Griffiths and Comcare

[2007] AATA 1379

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1379

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/146

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN GRIFFITHS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date29 May 2007

PlaceCanberra

Decision The Tribunal orders the Respondent to pay the Applicant’s reasonable costs in these proceedings up to and including 23 January 2007 as agreed or taxed.

..........(Signed)...................

Mr S. Webb, Member

CATCHWORDS

COSTS – whether the respondent should pay the applicant’s costs – offer of settlement – Calderbank principles – no costs awarded from the date on which the settlement offer was made

Safety, Rehabilitation and Compensation Act 1988 ss 67

Calderbank v Calderbank [1976] 3 All ER 333

Riley v Comcare (1994) 48 FCR 449

Perry v Comcare [2006] FCA 33

Miller v Australian Telecommunications Commission (1985) 5 FCR 480

Comcare v Labathas (1995) 133 ALR 744

Re Griffiths and Australian Postal Corporation [2006] AATA 965

Re Salters and Telstra Corporation Limited [2003] AATA 1037

Re Hronopoulos and Telstra Corporation Limited [2002] AATA 625

Re Mifsud and Australian Postal Corporation [1999] AATA 782

Smallcombe v Lockyer Investments Company Pty Ltd (1993) 114 ALR

REASONS FOR DECISION

May 2007 Mr S. Webb, Member         

1.      On 22 March 2007 I handed down the decision in this matter.  No orders were made in relation to costs.  The parties were provided seven days in which to make submissions.  Submissions have been filed and the question of orders for costs can now be concluded.

2.      By the decision under review, Comcare determined that Mr Griffiths’ normal weekly earnings (NWE) from 1 August 1994 included a component of 9.766 hours overtime per week.  I decided to vary that determination on the basis that the overtime component of Mr Griffiths’ NWE was 11 hours 8 minutes per week.

3.      On 23 January 2007 the respondent made a written ‘Calderbank’ offer of settlement,[1]  ‘without prejudice save as to costs’.  The terms of the offer included a weekly overtime component of 12 hours 27 minutes and was said to remain open until 8 February 2007.  As the offer was in terms more favourable to the applicant than the outcome he achieved in the proceedings in the Tribunal, the respondent is resisting any award of costs from the date of the settlement offer.  On 6 February 2007, apparently after obtaining legal advice, Mr Coleman responded to the offer of settlement on Mr Griffiths’ behalf, in the negative.

[1] Referring to Calderbank v Calderbank [1976] 3 All ER 333

4.      In Mr Griffiths’ submission, he had good reasons to reject the respondent’s offer of settlement as he had “… good reasons to believe that the AAT would award an amount greater than the respondent’s offer …”[2].  The details of the particular costs in issue are set out in Mr Coleman’s letter dated 10 April 2007 to Sparke Helmore, the respondent’s solicitor.

[2] Applicant’s submissions dated 10 May 2007, p3; applicant’s letter dated 6 February 2007

5. Section 67…