Steele and Comcare [1999] AATA 1037 (15 December 1999)

Last Updated: 13 March 2000

DECISION AND REASONS FOR DECISION [1999] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1996/568

GENERAL ADMINISTRATIVE DIVISION )

Re Lorraine Steele

Applicant

And Comcare

Respondent

DECISION

Tribunal Justice D O'Connor, President

Date 15 December 1999

Place Canberra

Decision FOR the reasons given orally at the conclusion of the hearing in this matter and reproduced herein, the decision under review is VARIED. The amount payable to the Applicant should be calculated by reference to the schedule of recommended fees sanctioned by the ACT Law Society in operation at the time the obligation to pay arose.

..............................................

President

catchwords

Practice and procedure - Expert witness - Payment of fees - Basis on which fees are determined

Administrative Appeals Tribunal Act 1975 (Cth), s 67

Administrative Appeals Tribunal Regulations, reg 16

REASONS FOR DECISION

15 December 1999 Justice D O'Connor, President

1. This matter arose in relation to an application by Lorraine Steele for review of a decision of the respondent Comcare.

2. Dr Henry Berenson, a qualified medical practitioner and an expert witness in this case, has brought an application in respect of the payment of fees owing to him as a result of the determination of this matter. The matter was concluded in 1997. There has been since that date a voluminous set of correspondence between Comcare's legal advisers and Dr Berenson about this issue which has resulted in this application by Dr Berenson to have the basis on which his fees are to be determined set by the Tribunal.

3. Section 67 of the Administrative Appeals Tribunal Act 1975 (Cth) deals with fees for witnesses. Regulation 16 governs its operation. In the course of hearing submissions from the parties Dr Berenson, (who claims a rate of $300 an hour as his fees), did concede that he is not able to itemise that amount as requested by the respondent. The recommended schedule of fees for medico/legal work which was in operation in the ACT at the time that this matter was determined was tendered by the respondent.

4. Parts (a) and (b) of the schedule nominate fixed amounts in circumstances where costs are not itemised, which is this case. Mr Dubé, who acted for the respondent in the proceedings in the hearing of this matter, submitted that, at the time this matter was determined, his client was not bound by this schedule and an affidavit also was tendered to indicate that it was "the opinion of the ACT Law Society" that probably at that time, (although I do not know on what basis), no tribunal was in fact applying the schedule. He submitted that I should not do so in this case.

5. He did, however, indicate that if I do determine that the schedule should apply to this matter, it will be acceptable to his client. It is a matter of some relief that since October of this year these sorts of disputes will no longer be occurring because Mr Dubé's client has agreed to be bound by the ACT Law Society's 1998 schedule. There is now unlikely to be any difficulty with Dr Berenson or hopefully any other medical practitioner or expert in his situation.

6. In this case I determine that at the time when the obligation to pay the fees owing to Dr Berenson the schedule that had been established for medical/legal work by the Law Society was, and is the appropriate schedule to be used by parties to proceedings before this Tribunal, even in circumstances where there has been no express agreement or commitment by the parties.

7. The obligation to reimburse Dr Berenson for his fees arose on 26 May 1996, He invoiced Comcare in respect of his fees on 4 June. The amount payable should be calculated by reference to the schedule of recommended fees sanctioned by the ACT Law Society in operation at that time.

I certify that the 7 (seven) preceding paragraphs are a true copy of the reasons for the decision herein of the Honourable Justice O'Connor, President

Signed: .....................................................................................

Associate

Date/s of Hearing 15 December 1999

Date of Decision 15 December 1999

Counsel for the Applicant The Applicant represented himself

Solicitor for Applicant

Counsel for the Respondent Mr B Dubé

Solicitor for the Respondent Australian Government Solicitor