Re Perry and Comcare - [2005] AATA 365

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 365
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/624

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT JAMES PERRY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member McCabe
Date27 April 2005
PlaceBrisbane

Decision The Tribunal orders that the respondent pay the applicant’s costs, taxed if necessary, up to and including 11.22am on 21 August 2002. The applicant is to bear his own costs after that date.
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SENIOR MEMBER

CATCHWORDS
Compensation — Commonwealth employees — Costs — Tribunal decision less favourable to applicant than offer of compromise made by respondent before hearing — limit placed on costs – costs recoverable up until the offer of compromise made.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 67
AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486
Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333; [1975] 3 WLR 586
Cutts v Head [1984] Ch 290; [1984] 1 All ER 597; [1984] 2 WLR 349
Grbavac v Hart [1997] 1 VR 154; BC9601881
Hronopoulos and Telstra Corporation Limited (2002) 68 ALD 419; (2002) 35 AAR 349; [2002] AATA 625
Perry and Comcare [2004] AATA 289
White v Director of Housing [2003] VSC 124; BC200301946
REASONS FOR DECISION
27 April 2005  Senior Member B J McCabe

introduction

1.      The Tribunal decided the applicant’s claim in Perry and Comcare [2004] AATA 289. Ms Cowdroy, the presiding member, did not make any order as to costs. The applicant has now asked the Tribunal to make an order. The applicant says the decision under review was set aside and a more favourable decision was made by the Tribunal. The respondent says the applicant’s right to recover costs is limited because an offer of settlement was made before the hearing that was even more advantageous than the ultimate decision.
2.      The parties made written and oral submissions at a hearing before me on 14 April 2005. (I heard the matter as Ms Cowdroy is no longer a member of the Tribunal.) Mr Willis represented the applicant and Mr O’Sullivan represented the respondent.
the legislation and the power to make orders as to costs
3. Section 67 of the Safety, Rehabilitation and Compensation Act 1988 deals with the costs of proceedings before the Tribunal upon review. Section 67(8) provides:
(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.

4. Section 67(8) makes it clear the power to award costs is a discretionary one. Successful parties are not entitled to costs as of…

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 Re Perry and Comcare

Details

AGLC: Re Perry and Comcare [2005] AATA 365
Case: [2005] AATA 365
Decision Date: 27 April 2005

CaseChat Overview and Summary

The case of Re Perry and Comcare involved a dispute between the applicant, Mr. Perry, and the respondent, Comcare, regarding costs incurred in a compensation matter. The applicant sought costs beyond those specified in an offer of compromise made by Comcare prior to the hearing. The matter was before the Administrative Appeals Tribunal. The primary legal issue was whether the applicant was entitled to recover costs beyond the time of the offer of compromise made by Comcare, given the outcome of the Tribunal's decision was less favourable to the applicant. The Tribunal had to determine whether the common law principle, established in Calderbank v Calderbank, applied to limit the applicant’s recovery of costs.

The Tribunal considered the principle set out in Calderbank v Calderbank, which holds that when a party makes an offer of compromise that is not accepted and the final outcome is less favourable than the offer, the unsuccessful party is limited to recovering costs up until the time of the offer. The Tribunal noted that this principle is applicable in administrative law matters, as confirmed by the Full Federal Court in Grbavac v Hart. The Tribunal also referred to previous cases such as AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd and Cutts v Head to support its understanding of the Calderbank principle. Given these authorities, the Tribunal concluded that the applicant's entitlement to costs should be curtailed from the time of the offer of compromise. The Tribunal thus ordered that Comcare pay the applicant's costs up until 11.22am on 21 August 2002, and any costs incurred thereafter were to be borne by the applicant.

The Tribunal’s reasoning was grounded in the established legal principle that limits the recovery of costs when a party’s outcome is less favourable than a prior offer of compromise. This principle ensures that parties are cautious in their litigation strategies and promotes a fair and efficient resolution of disputes. The Tribunal’s decision aligns with the statutory and common law framework governing costs in administrative law matters. The orders reflect the Tribunal's application of these legal principles to the specific facts and circumstances of the case.

Orders

Orders of the court

The Tribunal orders that the respondent pay the applicant’s costs, taxed if necessary, up to and including 11.22am on 21 August 2002. The applicant is to bear his own costs after that date.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT JAMES PERRY