Lower and Comcare

[2008] AATA 1124

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1124

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600263

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN BERTRAM LOWER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date17 December 2008

PlaceAdelaide

Decision The Tribunal is satisfied that the fair and just outcome as between the parties in this case is to make an order that applicant be granted his costs and disbursements to the 7 November 2007, being the date that the offer was rejected.  Thereafter, each party is to bear its own cost

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

COMPENSATION – costs – exercise of discretion to award costs under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 – Calderbank letter of offer – rejection of offer by applicant – applicant partially successful at hearing, but outcome less favourable overall than offer – costs and disbursements granted to applicant to the date offer was rejected - thereafter each party to bear their own costs

Safety, Rehabilitation and Compensation Act 1988 ss 67(2), 67(8)

Griffiths v Australian Postal Corporation [2008] FCA 19
Perry v Comcare (2006) 150 FCR 319
Calderbank v Calderbank (1975) 3 All ER 333
Re Perry and Comcare [2004] AATA 289

REASONS FOR DECISION

17 December  2008      Senior Member L Hastwell   

1.      Kevin Lower (the applicant) was partially successful on the substantive aspects of his claim before the Administrative Appeals Tribunal.  The reviewable decision was set aside and a decision was substituted that he was entitled to a shift allowance for some of the period for which he was claiming a shift allowance.

2.      He now seeks an order for costs which is opposed by Comcare (the respondent).

relevant legislation

3.      The Tribunal has discretion to award costs which is set out in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The relevant provisions are as follows:

“67  Costs of proceedings before Administrative Appeals Tribunal…

…

(2)Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.

…

(8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

(a)varying a reviewable decision in a manner favourable to the claimant; or

(b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.”

the principles to apply in considering an application for costs

4.      In the recent decision of Griffiths v Australian Postal Corporation [2008] FCA 19