Mitchell and Comcare - [2003] AATA 750

Administrative

Appeals

Tribunal

DIRECTION AND REASONS FOR DIRECTION [2003] AATA 750
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/373

GENERAL ADMINISTRATIVE DIVISION
)

Re LESLIE WILLIAM MITCHELL

Applicant

And

COMCARE

Respondent

DIRECTION

Tribunal Dr EK Christie, Member
Date5 August 2003
PlaceBrisbane

Direction
The Tribunal directs that:

(a) An award of costs cannot be made in relation to a medical appointment with Dr Cameron that was not attended by the applicant on 26 February 2003.

(b) However, the question of an award of costs can be the subject of submissions by the parties when a determination is made.

(Sgd) EK Christie
Member

CATCHWORDS
WORKERS’ COMPENSATION – costs – whether respondent can recover the costs of a cancellation fee which arose when the applicant failed to attend a scheduled medical appointment – section 67 of the Safety, Rehabilitation and Compensation Act 1988
PRACTICE AND PROCEDURE – costs – whether Tribunal has jurisdiction to make the order sought by the respondent – principles relevant to the making of costs orders
Safety, Rehabilitation and Compensation Act 1988 s 67(1)
Administrative Appeals Tribunal Act 1975 s 3(3)
Hooper Baillie Associated Ltd v Nation Group Pty Ltd [1992] NSWLR 194
Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336
Capolingua v Phylum Pty Ltd (1991) 5 WAR 137
Re Rodriguez and Telstra Corporation Ltd (2001) 67 ALD 109
Re Van de Vreede and Commonwealth (1983) 5 ALN 232
Comcare v Labathas (1995) 61 FCR 149
Re Commonwealth and Nolis (1983) 5 ALD 315
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
REASONS FOR DIRECTION

5 August 2003 Dr EK Christie, Member

Facts
1. The general facts to this matter are:
(a)A conciliation conference took place on 29 July 2002 before Dr Christie, Member. The applicant attended the conciliation along with his solicitor. The respondent was represented at the conciliation by his instructing solicitor and Mr P Ontong (MRCS).
(b)It was ultimately agreed between the parties that the applicant would be examined by a Consultant Neurologist. The respondent agreed to pay for the costs of the examination and for the preparation of a report by the specialist. It was also agreed between the parties that the questions to the specialist would be formulated on a joint basis.

(c) On 23 October 2002, Dr Christie, Member issued a direction that:
(i)on or before 31 October 2002, the respondent was to provide to the applicant the names of three neurologists; and
(ii)on or before 7 November 2002, a list of agreed questions were to be prepared by both parties.

(d)On 24 October 2002, a letter was sent to the applicant’s solicitor providing a panel of three specialists and asking the applicant to choose a specialist. On 6 November 2002, the applicant’s solicitors provided a letter advising that their client had chosen Dr Cameron.
(e)The parties both agreed on the scope of the questions to be addressed by Dr Cameron in his report. Ultimately, there was to be a disagreement by the applicant’s solicitor as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell and Comcare

Details

AGLC: Mitchell and Comcare [2003] AATA 750
Case: [2003] AATA 750
Decision Date: 5 August 2003

CaseChat Overview and Summary

In the matter of Leslie William Mitchell versus Comcare, the Administrative Appeals Tribunal (AAT) was tasked with determining whether Comcare could recover costs related to a missed medical appointment with Dr Cameron, which arose due to the applicant's failure to attend. This issue was considered within the context of the Safety, Rehabilitation and Compensation Act 1988 and the Administrative Appeals Tribunal Act 1975. The primary legal issue was whether the Tribunal had the jurisdiction to order costs in relation to a non-final medical appointment and whether the applicant should be penalised for the incurred costs.

The Tribunal, in its reasoning, examined the nature of the conciliation process and the principles surrounding the award of costs. It was determined that the missed appointment did not constitute a final decision or determination within the meaning of the SRC Act, as it was merely an intermediate step in the process leading to a final decision. The Tribunal also highlighted that costs could only be awarded in relation to a decision that has the quality of finality, as per the interpretation of the term "decision" in Australian Broadcasting Tribunal v Bond. Given that the missed appointment did not meet this criterion, the Tribunal ruled that it could not make a costs award at that stage. However, the Tribunal acknowledged that the issue of costs could be revisited when a final determination was made, subject to the principles outlined in Van de Vreede, Rodriguez, and Labathas.

Ultimately, the Tribunal directed that no costs could be awarded for the missed appointment with Dr Cameron, but allowed for the possibility of cost submissions when a final determination was reached. The Tribunal emphasised that the question of costs would need to be considered in light of the broader legal principles and the specific circumstances of the case. The Tribunal's decision reflects a careful consideration of the procedural and substantive legal issues involved, ensuring that any costs awarded align with the statutory framework and judicial precedents.

Orders