Falle and Comcare [2009] AATA 227; (2009) 108 ALD 231 (25 March 2009)

Last Updated: 15 December 2010

Administrative Appeals Tribunal

DIRECTION AND REASONS FOR DIRECTION [2009] AATA 227

ADMINISTRATIVE APPEALS TRIBUNAL No. V 200600379, V 200600844, 2007/3217

GENERAL ADMINISTRATIVE DIVISION
	Re		CAROLINE GRACE FALLE

Applicant

And

COMCARE

Respondent

DIRECTION

Tribunal:

G. D. Friedman, Senior Member

Date: 25 March 2009

Place: Melbourne

The Tribunal directs that taxation of costs in these proceedings be restricted to application 2007/3217.

(sgd) G.D. Friedman
Senior Member

PRACTICE AND PROCEDURE – jurisdiction – taxation of costs

Safety, Rehabilitation and Compensation Act 1988 s 67(8)

REASONS FOR DIRECTION

3 April 2009 G.D. Friedman, Senior Member

1. On 12 December 2008 the Tribunal made a decision by consent of the parties under s 42C of the Administrative Appeals Tribunal Act 1975 to affirm the reviewable decision in application V 200600379; affirm the reviewable decision in application V 200600844; and set aside the reviewable decision in application 2007/3217 and in substitution decide that the time within which the applicant may seek a reconsideration of the primary determination dated 29 June 1999 be extended to 10 December 2008. There was no mention of costs in the agreement.
2. In a letter dated 18 February 2009 the applicant’s solicitors requested that the costs and disbursements of these proceedings be taxed by the Tribunal.

ISSUE

3. The issue before the Tribunal is whether the Tribunal has jurisdiction to award costs in applications V 200600379 and V 200600866. The parties agreed that the Tribunal has jurisdiction to award costs in application 2007/3217.

LEGISLATIVE SCHEME

4. Section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) states:

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.

SUBMISSIONS

5. Application V 200600844 concerns the reviewable decision of Comcare dated 8 October 1998 to deny liability in respect of chronic fatigue syndrome. Application V 200600379 concerns the reviewable decision of Comcare dated 2 March 2006 to deny liability for permanent impairment for aggravation of mild anxiety and depression. Application 2007/3217 concerns the reviewable decision of Comcare dated 2 May 2007 to refuse an extension of time to seek reconsideration of the primary determination dated 29 June 1999.
6. The applicant’s solicitor Mr G Tzilantonis submitted that the Tribunal has the power to award costs for all three applications. He referred the Tribunal to the Terms of Settlement signed by both parties on 10 December 2008 which states that the Respondent will pay the Applicant’s costs of the Applications in accordance with the latest Tribunal Practice Direction (emphasis added). Mr Tzilantonis said that the reference to the Tribunal’s Practice Direction was to clarify how the calculation of costs would occur. Mr Tzilantonis also said that the applications were conducted as one proceeding; finalised as one proceeding; and as the issues across the three applications are intertwined, it is not possible to apportion costs. He said that the decision of the Tribunal made no mention of costs and the overall outcome for Ms Falle was favourable.
7. Ms E White, solicitor for the respondent, submitted that in accordance with s 67 of the SRC Act costs are not payable in respect of any decision by the Tribunal which affirms a decision made by Comcare, or where the Tribunal varies or sets aside a decision of Comcare in a manner which is not favourable to a claimant. She denied that there was an understanding between the parties to pay costs associated with all three applications, and said that each application to the Tribunal was a separate proceeding.

SHOULD THE TRIBUNAL AWARD COSTS IN ALL THREE APPLICATIONS?

8. There is nothing unusual about the manner in which the applications before the Tribunal were conducted and resolved. The parties reached agreement as to the terms of a decision of the Tribunal without completing the hearing and the Tribunal made a decision in accordance with those terms.
9. Each of the applications before the Tribunal was lodged separately. Each has a separate file and file number allocated by the Tribunal, and separate T-documents. Applications for review of compensation decisions frequently proceed concurrently for convenience. The Tribunal finds that these applications are not so intertwined as to prohibit the apportioning of costs. The reviewable decision that was set aside relates to the granting of an extension of time to lodge with Comcare a request for reconsideration.
10. It is common practice in the workers’ compensation jurisdiction for parties to have separate terms of settlement that are not lodged with the Tribunal detailing matters such as costs. Even if the terms of settlement are interpreted as an agreement that the respondent will pay the applicant’s costs of all the applications, s 67(8) of the SRC Act is clear that the Tribunal does not have the power to award costs in applications where the Tribunal has affirmed the reviewable decision.

DIRECTION

11. The Tribunal directs that taxation of costs in these proceedings be restricted to application 2007/3217.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the direction of:

G.D. Friedman, Senior Member
(sgd) Mara Putnis

Associate

Date of directions hearing: 25 March 2009
Date of direction: 25 March 2009
Date of written reasons: 3 April 2009
Solicitor for the applicant: Mr G Tzilantonis, Zenith Lawyers & Consultants
Solicitor for the respondent: Ms E White, Thomson Playford Cutlers