Tribunal declines to make cost order for abortive hearing

Date: December 18, 2019


O’Callaghan and Comcare [2019] AATA 4758 (14 November 2019).


Key Points:



Mr O’Callaghan made a claim for workers’ compensation in respect of a psychological condition. Comcare denied liability to pay compensation for this condition. The decision was affirmed on review and Mr O’Callaghan made an application with the Tribunal. A hearing was listed to take place on 8 and 9 April 2019.

At the hearing on 8 April 2019, Mr O’Callaghan’s Counsel produced Performance Development Agreement documents (PDA documents) which were not previously given to Comcare or the Tribunal. This resulted in the parties agreeing to adjourn the hearing to give each time to get further medical evidence.  A resumed hearing was held on 17 and 18 September 2019. Mr O’Callaghan was successful at hearing.

Following the hearing, Comcare agreed it should be ordered to pay Mr O’Callaghan’s reasonable party party costs.and disbursements, whether agreed or taxed, however, Comcare argued it should not be made to pay Mr O’Callaghan’s costs for the days of hearing on 8 and 9 April 2019. Comcare stated that, as a result of the additional evidence being produced on the morning of the hearing, this resulted in the rest of that day of hearing being abortive. Further, it asserted that the second day of hearing, set down for 9 April 2019, was not utilised because Mr O’Callaghan’s Counsel was not available

Mr O’Callaghan asserted that the PDA documents were clearly relevant to proceedings and were documents which would have been retained by the Australian Federal Police. Mr O’Callaghan did not seek costs for 9 April 2019.


The Law:

Section 67(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) provides that the costs incurred by a party in Tribunal proceedings should be borne by that party.

Section 67(8) of the SRC Act provides that where the Tribunal makes a decision which is favourable to a claimant, the Tribunal may order that the costs incurred by the claimant in those proceedings, or part of the costs, be paid by the responsible authority.



The Tribunal considered that the PDA documents were relevant to the proceedings. Further, these were documents which may have been given to Comcare by the Australian Federal Police in the initial investigation of the claim. The Tribunal stated it was reasonable to expect Mr O’Callaghan to produce documents which supported his claim. It was also noted that Mr O’Callaghan had mentioned a “good PDA history” in his Statement of Facts, Issues and Contentions, which would have alerted Comcare to further relevant material.

Comcare had provided copies of some PDA documents from around the time he sustained his psychological condition. Mr O’Callaghan had not made any comment prior to hearing about PDA documents he thought were missing which were relevant to the proceedings. The Tribunal considered Mr O’Callaghan had not provided a reasonable explanation as to why he had not provided the documents prior to hearing. The Tribunal stated the PDA documents should have been given to the Tribunal in a timely manner prior to hearing.

The Tribunal reported the production of those documents at such a late stage raised procedural fairness issues for Comcare. The Tribunal considered it was Mr O’Callaghan’s actions, in producing the documents on the first day of hearing, which resulted in the hearing on 8 April 2019 being abortive. On this basis, the Tribunal found it was appropriate that Mr O’Callaghan bear his own costs for the hearing held on 8 April 2019.


Lessons Learnt:

In circumstances where the Tribunal makes a decision which is favourable to the claimant, the default position of the Tribunal is that the opposing party will pay the claimant’s costs, or part of those costs. In situations where a hearing has been delayed as a result of a claimant, the Tribunal will turn its mind to whether there are issues of procedural fairness which mean the opposing party should not bear the entirety of the claimant’s costs.




Rebecca Tloczek                                                                       Brett Ablong
Solicitor                                                                                        Partner
Direct:  +61 (0) 8 9265 6020                                                   Direct:  +61 (0) 8 9265 6001                               


Download PDF:  O’Callaghan and Comcare


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