Case: Lees v Comcare (1999) 56 ALD 84
Outcome: discussed
However, the Senior Member was of the opinion that the agreement proposed by the letter, which was to be the basis for a proposed consent decision of the Tribunal, did not constitute a decision open to the Tribunal to make. This was due to the principle in Lees v Comcare (1999) 56 ALD 84 which prevents the Tribunal from exercising any powers or discretions which were not available to the authority making the reviewable decision. The reviewable decision had affirmed the original decision that there was no liability under s 14 of the SRC Act, which deals with liability for injury. The offer of compromise dealt with compensation under ss 16 and 19, which relate to compensation for medical expenses and incapacity respectively. The Senior Member held that the Calderbank letter "was of no effect". 11 In deciding that nevertheless each party should bear its own costs, he relied instead on the applicant's Statement of Facts and Contentions. According to the Senior Member the Statement claimed relief in terms far broader than liability simpliciter under s 14. The hearing was, in his opinion, extended unnecessarily as a result and, therefore, each party should bear its own costs. 12 Perry 150 FCR at [89] makes it clear that it is not necessary that a Calderbank offer must conform to the principles dictating the validity of such an offer for it to be considered by the Tribunal in the exercise of its discretion under s 67(8). This is because the Tribunal is to have regard to the "circumstances of the case", and any such offer, regardless of validity, forms part of these circumstances. As outlined above, the Senior Member held that the Calderbank offer would not have been capable of being confirmed by the Tribunal, due to the principle in Lees 56 ALD 84. However, he seems to have reasoned that this prevented him from taking the offer into consideration when exercising his discretion as to costs. Such reasoning is incorrect in the light of Perry [2006] FCA 33 ; 150 FCR 319. This was an error of law in the exercise of the Tribunal's discretion, but it was an error in favour of, rather than against, the applicant. Even though the Senior Member purported not to consider the offer while exercising his discretion, he clearly outlined how he would have taken the letter into account, had he considered himself able to do so. Such treatment would not have been favourable to the applicant. 13 The Senior Member went on to consider the circumstances of the case generally, including the parties' conduct with respect to the proceeding. In short, he took the view that the applicant had sought to, and had, litigated issues going beyond those which could lawfully result in useful relief. The decision under review had dealt only with the respondent's liability to pay compensation to the applicant and, being negative, had not dealt with the quantum of any compensation that would be payable (on the basis of computation of the compensation payable). Very inconveniently for all concerned, that appears to be the state of the law in the workers' compensation cases governed by the SRC Act, as a result of the decision in Lees 56 ALD 84. (In the course of the hearing, I suggested that the statutes should be amended to do away with this considerably inconvenient and expensive need for multiple considerations of a single claim.) The applicant had embarked on a lengthy investigation of the duration of his incapacity, though the Tribunal could not lawfully determine that issue in the instant proceeding. 14 The principal contention of the applicant was that, having won the case, he should have his costs. The respondent had not simply offered to concede liability but sought, itself, to tie that concession to a determination favourable to itself of an issue that was not lawfully before the Tribunal. In some cases, where no party has objected, the Tribunal has been willing in a commonsense way to determine both liability and quantum issues where the primary decision maker denied the respondent's liability: small wonder that the applicant, without dissent from either the respondent or the Senior Member, had sought to litigate both issues.