FEDERAL COURT OF AUSTRALIA

Comcare v Simmons (No 2) [2014] FCAFC 44

THE COURT ORDERS THAT:

1.    The Appellant/Cross-Respondent is to pay the Respondent/Cross-Appellant’s costs of and incidental to the appeal and the cross-appeal.

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

REASONS FOR JUDGMENT

THE COURT

1    The Court delivered its judgment in the appeal on 13 February 2014 (see Comcare v Simmons [2014] FCAFC 4). Orders were made at that time that the appeal and cross-appeal be dismissed. The parties were invited, however, to seek to agree and, if necessary, provide short submissions on the question of the making of other orders to give effect to the Court’s reasons.

2    In response to the Court’s invitation, the Appellant (Comcare) filed submissions dated 26 February 2014. On the issue of costs, Comcare submitted that the parties had come to an agreement. Comcare contended that the agreement was to the effect that it should be ordered to pay 80 per cent of the Respondent’s costs of the appeal and cross-appeal. As will emerge shortly, the Respondent denies that any such agreement was reached.

3    On the question of whether an order should be made remitting the matter to the Administrative Appeals Tribunal (the Tribunal) or to Comcare, Comcare submitted that it was appropriate to remit the matter to the Tribunal to determine whether the Respondent’s failure or refusal to take up an offer of suitable employment was reasonable in all the circumstances for the purposes of s 19(4)(f) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

4    The Respondent filed submissions on 28 February 2014. He disputed that there was any agreement between the parties on the question of costs. He submitted that Comcare should pay his costs of both the appeal and the cross-appeal. He also submitted that the matter should be remitted not to the Tribunal, but to Comcare for it to make a primary determination in respect of s 19(4) of the Act. As such, he submitted that the orders made by the primary judge remitting the matter to Comcare should not be disturbed.

5    On 27 February 2014 Comcare filed further short submissions on the issue of costs, having regard to the Respondent’s denial that there was any agreement on that issue. Comcare argued that it should not have to bear the Respondent’s costs of both the appeal and the cross-appeal because the Respondent was unsuccessful in his cross-appeal and Comcare had incurred costs in relation to the cross-appeal, such as in preparing written submissions on matters raised by that cross-appeal. It submitted that it should pay no more than 80 per cent of the Respondent’s costs in the Court.

6    On 18 March 2014, the Court invited the parties to provide brief supplementary submissions on the specific question of the Court’s power to remit the matter to Comcare, as opposed to the Tribunal.

7    In its supplementary submissions dated 25 March 2014, Comcare elaborated on the reasons why it considered that this was an appropriate case to remit the matter to the Tribunal, noting that the Tribunal had indicated that it considered that it had the power to address issues under s 19 of the Act. Comcare did not contest that the Court had the power to remit the matter to it.

8    In his supplementary submissions dated 24 March 2014, the Respondent submitted that the Court had power under both s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) to remit the matter directly to Comcare, as was done (albeit by consent) by Bennett J in Australian Capital Territory v Comcare (2012) 201 FCR 287 at 295.

Disposition

9    On the issue of costs, the Court considers that Comcare has not raised any good reason why it should not pay the Respondent’s costs of both the appeal and the cross-appeal, as was tentatively indicated in the joint judgment of Flick and Griffiths JJ in their earlier reasons for judgment. Although the cross-appeal was unsuccessful, the Court considers that the issues it raised concerning the proper construction of s 8(10)(a) of the Act had to be dealt with in the appeal in any event, having regard to the contrasting language in that provision to that in s 8(10)(b). The Court also accepts the Respondent’s submission that the cross-appeal was responsive to Comcare’s appeal, was protective in nature and was intended to ensure that all relevant issues were ventilated.

10    As to the question of remitter, the Court considers that this is an appropriate case in which to remit the matter to Comcare. While noting the Tribunal’s view at [4] of its reasons for decision that it had power to deal with any issue under s 19 of the Act, the question whether or not the Tribunal has that power in relation to s 19(4) was not the subject of appeal to us; nor has the issue been fully argued before us. Assuming, without deciding, that the Tribunal has that power, The Court considers that in the circumstances of this case it is appropriate that the matter be remitted to Comcare for reconsideration according to law. That is primarily because, to date, no determination has been made by either Comcare or the Tribunal under s 19(4). The Court considers that it is preferable and desirable if Comcare make a primary determination on the matter. Such determination will then attract the right to seek a full merits review before the Tribunal of the primary determination. If, alternatively, the matter were remitted to the Tribunal, neither party would have a right to seek a full merits review of the Tribunal’s decision and would be limited to an appeal under s 44 of the AAT Act and, possibly, judicial review, neither of which would extend to a review of the facts.

11    In view of Order 2(2) made by the primary judge on 23 May 2013 remitting the matter to Comcare, it is unnecessary for us to make a further order to that effect.

12    The Court makes the following additional order:

1.    The Appellant/Cross-Respondent is to pay the Respondent/Cross-Appellant’s costs of and incidental to the appeal and the cross-appeal.

Associate:

Dated:    11 April 2014