Cakir and Comcare

Case [2008] AATA 103

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/0915

GENERAL ADMINISTRATIVE  DIVISION )
Re LISA-MAREE CAKIR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date8 February 2008

PlaceCanberra

Decision

The Tribunal orders Comcare to pay Ms Cakir’s reasonable costs of proceedings in the application 2007/0915.  The costs payable may include:

(a)       witness expenses at the prescribed rate;

(b)       all reasonable and proper disbursements; and

(c)       75 percent of all professional costs, including counsel’s fees which would be allowable under the Federal Court Rules on a party and party basis.

The costs may be agreed between the parties, but in the absence of agreement the bill will be taxed by a Registrar of the Tribunal.

..........signed....................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION – decision favourable to applicant – award of costs – written offer of settlement – terms of offer exceed scope of review – no basis to award costs on indemnity basis – discretion – costs order

Safety, Rehabilitation and Compensation Act 1988 s 67

Calderbank and Calderbank [1976] Fam 93

Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449

Comcare v Labathas (1995) 133 ALR 744

Perry v Comcare (2006) 150 FCR 319

Miller v Australian Telecommunications Commission (1985) 5 FCR 480

Re Maley and Comcare AAT (1998) 27 AAR 100

NMFM Property Pty Ltd v Citibank Ltd (No. 11) [2001] FCA 480

Re Gertzos and Comcare (AAT, 13 April 1994, A 93/22, unreported)

EMI Records Ltd v Ian Cameron Wallace Ltd and Another [1982] 2 All ER 980

Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248

Lees v Comcare (1999) 56 ALD 84

Griffiths v Australian Postal Corporation [2008] FCA 19

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

REASONS FOR DECISION

8 February 2008 Mr S. Webb, Member         

1.        Lisa-Maree Cakir claimed compensation in relation to a right upper limb and shoulder injury.  Comcare decided to reject her claim by primary determination[1] and on reconsideration[2], on the basis that her Commonwealth employment did not materially contribute to cause an ‘injury’ for the purposes of the Safety, Rehabilitation and Compensation Act 1986 (the Act).  Ms Cakir applied to the Tribunal for review of that decision.  The substantive matter was heard by me on 14 and 15 November 2007 and a decision favourable to Ms Cakir was handed down on 5 December 2007.  No orders were made in relation to costs and the parties were invited to make submissions on that subject.

[1] T19.

[2] T21.

2.      Submissions were duly received from both parties.  

3.      Thus, the only matter for determination is the issue of costs.

4.      In Ms Cakir’s submission, during the course of the proceedings in the Tribunal two offers of settlement were made in writing to the Respondent – dated 21 May 2007 and 27 September 2007.  Both letters have been filed by Ms Cakir’s solicitor and are not privileged…

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AGLC
Cakir and Comcare [2008] AATA 103
Case
[2008] AATA 103
Decision Date

CaseChat Overview and Summary

In Cakir v Comcare, Ms Cakir, an applicant, sought costs from Comcare, the respondent, following a decision favourable to her. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The primary legal issue before the Tribunal was whether Ms Cakir was entitled to an award of costs on an indemnity basis under section 67 of the Safety, Rehabilitation and Compensation Act 1988. Additionally, the Tribunal had to consider the appropriate amount of costs, should Ms Cakir be successful.

The Tribunal examined various authorities, including Calderbank and Calderbank, Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, and Comcare v Labathas, among others. The decision in Riley was particularly relevant, establishing that the court has discretion to award costs on a party and party basis. The Tribunal found that the written offer of settlement made by Comcare exceeded the scope of the review, and thus, there was no basis to award costs on an indemnity basis. Instead, the Tribunal exercised its discretion and ordered Comcare to pay 75 percent of Ms Cakir’s reasonable costs of proceedings. This included witness expenses at the prescribed rate, all reasonable and proper disbursements, and 75 percent of all professional costs, including counsel’s fees, which would be allowable under the Federal Court Rules on a party and party basis.

The Tribunal's decision highlighted the importance of considering the scope of the review and the principles established in relevant authorities when determining the appropriate costs order. The Tribunal's order ensures that Ms Cakir is compensated for a significant portion of her legal expenses, while also taking into account the need for proportionality in costs awards. In the absence of agreement between the parties, the bill of costs will be taxed by a Registrar of the Tribunal.

Orders

Orders of the court

The Tribunal orders Comcare to pay Ms Cakir’s reasonable costs of proceedings in the application 2007/0915. The costs payable may include:

(a) witness expenses at the prescribed rate;

(b) all reasonable and proper disbursements; and

(c) 75 percent of all professional costs, including counsel’s fees which would be allowable under the Federal Court Rules on a party and party basis.

The costs may be agreed between the parties, but in the absence of agreement the bill will be taxed by a Registrar of the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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