IN THE FEDERAL COURT OF AUSTRALIA ) oo NEW SOUTH HALES DISTRICT PRGISTRY } No. 697 of 1985 ¥ ~- GENERAL DIVISION ~~ BETWEEN : KEVIN VICTOR NEWELL Applicant AND: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSTON AND: THE COMMISSIONER FOR EMPLOYEES' COMPENSATION Respondents MINUTE OF ORDER JUDGE MAKING ORDER: BEAUMONT J. DATE OF ORDER: 2 AUGUST 1985 WHERE MADE: SYDNEY THE COURT ORDERS THAT: - l. That the application be dismissed. 2. That the applicant pay the costs of The Australian Telecommunications Commission of the application. 3. That the Commissioner for Employees' Compensation pay the costs of the applicant of the application incurred on and after 5 July 1985. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Ht petite at 22 a' Nate ar Ys it] THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G97 of 128 ) GENERAL DIVISTON ) won, Fe oe RATA We ear 8 Tenth Re SE BETWEEN : KEVIN VICTOR NEWELL Applicant AND: THE AUSTRALIAN TELECOMMUNTCATIONS COMMISSION AND: THE COMMISSTONER FOR EMPLOYERS' COMPENSATION Respondents CORAM: Beaumont, J. DATED: 2 August 1985 REASONS FOR JUDGMENT (on costs) BEAUMONT, J.: The applicant, Mr. K.V. Newell, now seeks the costs of his application. The background to the matter is as follows. On 18 April 1985, the applicant filed an application for an order to review the failure of The Australian Tealecommunications rh o tf, Commission ("Telecom") to détermine 15 claim cr oS compensation for medical and ancillary costs under 2 Compensation (Commonwealth Government Employees) Act, 1971 ("the Act"). The application was supported by an affidavit by My. A.T. Brown, the appliacant's solicitor, sworn cn 1? orks Fre aet 513 ar rigs at? Se eo ine re a rr pen er EE ET RP SAREE nme Lema nthor 2 atte _ "ay Aes, 3 Soe Se ES a xe April 1985. Annexed to the affidavit was a copy of a letter dated 16 January 1985 written by Mr. Brown to the Australian Government Solicitor enclosing receipts and accounts from- medical practitioners and chemists 1n respecc of treatment received by the applicant for injuries apparently sustained by him in the course of his employment with Telecom; payment of the accounts was requested and judicial review was foreshadowed. The application and affidavit were served upon the Australian Government Solicitor on 21 May 1985. At the first directions hearing held on 6 June 1985, the Australian Government Solicitor appeared for Telecom and although, apparently, formal instructions to act had not then been received. the Australian Government Solicitor pointed out that it was possible that the proper respondent was the Commissioner for Employees' Compensation ("the Commissioner"). The directions hearing was adjourned to 14 June; further adjourned to 21 June; further adjourned to 5 July; further adjourned to 9 July; and finally adjourned to 30 July when the question of costs as argued. On 5 July, I ordered that the Commissioner be added as an additional respondent. In the month of July, a series of affidavits were filed on behalf of the parties. By his affidavit sworn on 5 July 1985, Mr. J.P. Ryan, the solicitor having the conduct of the matter on behalf of the applicant, referced to eerie ar a : en SS in? ~ - 7 - - EMEA 8 ak te Semen mire ee Haire peice © service in May 1983 of a District Court Statement of Claim in proceedings between the applicant and Telecom. The affidavit also mentioned a letter from Telecom to the applicant's solicitors in May 19383 informing them that the Deputy Crown Solicitor had been instructed in the matter. Annexed to the affidavit were the following:. a letter to the applicant's solicitors written by the Commonwealth Crown Solicitor ain July 1983 seeking further particulars of an amended Statement of Claim: a@ letter dated 1 May 1984 from the applicant's solicitors to the Deputy Crown Solicitor enclosing an anaesthetist's account for payment, noting that the applicant was in receipt of weekly payments; a letter dated 1 June 1984 from the Commonwealth Crown Solicitor to the applicant's solicitors saying that the doctor's account had been forwarded to Telecom: a Ilistter dated 4 February 19385 from the Australian Government Solicitor to the applicant's solicitors in reply to their letter dated 16 January, saying that, although no instructions were held in respect of the compensation claim. the comments made in the January letter had been transmitted to the relevant officer in Telecom's compensation section: a latter dated 25 February 1985 from che applicant's solicitors to the Australian Government Solicitor threatening judicial review: and a letter dated 29 April 1985 from the applicant': solicitocs to the Australian Government Solicitor. inter alia, enclosing jw copy of the application in this mattes:. The affidavit also annexed a letter dated 20 June 1985 from Mert ee 7 we —« r ba ' ry ~ oan t ~ fe - _ > seanthesten 1 tlietaah teehee eememenienti dee 9 timate a daes" "coeeentaeen cientee amar <iaeediace anna) ek Oa, ae *, Bye plete cere ne ers Pie Lis anny eo hy a nee Lye vise ra aa eee aed ee cA ptr rb te. tn etencncalier IAB cn et SE acetal ae caren GPAs 4, the Commissioner to the applicant's solicitors reciting the history of the determinations already made in the matter. asserting that certain doctors' accounts .had not been veceived by Telecom or the Commissioner and requesting the originals of those accounts. The letter continued - "It should be noted that the function of the Deleqate of the Commissioner is toa determine whether Telecom is liable to pay the cost of médical expenses claimed. Once liability has been determined it is up to Telecom, and not the Delegate, to arrange payment in accordance with the determination. I suggest that in future your client refer any medical accounts to: The Delegate of the Commissioner for Employees' Compensation Telecom Australia GPO Box 5333 SYDNEY N.S... 2001" Finally, Mr. Ryan's affidavit annexed a letter dated 2 July 1985 from the applicant's solicitors, to the Director, Commonwealth Employees' Compensation (s1¢c), enclosing the originals of the accounts. The applicant swore an affidavit on 24 July 1985. ne said that between January and June 1985 he paid cash to 3 chemist for varicus drugs prescribed for him and handed the receipts for these items to Mr. K. Hughes. then the Depot Clerk at Telecom's Wallsend Depot. He made repeated anquiries of persons employed at the Depot as to when he s would be reimbursed but a determination as to his chemi ue LOT expenses was not made until 14 June. In the period January to June 1985, the applicant handed various doctors' accounts to his solicitors. The respondents did not seek to cross-examine any of the deponents of the affidavits read on behalf of the applicant. The respondents replied to this material by a number of affidavits. In an affidavit sworn on 23 July 1985, Mr. B. Hutchins, Acting Director of Pre-Appeals in the office of the Commissioner in Canberra, said that on 13 June he perused the subject application and supporting affidavit. He later wrote the letter of 20 June already mentioned. He said that prior to 12 June, the Commissioner's office was unaware of the application. He also said that on 8 July 1985, he issued a determination finding Telecom liable to pay certain accounts submitted by the applicant. According to Mr. Hutchins, if the applicant had forwarded the accounts in question to the Commissioner's office in Canberra or to his delegate in Telecom at Sydney, as the applicant had done previously, a determination would have issued promptly. The respondents also read an affidavit sworn bv Mr. W.C. Sterling on 23 July 1985. Mr. Sterling is employed by Telecom at Newcastle as the officer-in-charge of the personnel unit. According to Mr. Sterling, in 1984 and Sepa seer egy a eee eee ye PR A EE HS EPRI me At A Ya aaah ph penne me GORRTRTE, , eIH n R A ae 1985, various accounts were submitted by the applicant to Mr. Sterling's unit. The claims were then forwarded to the Sydney office of Telecom's compensation unit. All accounts submitted were originals. In an affidavit sworn on 23 July 1985, Mr. R.G. Griffiths, the officer-in-charge of Telecom's compensation unit who is also a senior delegate of the Commissioner in New South Wales, said that on 10 May 1385 a delegate in his unit made a determination in respect of certain chemist''s accounts submitted by the applicant to the Newcastle office of Telecom between approximately 12 February and 25 March 1985. On 14 June 1985, a delegate in his unit made a determination in respect of various accounts submitted by the applicant on 27 March, 18 April, 10 May and 5 June 1985S. In each case, Telecom was held liable. The respondents also r wb ad an affidavit by Mr. E.V. Cochrane sworn 23 July 1985. On 19 June, in the course of his duties as a clerk employed in the office of the Commissioner, Mr. Cochrane spoke with Mr. Ryan about this matter. Mr. Ryan told him that the subjsct application was "just a tactic on our part to prompt a determination. We intend to continue with it but will discontinue when a determination is issued". In his affidavit apparently sworn on or about 26 een te : ~ er ete eee ee ware — reer eee geet rnp ames URI TIN IY Mee FR meee me captin premeeeenamnt = + eee ee meee ~ July 1985, Mr. J.M. Ludlow, a clerk employed by Telecom at its head office in Sydney, said that Telecom was never served with the subject application which he did nct peruse until 15 duly. Finally, the respondents read an affidavit sworn by their solicitor. Ms. S.C. Fegan, on 26 July 1935. She said that on 3 June 1985 the subject application was received by the administrative law section of the Australian Government Solicitor's office in Sydney. On the return date, Mrs. P. Sharp of that office appeared, and as has Leen said, indicated to the Court that' the Commissioner was possibly the proper party. After that directions hearing, counsel for-the applicant informed Mrs. Sharp that the Commissioner would be made a party. This was confirmed by a letter from the applicant's solicitors dated 6 June, received on 12 June, saying - "Tou will note that the Respondent is wrondiy described in the Application as the Australian Telecommunications Commission. We advise that this matter has been put in for mention in the Federal Court of Australia on the 14th June next and we advise that on that date we will be seeking to amend the Application describe the Ressondent as t Commissioner for Emplovees' Compensation. Ms. Feqan also said that she discussed this matter with Mr. P. Garde, a solicitor in the Australian Government Solcitor's office handling the applicant's common law claim. hee Ue Ag eS CARTES Ts tenon ta na: 3. On receipt of the letter dated 16 January 1985 written by the applicant's solicitors, Mr. Garde replied by the letter dated 4 February 1985 referred to earlier. He also informed the compensation section of Telecom of the copy accounts annexed to the letter of 16 January. The applicant did not seek to cross-examine any of the deponents of the affidavits read on behalf of the respondents. Finally, there was tendered in evidence a determination made by the Commissioner on 1S July which, unter alia, authorised the payment of the sum of $260.90 in respect. of seven accotmts rendered by Dr. Finlay-Jones between 8 and 31 January 1965. In these circumstances, the applicant seeks the Pe 10) costs of the application. The respondents resist any such order and submit that the appropriate course is to make no order as to costs. It now seems to be common ground that the Comnissioner was the proper respondent to Ehis apelicaticn 'see the Act, 3.20). The award of costs is in the discretion of the Court (see Federal Court of Australia Act, 19376, s.43(2)) and that discretion is a wide one (see Gladstone Fark Shopping Centre Pty. Ltd. v. Wills (1984) 59 A.L.R. 1093 per Davies. J. at p.110). Ordinarily, however, costs should follow the event (see Milne v. Attorney General for the State of Tasmania (1956) 95 C.L.R. 460 at p.477; Gladstone Park at p.il4d). To borrow the language in Milne (at p.477) "it usa' general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary". In my opinion, Telecom should be treated as a successful defendant for present purposes. It should not have been joined as a party to the proceedings since only the Commissioner was liable to judicial review. Further, so far as concerns Telecom no special reason has been shown for departing from the usual rule that costs follow the event. For example, it could not be suggested that Telecom was guilty of any misconduct which brought about the litigation in the sense described in Ritter v. Godfrey [19201 2 K.B. 47. It follows, in my view, that the applicant should pay Telecom's costs of the applicaticn. The Commissioner is. I think, in a different position. In my view, in the light of the considerable delays which have occurred in dealing with the various claims made by the applicant for reimbursement of his expenses, the applicant was justified in instituting these : te Te oe renee. ~ Mr Fe er me rt ernie at BOE SS eter Fee aes nen Ne eet ret remit me Rte fun enIUETL pyemingee KLEE ae mney ear Rene oo 10, proceedings for the purpose of compelling the Commissioner to make a determination in accordance with the statute. It is true that in their letter dated 16 January 1985, the applicant's solicitors dealt in the first instance with the Australian Government Solicitor. But they could not be criticised on that score since professional etiquette required that channel of communication. In any event, looked at from the applicant's viewpoint, it was only reasonable for him to expect that his message would be received at its intended destination. Mr. Garde's letter dated 4 February 1985 so suggested. In my opinion, if the Commissioner were to insist on the production of original documents for present purposes, he should have made that requirement known to the applicant's solicitors at a much earlier stage "than was done here. The matter should have been raised by Mr. Garde in his letter or by the Commissioner shortly thereafter. If this had been done, the present litigation would, in all probability, have been averted. In these circumstances, I am of the opinion that the Commissioner should pay the applicant's costs of the application but only as from the date of the joinder of the Commissioner, i.e., 5 July 1985. I make the following orders - aes not! BARA ees TA, - = * judgms;:: haroln of t-a Ft Mr Jusiise Beatsi--+ Dated 2- x BS a entre nn LE er mi EN mt ON RI mai EN NA nnn, WIG MTN SS Qe TE LY AML ET PE eo Se e7 ll. 1. That the application be dismissed. 2. That the applicant pay the costs of The Australian Telecommunications Commission of the application. 3. That the Commissioner for Employees' Compensation pay the costs of the applicant of the application incurred on and after 5 July 1985. Counsel and Solicitors for Applicant - Mr. P. Shedon anstructed by Messrs Moroney Rutter & Mantach Counsel and solicitors for the Respondent - Mr. G. Scragg instructed by tha Australian Government - Solicitor : ' "~ Date of Hearing - 30 July 1985 Date of Judgment - 2 August 1985 t certify tha' <5 ard tne 16 pre Pages aro 23..3 etay of 2 wie Ceileay eo be x Associate: wT ee, "_ 4 "7