O'Callaghan and Comcare (Compensation)

[2019] AATA 4758

O'Callaghan and Comcare (Compensation) [2019] AATA 4758 (14 November 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3006

Re:Stuart O'Callaghan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:14 November 2019

Place:Canberra

Under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988, with the exception of costs incurred in the initial hearing on 8 and 9 April 2019, Comcare is ordered to pay Mr O’Callaghan’s reasonable costs in these proceedings, as agreed or taxed in accordance with the Tribunal’s Taxation of Costs Practice Direction.

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Mr S. Webb, Member

WORKERS’ COMPENSATION – discretion to order costs – decision favourable to applicant – initial hearing rendered abortive by applicant producing materials without notice – applicant to bear his own costs in relation to initial hearing - discretion exercised – partial payment of costs ordered

Safety, Rehabilitation and Compensation Act 1988 s 5A, 67, 71

REASONS FOR DECISION

Mr S. Webb, Member

14 November 2019

1. Stuart O’Callaghan applied to the Tribunal for review of Comcare’s decision to reject a claim for compensation he made in respect of an injury. The application was successful and the reviewable decision was set aside[1] – the proceedings were determined in a manner favourable to Mr O’Callaghan.

   [1] O’Callaghan and Comcare [2019] AATA 4738.

2. Time was allowed for the parties to make submissions in respect of an order for costs. Both parties made written submissions within the allowed time, which has now passed.

3. Subject to one exception, there is a general agreement between the parties that Comcare should be ordered to pay Mr O’Callaghan’s reasonable party and party costs and disbursements incurred in the proceedings, as agreed or taxed in accordance with the Tribunal’s practice direction.

4. With regard to the exception, Comcare argues that it should not be ordered to pay Mr O’Callaghan’s costs in respect of the initial hearing on 8 and 9 April 2019. This is because the hearing on 8 April 2019 was allegedly rendered abortive by Mr O’Callaghan’s counsel, Steven Whybrow, producing Performance Development Agreement (PDA) documents, without notice, which had not previously been given to Comcare or the Tribunal. Furthermore, Comcare asserts that the second hearing day on 9 April 2019 was unable to be utilised for the sole reason that Mr Whybrow was not available on that day.

5. Mr O’Callaghan cavils with elements of Comcare’s submission. In his submission, the PDA documents Mr Whybrow produced on 8 April 2019 would have been retained in the Australian Federal Police (AFP) holdings and he asserts these documents are of obvious relevance to substantive issues in dispute in the proceedings. Furthermore, Mr O’Callaghan argues that these documents should have been given to Comcare pursuant to a notice issued under s 71 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), whereupon it was for Comcare to file and serve the documents well ahead of the listed hearing.

6. Nevertheless, Mr O’Callaghan does not seek an order for costs pertaining to 9 April 2019.

7. The matter is for the Tribunal to decide under s 67(8) of the SRC Act. This section provides that –

   (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.

8. As can be seen, in circumstances where, as here, s 67(8)(b) is satisfied, the power to order a responsible authority, presently Comcare, to pay the cost, or part of the costs, of the proceedings incurred by the claimant is discretionary. The default position under s 67(1) is that each party should bear their own costs.

9. When considering exercise of the discretion, it is necessary to ascertain the relevant facts and assess the relevant circumstances.

10. Mr O’Callaghan commenced proceedings in the Tribunal on 31 May 2018 by lodging an application for review of Comcare’s decision to reject his claim for compensation. The application proceeded in the usual way, with a number of conferences being listed and orders made in respect of the filing of materials and other documents. The application was set down for hearing on 8 and 9 April 2019 (the initial hearing).

11. On the first day of the initial hearing on 8 April 2019, Mr Whybrow handed up PDA documents covering the period from 2007 to 2017 on which Mr O’Callaghan intended to rely.[2] It may be accepted that he did so on instruction. These documents had not, hitherto, been provided to the Comcare or to the Tribunal. It was in this context, furthermore, that the possibility of calling further expert medical evidence was raised.

    [2] Exhibit 2.

12. These developments caused the parties, in agreement, to apply for adjournment of the hearing. In the circumstances, the application was granted.

13. Subsequently, Comcare filed additional PDA documents it obtained from the AFP, using its powers under s 71 of the SRC Act.

14. The application was listed for resumption of the hearing on 16 and 17 September 2019. No expert medical witnesses were called to give oral evidence.

15. The decision Comcare made to reject Mr O’Callaghan’s compensation claim turned on the exclusionary proviso in s 5A(1) of the SRC Act. Consequently, issues of reasonable administrative action taken in a reasonable manner in respect of [his] employment arose in the Tribunal proceedings.  There are three things to say about this. Firstly, the assessment of reasonableness requires consideration of contextual circumstances relevant to Mr O’Callaghan’s alleged under-performance and the action taken to address it. Secondly, the particular administrative action taken related to perceived under-performance by Mr O’Callaghan over a period of time. Thirdly, Mr O’Callaghan’s performance was monitored and managed under annual PDAs.

16. Matters of this kind are traversed in the Statement of Facts, Issues and Contentions documents filed by each party well before the first hearing listed on 8 and 9 April 2019.

17. An assessment of contextual circumstances relevant to the exclusionary proviso, at the minimum, could reasonably be expected to traverse evidence and supporting materials relevant to Mr O’Callaghan’s performance, including relevant PDAs. It can be accepted that relevant PDA’s might include those from the years in which the under-performance is alleged to have occurred, as well as any preceding PDAs that might be relied upon for contextual relevance, such as those Mr O’Callaghan sought to rely upon.

18. In the usual course, documents of this kind would be obtained from the employing agency by Comcare using its powers under s 71 of the SRC Act. It is also be reasonable to expect a claimant in the context of Tribunal proceedings to adduce materials in support of his or her case well ahead of any hearing. It is to be noted that Mr O’Callaghan’s Statement of Facts, Issues and Contentions documents expressly refers to a good PDA history. Materials necessary to support this proposition should have been given to the Tribunal and to Comcare well ahead of the hearing.

19. Well it may be that Comcare could, and perhaps should, have foreseen that PDAs covering the periods of Mr O’Callaghan’s AFP employment might be contextually relevant to the matters before the Tribunal, but this does not absolve Mr O’Callaghan of responsibility to place relevant documents on which he intended to rely before the Tribunal in a timely manner.

20. Comcare obtained some information and PDAs from the AFP before the initial hearing. PDAs traversing the entirety of Mr O’Callaghan’s AFP employment were not provided, however. In those circumstances, it was open for Mr O’Callaghan to raise any concerns about this or to give the documents to the Tribunal, himself. He did not do this until the first day of the initial hearing.

21. No reasonable explanation has been provided by Mr O’Callaghan, or his retained solicitor or counsel, why the PDA documents on which he relied at hearing were not provided to Comcare and the Tribunal well ahead of the initial hearing on 8 April 2019.

22. While Tribunal proceedings are not strictly adversarial, it is commonplace for parties to strongly advocate their respective cases and engage in argument in an adversarial manner at hearing. This notwithstanding, Mr O’Callaghan, like Comcare, is obliged to assist the Tribunal in its task of making the correct or preferable decision.

23. When confronted with the new PDA documents Mr Whybrow handed up at the initial hearing, Comcare’s counsel, Charles Clark, expressed consternation and surprise. While it is perhaps not exceptional that he would do so in the circumstances, as I have said, Mr O’Callaghan’s Statement of Facts, Issues and Contentions expressly refers to a good PDA history as a contextual factor relevant to assessment of the reasonableness of administrative action taken in respect of perceived under-performance. That being so, to my mind, the element of surprise may have been tinged with adversarial convenience. Nevertheless, the unheralded production of contextually relevant documents in this manner raised issues of procedural fairness. To my mind, while the Tribunal has power to exclude documents given to it within 28 days of a hearing, it was unwise to do so in this case – the preferable course was to take in the documents and adjourn the hearing. The parties agreed.

24. It is quite clear to me that it was Mr O’Callaghan’s failure to alert Comcare or the Tribunal to the existence of documents on which he would rely at hearing that rendered the hearing on 8 April 2019 abortive.

25. That being so, I am satisfied it is appropriate for Mr O’Callaghan to bear his costs associated with the hearing on 8 April 2019.

26. I note that Mr O’Callaghan does not claim costs associated with the vacated hearing on 9 April 2019. Even though Mr Whybrow’s availability on the day was affected by unexpected personal circumstances, there was little that could usefully have been done in the hearing on that day in the circumstances. It was for this reason, primarily, the hearing day was vacated.

27. I am satisfied that it is appropriate to exercise the discretion conferred by s 67(8) of the SRC Act and, with the exception of costs incurred in the initial hearing on 8 and 9 April 2019, to order Comcare to pay Mr O’Callaghan’s reasonable party and party costs and disbursements incurred in these proceedings, as agreed or taxed in accordance with the Tribunal’s Taxation of Costs Practice Direction.

28.     I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

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Associate

Dated: 14 November 2019

Date(s) of hearing: 

8 April 2019, 16 September 2019 – 17 September 2019.

Solicitors for the Applicant

Counsel for the Applicant

Solicitors for Respondent:

Counsel for Respondent:

Mr David Healey, David Healey Solicitors

Mr Steven Whybrow

Mr Luke Woolley, Sparke Helmore

Mr Charles Clark