IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION On appeal from the Commonwealth Employees' Compensation Tribunal BETWEEN: BARBARA ELIZABETH CLARKE as Executrix of the Estate of ROBIN JAMES HUNTLEY CLARKE (deceased) and AUSTRALIAN BROADCASTING COMMISSION ORDER Judge making Order: KEELY J. Date of Order: 28 October 1980 Where made: Melbourne THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The decision of the Compensation Tribunal be affirmed. 3. The applicant pay to the respondent its costs of this appeal. VG No. 40 of 1979 Applicant Respondent IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 40 of 1979 ) ) GENERAL DIVISION On appeal from the Commonwealth Employees' Compensation Tribunal BETWEEN: BARBARA ELIZABETH CLARKE as Executrix of the Estate of ROBIN JAMES HUNTLEY CLARKE (deceased) Applicant and AUSTRALIAN BROADCASTING COMMISSION . Respondent REASONS FOR JUDGMENT 28 October 1980 KEELY J. This is an appeal against the decision of the " Compensation Tribunal given Commonwealth Employees 13 September 1979, which affirmed a determination, dated 4 January 1979, made by the deputy chief delegate of the Commissioner for Employees' Compensation (the Commissioner). The appeal is brought by Barbara Elizabeth Clarke (the applicant) as executrix of the estate of the late Robin James Huntley Clarke (the deceased). The Commissioner had determined that the myocardial infarction suffered by the then applicant (the deceased) "was due to the natural progression of a pre-existing or underlying condition and that accordingly the Australian Broadcasting Commission (the A.B.C.) was not liable to pay the claimant compensation". The grounds of appeal set out in the notice of appeal were as follows: Mr Nathan of counsel on behalf of the applicant conceded "The decision and order were wrong in law." "The decision and order were against the evidence and the weight of the evidence." "The Tribunal failed to apply the proper test as to whether the deceased's employment with the Australian Broadcasting Commission was a contributing factor to stress and the myocardial infarction suffered by the deceased." "The Tribunal failed to consider the evidence given by medical experts called on behalf of the deceased and/or to give any or any sufficient weight thereto." "The Tribunal was wrong in law and there was no or no sufficient evidence to support the finding that the job performed by the deceased was not, viewed objectively, stcessful." "The Tribunal was wrong in law and there was no or no sufficient evidence to support the finding that the deceased's work was not stressful to him." that the right of appeal to this court was an appeal "on a question of law only" by virtue of s.95(1) of the Compensation Commonwealth Government Employees) Act 1971 (the Act). He stated that, without abandoning any of the grounds of appeal, the substantial ground of appeal was that: "the tribunal erred as a matter of law in applying an objective criteria of work related stress as being the measure by which one assessed whether there had been an aggravation and acceleration of the disease process", Mr Crossley of counsel on behalf of the respondent A.B.C. conceded that: "if this man was affected by his work ... such that on the medical evidence there was a finding of causal connection between the pressure of that work and the myocardial infarction, then the appeal would succeed". Mr Nathan contended that the Tribunal had misdirected itself by treating as "irrelevant to its function evidence as to whether subjectively the worker was affected by work stresses". I am unable to accept that contention. The Tribunal's reasons for decision show, in my view, that it did not treat the evidence as to the claimant's subjective stress as being irrelevant. For example, the Tribunal expressly accepted the evidence of Mr Profitt - who had worked under the deceased and had subsequently taken over his position - "as to the claimant's manner of working and his reactions to that work". The Tribunal stated that it accepted "the evidence of Dr Kelly, supported by Dr Warfold, as to the claimant's personality; that also accords with the evidence of Mr Prefitt". On my reading of its reasons for decision the Tribunal also accepted the evidence of Dr Kelly that: "the claimant had the 'willing horse' syndrome; ... on one occasion the claimant seemed overly anxious and upset about the quality of the teJevision picture he was watching and it seemed to him that the claimant was, whether he was required to do this or not, carrying the job into his home." Although the Tribunal found on the evidence that there was no "objective stress" from the work, it found that the claimant's "attitude to his work and his attitude to the people at work" was "stressful" to him. However, the Tribunal was not prepared to find on the evidence before it that that "subjective" stress was a contributing factor to the aggravation acceleration or recurrence of the disease of the deceased. The Tribunal, in its reasons for decision, referred to a previous case in which it had allowed a claim where there had been "pre- existing hypertension" and pointed out that, in the present case, the deceased was not suffering from any pre-existing hypertension. The Tribunal considered the evidence given by two cardiologists - neither of whom had examined the deceased - who were called on behalf of the applicant and another cardiologist called by the A.B.C.; it then expressed the view that "on the balance of probabilities, the claim has not been proved and I so find". Mr Nathan contended that the Tribunal had drawn a ' stress distinction between "objective" stress and "subjective' and had wrongly treated the "subjective s*ress" as being irrelevant. It is true that the Tribunal referrcd more than once to the distinction, but it did not treat "subjective stress" as being irrelevant. Its finding that "objective stress" had not "been shown t» exist" was directed onty towar the attempt by counsel for the claimant to rely upon Adelaide Stevedoring Co. Ltd. v. Forst (1940) 64 C.L.R. 538. The Tribunal referred to the well known passage by Rich A.C.J. in that case (at p.563) as to "the approach a court should take to conflicting expert medical evidence", The Tribunal decided that that approach was not open to it on the facts found by it in the present case, saying that: ",.. on the sequence of events where the claimant had been doing the same work for 20 years, was a high risk for other reasons and where the infarction tock place at home five days after the claimant was last at work the presumptive inference inspired in the mind of any commonsense person uninstructed in pathology does not support the link between stress at work and the infarction at home." . In my opinion the Tribunal did not err in law in its approach to the questions before it, did not treat as irrelevant the evidence as to "subjective stress" and did not misdirect itself. As to the grounds of appeal which were "not abandoned", perhaps I should add that there was in my view, evidence to support both the findings and the decision of the Tribunal. Accordingly the appeal is dismissed and the decision of the Compensation Tribunal is affirmed. Mr: Nathan and Mr Crossley each asked for an order for costs if his client succeeded. Mr Nathan, however, submitted that the court should not order that the applicant pay costs if she were unsuccessful in her appeal. The court's power to award costs is conferred by s.43 of the Federal Court of Australia Act 1976: "43.(1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." No "other Act provides that costs shall not be awarded" in this matter. The Compensation (Commonwealth Government Employees) Act 1971 contains various provisions dealing with the question of costs. Section 85 deals with the subject of "costs incurred by a party in relation to proceedings before a Compensation Tribunal". Section 20(5) and (6) make the Commonwealth "liable to reimburse" a claimant in certain circumstances. Section 93 expressly provides that a "prescribed ; Court to which an application for a judicial review of a determination is made ... may, in its discretion, order that the costs of the application incurred by any party, or a part of those costs, shall be paid by another party ...". It was conceded by Mr Nathan that s.93 empowers a prescribed court to order an unsuccessful claimant to pay costs. Having regard to the express provisions of the statutes to which I have referred, in my opinion this court, when hearing an appeal under s.95, has power to order an unsuccessful applicant to pay costs. The position may be contrasted with that under the Conciliation and Arbitration Act 1904. Section 197A of that Act provides that, in relation to all proceedings under that Act before a variety of courts and tribunals, a party "shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party' against whom the order is made instituted the proceeding vexatiously or without reasonable cause", Further, there is nothing in the legislation to suggest that the court should not apply the ordinary principles in exercising its discretion in relation to an application for costs. Neither counsel referred me to any authorities on the question of costs. I consider that I should follow the views expressed by the House of Lords in Donald Campbell & Co. Ltd v. Pollak (1927) A.C. 732 in the following passage where Viscount Cave L.C. (with whose judgment Viscount Dunedin and Lord Phillimore agreed) said (at pp.811-812): "A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of judicially, and the judge it against the successful reason connected with the connected with or leading course be exercised ought not to exercise party except for some case. facts up to the Litigation which have been proved before him or which he has himself observed during the process of the case,..." This case and other cases dealing with the circumstances in which it may be proper to refuse costs to a successful defendant were cited by Fisher J. in Trade Practices Commission v. Nicholas Enterprises Pty Ltd & ors (1979) 28 A.L.R. 201 at pp.206-210 and by Franki J. in L. K. Jewellery Investments Pty Limited v. Percy Marks Pty Limited & ors (29 February 1980 - unreported). Mr Nathan did not rely upon any "facts connected with or leading up to the litigation" as a ground for refusing to grant costs to the respondent to this appeal. His submission was based on general social considerations, as to the undesirability of an employee being "shut out because of the fear of costs". Those considerations, however, are matters for the legislature and do not form a sufficient ground for the exercise of a discretion as to costs which must be exercised judicially. Accordingly, the applicant is ordered to pay the respondent's costs of the appeal. Dated: 2#fa}Pa oe ee ee meee PRES ISO } SO | J IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 40 of 1979 Nee Ne ee ae GENERAL DIVISION On appeal from the Commonwealth Employees' Compensation Trituual BETWEEN: BARBARA ELIZABETH CLARKE as Executrix of the Estate of ROBIN JAMES HUNTLEY CLARKE (deceased) Applicant and AUSTRALIAN BROADCASTING COMMISSION . Respondent ORDER Judge making Order: KEELY J. Date of Order: 28 October i950 Where made: Me Lbourne THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The decision of the Compensation Tribunal be affirmed. 3. The applicant pry to the respendent iLs costs of this appeal. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 40 of 1979 GENERAL DIVISION On appeal from the Commonwealth Employees' Compensation Tribunal BETWEEN : BARBARA ELIZABETH CLARKE as Executrix of the Estate of ROBIN JAMES HUNTLEY CLARKE (deceased) Applicant and AUSTRALIAN BROADCASTING COMMISSION . Respondent REASONS FOR JUDGMENT 28 October 1980 KEELY J. This is an appeal against the decision of the Commonwealth Employees' Compensation Tribunal given 13 September 1979, which affirmed a determination. datcd 4 January 1979, made by the deputy chief delegate of the Commissioner for Employees' Compensation (the Commissioner). The appeal is brought by Barbara Elizabeth Clarke (the applicant) as executrix of the estate of the late Robin James Huntley Clarke (the deceased). The Commissioner tad determined that the myocardial infarction suffered by the then applicant (the deceased) "was due to the natural progression of a pre-existing or underlying condition and that accordingly the Australian Broadcasting Commission (the A.B.C.) was not liable to pay the claimant compensation". The grounds of appeal set out in the notice of appeal were as follows: 1. "The decision and order were wrong in law." 2. "The decision and order were against the evidence and the weight of the evidence." 3. "The Tribunal failed to apply the proper test as to whether the deceased's employment with the Australian Broadcasting Commission was a contributing factor to stress and the myocardial infarction suffered by the deceased." , ° 4. "The Tribunal failed to consider the evidence given by medical experts called on behalf of the deceased and/or to give any or any sufficient weight thereto." 5. "The Tribunal was wrong in law and there was no or no sufficient evidence to support the finding that the job performed by the deceased was not, viewed objectively, stressful." 6. "The Tribunal was wrong in law and there was no or no sufficient evidence to support the finding that the deceased's work was nat stressful to him." Mr Nathan of counsel on behalf of the applicant conceded that the right of appeal to this court was an appeal "on a question of law only" by virtue of s.95(1) of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). He stated that, without abandoning any of the crounds of appeal, the substantial ground of appeal vas that: "the tribunal erred as a matter of law in applying an objective criteria of work related stress as being the measure by which one assessed whether there had been an aggravation and acceleration of the disease process", Mr Crossley of counsel on behalf of the respondent A.B.C. conceded that: "if this man was affected by his work ... such that on the medical evidence there was a finding of causal connection between the pressure of that work and the myocardial infarction, then the appeal would succeed", Mr Nathan contended that the Tribunal had misdirected itself by treating as "irrelevant to its function evidence as to whether subjectively the worker was affected by work stresses". I am unable to accept that contention. The Tribunal's reasons for decision show, in my view, that it did not treat the evidence as to the claimant's subjective stress as being irrelevant. For example, the Tribunal expressly accepted the evidence of Mr Profitt - who had worked under the deceased and had subsequently taken over his position - "as to the claimant's manner of working and his reactions to that work". The Tribunal stated that it accepted "the evidence of Dr Kelly, supported by Dr Warfold, as to the clainant's personality; that also accords with the evidence of Mr Profit". On my reading of its reasons for decision the Tribunal] also accepted the evidence of Dr Kelly that: "the claimant had the 'willing horse' syndrom: 2... on one occasion the claimant seemed overly anxious and upset about the quality of the television picture he was watching and it seemed to him that the claimant was, whether he was required to do this or not, carrying the job into his home." Although the Tribunal found on the evidence that there was no "objective stress" from the work, it found that the claimant's "attitude to his work and his attitude to the people at work" was "stressful" to him. However, the Tribunal was not prepared to find on the evidence before it that that "subjective" stress was a contributing factor to the aggravation acceleration or recurrence of the disease of the deceased. The Tribunal, in its reasons for decision, referred to a previous case in which it had allowed a claim where there had been "pre- existing hypertension" and pointed out that, in the present case, the deceased was not suffering from any pre-existing hypertension. The Tribunal considered the evidence given by two cardiologists - neither of whom had examined the deceased - who were called on behalf of the applicant and another cardiologist called by the A.B.C.; it then expressed the view thac "on the balance of probabilities, the claim has not been proved and I so find". Mr Nathan contended that the Tribunal had drawn a distinction between "objective" stress and "subjective" stress and had wrongly treated the "subjective stress" as bcing irrelevant. It is true that the Tribunal referred more than once to the distinction, but it did not treat "subjective stress" as being irrelevant. Its finding that "objective stress" had not "been shown to exist" was directed oly towards the attempt by counsel for the claimant to rely upon Adelaide Stevedoring Co. Ltd. v. Forst (1940) 64 C.L.R. 538. The Tribunal referred to the well known passage by Rich A.C.J. in that case (at p.563) as to "the approach a court should take to conflicting expert medical evidence". The Tribunal decided that that approach was not open to it on the facts found by it in the present case, saying that: " .. on the sequence of events where the claimant had been doing the same work for 20 years, was a high risk for other reasons and where the infarction took place at home five days after the claimant was last at work the presumptive inference inspired in the mind of any commonsense person uninstructed in pathology does not support the link between stress at work and the infarction at home." - In my opinion the Tribunal did not err in law in its approach to the questions before it, did not treat as irrelevant the evidence as to "subjective stress" and did not misdirect itself. As to the grounds of appeal which were "not abandoned". perhaps I should add that there was in my view evidence Lo support both the findings and the decision of the Tribunal. Accordingly the appeal is dismissed and the decision of the Compensation Tribunal is affirmed. Mr Nathan and Mr Crossley each asked for an order for costs if his client succeeded. Mr Nathan, however, submitted that the court should not order that the applicant pay costs if she were unsuccessful in her appeal. The court's power to award costs is conferred by s.43 of the Federal Court of Australia Act 1976: "43.(1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." No "other Act provides that costs shall not be awarded" in this matter. The Compensation (Commonwealth Government Employees) Act 1971 contains various provisions dealing with the question of costs. Section 85 deals with the subject of "costs incurred by a party in relation to proceedings before a Compensation Tribunal". Section 20(5) and (6) make the Commonwealth "liable to reimburse" a claimant in certain circumstances. Section 93 expressly provides that a "prescribed Court to which an application for a judicial review of a determination is made ... may, in its discretion, order that the costs of the application incurred by any party, or a part of those costs, shall be paid by another party ...°. It was conceded by Mr Nathan that s.93 empowers a prescribed court to order an unsuccessful claimant to pay costs. Having regard to the express provisions of the statutes to which I have referred, in my opinion this court, when hearing an appeal under s.95, has power to order an unsuccessful applicant to pay costs. The position may be contrasted with that under the Conciliation and Arbitration Act 1904. Section 197A of that Act provides that, in relation to all proceedings under that Act before a variety of courts and tribunals, a party "shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause", Further, there is nothing in the legislation to suggest that the court should not apply the ordinary principles in exercising its discretion in relation to an application for costs. Neither counsel referred me to any authorities on the question of costs. I consider that I should follow the views expressed by the House of Lords in Donald Campbell & Co, Ltd v. Pollak (1927) A.C. 732 in the following passage where Viscount Cave L.C. (with whose judgment Viscount Dunedin and Lord Phillimore agreed) said (at pp.811-812): "A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be cxerciscd judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the casc. ... facts connected with or leading up to the litigation which have been proved before him or which he hes himself observed during the process of the case,...". This case and other cases dealing with the circumstances in which it may be proper to refuse costs to a successful defendant were cited by Fisher J. in Trade Practices Commission v. Nicholas Enterprises Pty Ltd & ors (1979) 26 A.L.R. 201 at pp.206-210 and by Franki J. in L. K. Jewellery Investments Pty Limited v. Percy Marks Pty Limited & ors (29 February 1980 - unreported). Mr Nathan did not rely upon any "facts connected with or leading up to the litigation" as a ground for refusing to grant costs to the respondent to this appeal. His submission was based on general social considerations, as to the undesirability of an employee being "shut out because of the fear of costs". Those considerations, however, are matters for the legislature and do not form a sufficient ground for the exercise of a discretion as to costs which must be exercised judicially. Accordingly, the applicant is ordered to pay the respondent's costs of the appeal.