Comcare v Simmons (No 2)

[2014] FCAFC 44

FEDERAL COURT OF AUSTRALIA

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

Citation:

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

Appeal from:

Simmons v Comcare [2013] FCA 484

Parties:

COMCARE v MICHAEL SIMMONS

File number:

ACD 56 of 2013

Judges:

FLICK, GRIFFITHS AND PERRY JJ

Date of judgment:

11 April 2014

Catchwords:

COSTS – whether costs of cross-appeal should follow the event in circumstances where the issues raised by the cross-appeal were also relevant to the appeal

PRACTICE AND PROCEDURE – whether previously undetermined matter should be remitted to the primary decision-maker or to the Administrative Appeals Tribunal 

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44(4)
Federal Court of Australia Act 1976 (Cth) s 28(1)(b)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(10), 19(4)

Cases cited:

Australian Capital Territory v Comcare (2012) 201 FCR 287
Comcare v Simmons [2014] FCAFC 4

Date of hearing:

28 November 2013

Date of last submissions:

25 March 2014

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Appellant:

Ms S Maharaj QC with Mr P Woulfe

Solicitor for the Appellant:

Australian Government Solicitor

Counsel for the Respondent:

Mr L Grey

Solicitor for the Respondent:

Pappas, J - Attorney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	ACD 56 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMCARE
Appellant/Cross-Respondent

AND: MICHAEL SIMMONS
Respondent/Cross-Appellant

JUDGES:	FLICK, GRIFFITHS AND PERRY JJ
DATE OF ORDER:	11 APRIL 2014
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	ACD 56 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: COMCARE
Appellant/Cross-Respondent

AND: MICHAEL SIMMONS
Respondent/Cross-Appellant

JUDGES:	FLICK, GRIFFITHS AND PERRY JJ
DATE:	11 APRIL 2014
PLACE:	SYDNEY

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…