Cartajena and Comcare (Compensation)

[2019] AATA 2345

Cartajena and Comcare (Compensation) [2019] AATA 2345 (25 July 2019)

Division:GENERAL DIVISION

File Number(s):      2016/4911, 2017/4486, 2017/4441

Re:Ana Cartajena

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:25 July 2019

Place:Melbourne

The Tribunal orders the Respondent to pay 50% of the Applicant’s reasonable legal costs and disbursements incurred in Application No. 2017/4441 as agreed or, in the absence of agreement, in an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to s67(13) of the Safety, Rehabilitation and Compensation Act 1988; and

the Applicant’s reasonable legal costs and disbursements incurred in Application No. 2017/4486 as agreed or, in the absence of agreement, in an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to s67(13) of the Safety, Rehabilitation and Compensation Act 1988.

.............[sgd]...........................................................

Mr A. Maryniak QC, Member

Catchwords

COMPENSATION - costs – multiple applications heard together – mixed results for Applicant – two decisions set aside – partial costs ordered in favour of the Applicant pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988

Legislation   

Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Mr A. Maryniak QC, Member

25 July 2019

1. In a decision dated 24 June 2019, as amended by corrigendum dated 23 July 2019 (the Decision), the Tribunal set aside the reviewable decision of the delegate of the Respondent in Application No. 2017/4441 and in substitution decided that the Applicant is entitled to compensation under s16 of the Act for the treatment she received for her acute anxiety reaction and PTSD and which was reasonable for her to obtain, on and from 19 June 2017.

2. The Tribunal also set aside the reviewable decision of the delegate of the Respondent in Application No. 2017/4486 and in substitution decided that:

   a.the acute anxiety reaction and PTSD has resulted in the Applicant sustaining a degree of permanent impairment of 10%;

   b.the Applicant has no need for supervision and direction in activities of daily living; and

   c.otherwise, the matter be remitted to the Respondent to assess the degree of suffering (if any), following further medical assessment so as to ensure that any such suffering as may be present relates to the accepted condition and not any pre-existing or subsequent developing condition.

3. In a related matter, Application No. 2016/4911, the Tribunal affirmed the decision of the Respondent’s delegate.

4. By paragraph 4 of the Decision this Tribunal permitted the parties to lodge any written submissions on costs of the hearing of the three applications which were the subject of the Decision.

5. The following submissions were received and have been considered by the Tribunal:

   (a)the Applicant’s Submissions dated 5 July 2019;

   (b)the Respondent’s Submissions dated 18 July 2019; and

   (c)the Applicant’s Submissions in Reply dated 18 July 2019.

6. The statutory basis for the costs jurisdiction of the Tribunal is s67(8)(b) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).  The discretionary power is enlivened when the Tribunal sets aside a reviewable decision and the decision in substitution is ‘more favourable’ to the claimant than the reviewable decision.

7. As stated above the Tribunal has decided such ‘more favourable’ outcomes in Application Nos. 2017/4441 and 2017/4486.

8. Further, in Application No. 2017/4486 the Tribunal found that a remittal was warranted.  By reason of s67(9) of the SRC Act the Applicant’s costs, a consequence of such remittal, are to be paid by the Respondent.

9. By reason of s33(1AB) of the Administrative Appeals Tribunal Act 1975 it is incumbent on all parties to assist the Tribunal to fulfil the objective in s2A of the same Act.

10. As the Respondent submitted, the conduct of a party which detracts from the efficient and economical hearing and determination of matters falls short of the standard of assistance required by s33(1AB).

11. The Tribunal found, inter alia, that the Applicant did not give her evidence candidly, resisted giving direct responses to questions, was prone to exaggeration and tailored her ‘story’ in giving evidence. It also found that the value of medical evidence provided on her behalf was limited by the lack of a complete history being provided to the Applicant’s relevant medical witnesses.

12. In all the circumstances, in light of the findings in the Decision, and after considering the written submissions received from the parties the Tribunal, in its discretion, orders the following:

    (a)The Respondent pay 50% of the Applicant’s reasonable legal costs and disbursements incurred in Application No. 2017/4441 as agreed or, in the absence of agreement, in an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.The Respondent pay 50% of the Applicant’s costs of Application No 2017/4441 as agreed or taxed; and

    (b)the Respondent pay the Applicant’s reasonable legal costs and disbursements incurred in Application No. 2017/4486 as agreed or, in the absence of agreement, in an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of  Mr A. Maryniak QC.

............[sgd]..........................................

Associate

Dated: 25 July 2019

Counsel for the Applicant                   Mr Mark Carey

Solicitors for the Applicant                 Arnold Thomas & Becker

Counsel for the Respondent              Mr Michael Snell

Solicitors for the Respondent            Lemann Snell Lawyers