Ortega and Comcare - [2005] AATA 502

Administrative

Appeals

Tribunal

REASONS FOR DECISION [2005] AATA 502
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/4

GENERAL ADMINISTRATIVE DIVISION )

Re SONIA ORTEGA

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member
Date6 May 2005
PlaceCanberra

Decision There be no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
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CATCHWORDS
COMPENSATION – costs – reviewable decision contravenes principles set out in Oudyn and Rosillo – decision set aside – Tribunal decision did not benefit applicant as substantive issue between parties was liability for present and future treatment – applicant unsuccessful on substantive issue – costs discretionary under Safety, Rehabilitation and Compensation Act 1988 (Cth) – no costs order made
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 67(8)
Sonia Ortega and Comcare [2005] AATA 229
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
REASONS FOR DECISION

6 May 2005 Mr J.W. Constance, Senior Member

1. On 6 May 2005 I decided that there be no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The respondent has requested a statement of the reasons for that decision.
Background
2.        Ms Ortega was injured in 1995 and Comcare accepted liability for this injury sometime prior to 10 December 1997. The exact date of the acceptance does not appear from the documents before me.
3.        On 22 August 2002 Comcare determined that “on and from 20 August 2002, we are no longer liable to pay compensation for physiotherapy, massage therapy or hydrotherapy treatment”.[1] This decision was affirmed by a Review Officer on 22 December 2003.[2]
[1] Exhibit R24.
[2] T-document T196.
4.        On 6 January 2004 Ms Ortega applied to the Tribunal for a review of the Review Officer’s decision. Ms Ortega was legally represented throughout the proceedings before the Tribunal.
5.        The Statement of Issues filed on behalf of Ms Ortega on 25 February 2004 stated that the issues before the Tribunal were:
“1.Whether the Applicant requires any further treatment in respect of physiotherapy, massage therapy or hydrotherapy in respect of her accepted condition.
2.Whether Comcare is liable under s.16 of the Safety Rehabilitation and Compensation Act 1988 for relevant ongoing treatment expenses.”

6. On 1 June 2004 Ms Ortega filed a Statement of Facts and Contentions in which her contentions were:
“1.That the Applicant requires further treatment consisting of physiotherapy, massage therapy and/or hydrotherapy in respect of her compensable injuries for the purpose of alleviating the symptoms associated with those injuries, ie improving incrementally her medical condition.
2.That treatments in the form of physiotherapy, massage therapy and/or hydrotherapy are reasonable within the meaning of Section 16 of the Safety Rehabilitation & Compensation Act and that accordingly, Comcare is liable to pay for this ongoing treatment.”

Decision on the merits
7. The application was heard by me and at the conclusion of the hearing I was not…

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 Ortega and Comcare

Details

AGLC: Ortega and Comcare [2005] AATA 502
Case: [2005] AATA 502
Decision Date: 6 May 2005

CaseChat Overview and Summary

In the case of Sonia Ortega versus Comcare, the applicant sought a review of a decision regarding her compensation entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant contended that the decision of the Administrative Appeals Tribunal (AAT) should be set aside and that she should be awarded costs under the Act. Comcare opposed the review on the basis that the AAT's decision did not contravene any principles set out in Oudyn and Rosillo, and that no costs should be awarded to the applicant.

The primary legal issues before the court were whether the AAT's decision contravened the principles set out in Oudyn and Rosillo, and whether the applicant was entitled to an order for costs under section 67(8) of the Act. The court had to determine whether the AAT's decision was flawed and, if so, whether the applicant was entitled to costs in light of her unsuccessful substantive claim. The court also considered whether the decision of the AAT benefited the applicant, as required by the principles set out in Oudyn and Rosillo.

The court found that the AAT's decision did contravene the principles set out in Oudyn and Rosillo, as the substantive issue between the parties was liability for present and future treatment, and the applicant was unsuccessful on that issue. However, the court held that the applicant was not entitled to an order for costs, as the decision did not benefit her in any way. The court noted that, under section 67(8) of the Act, costs are discretionary and the court found that, in the circumstances of this case, no costs order should be made.

The court set aside the decision of the AAT and made no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Orders

Orders of the court

There be no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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