Barnes and Comcare (Compensation)

Barnes and Comcare (Compensation) [2023] AATA 2285 (31 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/1607
Re:Darren Barnes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:31 July 2023
Place:Canberra

The respondent is to pay 50% of the applicant’s reasonable party/party costs as agreed or taxed.
………………………[sgd]………………………
Senior Member O’Donovan
CATCHWORDS
COSTS – whether costs should be ordered under s 67(8) of the SRC Act – whether indemnity costs should be awarded – when the discretion to award costs may be exercised – whether the reviewable decision was fundamentally defective – which party is responsible for uncertainty arising from deficiencies in the evidence – where leave was given for evidence to be filed late – whether prejudice to the respondent arose – costs ordered in part
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(b), 14, 66, 67(8)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Military Rehabilitation Compensation Commission v May (2016) 257 CLR 468
REASONS FOR DECISION
Senior Member O'Donovan
31 July 2023

The applicant seeks an order that the respondent pay the costs he incurred in the running of these proceedings either on a party/party or an indemnity costs basis. The respondent resists that application and contends either:
(a)that no order for costs should be made; or
(b)if a costs order is made, it should only cover the applicant’s costs from 27 April 2023 inclusive (when the last of the applicant’s evidence was filed).[1]
[1] I note that the respondent’s submissions at [3] and [26] suggest that the order should cover costs ‘up to and including 27 April 2023’ but, in light of the remainder of the submissions I have read this as proposing that costs should only be awarded ‘on and from 27 April 2023’.
The Tribunal’s power to award costs in this case is derived from section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It provides as follows:
Where in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a)…
(b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
There is no doubt that the precondition which triggers the discretion to award costs has been satisfied. On 22 May 2023 I issued a decision setting aside a reviewable decision of the respondent and decided, that the applicant was entitled to be paid compensation pursuant to section 14 of the SRC Act in relation to a cardiac event that occurred on 15 October 2020 while the applicant was at work.
Accordingly, the only issue which needs to be considered is how the discretion should be exercised.
The applicant’s position is that in light of the more favourable decision the respondent should pay the applicant’s costs. The applicant characterises Comcare’s reviewable decision as misguided and wrong from the beginning, resulting in the applicant incurring unnecessary costs. In particular, the applicant contends that the original decision failed to focus on the temporal test for liability. In these circumstances, costs should not be considered a penalty, rather as a method of reimbursing the applicant for the cost of litigation. The applicant submits that ‘an award of costs in the compensation jurisdiction is essential to the fair working of the appeal system’.
The respondent resists the order for costs on the basis that the applicant did not produce evidence which could reasonably satisfy the respondent that he suffered an injury in the course of employment on 15 December 2020 until 27 April 2023 (at the earliest), thus depriving the respondent of any reasonable opportunity to consider the question of liability having regard to all of the evidence. Further, it lost the opportunity to obtain evidence in response to the late filed evidence.
Before turning to the exercise of the discretion itself it is important to lay out in some detail the procedural history of the matter. The Tribunal, unlike a court, does not have the benefit of pleadings and the bright lines they provide for identifying when an opposing party was given notice of the formulation of the applicant’s case which was ultimately successful. Accordingly, it is necessary to analyse the proceedings more generally to consider at what point it became apparent that the applicant had a persuasive argument on the question of liability. The applicant takes the view that it was obvious all along, whereas the respondent’s view is that the merit of the claim emerged late and in unsatisfactory circumstances.
The Comcare Decisions
The starting point for the applicant is that Comcare’s original decisions were obviously wrong and incompetent. If I were to accept that claim, then the applicant would be entitled to expect an exercise of the costs discretion in his favour on the basis that the proceedings were always avoidable by Comcare making the correct decision in the first place. Having reviewed the T Documents and Comcare’s decisions, I am not satisfied that the original determination and the reviewable decision were obviously wrong or incompetent, or indeed incorrect having regard to the evidence that was available to the decision makers at the time.
In support of the assertion that the decisions were ‘deeply flawed’,[2] the applicant put forward the argument that as the applicant suffered a coronary event at work, the temporal test for compensation is satisfied and no causation issue arises, as it would if the injury had not occurred at work. The argument is put in the following terms:[3]
From the beginning of the matter, Comcare made a poor decision, and was focused only on the causal test rather than the temporal test and on the physiological change that occurred at the workplace on 15 December 2020.
[2] Applicant’s submissions dated 23 May 2023 [9].
[3] Ibid.
The first point to note is that claims involving disruption of internal systems, against a background of long-term ailments, are extremely difficult to resolve. It cannot easily be ascertained whether the symptoms suffered by the applicant at work were a single event satisfying the temporal test for an injury, or whether they formed part of the deterioration of an ongoing affliction, which in this matter may have begun at an earlier point in time including the night before the applicant attended work. The assertion that the reviewable decision was clearly wrong glosses over the complexity of the analysis and the detailed evidence which is now required to resolve these kinds of matters following the High Court’s decision in Military Rehabilitation and Compensation Commission v May.[4] Distinguishing between the onset of symptoms from deterioration in underlying heart disease as opposed to the onset of symptoms from a physiological change in the body which can be appropriately classed as an injury is not easy.
[4] (2016) 257 CLR 468 (‘May’).
In cases involving a heart attack, where due to a sudden blockage in the heart’s blood supply, the heart muscle itself is damaged, a finding that an applicant has suffered an injury may be straight forward. But that was not this case. There was no damage to the applicant’s heart muscle because he did not have a heart attack.
The matter was further complicated by the fact that the applicant had significant heart symptoms on both 14 and 15 December 2020. Those symptoms resulted in admission to hospital, identification of an 80% blockage of one of the applicant’s coronary arteries and the insertion of a stent. The applicant’s treating doctor provided reports which disclosed all of this. The evidence of the applicant’s treating doctor meant that it was clear that the applicant was suffering from coronary heart disease, and the disease was producing symptoms as a result of the blockage of an artery. What was unclear was whether the symptoms which arose while the applicant was at work were the product of the gradual progress of the underlying disease to a point where the applicant became symptomatic or the result of a specific event which could be characterised as an injury.
The High Court made clear in May, that a physiological change or disturbance of a person’s normal physiological state that can be said to be an alteration from the functioning of a healthy body or mind is not sufficient to constitute an injury for the purposes of section 5A(b) of the SRC Act. Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. However, not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.[5]
[5] Ibid [77].
In the applicant’s case, given that symptoms had developed prior to him attending work, the evidence available to the decision makers did not provide a conclusive basis for determining that the applicant suffered an injury (in the ordinary sense of that word) while at work. One available conclusion was that there had been a natural progression of heart disease leading to symptoms which the applicant experienced both at home and at work.
The treating doctor appeared to be uncertain as to what had occurred. So much can be gleaned from the report which he gave to the delegate on 26 May 2021. I note that this report, if read literally, does not make grammatical sense. The grammar however can be corrected by the insertion of a ‘not’, which I am satisfied reflects what the doctor was trying to say and it would have been reasonable for a delegate to read it this way.
At this stage, I am [not] sure if there was a physiological change in his heart as there was no evidence of a troponin leak that we may be able to associate with a coronary ischaemic injury. As such, his symptoms are suggestive of unstable angina.[6]
[6] T26 p 395.
As I understand this evidence, the absence of elevated troponin level rules out any sudden damage to the heart muscle which normally does occur during a heart attack. Accordingly, the original delegate’s conclusion that there was no heart attack which injured the heart at the relevant time was supported by the available evidence. The fact that there may have been another physiological process that amounted to an injury was not explored.
When the applicant’s solicitor sought review of the decision, the basis on which review was sought was somewhat confused. The request for review said:
We would simply argue that the heart attack occurred in the workplace and therefore the workplace was a significant contribution to the causation.
This involves a conflation of the temporal connection required for a frank injury to be compensable, and the contribution to a significant degree required for an ailment to be compensable.
The delegate’s decision reflected similar confusion about what was the precise question that needed to be grappled with in order to determine whether the event was compensable.[7]
[7] T40 p 439-442.
While the Comcare decision left much to be desired in terms of clarity, it remained the case that the evidence available to Comcare fell short of establishing that the applicant suffered an injury in the workplace on 15 December 2020. In the absence of evidence of damage to the heart muscle established by elevated troponin levels, the applicant needed other evidence to support the conclusion that there had been an identifiable physiological change that could amount to an injury while the applicant was at work - such as the detachment of a piece of the lining of an artery. At the time of the reviewable decision, the evidence did not support that conclusion.
Consequently, when the application was made to the Tribunal, there was an evidentiary gap that needed to be filled. A more precise description of the physiological change which took place in the time when the applicant was at work was required.
The applicant’s evidence filed in support of the claim
The applicant’s early attempts to provide that evidence were unsatisfactory to say the least. The first report of Associate Professor Haber dated 30 June 2022 opined in relation to the 2020 event, seemingly without evidence, that the applicant ‘is reported to have had a heart attack with a very high troponin level…he is very lucky to have survived it.’[8]
[8] Exhibit A2 p 4.
That statement was not correct. In the remainder of the report, Associate Professor Haber seemed to confuse the effects of an earlier heart attack suffered by the applicant in 2016 with the 2020 event.
In a follow up report dated 8 July 2022, Associate Professor Haber re-answered the question ‘In your opinion did Mr Barnes suffer from a heart attack on 15 December 2020?’ In answering that question, he had access to the hospital discharge notes which he noted said:[9]
Normal troponin level (<2) Troponin is a marker for the damage to the heart muscle.
Coronary angiogram showed 80% stenosis (blockage) of the left circumflex artery other arteries having minor disease only.
[9] Exhibit A3 p 2.
Associate Professor Haber reported:
He was admitted to hospital because he had 2 episodes of chest pain, cardiac in nature (angina), but there was no evidence of a heart attack as such. ECG did not show any ischaemic changes and troponin was normal. He did not have NSTEMI – ie a NON-ST-ELEVATION MYOCARDIAL INFARCTION
This report appeared to rule out a sudden or dramatic physiological change which could constitute a frank injury. Accordingly, the need to identify the physiological change which constituted the injury suffered by the applicant on 15 December 2020 remained.
On 7 September 2022 the Tribunal made the following directions in relation to the filing of the applicant’s evidence:
On or before 12 October 2022, the Applicant must provide the Tribunal and the Respondent a Statement of Facts, Issues and Contentions (no more than 10 pages) and a statement from the Applicant and any other evidence on which he intends to rely.
On 4 October 2022 the direction was varied to give the applicant until 4 November 2022 to provide the material.
On 3 November 2022 the applicant filed a statement of facts issues and contentions. It relevantly provided as follows:
Whatever the diagnosis it is clear that an event occurred, the Applicant was hospitalised, and a stent inserted to circumvent a significant arterial blockage.
For an injury within the meaning of section 5A SRCA to occur, there need only be some harmful physiological change. An arterial blockage causing chest pain, meets this description whatever the diagnosis.
In Wuth v Comcare ([2022] FCAFC 42 the Full Federal Court noted the fact no physiological change can be identified on imaging scans or otherwise identified with specificity, does not mean that no physiological change has occurred (at 112-112). In Re Campion and Comcare [2021] D.P.Sosso held that the physiological change could be inferred from a change in the state of symptoms experienced, including chronic pain.
For an injury within the meaning of section 5A, the injury needs to ‘arise out of or in the course of the employment’.
‘In the course of employment’ connotes only a temporal test with the employment i.e. that the injury occurred at work… This includes heart attacks or strokes occurring at work (Re Garratt and Comcare (2015) AATA 801). The Applicant’s cardiac events of 15 December 2020 occurred at work and so it is not necessary to find any causal connection to the employment….
In the present case there are three work causes:
(a) The first work related heart attack in June 2016 for which liability was admitted;
(b) The work psychological stresses causing blood pressure;
(c) The work physical stresses.
In addition or in the alternative, the second cardiac events is a deterioration and hence an aggravation of the first heart attack.
In the further alternative, if an employee suffers a compensable injury which has left them with a weakness or susceptibility which contributes to a second compensable or non-compensable injury, the effects of the second injury are still thereby compensable… Such is the present case.
It is clear from this document that the applicant misunderstood the burden it needed to discharge. As discussed above, the High Court in May made clear that a physiological change or disturbance of a person’s normal physiological state that can be said to be an alteration from the functioning of a healthy body or mind is not sufficient to constitute an injury for the purposes of section 5A(b) of the SRC Act. While it is true that evidence on scans is not necessary, it is still important for an applicant to distinguish between symptoms produced by the progress of an underlying ailment and a physiological change that constitutes an injury.[10]
[10] See in particular paragraphs [47] and [76]-[77] in May.
On 5 April 2023 the parties attended a pre-hearing directions hearing in respect of the hearing scheduled for 1 and 2 May 2023. The applicant did not advise or otherwise indicate that he was intending to file any further evidence.
On 27 April 2023 one clear business day from the commencement of the hearing, the applicant filed with the Tribunal and served on the respondent a further report from Associate Professor Richard Haber.
The respondent sought a copy of the briefing letter that prompted the report of Associate Professor Haber. In this document the applicant foreshadowed for the first time the argument that would ultimately be successful at the hearing. It noted:
For present purposes it is not necessary for Mr Barnes to establish that anything in the workplace caused this onset of chest pain, it is only necessary for him to establish the diagnosis and that it occurred at work.
To this end we seek two things from you:
1Your clarification on the physiological change that occurred in his body at work on 15 December 2020, that caused the chest pain i.e., what happened in his heart that caused this transition from being asymptomatic to being symptomatic:
2Your best guess of the appropriate diagnosis.
It can be inferred from the content of the briefing letter that the applicant appreciated that there was a gap in the evidence and that if the applicant was going to succeed on a temporal argument alone, more evidence was required.
The report of Associate Professor Haber addressed that question in his report of 27 April 2023 – although it must be said, without a great deal of clarity.
When the hearing commenced the respondent sought an adjournment in light of the late service of the new report. Before that question could be resolved, it was necessary to determine whether the applicant could rely on the new report at all.
Section 66 of the SRC Act relevantly provides:
Where:
(a)a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(b)the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
Given the centrality of the evidence to the argument which the applicant was advancing and that the respondent would have an opportunity to put the report to its experts over the course of the hearing, leave was granted to the applicant to tender the report.
The respondent’s application for an adjournment was rejected on the basis that any prejudice on the substantive issues appeared to be remediable by putting the fresh evidence to the respondent’s doctors during examination in chief. If any more specific prejudice emerged, the respondent was assured it could make an application for an adjournment at that point in time.

The respondent also noted that the late service of the report meant that the respondent had lost the opportunity to put the matters in Associate Professor Haber’s report to the respondent’s expert. Further, an opportunity to resolve the matter and avoid a hearing had been lost.
I noted that that might be relevant to the costs question but would not necessarily be relevant to whether the report was received into evidence.
Ultimately a short adjournment was given to the respondent to consider its position. It decided to proceed.
Following the hearing, the reviewable decision was set aside, and a finding of liability was made. The conclusion that the applicant suffered an injury in the course of his employment was reached primarily as a consequence of the detailed evidence which was given by two of the doctors during the course of the hearing. Prior to the hearing there was no basis for concluding that the applicant should succeed because he had suffered an injury in the course of his employment. Specific evidence obtained during the hearing about the changes which occurred in the applicant’s arteries to bring on the symptoms experienced on 15 December 2020 were critical to the finding that he suffered an injury.
It is against this background that I must determine whether the respondent should be required to pay some or all of the applicant’s costs.
As noted above I have a broad discretion in relation to the terms of any order I make.
The applicant’s contentions
As should be clear from the summary above, I do not accept the applicant’s contention that the original determination and the reviewable decision were fundamentally defective. Nor do I accept that the answer was obvious that ‘the existence of the temporal test was always present’ and that ‘the Respondent is, or should have been, aware of the relevant law concerning the characterisations of heart attacks or like events and of the existence of s6(1)(b)’.
The issue which the Tribunal ultimately had to wrestle with and resolve was whether, in the absence of a heart attack, the event experienced by the applicant at work was a symptomatic reaction to the progression of his underlying heart disease or an event which could constitute an injury. There was no relevant law that resolved this question. It was a question of fact which needed to be addressed by evidence.
Prior to the hearing the applicant did not accept that that was the burden he needed to discharge. In advance of the hearing the applicant wrote to the respondent and the Tribunal in the following terms:
This coronary event, however described in diagnostic terms, is an injury within the meaning of section 5A SRCA and as such it is sufficient that it occurred at work…
The letter went on to contend that ‘the outcome is so clearly apparent, that it is a waste of both Mr Barnes money and the public purse, for this matter to proceed to hearing’. I did not regard the contention as persuasive at the time and, as the ultimate decision demonstrates, the applicant could not have succeeded with the evidence in the state it was in at the time that letter was written.
The fact that the applicant sought the third report from Associate Professor Haber seeking answers to the questions which were asked, suggests that the applicant came to the view that a more precise understanding of what occurred to the applicant physiologically on 15 December 2020 was necessary. However, now it is contended:
The issue always was whether the sudden chest pain at work was an ‘injury’ for the purposes of section 5A, which only required that it have been a symptom of some physiological change in the body.
As should be clear from the discussion above, this oversimplifies the question which the Tribunal had to grapple with. Justice Gageler in May made it clear that more is required:
Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. Indeed every manifestation of an ailment or of the worsening of an ailment might potentially be so described. Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.[11]
[11] Gageler (n 1) [77].
Accordingly, it was never the case that the applicant would succeed on the written material available to the Tribunal prior to the commencement of the hearing.
The applicant’s other criticism of the respondent is that it did not undertake further inquiries about the true nature of his condition.[12] This submission has some merit. There was a clear question raised by the applicant’s treating doctors’ earliest report which is, physiologically speaking, what occurs during an episode of ‘unstable angina. It would have been prudent for the respondent to make further inquiries in relation to that issue. However, In circumstances where it is for the applicant to satisfy either Comcare or the Tribunal that the statutory requirements are met, I do not accept that the respondent be too strongly criticised for its failure to seek out evidence on the critical question for the Tribunal to determine in circumstances where the applicant had failed to do so.
[12] At [5] of Applicant’s Submissions in Reply.
The following passage from Beezley v Repatriation Commission [2015] FCAFC 165 at [68] is instructive:
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.
This is not to deny that on occasion, a duty can arise to make inquiries. However, in a context where the applicant is represented and the SRC Act provides for the award of costs, the expectation is that the applicant will put before the Tribunal sufficient material to satisfy the Tribunal of the merits its case.
The final basis on which the applicant contends that the late filing of Associate Professor Haber’s report should not influence any decision in relation to costs is that, at the hearing, he did not press for the admission of the third report on the basis that he was content to lead the evidence orally.[13] That submission betrays a misunderstanding of the operation of section 66 of the SRC Act. Whether the report is tendered or evidence is taken orally, neither can be done without the leave of the Tribunal unless the subject matter of the evidence has been disclosed ‘to the Tribunal at least 28 days before the day fixed for hearing’.
[13] Ibid [14].
Section 66 seeks to ensure that proper notice is given of important evidence so that the respondent is in a position to deal with it. It cannot be circumvented simply by leading evidence orally in the hearing which advances a new basis from which liability is said to arise.
From this analysis it should be clear that I do not accept the applicant’s submission that ‘criticism and blame should be laid squarely at the feet of the Respondent with an order for indemnity costs against it.’
The respondent’s contentions
The respondent relies upon the late filing of Associate Professor Haber’s third report to found its arguments against the award of costs. The respondent contends that it suffered prejudice as a result of the late filing and that it is prejudice of this kind that section 66 of the SRC Act seeks to avoid. The respondent also notes that in truth, it was not until 2 May 2023 (being the second day of the hearing) that the applicant appropriately briefed Associate Professor Haber so as to obtain ‘relevant and probative material’.
The respondent notes that it specifically contended in its statement of facts issues and contentions, provided to the applicant on 9 December 2022, that:
The medical evidence does not demonstrate that the Applicant suffered a sudden or identifiable physiological change in the normal functioning of his body on 15 December 2020. Rather, based on the present evidence, the Applicant suffered symptoms of a pre-existing heart condition.
In such circumstances, the respondent submits, the applicant was on notice of the deficiency in the evidence if it wished to pursue the application on the basis that an injury was suffered in the course of employment. The deficiency was not fully remedied until 2 May 2023 (being the second day of the hearing). Accordingly, ‘it was not possible for the Respondent…to be satisfied that the Applicant sustained an ‘injury (other than a disease) during the course of his employment on 15 December 2020, until the report of Associate Professor Haber had been received and the Tribunal granted leave for the report to be filed…’.
Conclusion
From the foregoing it should be clear that in my assessment the respondent’s contentions are based upon a far clearer appreciation of how the matter developed procedurally and what could reasonably be expected of the applicant. The applicant did not produce evidence of sufficient quality or focus to satisfy a decision maker that the applicant suffered an injury in the course of employment until the second day of the hearing. The Tribunal’s procedures and s 66 of the SRC Act are designed to prevent such a state of affairs developing. All parties and their representatives have a statutory duty to assist the Tribunal to provide a mechanism of review that meets its statutory objectives including one that is fair, just, informal economical and quick. In my assessment the matter required earlier, focussed attention from those representing the applicant on the difficult conceptual questions which the applicant’s case raised. To discharge their duty to assist the Tribunal it was necessary for them to give proper consideration to the inadequacies in the first two reports of Associate Professor Haber and how they might be addressed. Had those issues been attended to at an early stage, the expense of a hearing may well have been avoided altogether.
Having said that, it is also the case that the applicant did ultimately succeed. The case had merit, and the respondent could have approached the applicant’s treating doctor (as the original delegate did) to obtain a better understanding of what physiological change prompted the episode of unstable angina which the applicant experienced in his workplace. This is not to criticise the respondent for not doing so, merely to point out that it is likely to have assisted with the resolution of the matter earlier had it done so.
In the circumstances, I am satisfied that in exercising my discretion to award costs it is appropriate to take into account the very late arrival of material which supported a decision favourable to the applicant. The SRC Act on its face makes clear that evidence on all relevant matters should be adduced by an applicant well in advance of the hearing. I am satisfied that it is appropriate to give weight to the late delivery of decisive evidence in exercising the costs discretion in this case. That favours a reduction in the amount of costs awarded to the applicant. However, any award of costs should also reflect the fact that the applicant ultimately succeeded.
In the circumstances I have decided that Comcare should pay half of the reasonable party/party costs incurred by the applicant in these proceedings. The case clearly had merit and it was appropriate for the applicant to run it. Given the difficulty of the issues to be grappled with, both parties were likely to incur significant costs coming to grips with the issues even if the matter were run perfectly. Accordingly, the applicant is entitled to a significant portion of his costs. However, I am also satisfied that the applicant’s failure to address the deficiencies in the evidence supporting his case until after the hearing commenced, caused the respondent to incur unnecessary costs and this should be reflected in any costs order.
Decision
On that basis I am satisfied that the appropriate costs order is that the respondent pay 50% of the applicant’s reasonable party/party costs as agreed or taxed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

....................................[sgd]....................................
Associate
Dated: 31 July 2023

Date final submissions received: 23 June 2023

Counsel for the Applicant: Allan Anforth AM

Solicitors for the Applicant: David Healey Solicitors

Counsel for the Respondent: Ben Julienne

Solicitors for the Respondent: McInnes Wilson Lawyers

[2023] AATA 2285

31 July 2023

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Costs

Causation

Procedural Fairness

Statutory Construction

Appeal

Date final submissions received:	23 June 2023
Counsel for the Applicant:	Allan Anforth AM
Solicitors for the Applicant:	David Healey Solicitors
Counsel for the Respondent:	Ben Julienne
Solicitors for the Respondent:	McInnes Wilson Lawyers