David O'Connell and Comcare
[2012] AATA 588
•31 August 2012
[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 319Riley 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 67(1).
[4] Perry v Comcare (2006) 150 FCR 319 at 338.
The only exception of present relevance is set out in s 67(8), concerning the award of costs to a claimant in respect of proceedings in which he or she obtains a more favourable decision than that under review. Under this section, the Tribunal has discretion to order Comcare to pay the costs Mr O’Connell incurred in the proceedings relating to application 2011/2537, or part of those costs, as the decision under review was set aside and replaced with a decision that is more favourable to Mr O’Connell. There is no discretion to order Comcare to pay any part of the costs he incurred in the proceedings relating to his other applications, in which the reviewable decisions were affirmed (applications 2011/2534, 2011/2536 and 2011/2539).
Two issues presently arise. The first concerns the proposition that Mr O’Connell should only be awarded part of the costs he incurred in application 2011/2537, as the actions, or failings, of his legal representatives necessitated a delay while additional evidence was obtained, and the listing of two additional hearing days, with a substantial consequent increase in costs.
The second issue concerns the apportionment of costs between the application in which Mr O’Connell was successful and the three applications in which he was not.
Full or part costs in application 2011/2537
Mr Dennien of Dibbs Barker, representing Comcare, says that the parties have been put to unnecessary costs by “the Applicant’s failure to adequately prepare his case” and “as a result of his failure to obtain obvious and necessary evidence”[5]. In Mr Dennien’s submission, the conduct of the parties in the proceedings is a relevant matter to take into account when considering the discretion conferred by s 67(8). This is particularly relevant, he says, when the lax conduct of the successful party unnecessarily protracts the proceedings and, in consequence, increases the costs. For these reasons, Comcare submits –
That the AAT order under s 67(8) of the SRC Act that the Applicant is entitled to reasonable costs in application 2011/2537 up to and including 3 May 2012, such costs to be agreed or taxed.[6]
[5] Respondent’s Submissions as to Costs, 27 August 2012, page 3.
[6] Ibid.
The submissions filed within the allotted time on Mr O’Connell’s behalf by Daniel Steiner of Capital Lawyers are brief on this point –
1The Applicant submits that the appropriate order for the Tribunal to make with respect to costs in this matter is:
1.1 That the Respondent pay the Applicant’s legal costs pursuant to section 67 of the SRC Act 1988 (Cth) and the Tribunal’s Practice Directions with respect to proceedings numbered 2011/2537 to be agreed or taxed.[7]
[7] Applicant’s submissions on costs, 27 August 2012.
Subsequently, on 28 August 2012, Mr Steiner filed additional submissions, responding to those filed by Comcare, out of time. In essence, Mr Steiner argues that there is a reasonable explanation for the way in which evidence was obtained and adduced before the Tribunal from Mr Goch, Mr O’Connell’s treating psychologist, and from Ms Gardiner, Mr O’Connell’s partner. Mr O’Connell’s case was prepared, so Mr Steiner says, on an interpretation of the 2nd Edition Guide to the Assessment of the Degree of Permanent Impairment issued by Comcare (the Comcare Guide), and the definitions therein, adopted by Mr O’Connell’s former treating psychiatrist, Dr Saboisky. In Mr Steiner’s submission “hindsight is very clear and it is with hindsight that we agree that a statement should have been obtained from Mr Goch [and Ms Gardiner] prior to the first hearing”[8].
[8] Applicant’s response to Comcare’s submissions, 28 August 2012
I have carefully considered the additional matters Mr Steiner has now raised.
I note that Mr O’Connell represented himself for part of the proceedings and, mid-stream, he was referred to Capital Lawyers by the ACT Pro Bono Clearing House of the ACT Law Society.
Before dealing in detail with the submissions of the parties, it is first desirable to say several things about the s 67(8) discretion. The discretion conferred by s 67(8) is an exercise of administrative power. When exercising such power the Tribunal must act with “judicial detachment and fairness”[9] and not “arbitrarily, capriciously or so as to frustrate the legislative intent”[10]. In the usual course, when jurisdiction and power is available to make orders in respect to costs, the award of costs to a successful party would follow the event of a favourable determination[11], providing partial indemnity for the costs incurred[12]. But this is not an absolute rule[13]. Considering the terms of s 67 (and s 67(1) in particular) and purposes of the Act as a whole, the discretion conferred by s 67(8) is not fettered in this way; were it to be so construed, as if it were a right such as found in old English statutes applying to the common law courts, the discretionary quality would be lost and the general rule imposed by s 67(1) would be rendered impotent. Nevertheless, the expectation that “the successful party got his ordinary taxed costs; in other words, that the costs followed the event”[14] is alive and well in the compensation jurisdiction of the Tribunal, and its potency can be seen in the ‘no win, no fee’ practices that are now commonplace in cases of this kind. Although, I must note immediately, that the specific details of the actual costs arrangement Mr O’Connell agreed with Capital Lawyers are not presently apparent.
[9] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 65.
[10] Oshlack v Richmond River Council (1998) 193 CLR 72, per Gaudron and Gummow JJ at 81.
[11]Ibid. per McHugh J at 102.
[12] Ibid. per Kirby J at 121-122.
[13] Ibid. per Gaudron and Gummow JJ at 88; per Kirby J at 121-122; Miller v Australian Telecommunications Commission (1985) 5 FCR 480, per Jenkinson J at 499; Perry v Comcare (2006) 150 FCR 319 at 339-341.
[14] Garnett v. Bradley (1878) 3 App Cas 944, per Lord Blackburn at 962.
Clearly, the jurisdiction conferred by s 67(8), and the resulting discretionary power to make orders for costs once the section is properly preconditioned and enlivened, has an important function in the service of justice and fairness to the parties. Even though the Tribunal is not a court, and it does not exercise the cost powers of a court, being an administrative creature of statute, the compensatory purposes of s 67(8) in the scheme of the Act align, in one important aspect, with historical principles arising from equity cases now expressed in statutes and rules or guidelines developed by courts[15] –
The power to provide costs is an important one designed to ensure that a court may protect a successful party against the substantial burden of costs which could otherwise render its success nugatory.[16]
[15] Perry v Comcare (2006) 150 FCR 319 at 341.
[16] De L v Director-General, NSW Department of Community Services [No. 2] (1997) 190 CLR 207, per Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 221.
In all likelihood, it is for this reason that orders for costs under s 67(8) most commonly follow the usual course. But other relevant factors and all material considerations should properly be taken into account[17], noting that exercise of the discretion should not be affected by extraneous or irrelevant matters, or by mistaken facts[18]. As the Act does not set out that must be taken into account, it is left to the decision maker to determine other factors of relevance to which regard should be had[19]. Greenwood J considered these matters in Perry v Comcare[20] and said
In exercising the discretion, the Tribunal ought to have regard to the rule of primacy reflected in s 67(1), the circumstances of the case which gave rise to the decision enlivening the qualification upon s 67(1), the background circumstances concerning the claim, the nature and character of proceedings for the purposes of the SRC Act, the complexity of the claim and the conduct of the parties in relation to the proceeding.[21]
[17] Perry v Comcare (2006) 150 FCR 319 at 337-338; Miller v Australian Telecommunications Commission (1985) 5 FCR 480, per Keely J at 482 and per Jenkinson J at 498-499.
[18] House v R (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504-505.
[19] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40, per Mason J and [15].
[20] (2006) 150 FCR 319.
[21] Ibid, at 339.
In reference to the conduct presently in issue, justification is a relevant consideration – “Justification is to be determined by reference to the reasonableness of the conduct in all the circumstances”[22].
[22] Miller v Australian Telecommunications Commission (1985) 5 FCR 480, per Jenkinson J at 498.
Turning to facts and the submissions of the parties, the proceedings commenced on 28 June 2011, when Mr O’Connell lodged applications for review of four Comcare decisions. These are discussed in the substantive decision and it is not necessary to set them out in detail here. The issues on foot in the applications are also dealt with in the substantive decision and were set out in the Statement of Issues filed for Comcare, early in the proceedings. Two preliminary conferences were conducted. Mr O’Connell represented himself at the first conference and he was represented by Mr Steiner at the second. Medical and other evidence was obtained, filed and served by both parties.
Mr O’Connell’s claim in application 2011/2537 was for an increase in lump sum compensation for permanent impairment resulting from his accepted injury. The claim was to be assessed applying Chapter 5 of the Comcare Guide. As Mr O’Connell had previously been assessed as having a 10 percent whole person impairment under Table 5.1, the issue raised by his claim turned on whether his impairment satisfied the criteria applying at either the 20 percent or 25 percent levels.
Comcare obtained and relied on medical reports by Dr Saboisky, Mr O’Connell’s previous treating psychiatrist over many years. Dr Saboisky’s interpretation of the provisions of Chapter 5 of the Comcare Guide, and Table 5.1 in particular, can plainly be seen. Mr O’Connell relied on medical reports by Dr Knox (a consultant psychiatrist), in which his more generous interpretation of Chapter 5 and the specific provisions in Table 5.1 is clearly on view. The sharp point of difference between these doctors turns on the construction of the phrase “need for some supervision and direction in activities of daily living” and attendant definitions of “activities of daily living”, “supervision”, “direction” “suitable person” and “suitably qualified person”. Dr Knox reported that Mr O’Connell needed some supervision and direction by Mr Goch, who has treated Mr O’Connell on a weekly basis for several years, and by Ms Gardiner. Dr Saboisky did not agree on the basis of his interpretation of the Comcare Guide.
Clearly, this point of divergence in the psychiatric evidence was at the heart of the disputation in application 2011/2537. It was squarely addressed in the Applicant’s Statement of Facts and Contentions, prepared by Mr Anforth, counsel for Mr O’Connell, that was filed in March 2012. This document clearly identifies the report of Dr Knox as central to Mr O’Connell’s case, noting Mr Goch and Ms Gardiner as people providing supervision and direction to Mr O’Connell[23].
[23] Applicant’s Statement of Facts, Issues and Contentions, 13 March 2012, page 20.
Why arrangements were not made to obtain relevant evidence from Mr Goch and Ms Gardiner at that time, well prior to the hearing, is perplexing. To my mind, one does not need the clarity of hindsight, as Mr Steiner asserts, to see the importance of evidence from Mr Goch and Ms Gardiner in respect of Mr O’Connell’s need for supervision and direction of the requisite kind.
It is very clear that an assessment of the existence and extent of Mr O’Connell’s “need” for supervision and direction in activities of daily living would be required and that this would be assisted by evidence from Mr Goch and Ms Gardiner. The importance of adducing relevant evidence from these witnesses before the Tribunal is obvious and could readily have been anticipated. This is especially so because Mr O’Connell’s needs, in this regard, were disputed by Comcare.
And yet no effort was made to obtain a statement from Ms Gardiner or a report from Mr Goch prior to the hearing. Mr O’Connell’s case was prepared without reliance on evidence, pertinent to the issues in dispute, from either of these people. In that circumstance it appears that Comcare and its legal representatives did not anticipate a need to require Mr Goch or Ms Gardiner for cross-examination. Consequently, neither Mr Goch nor Ms Gardiner was nominated on the hearing certificates filed by either party. And there the matter rested until the hearing on 1 May 2012.
The proposition put by Mr Steiner, that there was no challenge to the truthfulness of Mr O’Connell’s account of Mr Goch’s role and therefore, impliedly at least, there was no need to put on additional material from Mr Goch or Ms Gardiner, stands beside the disputed point concerning Mr O’Connell’s needs in respect of supervision and direction in activities of daily living. It was in relation to that point that evidence from Mr Goch and Ms Gardiner was especially relevant, and the significance of it in establishing the factual basis for the legal argument that followed on points of construction could readily have been, and should have been, foreseen.
On the first day of the hearing Mr Anforth made an application without notice to call Mr Goch and Ms Gardiner to give oral evidence. In his submission the way in which Mr O’Connell’s oral evidence had come out rendered it desirable to do so, even at that late stage. Even though the particular points given in evidence were apparent from documents filed prior to the hearing, Mr Anforth’s submission suggests that he had not anticipated the evidence given by his client. This circumstance may have been avoided if a detailed statement addressing all relevant matters had been taken from Mr O’Connell and filed well ahead of the hearing; but this was not done. A detailed statement of this kind, addressing all relevant points, may have assisted the parties to clarify and identify gaps in the evidence and to narrow, or sharpen, the issues in dispute.
Mr Anforth’s application to call Mr Goch and Ms Gardiner apparently took Comcare by surprise. Counsel for Comcare, Ms Godtschalk, informed me that she had intended to take Jones v Dunkel[24] points, drawing an adverse inference against Mr O’Connell as a result of his failure to call these witnesses as both could be expected to support his case, and she had not, hitherto, been informed that the application to call them would be made. The discussion of circumstances giving rise to Mr Anforth’s application appears in the transcript. In the result, in order to obtain the best evidence and to properly inquire into issues raised by Mr O’Connell’s claim, I acceded to Mr Anforth’s application. In order to take evidence from Mr Goch and Ms Gardiner in an orderly manner that was efficient and procedurally fair, it was necessary to rearrange the witness schedule for the hearing and to list additional days.
[24] (1959) 101 CLR 298.
I do not accept Mr Steiner’s submission that the hearing was always going to take more than the three days set originally down, although I note that the hearing certificate lodged on Mr O’Connell’s account by Capital Lawyers estimated that “3-4 days” would be required. As it happened, significant parts of the hearing as originally listed on 1, 2 and 3 May 2012 were wasted as discussions were had, instructions obtained, concessions were made, the requirement to examine scheduled expert witnesses was re-assessed, and witnesses were rescheduled. There is little doubt in my mind that Mr Goch and Ms Gardiner could readily have been accommodated within the three days of the original listing if appropriate arrangements had been made ahead of time. In any event, even if one accepts Mr Steiner’s assessment that the original listing of three days was not sufficient, the simple answer to it would have been for him to have raised this with the Tribunal on receipt of the listing notice for the hearing; but this did not occur.
Mr Steiner’s submission that the adjournment was not all attributable to the Applicant’s action is far from compelling. The adjournment was granted to properly permit evidence to be taken from Mr Goch and Ms Gardiner, and from other expert witnesses, in an orderly manner that was procedurally fair to both parties. I was informed by Mr Anforth that Mr Goch would require at least four weeks to produce a report. A statement was obtained from Ms Gardiner overnight in the course of the initial hearing listings. Ms Godtschalk informed me that she may require both witnesses for cross-examination and that Mr Goch’s report may raise issues that would need to be put to Ms Gardiner. I accepted that it was fair and proper for Ms Godtschalk to have access to Mr Goch’s report prior to finalising her cross-examination of Ms Gardiner. It was for this reason that Ms Gardiner’s evidence was delayed until the resumption of the hearing on 6 August 2012. Furthermore, Ms Godtschalk submitted, correctly, that the evidence of Mr Goch and Ms Gardiner may need to be put to Dr Knox and to Dr Saboisky. This necessitated the rescheduling of Dr Knox and Dr Saboisky to give oral evidence during the resumed hearing, as to do otherwise may have resulted in both doctors being recalled to respond to matters arising from evidence given by Mr Goch or Ms Gardiner.
These arrangements, and the additional hearing days necessary to accommodate them, were necessitated by the late application to call Mr Goch and Ms Gardiner, and by the delay in obtaining, filing and serving Mr Goch’s report, and for no other reason.
As it happened, Mr Goch’s report and the attendant briefing letter were taken into evidence, but Mr Goch was not called to give oral evidence. As can be seen in Mr Steiner’s briefing letter, Mr Goch was not asked to address the point of central relevance in the proceedings – Mr O’Connell’s need for some supervision and direction in activities of daily living. In the light of the previous discussions during the hearing at first instance on this very point it is almost inconceivable that Mr Goch was not briefed to address this point; it is a most striking omission or error on Mr Steiner’s part, for which no reasonable explanation or justification has been given. Rather than cause further delay and additional costs, I determined to proceed without further evidence from Mr Goch as the contents of his report were of assistance despite the deficient briefing.
The Applicant’s submission that there was no prejudice to Comcare ignores the effect of a surprise of this kind in the course of a hearing. Even though the issues to be addressed were not surprising, the prejudice is measured in terms of the unanticipated (and then unseen) new evidence and the effect this may have on the preparation and presentation of the case for Comcare. Clearly, issues of procedural fairness arise. A late application to call fresh new witnesses and additional evidence in the course of a hearing can be expected to have a significant effect on the conduct of the hearing, oftentimes causing delays and increased costs, as here.
When exercising the s 67(8) discretion, it is relevant to consider whether the conduct that gave rise to the delay and the consequential increase in costs was reasonable in all of the circumstances. Clearly, Mr Anforth made a judgement that he should make the application to call Mr Goch and Ms Gardiner when he did. In the circumstances, that action was permitted to ensure that the Tribunal had the best relevant evidence before it, on which to determine the correct or preferable decision in Mr O’Connell’s application. The difficulty is that the significance of the evidence was obvious and arrangements to obtain it should have been made much earlier. In the circumstances, calling these additional witnesses and fresh evidence in the course of the hearing, caused a substantial delay and increased costs. Conduct of that kind, to my mind, is unjustified in all of the circumstances.
Mr Steiner says that Mr O’Connell should not be financially penalised because of any omission on the part of his legal representatives. There are two things to say about this. Firstly, Mr O’Connell obtained the services of Capital Lawyers by reference of the ACT Pro Bono Clearing House and the ACT Law Society, and any issue relating to his liability for costs is properly a matter between him and his legal representatives. That said, I simply note that under the conception of pro bono legal work promoted by the ACT Pro Bono Clearing House, lawyers accepting referrals of this kind are encouraged to strictly limit any charges passed on to the client. Apart from anything else, these are matters of conscience. But I see no good reason why the increased costs resulting from any such failing should properly be visited upon Comcare in the terms of orders for costs. Clearly, Comcare has greater resources than does Mr O’Connell, but this disparity is not a compelling factor.
Secondly, Mr Steiner’s conception of any discount to the award of costs by order as punishment of Mr O’Connell is ill-conceived. Orders for costs on a party and party basis are not designed to be punitive; the same can be said in respect of an order for partial costs on that same basis. That is especially clear when considering the terms of s 67. As I have said, the general rule is that both parties should bear their own costs. The discretion conferred by s 67(8) must be exercised fairly and in a manner that is consistent with the legislative intent, applying the principles I have already discussed and having regard to all relevant matters. It is not appropriate to exercise the s 67(8) discretion in a punitive manner “to punish the Applicant for the omissions of others”[25], as put by Mr Steiner.
[25] Applicant’s response to Comcare’s submissions, 28 August 2012
Mr Steiner’s assertion that the costs order sought by Comcare will have a harsh effect on Mr O’Connell is not clearly spelled out. The implication of this submission is that Capital Lawyers will seek to recover from Mr O’Connell any costs that are not recovered by way of an order against Comcare and that this may have a harsh effect on him. Clearly, the potential exists for disputation between Mr O’Connell and his legal representatives about costs, and if this eventuates it may well have an adverse effect on Mr O’Connell’s health. But, on the present evidence, this is entirely speculative and Mr Steiner’s submission is hollow.
Nonetheless, Mr O’Connell’s psychological state and the psychiatric disorder he suffers are relevant considerations. He has succeeded in his claim for additional compensation for permanent impairment resulting from injury. He, like anyone in similar circumstances, has placed a heavy reliance on his legal representatives to present his case competently, with diligence aforethought. As Mr Steiner says, the resulting lump sum compensation payment is not large, and the benefit of his success may be eroded if he is required to pay substantial legal costs. It is not presently established that Mr O’Connell will be liable under the terms of his costs agreement with Capital Lawyers for any professional costs in application 2011/2537 that are not covered by orders against Comcare. As I have said, these are properly matters between him and his legal representatives.
Weighing the various factors and considerations, it is appropriate to order Comcare to pay part of Mr O’Connell’s reasonable costs in application 2011/2537.
I do not accept the proposition put by Comcare that the order should be confined to costs up to and including 3 May 2012. That does not properly account for the costs associated with obtaining relevant evidence from Mr Goch and Ms Gardiner. It is reasonable to allow Mr O’Connell to recover the costs of obtaining and adducing their evidence before the Tribunal, that is, in respect of witness expenses and reasonable disbursements.
Dr Knox and Dr Saboisky were originally scheduled to give evidence during the initial listing period in May 2012, but their scheduled appearance was cancelled at short notice and new appearances were scheduled. The increased costs incurred by both parties in respect of these witnesses were incurred unnecessarily, without reasonable justification, as a result of the conduct of Mr O’Connell’s legal representatives to which I have already referred. It follows that it is not reasonable to order Comcare to pay the increased costs Mr O’Connell incurred by way of any appearance cancellation fees charged by Dr Knox.
In respect to professional costs, I would allow the professional costs Mr O’Connell incurred up to and including 3 May 2012. As I have said, in my assessment, the hearing could have been completed in the three days originally set down if arrangements to obtain relevant evidence from Mr Goch and Ms Gardiner had been made in a timely manner prior to the hearing. The additional professional costs arising from the delay and the two additional hearing days were, in part, incurred unnecessarily, without reasonable justification, as a result of the conduct of Mr O’Connell’s legal representatives. In the course of the hearing at first instance I ordered the parties to file and serve supplementary statements of contentions, addressing relevant additional points. I would allow the professional costs Mr O’Connell incurred in respect of the Applicant’s Supplementary Contentions dated 22 June 2012 – these materials, and the time required to prepare them, were not occasioned by delay. In the circumstances, it is not appropriate to order Comcare to pay the balance of the additional professional costs incurred on Mr O’Connell’s account in application 2011/2537 after 3 May 2012.
The costs are to be assessed on a party and party basis under clause 6.8 of the Tribunal’s March 2007 Guide to the Workers Compensation Jurisdiction (the Guide).
Apportionment
Mr Steiner asserts that no apportionment of costs between application 2011/2537, in which Mr O’Connell was successful, and applications 2011/2534, 2011/2536 and 2011/2539, in which he was not successful, should be made at this juncture. This assessment, Mr Steiner says, should be left to the parties to agree or, in the absence of agreement, to return for taxation.
Comcare has made no submissions on this point.
Clearly enough, an assessment of this kind may require detailed consideration of the bill of costs. This is not before me.
I will not make any order as to proportionality, noting, simply, that Mr O’Connell is not entitled to costs in relation to applications 2011/2534, 2011/2536 and 2011/2539.
Order
Under s 67(8) of the Act, applying the terms of clause 6.8 of the Guide, 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.
I certify that the 45 (forty-five) preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.........................[sgd].................................
Associate
Dated 31 August 2012
Dates of hearing 1 to 3 May and 6 to 7 August 2012
Date final submissions received 28 August 2012 Counsel for the Applicant Allan Anforth Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Jane Godtschalk Solicitors for the Respondent Dibbs Barker
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