David O'Connell and Comcare - [2012] AATA 588

[2012] AATA 588

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/2534, 2536, 2537 & 2539

Re

David O'Connell

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 31 August 2012

Place
Canberra

Comcare is to pay Mr O’Connell’s reasonable costs, as agreed or taxed, in application 2011/2537 up to and including 3 May 2012, but excluding appearance cancellation costs for Dr Knox if any, and, thereafter:
(a)witness expenses and reasonable and proper disbursements relating to Mr Goch, Ms Gardiner and Dr Knox; and
(b)professional costs of drafting and filing the Applicant’s Supplementary Contentions document.

.......................[sgd].................................
Mr S. Webb, Member
ORDERS FOR COSTS – one of four applications resolved in Applicant’s favour – favourable decision – discretion to make orders for costs – failure to call obvious and relevant evidence – failure to properly prepare case for hearing – delay and increased costs – factors relevant to discretion – partial costs award
Safety, Rehabilitation and Compensation Act 1988, s 67
De L v Director-General, NSW Department of Community Services [No. 2] (1997) 190 CLR 207
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Garnett v. Bradley (1878) 3 App Cas 944
Griffiths v Australian Postal Corporation [2008] FCA 19
House v R (1936) 55 CLR 499
Miller v Australian Telecommunications Commission (1985) 5 FCR 480
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40
Re O’Connell and Comcare [2012] AATA 532
Oshlack v Richmond River Council (1998) 193 CLR 72
Perry v Comcare (2006) 150 FCR 319
Riley v Comcare (1994) 48 FCR 449
REASONS FOR DECISION
Mr S. Webb, Member
31 August 2012

David O’Connell claimed compensation in respect of injuries to his right arm and lower back, and he sought an additional lump sum payment of compensation for permanent impairment as a result of a psychological injury. These claims were rejected and came before the Tribunal for review. In the result, I decided that he was entitled to an additional lump sum payment for permanent impairment and set aside Comcare’s decision in this claim, but I affirmed Comcare’s decisions in respect of Mr O’Connell’s other claims.[1]
[1] Re O’Connell and Comcare [2012] AATA 532.
I made no orders as to costs as the parties had not been heard on this issue, but allowed 14 days for any submissions to be made. Both parties filed written submissions which I have carefully considered.
The Tribunal’s power to make orders for costs in these proceedings is conferred by s 67 of the Safety, Rehabilitation and Compensation Act 1988 (CTH) (the Act), which is a code in relation to costs under the Act[2]. The primary rule is that each party to a proceeding shall bear their own costs[3]. This rule is subject to exceptions, set out in succeeding subsections[4].
[2] Griffiths v Australian Postal Corporation [2008] FCA 19 at [2]-[4]; Perry v Comcare (2006) 150 FCR 319 at 338-339; Riley v Comcare (1994) 48 FCR 449 at 451.
[3] Safety, Rehabilitation and Compensation Act 1988, s…

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.

Continue reading David O'Connell and Comcare

Details

AGLC: David O'Connell and Comcare [2012] AATA 588
Case: [2012] AATA 588
Decision Date: 31 August 2012

CaseChat Overview and Summary

David O'Connell sought compensation for injuries to his right arm and lower back, and an additional lump sum payment for permanent impairment due to a psychological injury, which Comcare rejected. The case was reviewed by the Tribunal, which ruled in favor of Mr O'Connell's claim for additional compensation for permanent impairment but upheld Comcare's decisions on his other claims. The Tribunal was tasked with determining the appropriate costs to be borne by Comcare under section 67(8) of the Safety, Rehabilitation and Compensation Act 1988. The primary issue was whether Mr O'Connell should be awarded full or partial costs for the proceedings, considering the delay and increased costs due to his legal representatives' actions. The Tribunal found that while Mr O'Connell was entitled to some costs, the delay and additional costs were due to his legal representatives' failure to obtain relevant evidence earlier, which was a reasonable and justified action. The Tribunal concluded that it was not appropriate to order Comcare to pay all costs incurred by Mr O'Connell but decided that Comcare should pay his reasonable costs up to a certain date, excluding certain expenses, and certain additional costs associated with obtaining evidence from specific witnesses. The Tribunal did not make any order as to the proportionality of costs between the successful and unsuccessful applications at that time.

Orders