Comcare v Broadhurst (No 2)

[2011] FCAFC 60

FEDERAL COURT OF AUSTRALIA

Comcare v Broadhurst (No 2) [2011] FCAFC 60

Citation:		Comcare v Broadhurst (No 2) [2011] FCAFC 60
Appeal from:		Broadhurst v Comcare [2010] FCA 1034
Parties:		COMCARE v KAREN BROADHURST; KAREN BROADHURST v COMCARE
File number:		ACD 36 of 2010
Judges:		DOWNES, TRACEY AND FLICK JJ
Date of judgment:		6 May 2011
Catchwords:		COSTS – Notice of Motion – liberty to apply – variation of costs order
Legislation:		Federal Court Rules O 35 r 7
Cases cited:		Comcare v Broadhurst [2011] FCAFC 39, cited
Date of hearing:	Heard on the papers
Date of last submissions:	18 April 2011
Place:	Sydney (Heard in Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Appellant/Cross-Respondent:	Mr D O’Donovan
Solicitor for the Appellant/Cross-Respondent:	DibbsBarker
Counsel for the Respondent/Cross-Appellant:	Mr R Crowe SC
Solicitor for the Respondent/Cross-Appellant:	Capital Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY AND FLICK JJ
DATE OF ORDER:	6 MAY 2011
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.Order 4 as made on 18 March 2011 is vacated and in lieu thereof it is ordered that

“4.  There be no order as to costs in respect to the cross-appeal.”

2.The Notice of Motion as filed on 24 March 2011 is otherwise dismissed.

3.The cross-appellant is to pay the costs of the cross-respondent in respect to the said Notice of Motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY AND FLICK JJ
DATE:	6 MAY 2011
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

DOWNES J

1. The cross-respondent, Comcare, seeks a variation of the costs order made in this matter.  The costs order was prepared by the majority judges.  In my reasons for decision I set out the costs orders I proposed and explained why they were appropriate.  Nothing in the further submissions now put to the court causes me to change my opinion as to the appropriate costs order.  The motion should be dismissed with costs.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        6 May 2011

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY AND FLICK JJ
DATE:	6 MAY 2011
PLACE:	SYDNEY (HEARD IN CANBERRA)

TRACEY AND FLICK JJ:

1. On 18 March 2011 the Full Court published its reasons in this proceeding: Comcare v Broadhurst [2011] FCAFC 39. The presiding Judge, Downes J, published his own reasons; the remaining Judges published joint reasons.

2. The orders then made by the Court dismissed the appeal and dismissed the cross-appeal. Orders were made as to costs. Liberty was reserved to the parties to apply to vary the orders then made.

3. By way of a Notice of Motion filed on 24 March 2011, the appellant/cross-respondent (Comcare) sought orders varying Order 4 which ordered the cross-respondent to pay the costs of the cross-appellant. The Notice of Motion sought an order setting aside Order 4 and, in lieu, an order that the cross-appellant pay the cross-respondent’s costs of the cross-appeal.

4. The Notice of Motion was initially listed for mention on 31 March 2011 before one of the Judges who constituted the Full Court. Directions were then made for the filing of written submissions in respect to the Notice of Motion to avoid the necessity for the Full Court to be reconstituted in order to hear oral argument.

5. Having considered those written submissions, it is concluded that Order 4 should be varied – but not in the manner sought in the Notice of Motion. Order 4 is to be varied such that there is to be no order for costs in respect to the cross-appeal. Each party is to bear its own costs of the cross-appeal.  

6. Irrespective of whether or not it was open to Comcare to invoke Order 35 r 7 of the Federal Court Rules, liberty was expressly reserved to the parties to apply to vary the orders then made. Two considerations lead to a revision of the order as to costs previously made in respect to the cross-appeal. First, the principal issue focussed upon during the course of oral submissions was the identification of the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment to be applied – if any – when using the Comcare Guide to the Assessment of the Degree of Permanent Impairment. That issue, together with the related issue as to the application of the Legislative Instruments Act 2003 (Cth), occupied by far the greater portion of hearing time – but not all of the time. The ultimate conclusion was that the appeal should be dismissed. The conclusion was that there should be no variation to the order of the primary Judge setting aside the decision of the Tribunal. The variation of the orders made by the primary Judge as sought by Comcare on the appeal was not made. But, second, the cross-appeal was in fact dismissed. To that limited extent Comcare secured some success. It was previously not considered appropriate to either apportion costs or to make any separate order as to costs by reason of the discrete concern raised on behalf of Ms Broadhurst as to the proper construction of paragraph [61] of the reasons for decision of the primary Judge. Nor is it now considered appropriate to do so.

7. The limited success of Comcare, it is concluded, is now sufficiently recognised if there be no order as to costs in respect to the cross-appeal. Comcare should have its costs in respect to its Notice of Motion seeking a variation of Order 4.

8. Two further matters may conveniently be mentioned.

9. First, paragraph [71] of the reasons for decision set forth the deletions that were to be made to the text of Principle 12 as follows:

   In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provision of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment.

   There should have been no deletion of the words “under the”. The text of the reasons for decision as previously published will incorporate this correction.

10. Second, in paragraph [99] there was a reference to the Federal Court Rules 1977 (Cth). That should have been a reference to the Federal Court Rules 1979 (Cth). Again, the text of the reasons for decision as previously published will incorporate this variation.

    ORDERS

11. The Orders of the Court are:

    1.Order 4 as made on 18 March 2011 is vacated and in lieu thereof it is ordered that

    “4.  There be no order as to costs in respect to the cross-appeal.”

    2.The Notice of Motion as filed on 24 March 2011 is otherwise dismissed.

    3.The cross-appellant is to pay the costs of the cross-respondent in respect to the said Notice of Motion.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey and Flick.

Associate:

Dated:        6 May 2011