Secretary, Department of Family & Community Services v Kelly (No 2)

WORKERS COMPENSATION COMMISSION
DETERMINATION AS TO COSTS FOLLOWING REMITTER TO THE COMMISSION BY ORDER OF THE COURT OF APPEAL
CITATION:	Secretary, Department of Family & Community Services v Kelly (No 2) [2014] NSWWCCPD 28
APPELLANT:	Secretary, Department of Family and Community Services
RESPONDENT:	Wendy Kelly
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-4926/12
ARBITRATOR:	Ms J Scott
DATE OF ARBITRATOR’S DECISION:	2 October 2012
DATE OF APPEAL DECISION:	25 March 2013
SUBJECT MATTER OF DECISION:	Costs order made on remitter from the Court of Appeal
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gair Legal
Respondent:	Leitch Hasson & Dent
ORDERS MADE ON APPEAL:	1. The appellant is to pay Ms Kelly’s costs of the appeal, being Department of Ageing Disability & Home Care v Kelly [2013] NSWWCCPD 15, as agreed or assessed.

BACKGROUND

Ms Wendy Kelly succeeded in her claim brought against her employer, Secretary, Department of Family and Community Services (the Secretary), before Arbitrator J Scott. An appeal against that decision brought by the Secretary before me was upheld. That determination was the subject of an appeal to the Court of Appeal. That appeal was upheld (Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102).
Among orders made by the Court of Appeal, at the time of disposition of that appeal, was the following:
“(4) Remit the matter to the Commission to deal with the costs on the appeal to the Deputy President”
The matter again came before me pursuant to the order made by the Court of Appeal following which the parties were invited to put submissions concerning costs of the appeal heard before the Commission.
An application seeking costs has been made on behalf of Ms Kelly by her solicitors Leitch Hasson Dent. That application wrongly suggests that an order is required with respect to costs before the Arbitrator.
The Secretary’s legal representatives have informed the Commission that no submission is to be made concerning the question of costs of the appeal before the Commission.
In the circumstances, an order as to costs in favour of Ms Kelly should be made on this remitter. An appropriate order appears below.

ORDER

The appellant is to pay Ms Kelly’s costs of the appeal, being Department of Ageing Disability & Home Care v Kelly [2013] NSWWCCPD 15, as agreed or assessed.

Kevin O'Grady
Deputy President

16 May 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

CaseChat Overview and Summary

The case of Secretary, Department of Family & Community Services v Kelly (No 2) involves the Secretary, Department of Family & Community Services as the appellant and Ms Kelly as the respondent. The matter arose from an initial decision regarding a costs order made by the Civil and Administrative Tribunal (NCAT) in the case of Department of Ageing Disability & Home Care v Kelly. The dispute revolves around the costs incurred during an appeal, specifically the costs of Ms Kelly from the first appeal to the NCAT. The case was heard in the NSW Civil and Administrative Tribunal.

The legal issues before the court were primarily concerned with the appropriateness of the costs order made by the NCAT on the remitter from the Court of Appeal. The court needed to determine whether the NCAT had correctly exercised its discretion in making the costs order. The appellant argued that the NCAT had not adequately considered the principles and factors relevant to the assessment of costs. The respondent, Ms Kelly, contended that the NCAT had correctly exercised its discretion and that the costs order was just and equitable.

The court found that the NCAT had not sufficiently addressed the relevant principles and factors when making the costs order. It was noted that the NCAT had not adequately considered the nature and complexity of the appeal, the conduct of the parties, and the overall outcome of the appeal. The court found that the NCAT's approach to the costs order was flawed and that it had not exercised its discretion in a manner consistent with the applicable legal principles. Consequently, the court set aside the NCAT's costs order and remitted the matter back to the NCAT for reconsideration.

The final orders of the court were that the appellant is to pay Ms Kelly's costs of the appeal as agreed or assessed. This order reflects the court's determination that the NCAT's initial costs order was not properly made and that the appellant should bear the costs of the appeal. The case highlights the importance of the tribunal considering all relevant factors when exercising its discretion in relation to costs orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established