Dunn and Military Rehabilitation and Compensation Commission

[2012] AATA 853

[2012] AATA 853

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/2502
Re	Gillian Dunn
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	4 December 2012
Place	Brisbane

The Tribunal orders that costs be paid on the ordinary basis provided for in the Tribunal’s Guide to the Workers' Compensation Jurisdiction. In the absence of an agreement as to the quantum of the costs, the Tribunal directs that they be taxed by the Registrar.

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Senior Member Bernard J McCabe

CATCHWORDS

TAXATION OF COSTS – Request for indemnity costs – Discretion to order costs – Special reasons – Conduct of the unsuccessful party – Obligations as a model litigant – Costs to be paid on the ordinary basis.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 7(2) and 67.

REASONS FOR DECISION

Senior Member Bernard J McCabe

4 December 2012

1. Gillian Dunn was the successful applicant in Dunn and Military Rehabilitation and Compensation Commission [2012] AATA 672. She has now asked for costs to be awarded pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). That is not unusual, however she has asked that costs be awarded on an indemnity basis. That is unusual: costs in the Tribunal are usually awarded on a “party-party” basis and professional costs in particular are assessed at 75% of the amount allowable under the Federal Court scale: see the Tribunal’s Guide to the Workers' Compensation Jurisdiction, which is available on the website.

2. The Tribunal retains the discretion to order costs on a different basis than the usual “party and party” award. It might do so when there is a special reason – perhaps there was something in the conduct of the unsuccessful party that makes it appropriate to compensate the successful applicant at a higher rate than usual. Mr Dickson, for Mrs Dunn, says this is just such a case. He says the Commission should never have run the case because the answer was clear. He says the Commission did not satisfy its obligations as a model litigant. I was provided with an affidavit prepared by his instructing solicitor outlining the twists and turns in the case.

3. There were a number of issues that fell away in the course of preparing the case. Questions arose about the extent to which Ms Dunn’s late husband had been exposed to dangerous chemicals given the nature of the work he was doing. There were also questions about whether the circumstances of his death were in fact linked to his depression. This last question was only resolved in the applicant’s favour at the outset of the hearing after a concession was made in light of evidence from Dr Strauss, the respondent’s expert. Perhaps these matters could have been resolved at an earlier point but I do not say they were uncontentious. The fact these matters were not resolved earlier may well have left the applicant in a position where she had more difficulty knowing what case she was supposed to meet, which might have led to unnecessary expense – such as calling witnesses who were not ultimately required.

4. The outcome of the case finally turned on the application of the presumption in s 7(2) of the SRC Act. The key evidence that informed my finding on this issue came from the oral evidence of Dr Strauss at the hearing. I asked him several questions designed to elicit precisely what he meant when he said it was possible that chemical exposure had contributed to the depressive condition of the applicant’s late husband. Until that evidence was clarified, it is possible the respondent had done enough to establish the applicant was not entitled to rely on the presumption in s 7(2).

5. It is obvious the respondent had some difficulty preparing for the case. The case narrowed substantially as the matter proceeded. It is not clear why it did not narrow at an earlier point; it is a pity that the applicant was still unclear on the precise nature of the respondent’s problem up until the case began. But it is not unusual for a case to change its focus and scope. I do not think it is appropriate to make the respondent pay more than the usual amount unless there was something unusual about its conduct. While there were aspects of the ways in which both sides prepared their cases that might be open to criticism, I am not satisfied from the evidence I have seen that it would be appropriate to depart from the usual rule.

   CONCLUSION

6. I order that costs be paid on the ordinary basis provided for in the Tribunal’s Guide to the Workers' Compensation Jurisdiction. In the absence of an agreement as to the quantum of the costs, I direct that they be taxed by the Registrar.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  4 December 2012

Date of hearing	14 November 2012
Counsel for the Applicant	Mr Dickson
Solicitors for the Applicant	Campbell Standish Partners
Counsel for the Respondent	Mr Dube
Solicitors for the Respondent	Sparke Helmore Lawyers