Rutter and Linfox Australia Pty Ltd (Compensation)

[2017] AATA 780

Rutter and Linfox Australia Pty Ltd (Compensation) [2017] AATA 780 (30 May 2017)

Division:GENERAL DIVISION

File Number(s):2015/2747; 2015/3641      

Re:Anthony Rutter

APPLICANT

AndLinfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 May 2017

Place:Sydney

The respondent is to pay:

(a)70% of the applicant’s professional costs, counsel’s fees (excluding the amount claimed by Counsel which goes to the preparation of submissions solely focused on application 2015/2747) incurred after 20 July 2016, being the date the current solicitors’ commenced acting for the applicant, to be agreed, or alternatively, as taxed; and

(b)the entirety of Dr New’s fees including the costs of his written reports as well as the cost of him giving oral evidence at hearing; and

(c)All other reasonable and proper disbursements associated with application number 2015/3461.

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

Senior Member A Poljak

Catchwords
COMPENSATION – workers compensation - costs – s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - two matters heard together - applicant successful in one matter only - power of Tribunal to apportion costs – previous offers of settlement – realistic offers – contingent offers – previous legal representation

Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16, 24, 27, 67

Cases
Perry v Comcare (2006) 150 FCR 319

Perrin and Telstra Corporation Limited [1995] AATA 479

Secondary Materials

Guide to the Assessment of Degree of Permanent Impairment, Edition 2.1

REASONS FOR DECISION

Senior Member A Poljak

30 May 2017

1. Mr Rutter (“the applicant”) has requested the Tribunal make an order as to costs, for a decision handed down by the Tribunal on 25 November 2016, with respect of two applications for review (“matter 2015/2747” and “matter 2015/3461”).

2. Matter 2015/2747 dealt with the applicant’s entitlement to payment of compensation for medical treatment expenses in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) as a result of his accepted back condition.

3. Matter 2015/3461 dealt with the applicant’s present entitlement to payment of lump sum permanent impairment compensation and noneconomic loss compensation under sections 24 and 27 of the SRC Act resulting from his accepted lower back condition.

4. Both matters were heard together and the following decision was issued:

   (a)In respect of matter 2015/2747 the decision of Linfox Australia Pty Ltd made on 7 April 2015 is affirmed.

   (b)In respect of matter 2015/3641 the decision of Linfox Australia Pty Ltd made on 26 June 2015 is set aside and remitted with the direction that Mr Rutter is entitled to receive compensation for permanent impairment for his lower back condition assessed at 13% WPI and that in regards to non-economic loss Mr Rutter has a score of 2 for pain, a score of 3 for recreation and leisure activities and a score of 1 for other loss.

5. Section 67 of the SRC Act provides this Tribunal with a “largely unfettered” discretion to alter the position set out in subsection 67(1) namely that each party shall bear its own costs of the proceedings:  Perry v Comcare (2006) 150 FCR 319 at 342. The Court in Perry v Comcare further stated at 343:

   The fundamental obligation of the Tribunal in the exercise of the discretion was to do justice between the parties according to its assessment of the circumstances of the case.

6. The respondent contends that in accordance with s 67(8) of the SRC Act, the applicant is only entitled to recover legal costs and disbursements in circumstances wherein he obtains a result which is more favourable than that contemplated in the Reviewable Decisions issued by the respondent. As such, the applicant is only able to recover legal costs and disbursements associated with matter 2015/3461.

7. Section 67(8) of the SRC Act 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.

8. The respondent further contends that in circumstances where both applications for review have been dealt with together through the pre-hearing steps and both applications were heard concurrently, there ought to be an apportionment of costs in respect of the successful application; Perrin and Telstra Corporation Limited [1995] AATA 479.

9. I accept that the applicant is not entitled to costs associated with matter 2015/2747. However, since both applications were heard concurrently, an order for costs should reflect apportionment between the matters. Instead of attempting to separate out the costs of the two matters, it is more appropriate in the circumstances, given that the matters were heard together and dealt with together during the pre-hearing process, to award costs to reflect the apportionment between the matters.

10. Since I heard the matter, I am well placed to undertake this task.

    APPORTIONMENT

11. The bulk of the evidence received by the Tribunal by way of expert reports, and the oral evidence and submissions received at hearing, went to the applicant’s entitlement to payment of compensation under sections 24 and 27 of the SRC Act.

12. Additionally, the applicant’s statement that was filed with the Tribunal and his oral evidence at hearing focused predominantly on the issues concerning his degree of permanent impairment and to the consideration of the appropriate non-economic loss scores; assessed in accordance with Part 2, Division 2 of the Guide to the Assessment of Degree of Permanent Impairment, Edition 2.1 (“the Comcare Guide”).

13. Dr New provided evidence by way of written reports and oral evidence at hearing. While I acknowledge that some of Dr New’s evidence in regards to recommended medical treatment was supportive of matter 2015/2747, his evidence was predominantly concerned with the assessment of the degree of the applicant’s permanent impairment.

14. I note that the main issue in matter 2015/2747, as contended by Counsel for the applicant, was that the primary decision purported to make the general determination about the applicant’s entitlement under section 16 of the SRC Act, and was not responding to a particular claim, but applied to any future claims. He contended that this did not comply with the requirements of the Act and purported to end any liability under section 16 of the SRC Act without even dealing with a specific claim for the cost of any treatment. In support of this application, the medical evidence of Dr New did little, other than support the contention that the applicant may need to undertake medical treatment in the future.

15. Accordingly, I find that the respondent should pay the entirety of Dr New’s fees including the costs of his written reports as well as the cost of him giving oral evidence at hearing. 

16. I acknowledge that the applicant’s Counsel provided written submissions solely addressing the application for matter 2015/2747. The submissions mainly focused on legal argument as to the effect of the reviewable decision if it were not set aside. Although the submissions would have taken the applicant’s Counsel some time to prepare, I do not accept that a substantive part of the applicant’s focus and effort was directed towards the reviewable decision regarding reasonable medical expenses. In any event, the amounts claimed by Counsel which go to the preparation of these submissions are not payable by the respondent.

    PREVIOUS OFFERS

17. In exercising my discretion to award costs, it may be appropriate to take into account previous, realistic offers of settlement; see Perry v Comcare (2006) 150 FCR 319.

18. The respondent contends that on numerous occasions in both November 2015 and January 2016 respectively, it made realistic and genuine attempts to resolve the applications for review, including on the basis that the applicant receive lump sum permanent impairment and noneconomic loss compensation on the basis of a 13% WPI. The respondent submits that these offers were not dissimilar to the decision ultimately handed down in regards to matter 2015/3461.

19. The respondent’s offer of settlement dated 19 January 2016, states:

    We confirm that our client’s offer of settlement is contingent upon your client also entering into consent terms affirming the Reviewable Decision finding your client to have no present entitlement to the payment of compensation for medical treatment expenses…

    …we confirm our client’s proposed settlement is made on the understanding that your client will not proceed to make any claims seeking reimbursement of the costs associated with his personal training sessions. [Emphasis added]

20. As already outlined, the thrust of the submissions made by Counsel for the applicant at hearing in regard to matter 2015/2747 was that the primary and reviewable decision precluded the applicant from submitting any future claims for treatment expenses.

21. The offers of settlement were contingent offers and inconsistent with the position ultimately taken by the respondent at hearing. As indicated in my decision dated 25 November 2016, at paragraph 13:

    The Respondent submits that Mr Rutter would not be precluded from submitting any future documentation reflecting treatment expenses incurred for determination under section 16 of the SRC Act.

22. I am not satisfied that the offers were reasonable in the circumstances.

    DECISION

23. The respondent is to pay:

    (a)70% of all the applicant’s professional costs, including counsel’s fees (excluding the amount claimed by Counsel which goes to the preparation of submissions solely focused on matter 2015/2747) incurred after 20 July 2016, being the date the current solicitors’ commenced acting for the applicant, to be agreed, or alternatively, as taxed; and

    (b)the entirety of Dr New’s fees including the costs of his written reports as well as the cost of him giving oral evidence at hearing; and

    (c)all other reasonable and proper disbursements associated with application number 2015/3461.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 30 May 2017

Date final submissions received:	10 April 2017
Solicitors for the Applicant:	Scott Dougall, Carroll & O’Dea Lawyers
Solicitors for the Respondent:	Peter Crethary, Moray & Agnew