THE COURT ORDERS THAT:

1.                  The respondent pay the applicant’s costs of the proceeding before the Administrative Appeals Tribunal in conducting a review of Tribunal Decision Q2005/572 that the respondent is not liable to pay compensation to the applicant pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of a permanent impairment resulting from an injury suffered by the applicant.

2.                  The respondent pay the applicant’s costs of and incidental to the proceeding before this Court including the applicant’s costs of and incidental to an application to extend time in which to file and serve a Notice of Appeal from Decision Q2005/572 of the Administrative Appeals Tribunal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 7 August 2007, the Court set aside a decision of the Administrative Appeals Tribunal (‘the Tribunal’) (described as Decision Q2005/572) that the respondent is not liable to pay compensation to the applicant pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of a permanent impairment resulting from an injury suffered by the applicant.  The Court made further consequential orders and reserved the costs of the proceeding for determination after receipt of further submissions (Parker v Military Rehabilitation and Compensation Commission [2007] FCA 1161).

2                     In relation to the question of costs, the Court invited the parties to make submissions in relation to the costs of the proceedings before the Tribunal and the costs incurred in the application to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). 

3                     So far as the costs of proceedings before the Tribunal are concerned, s 67(8)(a) of the Act provides:

(8)       Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

            (a)        varying a reviewable decision in a manner favourable to the claimant; or

(b)        setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.

4                     Section 44(4) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) confers a power upon a Court in respect of an appeal to the Court from a decision of the Tribunal in these terms:

(4)       The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

5                     The order of the Court on 7 August 2007 set aside the decision of the Tribunal and made consequential orders which contained directions to the respondent for the purposes of making a determination required by s 24(5) of the Act that the respondent is liable to pay compensation to the applicant; that in making the determination required by s 24(5) of the Act the respondent ought not to have regard to a provision of a particular document described as ‘Guide to the Assessment of the Degree of Permanent Impairment’; and that the respondent identify the amount of compensation payable to Mr Parker and pay that compensation in discharge of the liability arising under the Act, within 30 days. 

6                     Accordingly, the applicant demonstrated an error of law on the part of the Tribunal; demonstrated that the Tribunal ought not to have affirmed the reviewable decision; and secured in substitution for the reviewable decision, a more favourable decision. 

7                     Accordingly, the applicant is entitled to an order that the respondent pay the costs of the proceeding before the Tribunal of and incidental to an application for review of Decision Q2005/572. 

8                     As to the costs of the proceedings before the Federal Court, two questions arise.  First, the costs of and incidental to an application for an order for an extension of time to file and serve a Notice of Appeal from the decision of the Tribunal the subject of the decision made on 23 May 2006 (and a Corrigendum made on 5 June 2006).  The second relates to the costs of and incidental to the appeal itself. 

9                     As to the application for an order extending time in which to file and serve the Notice of Appeal, the respondent says that the failure to file a Notice of Appeal within time is entirely a matter attributable to the conduct of the proceedings by the applicant.  No conduct on the part of the respondent contributed to the failure to apply within time.  Whilst it is correct to say that the respondent did not contribute in any way to the failure on the part of the applicant to apply within time, it seems to me that the more significant consideration is whether the merits of the application pursuant to s 44 of the AAT Act ultimately lie with the applicant.  As the primary judgment demonstrates, the merits lie with the applicant and compensation ought to have been paid to the applicant some considerable time ago.  Since the applicant has been successful in the primary appeal, I propose to make an order that the costs of and incidental to the proceeding including those costs incurred in relation to an application to extend time in which to file and serve the notice of appeal be paid by the respondent. 

Associate:

Dated:         29 August 2007