Bennett v Comcare (No.2)

[2007] FMCA 1539

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENNETT v COMCARE (No.2) [2007] FMCA 1539

ADMINISTRATIVE LAW – PRACTICE & PROCEDURE – COSTS – Order sought pursuant to liberty to apply – applicant successful – costs order discretionary.

Safety Rehabilitation and Compensation Act 1988 (Cth)

Canute v Comcare (2006) HCA 47

Applicant: ALAN JOHN BENNETT

Respondent: COMCARE

File number: MLG 827 of 2004

Judgment of: Hartnett FM

Date of last submissions: 16 May 2007

Delivered at: Dandenong

Delivered on: 7 September 2007

REPRESENTATION

Counsel for the Applicant: Mr De Marchi

Solicitors for the Applicant: De Marchi and Associates

Counsel for the Respondent: Ms McMahon

Solicitors for the Respondent: Phillips Fox

ORDERS

1. That the Respondent pay the costs of the applicant fixed in the sum of $8,420.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 827 of 2004

ALAN JOHN BENNETT

Applicant

And

COMCARE

Respondent

REASONS FOR JUDGMENT

1. On 24 January 2007 I made orders in this matter.  Those orders were as follows:-

   (1)     The appeal is allowed.

   (2)The decision of the Administrative Appeals Tribunal dated 19 September 2003 be set aside and in place thereof direct that Comcare determine an amount payable to the applicant assessed under sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being major depression resulting in a degree of permanent impairment of the applicant of 10 per cent as assessed pursuant to Table 5.1 of the Guide.

   (3)     Liberty to apply as to the question of costs.

2. The respondent filed contentions on the question of costs dated 1 May 2007.  The applicant responded with contentions dated the 16 May 2007.

3. An award of costs is at the discretion of the presiding federal magistrate.  Ordinarily, the applicant having succeeded in his appeal should have the benefit of a costs order in his favour.

4. The respondent seeks to rely on a letter dated 2 June 2003 containing a Calderbank offer.  That letter was delivered after the commencement of the hearing at the Administrative Appeals Tribunal (the AAT) on 8 May 2003.  The applicant was not successful in his application for review at the AAT but pursuant to the enabling legislation there was no order for costs against him.  The Calderbank offer was not thereafter repeated and if sought to be relied upon in these proceedings should have been repeated in the proceedings in this Court.  That argument fails.

5. The applicant raised many grounds of appeal in his Notice of Appeal dated 18 October 2003 and succeeded in respect of only one (Ground 4.7) and as a result of the decision in Canute v Comcare (2006) HCA 47 delivered by the High Court on 28 September 2006. This decision was handed down after the hearing of the appeal but a determination of the matter was delayed pending the outcome of that decision as requested by the parties. At the time of hearing the Full Court of the Federal Court had decided the issue in favour of the respondent but that was reversed by the High Court decision. The possibility of that reversal was known by both parties at the time of hearing of the appeal.

6. The applicant was required to prosecute his appeal in order to receive compensation from the respondent.  Although he was successful on only one ground and following the handing down of the High Court decision that ground was central to his argument and at the core of the case as it was presented.  It is always a balancing exercise and in particular where there is a change in the construction of the law but in this case I shall order that the respondent pay the costs of the applicant fixed in the sum of $8,420.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Deputy Associate:  Kate Gray

Date:  7 September 2007