Christine Wood and Comcare - [2013] AATA 469

[2013] AATA 469

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/3524 & 2013/1294

Re

Christine Wood

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Presiding Member
Dr B. Hughson, Member

Date 5 July 2013

Place Canberra
Comcare is ordered to pay Ms Wood’s reasonable party and party costs in these proceedings in accordance with clause 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction dated March 2007, as agreed or taxed, including –
(a)witness expenses at the prescribed rate;

(b)all reasonable and proper disbursements; and

(c)professional costs allowable in accordance with any scale of costs determined by the Tribunal, or, if there is no such scale, 75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court scale.

.............................[sgd]...........................................
Mr S. Webb, Presiding Member
WORKERS COMPENSATION – orders for costs – request for 100 percent of costs – nature of decisions under review – conduct of parties – compliance with legislative requirements and guidelines – reasonable expectation that Comcare would adhere to binding guidelines it promulgates – whether applicant put to unnecessary costs – costs award
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 37, 60, 62, 67
Comcare v Meng Chang [1996] FCA 927.
Corporation of Burford v Lenthall (1743) 26 ER 731.
Department of Defence v Fox [1997] FCA 3.
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Dungey v Angove (1794) 2 Ves. Jr. 304.
Griffiths v Australian Postal Corporation [2008] FCA 19.
Re Maley and Comcare [1998] AATA 543.
McGuinness v Comcare [2007] FMCA 1486.
Oshlack v Richmond River Council (1998) 193 CLR 72.
Pascoe v Australian Postal Corporation [2004] FCAFC 4.
Perry v Comcare (2006) 150 FCR 319.
Riley v Comcare (1994) 48 FCR 449.
Administrative Appeals Tribunal Guide to the Workers’ Compensation Jurisdiction dated March 2007
REASONS FOR DECISION
Mr S. Webb, Presiding Member
Dr B. Hughson, Member
5 July 2013

Christine Wood was injured in her employment by the Department of Defence. She obtained compensation. She was assessed as capable of undertaking a rehabilitation program. In its role as a rehabilitation authority, Defence determined that she should undertake a rehabilitation program and, later, determined to suspend her compensation on the basis that she failed to do so. These two determinations were reconsidered by Comcare. Unhappy with Comcare’s decisions, Ms Wood made two applications for review by the Tribunal.
The applications came on for hearing and both were resolved in a manner that is favourable to Ms Wood – following legal argument at the outset of the hearing, Comcare conceded and both reconsideration decisions were set aside by consent. In the result, Comcare accepted that the 20 June 2012 determination under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) that she should undertake a rehabilitation program, as affirmed on reconsideration under s 62, was not sustainable. No rehabilitation program had been formulated, at least in draft, at the time and,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 469
Decision Date

CaseChat Overview and Summary

Christine Wood, the applicant, and Comcare, the respondent, were before the Administrative Appeals Tribunal in a dispute concerning the recovery of legal costs. The case revolved around whether Comcare should bear the entire burden of Ms Wood’s legal expenses following her successful appeal against a decision to suspend her rights to compensation. The tribunal was tasked with determining whether the usual cost recovery terms should be altered and whether Ms Wood’s failure to seek a stay of the decision influenced the outcome of the cost recovery decision.

The tribunal had to resolve whether the discretionary power to award costs should extend beyond those incurred in the tribunal proceedings themselves. It also needed to consider whether Ms Wood's decision not to apply for a stay of the compensation suspension decision affected the tribunal's power to order full cost recovery. Moreover, the tribunal had to decide if the circumstances warranted a departure from the standard cost recovery rules outlined in the tribunal's guide.

After evaluating the arguments and circumstances, the tribunal concluded that the case did not justify a deviation from the usual cost recovery terms. The tribunal found that Ms Wood's failure to seek a stay of the decision played a role in their decision. The tribunal was not persuaded that the circumstances warranted a departure from the standard practice where the successful party can recover 75 percent of professional costs on a party and party basis under the Federal Court Rules. Accordingly, the tribunal ruled that Comcare should bear the usual costs, which include party and party costs in these proceedings, witness expenses at the prescribed rate, reasonable and proper disbursements, and 75 percent of professional costs, including counsel’s fees, as per the Federal Court scale.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We do not accept this submission. The discretion to award costs is confined to costs incurred in the proceedings before the Tribunal. It was open for Ms Wood to make an application to stay implementation or operation of the decision to suspend her rights to compensation. She did not do so.Conclusion and decision Considering all of the circumstances, on balance, we are not persuaded that this is a case that warrants departure from the usual course in respect to orders for costs, where a successful applicant may recover 75 percent of professional costs on a party and party basis under the Federal Court Rules. The circumstances are not such that departure from the usual course under the Tribunal’s Guide is justified. In sum, we are satisfied that it is not appropriate to order Comcare to pay all of Ms Wood’s professional costs when exercising the discretion under s 67(8). The usual terms of order will apply under clause 6.8 of the Tribunal’s Guide, that is, Comcare is to pay Ms Wood’s reasonable party and party costs in these proceedings, as agreed or taxed, including –(a)witness expenses at the prescribed rate;(b)all reasonable and proper disbursements; and(c)professional costs allowable in accordance with any scale of costs determined by the Tribunal, or, if there is no such scale, 75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court scale.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2012/3524 & 2013/1294
Re	Christine Wood
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr S. Webb, Presiding Member Dr B. Hughson, Member
Date	5 July 2013
Place	Canberra