Secretary, Department of Family & Community Services v Kelly (No 2)
[2014] NSWWCCPD 28
•25 March 2013
| 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.
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