FEDERAL COURT OF AUSTRALIA
Comcare v Martinez [2013] FCA 160
Citation: Comcare v Martinez [2013] FCA 160 Parties: COMCARE v MARIA MARTINEZ File number: ACD 90 of 2012 Judge: ROBERTSON J Date of judgment: 6 March 2013 Catchwords: PRACTICE AND PROCEDURE – appeal on a question of law – application for leave to intervene – discretionary considerations – whether the applicant to intervene will make a useful and different contribution Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 97
Federal Court Rules 2011 r 9.12Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73
Re Boyd and Comcare (1991) 23 ALD 392; 14 AAR 30
Re Carolyn Joy Gray and Commonwealth Banking Corporation and Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees [1989] AATA 149
Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222Date of hearing: 28 February 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: Mr A Berger Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr LT Grey Solicitor for the Respondent: Colquhoun Murphy Counsel for the proposed Intervener: Mr GR Kennett SC Solicitor for the proposed Intervener: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 90 of 2012
BETWEEN: COMCARE
ApplicantAND: MARIA MARTINEZ
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
6 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application by the Secretary, Department of Education, Employment and Workplace Relations to intervene is refused.
2.The Secretary, Department of Education, Employment and Workplace Relations pay the respondent’s costs of the interlocutory application, as agreed or taxed.
Note:Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 90 of 2012
BETWEEN: COMCARE
ApplicantAND: MARIA MARTINEZ
Respondent
JUDGE:
ROBERTSON J
DATE:
6 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
On 14 November 2012, the Administrative Appeals Tribunal set aside the decision under review and remitted it to Comcare under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision under review was the reviewable decision made by Comcare on 4 March 2011, affirmed on review on 25 July 2011, which denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis that the injury resulted from reasonable administrative action taken in a reasonable manner under s 5A of the SRC Act. The injury is referred to in the reasons of the Tribunal as an adjustment disorder, a psychological condition.
In an amended notice of appeal to this Court under s 44…
Continue reading Comcare v Martinez
Sign in free to access the full text
- AGLC
- Comcare v Martinez [2013] FCA 160
- Case
- [2013] FCA 160
- Decision Date
CaseChat Overview and Summary
The court found that the jurisdiction of the court was limited to questions of law and that the Secretary was not a necessary party to the appeal. It was held that the Secretary had not demonstrated that the parties to the appeal would not fully present the relevant submissions, nor had she shown that her contribution would be useful and different from the parties' submissions. Justice Bromberg concluded that the application for leave to intervene should be refused. The court also determined that the Secretary must pay the respondent’s costs of the interlocutory application. This outcome was based on the court's assessment that the Secretary's application did not meet the criteria for intervention under the relevant procedural rules.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Comcare submitted before me that it was not concerned about any effect the applicant to intervene may have on Comcare’s ability to present its case.Consideration Ms Ward gave evidence in the proceedings before the Tribunal. It is not suggested that she is a necessary party. A major issue before the Tribunal was whether or not Ms Martinez’ condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment within s 5A of the SRC Act. This is not a case where findings were made about a person who did not give evidence where the findings were peripheral to an issue. Thus there is very substantial overlap between the questions of law raised by Comcare and the matters of interest to the Secretary. Hence the submission on behalf of the Secretary on her application to intervene that she would give a different emphasis to the issues. In my opinion a significant factor in determining the application for leave to intervene is the nature of the jurisdiction being exercised by the Court. As I have said, the jurisdiction is limited to a question or questions of law. While the amended notice of appeal raises issues in relation to Ms Ward’s conduct those issues are, necessarily, limited to legal errors which answer the description “on a question of law”. Further, it is not suggested that the Court should decide an ultimate question of fact. In the circumstances of the present appeal, as I read the amended notice of appeal, the evidence will be limited to the factual evidence or other material which was before the Tribunal. Next, in my view it cannot be said that the Secretary is a necessary party to the appeal. It is not suggested that the SRC Act imposes a direct statutory liability on the Secretary or on the Department. That liability is imposed on Comcare. I accept however that s 97 of the SRC Act, which provides that Comcare must make a determination of the amount of premium to be paid by each Entity in respect of each financial year, means that there is an indirect financial consequence for each Entity, of which the Department is one. The Secretary puts the application, in significant part, on the basis of reputation. I will assume an indirect affection of legal interest although it is difficult to see how that interest resonates with the SRC Act: cf Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250. However, most importantly, the applicant to intervene has not shown that the parties to the appeal, in particular Comcare, will not present fully the submissions on the relevant issues, being submissions which the Court should have to assist it to reach a correct determination. Also I am not satisfied that the proposed intervener’s contribution will be useful and different from the contribution of the parties to the proceeding: see r 9.12(2)(a). I should add that I place no reliance on the matters noted by the respondent which I have reproduced at [21](e) and (f) above. No prejudice was pointed to by the respondent arising from the time or timing of the proposed intervener’s application.