Comcare v Power (No 2)

[2016] FCA 39

FEDERAL COURT OF AUSTRALIA

Comcare v Power (No 2) [2016] FCA 39

File number:

ACD 76 of 2015

Judge:

KATZMANN J

Date of judgment:

5 February 2016

Catchwords:

COSTS — appeal from decision of the Administrative Appeals Tribunal — where appellant successful on one of several grounds — where respondent made an approach  before hearing to settle on an “in principle” basis which conformed to the findings ultimately made on the appeal and appellant had not agreed to the approach

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43(2)

Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1), 6

Cases cited:

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167

Date of hearing:

Heard on the papers

Date of last submissions:

29 January 2016

Registry:

Australian Capital Territory

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

9

Solicitor for the Applicant:

Mr S Marris of Sparke Helmore

Solicitor for the Respondent:

Mr N Blumer of Blumers Personal Injury Lawyers

ORDERS

ACD 76 of 2015

BETWEEN:

COMCARE

Applicant

AND:

SHIREE POWER

Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	5 FEBRUARY 2016

THE COURT ORDERS THAT:

1.Save in relation to ground 3 of the notice of appeal, in respect of which each party should bear its or her own costs, the applicant pay half the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1. Shiree Power is, or was at all relevant times, a Commonwealth employee.  She claimed workers compensation from Comcare for an injury to her lower back and an adjustment disorder.  Her entitlement to compensation was disputed but on appeal to the Administrative Appeals Tribunal her claims were largely accepted.  Comcare appealed from the Tribunal’s decision.  Four grounds of appeal were pressed, which challenged the decision-making process in relation to both claims.  I dismissed three grounds but held that the Tribunal’s finding that the pain Ms Power experienced from the back injury contributed to a significant degree to the development of her adjustment disorder was infected by legal error.  I made orders allowing the appeal in part and remitting the matter to the Tribunal for hearing on a limited basis.  In my reasons for judgment I expressed some provisional views about costs but reserved the question to give the parties the opportunity to make submissions should they wish to argue for a different order.  I foreshadowed making an order that Ms Power pay half of Comcare’s costs excluding some particular costs which I considered wasteful.

2. On 15 January 2016 I received submissions from Ms Power’s solicitors.  Those submissions contained a proposal that orders be made to the effect that Comcare pay half of Ms Power’s costs and that each party bear its or her own costs with respect to the appeal ground upon which Comcare succeeded (ground 3).

3. Ms Power noted that I had…