Ralser and Comcare

Case [2012] AATA 558

[2012] AATA 558 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/1574

Re

Michael Ralser

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr S. Webb, Presiding Member
Dr B. Hughson, Member
Date 24 August 2012
Place Canberra

Comcare is to pay 50 percent of Mr Ralser’s reasonable costs in these proceedings, excluding costs incurred in respect of Dr Bentivoglio and the professional costs of Ms Barmes.

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

Mr S. Webb, Presiding Member

WORKERS COMPENSATION – orders for costs – severability of issues – apportionment appropriate – applicant’s partner a material witness and acting as solicitor of record – no exceptional circumstances –  partial costs award

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 6, 14, 67

Legal Profession Act 2004 (NSW), ss 49, 498, 711

Corporation of Burford v Lenthall (1743) 26 ER 731

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Dungey v Angove (1794) 2 Ves. Jr. 304

Griffiths v Australian Postal Corporation [2008] FCA 19

Hughes v Western Australian Cricket Association (Inc.) & Ors [1986] FCA 382

Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ  563.

Oshlack v Richmond River Council (1998) 193 CLR 72

Re Perrin and Telstra Corporation Limited [1995] AATA 479

Perry v Comcare (2006) 150 FCR 319

Re Ralser and Comcare [2012] AATA 510

Riley v Comcare (1994) 48 FCR 449

Federal Court Rules 2011

Law Society of New South Wales Revised Professional Conduct and Practice Rules 1995

REASONS FOR DECISION

Mr S. Webb, Presiding Member
Dr B. Hughson, Member

24 August 2012

  1. Michael Ralser lodged a claim for compensation in respect of a number of injuries[1] allegedly arising from an incident at a coffee shop. Comcare rejected his claim by primary determination[2] and on reconsideration[3]. On review, we concluded that Mr Ralser’s claims in respect of the coffee shop incident were not made out, but that he was entitled to compensation in respect of a subsequent injury arising within the scope of his claim. Thus, the decision under review was set aside and the matter was returned to Comcare to assess Mr Ralser’s entitlement to payment under particular heads of compensation, subject to claim.

    [1] Exhibit A4 and T8.

    [2] T34.

    [3] T47.

  2. Time was allowed for the parties to make submissions in respect to orders for costs. This has now been done in writing. With no request from either party to be heard orally, we will proceed to determine the matter on the written materials filed.

  3. Mr Ralser has been partially successful in the proceedings he instituted and the Tribunal’s decision is more favourable to him than the reviewable decision. The Tribunal has discretion to order Comcare to pay his costs of the proceedings, or part of those costs, under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Clause 6.8 of the Tribunal’s March 2007 Guide to the Workers Compensation Jurisdiction (the Guide) provides that an order for costs will, unless otherwise ordered, be on a party…

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Details
AGLC
Ralser and Comcare [2012] AATA 558
Case
[2012] AATA 558
Decision Date

CaseChat Overview and Summary

In the matter of Ralser v Comcare, the Federal Circuit and Family Court of Australia was tasked with determining the appropriate allocation of costs between the parties. Mr Ralser sought compensation for psychological injuries sustained during his employment, and the dispute centred on the extent to which Comcare, the respondent, should bear the financial burden of the legal proceedings. Specifically, Mr Ralser argued for a full reimbursement of his legal costs, including those associated with his partner, Ms Barmes, who acted as a material witness and his solicitor of record, as well as those related to Dr Bentivoglio.

The central legal issue before the court was whether it was appropriate to order Comcare to pay Mr Ralser’s full legal costs, given the unique role Ms Barmes played in the proceedings. The court considered the principle of apportionment of costs and whether the exceptional circumstances justified a full reimbursement. The court noted that while Ms Barmes’ dual role as a witness and solicitor warranted consideration, it did not rise to the level of exceptional circumstances required to warrant a complete costs award.

In its reasoning, the court held that while it was appropriate to exercise its discretion under section 67(8) to order Comcare to contribute to Mr Ralser’s reasonable costs, it was not appropriate to cover all costs, particularly those related to Ms Barmes’ professional fees and Dr Bentivoglio. The court concluded that a partial costs award, excluding these specific costs, was more equitable. Consequently, Comcare was directed to pay 50 percent of the remaining reasonable costs, as agreed or taxed, excluding the aforementioned costs.

The court's final orders mandated that Comcare would pay 50 percent of Mr Ralser’s reasonable costs in the proceedings, with the exclusion of costs related to Dr Bentivoglio and the professional costs of Ms Barmes. This decision balanced the need for a fair outcome with the principles governing costs in workers' compensation cases.

Orders

Orders of the court

Comcare is to pay 50 percent of Mr Ralser’s reasonable costs in these proceedings, excluding costs incurred in respect of Dr Bentivoglio and the professional costs of Ms Barmes.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, being mindful of the requirement to deliver a fair and just result, we are satisfied that it is not appropriate in the circumstances to order Comcare to pay Mr Ralser for Ms Barmes’ professional costs in these proceedings.Conclusion It is appropriate to exercise the discretion under s 67(8) and to order Comcare to pay part of Mr Ralser’s reasonable costs of the proceedings, being costs that are attributable to his psychological injury claims. As we have said, it is not appropriate to order Comcare to pay Mr Ralser’s costs in relation to Dr Bentivoglio or the professional costs of Ms Barmes. Excluding those costs, Comcare will be ordered to pay 50 percent of Mr Ralser’s remaining reasonable costs of these proceedings as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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