enactments other than the AAT Act concerning, but not limited to, the review of a decision pursuant to subs 43(1) of the AAT Act. I note in passing that even though the Tribunal has discretion to determine its own procedure, subs 33(1)(b) of the AAT Act cannot confer jurisdiction which is excluded by the express terms of legislation.[8] Thus, for the purposes of the SRC Act the Tribunal has jurisdiction to review a ‘reviewable decision’ by application under subs 64(1) and subject to ss 65 and 66 of that Act. In the event that an application for review of a decision is withdrawn, that is the end of the matter and there is nothing further for the Tribunal to do in respect of the reviewable decision. Nevertheless, the SRC Act also confers certain discretionary powers in relation to making orders for costs in relation to proceedings under Part IV. The term ‘proceedings under Part IV’ is given meaning by definition and explanation at subs 4(1) and (12) respectively. There it can be seen that “the institution of a proceeding under Part IV in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision”.[9] Thus, once proceedings are instituted under Part IV of the SRC Act the Tribunal has jurisdiction to make orders for costs in relation to those proceedings if other express preconditioning criteria are established pursuant to the applicable provisions of s 67 of that Act. If the relevant criteria are satisfied in the particular proceedings, the Tribunal has jurisdiction and statutory power to make a decision in relation to costs incurred in the proceedings. In the event that the decision in relation to costs remains unmade, then the Tribunal has not completed all of the functions conferred upon it in respect of those proceedings. In those circumstances, there is no legal impediment to the Tribunal making such a decision.[10]
12. In Swann’s case parties to the application reached agreement three days prior to a listed hearing and the application was formally withdrawn by the Commonwealth Bank (the applicant in those proceedings). The Tribunal was asked to make an order for costs in favour of the 1st respondent (Mr Swann) on an indemnity basis. Considering the provisions of subs 42A(1A) and (1B) of the AAT Act, the Tribunal said:

“6. In the opinion of this Tribunal the effect of those subsections of the Act have the result that the application of the Applicant in this matter was, as and from 9 October 1995, that is to say when the Tribunal received the facsimile of the request to withdraw, dismissed.
6. Any proceedings before this Tribunal after 9 October 1995 are therefore a nullity as, as and from that date, the Tribunal was functus officio, the matter being dismissed by operation of law and not requiring a formal order from the Tribunal.
7. The effects of Ss42A(1A) and (1B) of the Administrative Appeals Tribunal Act 1975 were discussed by a Tribunal presided over by Deputy President McMahon in re Sanyo Australia Pty Ltd and Comptroller-General of Customs and Ors (Unreported Tribunal Decision No 9289A). At paragraph 15 of their reasons for decision the Tribunal said:
"Sub-section 42A(1A) was enacted, with effect from 9 June 1993, to settle beyond doubt the right of an applicant to withdraw its application. The language of sub-section (1A) is clear. The right is given to a person who has made an application to the Tribunal for review of a decision. It is not given to a respondent. It is not given to a party joined. The right may be exercised `at any time'. Once the Tribunal is notified that the application is withdrawn, then sub-section (1B) comes into operation. Automatically, and without further reference to the Tribunal, the application is taken to have been dismissed by the Tribunal without proceeding to review the decision. The operation of sub-section (1B) precludes the taking into account of discretionary matters such as those to which we have referred above. There is no basis for considering whether a public interest should preclude Sanyo from withdrawing its application or whether prejudice caused by the incurring of substantial costs should have a similar affect. Parliament has taken the view that it is appropriate that neither consideration should be relevant. The right to withdraw is absolute. The Tribunal takes no active part in the finalisation of the proceedings in that event."
8. It seems that in drafting subsections 42A(1A) and (1B) which were inserted into the Administrative Appeals Tribunal Act by section 16 of the Administrative Appeals Tribunal Amendment Act 1993 the Parliamentary draftsman did not have cognisance of section 67 of the Safety Rehabilitation and Compensation Act 1988. The result is that, in the present case, by the simple expedient of forwarding a notice of withdrawal in writing to the Tribunal, the Applicant has ensured that the Tribunal can make no order for costs pursuant to subsection 67(8A) of the Safety Rehabilitation and Compensation Act 1988.
9. If, however, we are wrong in this respect we will set forth our reasons why we would not in any event have ordered that the Applicant pay the First Respondent's costs on an indemnity basis as requested by Mr Shiels of Queens Counsel who appeared for the First Respondent.” (Emphasis added)

13. As can be seen, the Tribunal in Swann drew authority concerning the effect of subs 42A(1A) and (1B) of the AAT Act from the Tribunal’s decision in Sanyo. In that case the Tribunal considered the effect of a deemed dismissal on the proceedings, and on joinder parties in particular, following withdrawal of the substantive application by Sanyo. The particular matter arose under the Customs Act 1901 and the Tribunal determined that “the whole of the application was taken to have been dismissed upon the giving of notification [of withdrawal] by Sanyo”.[11] The Tribunal in Sanyo’s case was not asked to determine and did not consider making any orders in relation to costs, its attention was directed to considerations of public interest and prejudice (including in relation to costs incurred by joinder parties) in relation to the withdrawal.
14. The issue of orders for costs in comparable circumstances to those in Sanyo was considered by a full Tribunal (Justice Gray presiding) in Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3).[12] In that case the applicant company withdrew and the application was deemed to have been dismissed by operation of subs 42A(1B) of the AAT Act. The other parties who were represented in the proceedings urged the Tribunal to order the withdrawing party to pay costs either directly or conditionally on withdrawal. The Tribunal declined to make such an order as it had no power to do so under the applicable legislation in those proceedings – “It could not do indirectly, by attaching a condition to a grant of leave to withdraw, what it cannot do directly”.[13] Thus it can be seen that the Tribunal in Queensland Nickel did not order costs as the relevant legislation did not confer power upon it to do so. Importantly, the Tribunal in that case did not conclude that the deemed dismissal precluded it from making any further orders in relation to costs.
15. On that point, the Queensland Nickel and Sanyo cases are distinguished from the present case: the SRC Act does confer power on the Tribunal to make orders for costs in certain circumstances. For that reason I must decline to follow the Tribunal’s decision in Swann’s case.
16. In order to determine the present question of jurisdiction and whether the Tribunal is vested with power to make an order for costs pursuant to subs 67(8A) of the SRC Act, one must carefully examine the particular sections concerning costs and the relevant authorities by which the Tribunal is bound. I note in passing and with respect to the Tribunal as constituted in Swann’s case, even though it is most desirable for the Tribunal to make consistent decisions, and although those considerations weigh heavily in this case, I am not bound by that decision if I consider it to be incorrect on this point.
17. The provisions of s 67 of the SRC Act are a code in the area of costs.[14] Even though the only provision of that section that is immediately relevant in the present case is subs 67(8A), it is desirable to consider that provision in the context of the section as a whole. The general rule is set out in subs 67(1): each party to a proceeding shall bear their own costs. Subs 67(2) to (12) set out the circumstances in which the general rule may not apply.[15] Subs 67(2) renders a responsible authority (as defined at subs 67(1A)) liable to reimburse a claimant for costs reasonably incurred in a proceeding that is rendered abortive in circumstances that are not presently relevant; if the particular circumstances are established, the liability to pay flows as a function of the subsection, without a determination by the Tribunal. Subs 67(3) to (7) inclusive concern the making of declarations in reference to subs 67(2) that are also not presently relevant.
18. Subs 67(8) confers a limited discretionary power on the Tribunal to order a responsible authority to pay all or part of a claimant’s costs in proceedings that were initiated by the claimant in certain preconditioning circumstances. Those preconditions are that the Tribunal makes a decision varying or setting aside the reviewable decision in a manner that is more favourable to the claimant.
19. Subs 67(8A) is in the following terms:

(8A)  Subject to this section, the Administrative Appeals Tribunal may order that the costs incurred by the claimant of any proceedings instituted by the Commonwealth be paid by:
         (a)  if the Tribunal varies the relevant reviewable decision in a manner less favourable to the claimant, or sets aside the relevant reviewable decision and substitutes a decision that is less favourable to the claimant—Comcare; or
         (b)  in any other case—the Commonwealth. (Emphasis added)

As can be seen the subsection confers a limited discretionary power on the Tribunal to order either Comcare or the Commonwealth (as defined at subs 4(1)) to pay costs incurred by a claimant in any proceedings instituted by the Commonwealth: if the Tribunal varies or sets aside the relevant reviewable decision in a manner that is “less favourable to the claimant”, the Tribunal may order Comcare to pay the claimant’s costs,[16] or, “in any other case”, the Tribunal may order the Commonwealth to pay the claimant’s costs.[17]

20. Subs 67(8B) confers a limited discretionary power on the Tribunal to order a responsible authority to pay a claimant’s costs of proceedings initiated by a licensed corporation in certain preconditioning circumstances: if the Tribunal affirms the decision or varies or sets it aside in a manner that is more favourable to the claimant. The terms of subs 67(9) are directive – “the Tribunal shall...” - and require the Tribunal to order the responsible authority to pay the claimant’s costs in the event that the reviewable decision is set aside and the matter is remitted to the determining authority for re-determination.
21. Subs 67(10), (11) and (12) are exclusionary, in terms that are not presently relevant. Subs 67(13) confers a discretionary power on the Tribunal to tax or settle the amount of costs a responsible authority is to pay to a claimant by order, if the parties cannot agree. Subs 67(14) provides that a responsible authority is taken to be a party to the proceeding for the purposes of s 69A of the AAT Act; that section sets out the procedure for taxing costs ordered under the AAT Act or any other Act.
22. There are a number of things to say about the costs code under s 67 of the SRC Act that are presently relevant. The discretion to order costs under s 67 involves the exercise of administrative power, in relation to which the Tribunal must act with “judicial detachment and fairness” and not “arbitrarily, capriciously or so as to frustrate the legislative intent”.[18]
23. The costs power under s 67 of the SRC Act arises in an inter-parties context, involving elements of the adversarial process. Consequently, the scope of the discretion should be given a liberal construction and “ought not to be read down other than by reference to specific legislative constraints”.[19]
24. The code that s 67 sets out is limited; it does not confer a general power on the Tribunal to order payment of a claimant’s costs. The specific preconditioning circumstances set out in the section must be established before the power to order costs is enlivened.
25. The discretion under subs 67(8A) of the SRC Act is essentially preconditioned by the following factors:
    • (a) the institution of any proceedings (the making of an application to the Tribunal for review of a reviewable decision[20]) by the Commonwealth,
    • (b) the incurring of costs of those proceedings by a claimant, and
      • (i) the Tribunal varying or setting aside the reviewable decision in a manner less favourable to the claimant, in which case Comcare may be order to pay the claimant’s costs, or
      • (ii) any other case, in which case the Commonwealth may be ordered to pay the claimant’s costs.
26. If the discretion to order costs under subs 67(8A) is enlivened by an application of the requisite kind, there is no controlling rule or policy concerning the exercise of the power.[21] The discretion is broad and, subject to the exclusions at subs 67(10), (11) and (12) is only confined by considerations relevant to the case at hand.[22] Nevertheless, the discretion is subject to subs 67(1) and, therefore, the Tribunal should have regard to:
    • (a) the rule of primacy set out in subs 67(1),
    • (b) the circumstances of the case which gave rise to a decision enlivening the qualification upon subs 67(1),
    • (c) the background circumstances concerning the claim,
    • (d) the nature and character of proceedings for the purposes of the SRC Act,
    • (e) the complexity of the claim, and
    • (f) the conduct of the parties in relation to the proceeding.[23]
27. The discretionary power to order costs under s 67 of the SRC Act stands as a discrete head of power, once enlivened the functions of the Tribunal are not complete until the power has been exercised.[24] The discretion of the Tribunal to award costs pursuant to s 67 is unfettered by temporal considerations or by the need for an application.[25] That approach is consistent with subs 33(1) of the Acts Interpretation Act 1901. Thus, once the discretionary power to order costs pursuant to subs 67(8), (8A) or (8B) of the SRC Act is enlivened in the particular circumstances of each subsection, the Tribunal is not functus officio until the power is exercised or expressly extinguished by operation of legislation, such as the exclusionary provisions of subs 67(11) or (12).[26]
28. In the Department’s submission, and in Swann, dismissal of the application is taken to mean that the application is concluded and the Tribunal’s functions are spent in relation to that proceeding: thereafter the Tribunal is functus officio and any further proceedings would be a nullity.[27] Respectfully, as it appears to me that approach is not consistent with the costs code set out in s 67 of the SRC Act in the circumstances of this case. It is correct that subs 67(8), subs 67(8A)(a) and subs 67(8B) are preconditioned by the Tribunal making a determination of a particular character in the particular proceedings. In those instances an order for costs (or a decision not to make such an order) may follow the making of a decision of the requisite character concerning the substantive dispute and, if the particular circumstances are established, the Tribunal is not functus officio until that has occurred. These specific provisions, however, do not address the eventuality that proceedings instituted by the Commonwealth are deemed to have been dismissed following withdrawal of the application by the Commonwealth.
29. Ms Coady asserts that subs 67(8A)(b) is cast in terms that are sufficiently broad to address that eventuality. I agree. The phrases “any proceedings instituted by the Commonwealth” and “in any other case” that are used in subs 67(8A) are very broad. The construction contended for by the Department limits the scope of the subsection to a circumstance in which the Tribunal determines the reviewable decision in a manner that is either “less favourable to the claimant” (in which case subs 67(8A)(a) would apply) or not (in which case it is said that subs 67(8A)(b) would apply). As it appears to me interpreting the subsection in this manner is not consistent with the terms of the legislation. If the construction contended for by the Department is accepted, the result will be that claimants who incur costs in proceedings instituted by the Commonwealth will have no avenue to seek recovery of those costs in all cases in which the Commonwealth withdraws its application. Such a result would be manifestly unfair to claimants in those circumstances, and it would deny such claimants the opportunity to obtain proper adjudication in relation to costs incurred in those proceedings.
30. There is nothing in the (then) Minister’s Second Reading Speech or in the Explanatory Memoranda to the Administrative Appeals Tribunal Amendment Act 1993 to indicate that the Parliament intended a deemed dismissal under subs 42A(1B) of the AAT Act to extinguish powers conferred on the Tribunal by other enactments in relation to a proceeding that is withdrawn under subs 42A(1A).[28] Even though it can readily be accepted that a withdrawal of an application must be dealt with differently than an application determined by the Tribunal, the withdrawal and deemed dismissal of an application does not expunge the prior existence of the application or the institution of the proceedings before the Tribunal. Similarly, powers that are enlivened on the institution of proceedings are not simply or necessarily extinguished by the withdrawal or deemed dismissal of the application unless the legislation expressly intends it. If those circumstances pertain, plainly enough there can be nothing left for the Tribunal to do. But that is not so in the present case. The observations of the Hon A. R. Neaves, then sitting as President of the Professional Services Review Tribunal, in Christie v Morauta (Professional Services Review Tribunal No 3 of 2000, 9 March 2001) at [31] are apposite here:

“Resolution of the issue raised by the applicant must begin with an acknowledgment of the general principle that, unless constrained by considerations effectively abrogating or fettering the right, a person who has made an application in a civil matter to a statutory tribunal has an inherent right to withdraw that application at any time before a decision is given, with the consequence that the application is no longer a subsisting or effective application and the tribunal is deprived of the power to make any order except, perhaps, where power is conferred on the tribunal to make incidental orders as to costs or the like.”

31. Subs 67(8A)(b) provides a mechanism whereby the Tribunal may order the Commonwealth to pay the claimant’s costs if the essential preconditioning factors are established. Contrary to what the Tribunal said in Swann at [8], once the discretionary power is enlivened by an application for review of a reviewable decision by the Commonwealth (in this case the Department), the power is not extinguished or exhausted until it is exercised or excluded on the facts. Temporal considerations do not intrude. The deemed dismissal of an application in the circumstances contemplated by subs 42A(1B) does not extinguish the discretionary power conferred on the Tribunal by subs 67(8A) in its terms.
32. In sum, orders for costs are incidental to the proceedings that were initiated by the Department by application for review of a reviewable decision. The discretion to order costs pursuant to subs 67(8A) of the SRC Act was enlivened by the Department’s application on 21 April 2008. Even though the Tribunal’s power to determine the substantive application came to an end when the Department withdrew the application on 20 February 2009, the Tribunal’s power to make incidental orders subject to expressly conferred power, in relation to costs or reinstatement of the application for example, did not come to an end. That power was not extinguished by the withdrawal and consequential deemed dismissal of the application. It remains extant and, in that regard, the Tribunal is not functus officio.
33. The question remaining, therefore, is whether there are grounds to exercise the discretion in Ms Coady’s favour. Having regard to the matters set out at [26] above, I am satisfied that the Department sought to challenge the reviewable decision made by Comcare in Ms Coady’s favour, in respect of an injury she claimed arose in compensable circumstances. It appears that the grounds underlying the Department’s application went to exclusionary provisions under the SRC Act that would disentitle Ms Coady to any payment of compensation in respect of the claimed injury.[29] Ms Coady retained legal representation in the ensuing proceedings before the Tribunal. Considering the nature of the proceedings and the conduct of the parties prior to withdrawal of the application by the Department, it is reasonable and appropriate in the circumstances to disturb the rule of primacy that each party shall bear their own costs, to the extent that the Department is to pay Ms Coady’s reasonable costs of the proceedings. Thus, pursuant to subs 67(8A) of the SRC Act I order the Commonwealth (specifically the Department) to pay Ms Coady’s reasonable costs incurred in the proceedings instituted by it on a party and party basis as agreed or taxed.
34. That being so, it is not necessary to consider whether there are grounds to reinstate the Department’s application pursuant to subs 42A(10) of the AAT Act. It is not necessary to consider the arguments concerning orders in relation to Ms Coady’s costs of the proceedings. As it appears to me, and as I understand that the parties agree, the deemed dismissal was not attended by error and as such there are no grounds on which to reinstate the application in any event.
    

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed: ....................[sgd].....................................................

J. Lakin, Associate

Counsel for the Applicant Mr W. Sharwood

Solicitor for the Applicant Ms R. Knox, ACT Government Solicitors

Solicitor for the First Respondent Mr S. Marris, Sparke Helmore

Solicitor for the Second Respondent Mr B. Hatch, Pamela Coward Higgins

---

[1] ACT Government Solicitor letter dated 9 June 2009, p1 (filed on 26 June 2009 under cover of a letter dated 19 June 2009).
[2] Re Sanyo Australia Pty Ltd and Comptroller-General of Customs & Matsushita Electric Co Australia Pty Ltd & Akai Pty Ltd [1995] 9289A (1 August 1995) at [15]; Re Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park Authority (No 3) (1992) 16 AAR 319 at 324.
[3] Subs 42A(1B) of the AAT Act.
[4] Uniden Australia v Customs (1997) 74 FCR 190 at 200; Re Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park Authority (No 3) (1992) 16 AAR 319 at 326; Re Pavlovic and Telstra Corporation Limited [1994] AATA 187 at [18]; Re Douglas Cyril Stevenson and Commonwealth of Australia (1987) 13 ALD 524 at 529.
[5] Lower v Comcare [2002] FCA 1394 at [20].
[6] Re Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park Authority (No 3) (1992) 16 AAR 319 at 326; Re Douglas Cyril Stevenson and Commonwealth of Australia (1987) 13 ALD 524 at 532.
[7] (1996) 45 ALD 674 at 676.
[8] Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49] to [51].
[9] Subs 4(12) of the SRC Act.
[10] Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227 at 237; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 616 (per Gauron and Gummow JJ) and 618 (per McHugh J).
[11] Re Sanyo Australia Pty Ltd and Comptroller-General of Customs & Matsushita Electric Co Australia Pty Ltd & Akai Pty Ltd [1995] 9289A (1 August 1995) at [26].
[12] (1992) 16 AAR 319.
[13] Re Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park Authority (No 3) (1992) 16 AAR 319 at 324 and 326.
[14] Griffiths v Australian Postal Corporation [2008] FCA 19 at [2]- [4]; Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 338-339; Riley v Comcare (1994) 48 FCR 449 at 451.
[15] Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 338.
[16] Subs 67(8A)(a) of the SRC Act.
[17] Subs 67(8A)(b) of the SRC Act.
[18] Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 340-342; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60 at 64-65.
[19] Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 340.
[20] Subs 4(1) and (12) of the SRC Act refer.
[21] Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 339.
[22] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 per Gaudron & Gummow JJ at [22].
[23] Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at 339.
[24] Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227 at 237.
[25] Re Gourvelos and Telstra Corporation Limited (1994) AATA 9158A at [20].
[26] Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862 at 26; Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227 at 237; Re ACT Department of Health and Nikolovski and Comcare (AAT 10826A, 13 November 1996) at [8]; Re Fu and Australian Postal Corporation [2003] AATA 864 at [8].
[27] Re Commonwealth Bank of Australia and Swann & Comcare [1995] AATA 307 at [6]- [8].
[28] House of Representatives Hansard, Thursday 27 May 1993, pp 1140 – 1145.
[29] Specifically, exclusions to the definition of ‘injury’ at subs 4(1) of the SRC Act.