Comcare v Davies (No 2)

[2008] FCA 566

FEDERAL COURT OF AUSTRALIA

Comcare v Davies (No 2) [2008] FCA 566

PRACTICE AND PROCEDURE – Federal Court Rules 1979 (Cth) O 35(7)(1) – liberty to apply – variation of orders not entered

Federal Court Rules 1979 (Cth) O 35(7)(1)

Comcare v Davies [2008] FCA 393 cited

COMCARE v KERRY JOY DAVIES

ACD 49 OF 2007

FLICK J
24 APRIL 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 49 OF 2007

BETWEEN:	COMCARE Applicant
AND:	KERRY JOY DAVIES Respondent

JUDGE:	FLICK J
DATE OF ORDER:	24 APRIL 2008
WHERE MADE:	CANBERRA

THE ORDERS OF THE COURT ARE:

1.Order 3 of the orders made on 27 March 2008, namely that “The matter be remitted to the Tribunal for further consideration in accordance with law” be varied pursuant to Order 35(7)(1) of the Federal Court Rules 1979 (Cth) such that the Order now read:

3.     The matter be remitted to the Tribunal for further consideration in accordance with law for the determination of the following issues:

(a)   What may constitute suitable employment other than the Respondent’s Bali Gardens business; and

(b)  The quantification of the Respondent’s ability to earn.

2.There be no order as to costs of the present application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 49 OF 2007

BETWEEN:	COMCARE Applicant
AND:	KERRY JOY DAVIES Respondent

JUDGE:	FLICK J
DATE:	24 APRIL 2008
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. In this matter on 27 March 2008 reasons for decision were published allowing an appeal from the decision of the Administrative Appeals Tribunal given on 3 October 2007: Comcare v Davies [2008] FCA 393.

2. One of the orders then made was that the decision of the Tribunal was to be set aside. Liberty was reserved for the parties to apply within seven days should one or the other seek to have the orders varied. That liberty was not invoked but the orders as made on 27 March 2008 have not yet been entered.

3. Today, however, an oral application was made in accordance with O 35(7)(1) of the Federal Court Rules 1979 (Cth) to vary Order 3 as made on 27 March 2008. The application is supported by both parties.

4. Order 3 of the orders made on 27 March 2008 was that:

   3. The matter be remitted to the Tribunal for further consideration in accordance with law.

5. Pursuant to Order 35(7)(1) that Order is now varied such that the order in lieu thereof is as follows:

   3.     The matter be remitted to the Tribunal for further consideration in accordance with law for the determination of the following issues:

   (a)   What may constitute suitable employment other than the Respondent’s Bali Gardens business; and

   (b)  The quantification of the Respondent’s ability to earn.

6. There will be no order for costs as to the application this morning.

   ORDERS

7. The orders of the Court are:

   1.Order 3 of the orders made on 27 March 2008, namely that “The matter be remitted to the Tribunal for further consideration in accordance with law” be varied pursuant to Order 35(7)(1) of the Federal Court Rules 1979 (Cth) such that the Order now read:

   3.   The matter be remitted to the Tribunal for further consideration in accordance with law for the determination of the following issues:

   (a)  What may constitute suitable employment other than the Respondent’s Bali Gardens business; and

   (b) The quantification of the Respondent’s ability to earn.

   2.There be no order as to costs of the present application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        24 April 2008

Solicitor for the Applicant: P Woulfe (Dibbs Abbott Stillman)

Date of Hearing:	24 April 2008
Date of Judgment:	24 April 2008