Kowal and Comcare (Compensation)

[2018] AATA 4669

Kowal and Comcare (Compensation) [2018] AATA 4669 (21 December 2018)

Division:                  GENERAL DIVISION 

File Number(s):      2017/3384 and 2017/3385 

Re:Christine Kowal 

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Member Richard West  

Date:21 December 2018  

Place:Melbourne         

The Respondent is to pay the Applicant’s reasonable legal costs and disbursements incurred in the proceedings of an amount agreed between the parties or, in the absence of agreement, of an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

..........[sgd]....................................................
Member

Catchwords

COSTS – decision set aside – order that compensation be paid pursuant to section 19 of the Safety, Rehabilitation and Compensation Act – costs ordered in favour of the Applicant pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988

Legislation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Member Richard West

21 December 2018 

1. On 13 November 2018 the Tribunal set aside the reviewable decision of

   
   

   10 April 2017, and in substitution decided that the Respondent should pay to the Applicant compensation for incapacity for work for the periods, 1 and 2 December 2016 and from

   
   

   14 December 2016 to 23 July 2018, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

2. The Applicant sought an order that the Respondent pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to section 67 of the SRC Act (the Application).

3. The Tribunal reserved its decision in relation to costs and directed that the parties file and serve written submissions in relation to the Application within 21 days.  The direction stated that, unless either party requested the listing of the Application for a hearing, it would decide the Application having regard to the written submissions.

4. A written submission was filed by the Applicant in support of the Application on

   
   

   23 November 2018.  A submission was filed by the Respondent on 5 December 2018 adopting the submissions of the Applicant and consenting to an order that the Respondent pay the Applicant’s reasonable legal costs and disbursements.  Neither party requested a hearing in relation to the Application.

5. Section 67(8)(b) of the SRC Act relevantly provides that, where, in any proceeding instituted by the Claimant, the Tribunal makes a decision setting aside a reviewable decision and making a decision in substitution that is more favourable to the Claimant than the reviewable decision, the Tribunal may order that the costs of those proceedings incurred by the Claimant, or part of those costs, shall be paid by the responsible authority.

6. Having considered the submissions of the parties I am satisfied that it is appropriate that the Respondent pay the Applicant’s costs and disbursements incurred in these proceedings.

7. The Tribunal orders that the Respondent pay the Applicant’s reasonable legal costs and disbursements incurred in these proceedings, of an amount agreed between the parties or, in the absence of agreement, of an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the SRC Act.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Member Richard West.

...........[sgd]...........................................

Associate

Dated: 21 December 2018

Dates of hearing:  8 – 10 August 2018

Counsel for the Applicant:                 Joe Ferwerda

Solicitors for the Applicant:                Arnold Thomas & Becker

Counsel for the Respondent:             Ray Ternes

Solicitors for the Respondent:           Sparke Helmore