Laurence Whitham and Comcare

[2010] AATA 402

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 402

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4948 &

GENERAL ADMINISTRATIVE  DIVISION		)               2009/5144
Re		Laurence Whitham

Applicant

And Comcare

Respondent

DECISION

Tribunal M D Allen, Senior Member
A Britton, Senior Member
Dr J Campbell, Member

Date20 May 2010

PlaceSydney

Decision The Respondent is to pay the Applicant’s costs, including the costs of today’s proceedings.  

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

M D Allen, Presiding Member  

REASONS FOR DECISION

20 May 2010 M D Allen, Senior Member
A Britton, Senior Member
Dr J Campbell, Member     

1. At the conclusion of this direction hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the direction that was in fact made, the Respondent , pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision in this matter.

I certify that these and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen, Senior Member A Britton and Dr J Campbell, Member.

Signed:         ................[sgd].......................................
  K. Lynch, Associate

Date of Direction Hearing         20 May 2010
Date of Decision  20 May 2010
Counsel for the Applicant         Mr Thompson
Counsel for the Respondent     Mr Richards
Solicitor for the Respondent     Dibbs Barker

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  The actual proceedings relate to an application for costs in the matter of Whitham v Comcare.  There were two matters before the tribunal: suffice it to say that in matter number 2008/4948, the decision under review was affirmed.  In the second matter, 2009/5144, the tribunal directed that, pursuant to section 25 of the Safety Rehabilitation and Compensation Act 1988, the Applicant was entitled to an interim payment of 10 per cent, and that further investigations as to impairment be taken.

In relation to the Applicant’s application for costs, we accept that on 18 February 2010, that is to say some four days before the matter resumed for hearing, an offer was made.  We are satisfied, given the particular offer and that it concerned a finding that the Applicant suffered a permanent impairment of 10 per cent under the Comcare tables, that the Applicant, given the medical reports which were before the Tribunal at that time, was justified in rejecting that offer. 

A further offer was made on the morning of the hearing, namely on 22 February 2010.  That offer was in terms that the Applicant suffered a permanent impairment of 20 per cent and that the Applicant was entitled to his costs.

Now, it seems to us that in any event, the Applicant, had he accepted that offer, would have been entitled to his costs of 22 February 2010.  Obviously, counsel’s brief would have been refreshed and the Applicant, his counsel and solicitors were committed to the hearing on that day and would have been entitled to their costs on that day.  So it seems to us that the Applicant was certainly entitled to his costs up to and including 22 February.  As to the matters before us today, it seems again that the applicant has been successful; he has got his costs and therefore he should get his costs of today’s proceedings as well.

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