FEDERAL COURT OF AUSTRALIA

Hewett v Comcare (No 2) [2020] FCA 703

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    The decision of the Administrative Appeals Tribunal published on 4 January 2018 as Re Hewett and Comcare (Compensation) [2018] AAT 302 is set aside insofar as it pertains to reviewable decisions that concerned claims made by the appellant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an alleged psychiatric injury.

3.    The applications that were the subject of the following matters in the Administrative Appeals Tribunal, namely:

(a)    matter 2015/4950; and

(b)    matter 2015/4953,

be remitted to the Administrative Appeals Tribunal for rehearing in their entirety.

4.    The application that was the subject of matter 2017/2841 in the Administrative Appeals Tribunal be remitted to the Administrative Appeals Tribunal for rehearing insofar as it pertains to reviewable decisions that concerned claims made by the appellant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an alleged psychiatric injury.

5.    The applications remitted for rehearing by reason of orders 3 and 4 are to be heard by a member of the Administrative Appeals Tribunal other than the member that made the decision referred to in order 2 above.

6.    The respondent pay 50 per cent of the appellant’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    On 23 April 2020, the court part-allowed Ms Hewett’s appeal against a decision of the Administrative Appeals Tribunal: Hewett v Comcare [2020] FCA 527 (Snaden J; hereafter, the “Primary Judgment”). Orders were made granting the parties 21 days to confer and, if possible, agree upon a form of orders that the court should make to give effect to its reasons for judgment. On Friday, 14 May 2020, the parties submitted to my chambers separate minutes of the order that they each proposed in that regard. Although neither was invited to, both helpfully submitted a brief submission as to why orders ought to be made in the form proposed.

2    The parties are agreed, in effect though not form, on the substantive orders that should be made; but a divergence of view has emerged as to what order the court should make with respect to costs. In these brief reasons, I shall employ the terms to which defined meanings were assigned in the primary judgment (and shall do so intending that they be read here as though conveying those same meanings).

3    The AAT Decision concerned claims that Ms Hewett had made for compensation relating to what she alleged were two injuries that she sustained during her time as an employee of the Commonwealth agency now known as Centrelink. One of those was a physical injury; the other a psychiatric injury. Over a period of nearly two years, Comcare made a series of decisions—five in total—by which it denied liability for the compensation that Ms Hewett claimed. By five separate applications, Ms Hewett challenged those decisions in the AAT. By a single decision, the AAT affirmed them all. By her appeal to this court, Ms Hewett claimed that the AAT Decision was the product of legal error. I accepted that submission insofar as the AAT Decision pertained to Ms Hewett’s alleged psychiatric injury.

4    The precise scope of each of the Reviewable Decisions that the AAT Decision affirmed was not the subject of submission before me. For that reason, I invited the parties to confirm which of them would need to be remitted to the AAT for rehearing in light of the Primary Judgment. Happily, the parties are as one on that score. Of the five Reviewable Decisions that the AAT Decision affirmed, only three concerned claims for compensation relating to Ms Hewett’s alleged psychiatric complaint, specifically:

(1)    the decision that Comcare made on 4 September 2015 to affirm its 18 May 2015 determination concerning Ms Hewett’s psychological treatment (Primary Judgment, [8]—hereafter, the “First Reviewable Decision”);

(2)    the decision that Comcare made on 7 September 2015 to vary its 6 August 2015 decision concerning Ms Hewett’s psychological treatment (Primary Judgment, [9]—hereafter, the “Second Reviewable Decision”); and

(3)    the decision that Comcare made on 5 May 2017 to affirm its 29 March 2017 decision concerning various of Ms Hewett’s treatments and related travel expenses (Primary Judgment, [12]—hereafter, the “Fifth Reviewable Decision”).

5    Each of those three decisions was the subject of a separate application before the AAT, specifically:

(1)    in respect of the First Reviewable Decision, an application in AAT matter 2015/4953;

(2)    in respect of the Second Reviewable Decision, an application in AAT matter 2015/4950; and

(3)    in respect of the Fifth Reviewable Decision, an application in AAT matter 2017/2841.

6    The former two of those three applications each concerned only Ms Hewett’s alleged psychiatric injury (that is to say that neither pertained to decisions that concerned her alleged physical injury). The final of those three applications—application 2017/2841—concerned both of Ms Hewett’s alleged physical injury and her alleged psychiatric injury. The parties are, then, agreed—and the court will order—that the applications in AAT matters 2015/4953 and 2015/4950 should be remitted back to the AAT for rehearing in their entirety; and that the application in AAT matter 2017/2841 should be remitted back to the AAT for rehearing insofar as concerns those aspects of the Fifth Reviewable Decision that pertained to Ms Hewett’s alleged psychiatric injury. Lest there be any doubt, the remittal of matter 2017/2841 is limited to that subject. Insofar as the AAT Decision affirmed those aspects of the Fifth Reviewable Decision that pertained to Ms Hewett’s alleged physical injury, that affirmation stands undisturbed.

7    Consistently with the reasons that accompanied the Primary Judgment, the court will order that the applications referred to above be reheard before a different AAT member.

8    Ms Hewett seeks an order that Comcare pay her costs of the appeal. She acknowledges that her appeal did not succeed on all of the bases upon which it was advanced; but submits that that, alone, is not a sufficient basis upon which to deny her the costs that she seeks.

9    Comcare submits that the parties should bear their own costs. It acknowledges that Ms Hewett’s appeal has succeeded, if only in part; and that “…the ordinary rule is that costs follow the event”. Nonetheless, it submits—and I accept—that the court retains a discretion to award costs on only a partial basis, or to make an order that reflects the parties’ relative successes and failures (see, in that respect, Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102, [9]-[10] (Markovic J), and the cases to which her Honour there refers). In this case, Comcare submits that it is appropriate to make no order as to costs, as the outcome of the appeal has been to visit similar degrees of success and failure upon each side. Ms Hewett has succeeded in respect of half of her claim (the half concerning the decisions that were made about her entitlement to compensation in respect of her alleged psychiatric injury) but failed in respect of the other half (the half concerning her alleged physical injury).

10    I am persuaded that this case warrants something other than the “ordinary rule”. Although there was but a single AAT Decision, it arose from five separate applications, each of which pertained to a discrete Reviewable Decision. The five Reviewable Decisions were, in turn, divided more or less evenly in respect of the two injuries that Ms Hewett alleged as the sources of her entitlement to compensation (namely her alleged physical injury and her alleged psychiatric injury). The submissions that the parties advanced were neatly divided across those two battlegrounds. They occupied more or less the same real estate in the parties’ written submissions, the appeal transcript and the Primary Judgment. Ms Hewett succeeded only on one of them. It is appropriate, in those circumstances, that she should be awarded costs only in respect of that discrete aspect of her appeal.

11    Comcare submits, as an alternative to its primary submission (that there should be no order as to costs), that the court should limit any award of costs in Ms Hewett’s favour to 50 per cent of her costs of the appeal. In light of what is stated in the preceding paragraph, that is appropriate and I will so order.

Associate:

Dated:    26 May 2020