Barnes and Comcare (Compensation)

This matter concerned an application for costs under section 67(8) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) following a decision by the Administrative Appeals Tribunal. The applicant, Mr Barnes, sought costs against Comcare, arguing that Comcare's decisions were fundamentally flawed and that the proceedings were unnecessarily prolonged. Comcare contended that the applicant's case emerged late and in unsatisfactory circumstances, and that the complexity of the medical evidence made the matter difficult to resolve.

The Tribunal was required to determine whether to exercise its discretion to award costs, and if so, whether indemnity costs or ordinary costs should be ordered. Specifically, the Tribunal had to consider whether Comcare's reviewable decision was fundamentally defective, which party was responsible for the uncertainty arising from deficiencies in the evidence, and whether prejudice arose to Comcare due to the late filing of evidence.

The Tribunal found that while the applicant's initial attempts to provide evidence regarding the physiological change constituting his injury were unsatisfactory, the complexity of distinguishing between the onset of symptoms from deterioration of underlying heart disease and the onset of symptoms from a physiological change meant that the matter was not straightforward. The Tribunal was not satisfied that Comcare's original or reviewable decisions were obviously wrong or incompetent, particularly given the evidence available to decision-makers at the time. The Tribunal noted that claims involving disruption of internal systems against a background of long-term ailments are inherently difficult to resolve, and that the applicant's assertion that the decision was clearly wrong overlooked this complexity and the detailed evidence now required following *Military Rehabilitation and Compensation Commission v May*.

The Tribunal ordered that Comcare pay the applicant's costs in part, reflecting the Tribunal's assessment of the conduct of the parties and the overall circumstances of the proceedings.