Comcare v Mooi, Paul

[1996] FCA 580

FEDERAL COURT OF AUSTRALIA       )  No. QG 75 of 1995
QUEENSLAND DISTRICT REGISTRY   )
GENERAL DIVISION  )

ON APPEAL FROM THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:              COMCARE

Applicant

AND:  PAUL MOOI

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  2 July 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1. The respondent be granted a costs certificate under s 6 the Federal Proceedings (Costs) Act 1981 (Cth).

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

FEDERAL COURT OF AUSTRALIA       )  No. QG 75 of 1995
QUEENSLAND DISTRICT REGISTRY   )
GENERAL DIVISION  )

ON APPEAL FROM THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:              COMCARE

Applicant

AND:  PAUL MOOI

Respondent

REASONS FOR JUDGMENT

On 26 June last I published my reasons for allowing Comcare’s appeal against the decision of the Administrative Appeals Tribunal in favour of the respondent.  I ordered that the respondent pay the appellant’s costs of the appeal.

At the hearing, the respondent applied for a costs certificate under s 6 the Federal Proceedings (Costs) Act 1981 (Cth) in the event that I were to allow the appeal.

The appeal having succeeded on a question of law, the discretion to grant the respondent a costs certificate in respect of the appeal is enlivened.

The error of law that led to the success of the appeal before me resulted from the Tribunal accepting the submission put to it on behalf of the respondent as to the proper construction of s 14(1) the Safety Rehabilitation and Compensation Act 1988 (Cth).  But that consideration is not sufficient of itself to justify refusal of a costs certificate, for the reasons given in Lauchlan v Hartley [1980] Qd R 149, a decision on Queensland legislation corresponding to the Commonwealth Act.

I do not think the point successfully taken in the proceedings before the Tribunal which involved the error of law on which the appeal succeeded was an inarguable one, particularly given the continuous liberalisation of the requirements to be satisfied by Commonwealth employees to be entitled to workers’ compensation reflected in the legislative history of the 1988 Act.

I will therefore grant a certificate covering costs of the kind referred to in s 6(3)(a) and (b).

I certify that this and the preceding page
are a true copy of the reasons for judgment
of the Honourable Justice Drummond.

Associate:

Date:  2 July 1996