Pito and Comcare (Compensation)

[2019] AATA 1878

Pito and Comcare (Compensation) [2019] AATA 1878 (12 July 2019)

Division:                  GENERAL DIVISION 

File Number(s):      2018/1999 and 2018/2760 

Re:Josephine Pito 

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Member Richard West  

Date:12 July 2019  

Place:Melbourne         

The Respondent is to pay the Applicant’s reasonable legal costs and disbursements incurred in the proceedings of an amount agreed between the parties or, in the absence of agreement, of an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the Safety, Rehabilitation and Compensation Act 1988.

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

Catchwords

COSTS – decisions set aside – order that compensation be paid pursuant to section 14 of the Safety, Rehabilitation and Compensation Act – costs ordered in favour of the Applicant pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988

Legislation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Member Richard West

12 July 2019 

1. In a decision dated 20 June 2019, as amended by Corrigendum dated 12 July 2019, the Tribunal set aside the reviewable decisions of the delegate of the Respondent dated 16 March 2018 in Matter 2018/1999 and dated 9 May 2018 in Matter 2018/2760 (Proceedings) and in substitution decided that the Respondent should pay to the Applicant compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

2. In a related matter, 2017/5548, the Tribunal affirmed the decision of the delegate.

3. The Applicant sought an order that the Respondent pay the Applicant’s costs and disbursements in respect of the Proceedings and in relation to Matter 2017/5548 pursuant to section 67 of the SRC Act (Application). 

4. The Tribunal reserved its decision in relation to costs and directed that the parties file and serve written submissions in relation to the Application within 21 days.  The direction stated that, unless either party requested the listing of the Application for a hearing, it would decide the Application having regard to the written submissions.

5. A written submission was filed by the Applicant in support of the Application on

   
   

   5 July 2019.  A submission was filed by the Respondent on 4 July 2019 consenting to an order that the Respondent pay the Applicant’s reasonable legal costs and disbursements of the Proceedings.  Neither party requested a hearing in relation to the Application.

6. Section 67(8)(b) of the SRC Act relevantly provides that, where, in any proceeding instituted by the Claimant, the Tribunal makes a decision setting aside a reviewable decision and making a decision in substitution that is more favourable to the Claimant than the reviewable decision, the Tribunal may order that the costs of those proceedings incurred by the Claimant, or part of those costs, shall be paid by the responsible authority.

7. Having considered the submissions of the parties I am satisfied that it is appropriate that the Respondent pay the Applicant’s costs and disbursements incurred in the Proceedings.

8. The Tribunal orders that the Respondent pay the Applicant’s reasonable legal costs and disbursements incurred in the Proceedings, being Matters 2018/1999 and 2018/2760, of an amount agreed between the parties or, in the absence of agreement, of an amount to be taxed by the Registrar or an officer of the Tribunal pursuant to section 67(13) of the SRC Act.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Member Richard West.

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

Associate

Dated: 12 July 2019

Dates of hearing:  4, 5 and 6 March 2019

Counsel for the Applicant:                 Mr Mark Carey

Solicitors for the Applicant:                Slater and Gordon

Counsel for the Respondent:             Mr John Wallace