FEDERAL COURT OF AUSTRALIA Telstra Corp Ltd v Otis [2000] FCA 311 TELSTRA CORPORATION LIMITED v PETER OTIS N 1144 OF 1999 LEHANE J 13 MARCH 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1144 OF 1999 BETWEEN: TELSTRA CORPORATION LIMITED APPLICANT AND: PETER OTIS RESPONDENT JUDGE: LEHANE J DATE OF ORDER: 13 MARCH 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The matter be remitted to the Administrative Appeals Tribunal for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1144 OF 1999 BETWEEN: TELSTRA CORPORATION LIMITED APPLICANT AND: PETER OTIS RESPONDENT JUDGE: LEHANE J DATE: 13 MARCH 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 It is agreed between the parties, and in my view the agreement is clearly well founded, that this appeal from the Administrative Appeals Tribunal should be allowed on the footing that the Tribunal made an error of law by misconstruing subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) by, in effect, overlooking paragraph (b) of that subsection. 2 The substantial effect of paragraph (b) is that the Tribunal, rather than dealing with the matter before it as if it were governed by that Act (as it did), ought to have dealt with it on the footing that the entitlement of the applicant before it was governed by the 1988 Act's predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The consequence of this is that the appeal will be allowed and the matter remitted to the Tribunal for further consideration and I make orders to that effect. 3 The only outstanding question between the parties then is the question of costs. The appellant (the respondent before the Tribunal), seeks an order for costs substantially on the footing that it is the successful party in the proceeding. The respondent, on the other hand, seeks an order for the payment of his costs on the basis that an offer of settlement which he made was ignored by the appellant and, if reasonably considered, would – because it acknowledged the legal error which the Tribunal made – have avoided the cost of a hearing in this Court. 4 The respondent submits, in the alternative, that there ought be no order as to costs and, in the further alternative, seeks a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). I do not think that this is an appropriate case for such a certificate to be issued. The matter is plainly one which is within the unfettered jurisdiction of the Court though, of course, the discretion is to be exercised judicially. The case is in no sense a test case or, in my view, one which has been brought for the purpose of resolving a point of law of general importance. 5 It is more correct, I think, to say that the present proceeding was necessary because, when the proceedings were before the Tribunal, neither the parties nor the Tribunal saw, as clearly as all now do, the significance of subsection 7(4)(b) of the 1988 Act. When one looks at that provision with the benefit of hindsight, however, it is plain that there is no sensibly controversial point of law involved at all. 6 The question, then, is how ought costs be dealt with as between the parties. In my opinion, this is not an appropriate case for an order that the respondent pay the appellant's costs of the proceeding. The real area of difficulty, I think, is whether it is a case in which I should simply make no order as to costs or whether, on the other hand, in view of the history, it is a matter in which the appellant ought to make at least some contribution towards the respondent's costs. The basis on which an order of the latter kind might be made is that, whether or not the appellant thought it appropriate to accept the offer first made by the respondent on 14 December 1999, as it stood (and there may be a number of reasons why it might perfectly properly have declined to do that), nevertheless, the offer made it clear that the respondent then appreciated that, in any event, the matter would have to be remitted to the Tribunal because its decision was, indeed, affected by the error of law which the appellant alleged. 7 The offer was not responded to; neither was a request two months later for a response. Consequently, there has been no final agreement between the parties, other than the acceptance by each today that the matter must go back to the Tribunal in any event; and, therefore, it has been necessary to hear argument as to costs. It is, I think, unfortunate that that has happened. In the end, however, I do not think that the respondent can be credited with particularly vigorous pursuit of its settlement proposal; and, if I were to make an order as to payment of a proportion of costs, I fear that the time and costs involved in giving effect to that order might, perhaps on both sides, outweigh its utility. 8 The unfortunate circumstance is, I think, that the current position arose through what may fairly, but without any further note of criticism, be described as an oversight on both sides which neither, looked at in retrospect, has been as vigorous in dealing with as each might have been. 9 Accordingly, I make no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. Associate: Dated: 28 March 2000 Counsel for the Applicant: B Kelly Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: G Elliott Solicitor for the Respondent: Nicholas Karefylakis Date of Hearing: 13 March 2000 Date of Judgment: 13 March 2000