Transport Accident Commission v O'Reilly, Cavanagh, Moore & Davey

(1999) 2 VR 436; [1998] VSCA 106

Victorian Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Administrative tribunal
3. › Discretion conferred by statute
4. › Whether costs must follow the event
5. › Nature of proceedings relevant to exercise of discretion
6. › Transport Accident Act 1986 (Vic), s 79(2)
7. › Administrative Appeals Tribunal Act 1984 (Vic), s 50(1), (2)
1. Appeal
2. › Appeal on question of law
3. › Administrative Appeals Tribunal
4. › Exercise of discretion to award costs
5. › Whether error of law disclosed
6. › Administrative Appeals Tribunal Act 1984 (Vic), s 52(1), (3)
1. Administrative Law
2. › Administrative review
3. › Transport Accident Commission
4. › Nature of review proceedings
5. › Whether analogous to adversarial litigation
6. › Whether Commission akin to defendant in civil proceedings
7. › Transport Accident Act 1986 (Vic), ss 11, 12, 47(7)(b), (7B), 70(3), 79(2), 83, 93

Quick Take

The broad statutory discretion to award costs under s.79(2) of the Transport Accident Act 1986 does not carry any presumption that costs should follow the event. Proceedings for review of Transport Accident Commission decisions are not analogous to adversarial litigation; the Commission appears as a functionary administering a statutory scheme, not as a reluctant defendant. The Tribunal may have regard to the nature of the statutory scheme, ease of access to the Tribunal, the conduct of the Commission in administering the claim, and whether the applicant acted reasonably and in good faith, without any predisposition against an unsuccessful applicant. Section 79(2) and s.50(2) of the AAT Act confer materially different powers, with s.50(2) imposing a prerequisite of justifying circumstances that s.79(2) does not.