Comcare v Wuth (No 2)

[2018] FCAFC 60

FEDERAL COURT OF AUSTRALIA

Comcare v Wuth (No 2) [2018] FCAFC 60

Appeal from:

Comcare v Wuth [2017] FCA 433

File number:

ACD 29 of 2017

Judges:

SIOPIS, FLICK AND PERRY JJ

Date of judgment:

18 April 2018

Catchwords:

COSTS – where each party was successful in respect of key aspects of the case – where case assumed a different complexion following abandonment of a ground by the successful party – where matter of precedential value to successful party – no order as to costs made

Legislation:

Federal Court of Australia Act 1976 (Cth)

Cases cited:

Hughes v Western Australian Cricket Association(Inc) [1986] FCA 382; [1986] ATPR 40-748

Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229

Shord v Commissioner of Taxation (No 2) [2018] FCAFC 27

Date of hearing:

24 November 2017

Date of last submissions:

6 April 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Appellant:

Mr P J Hanks QC with Mr P G Woulfe

Solicitor for the Appellant:

Comcare

Counsel for the Respondent:

Mr L T Grey with Mr J Mrsic

Solicitor for the Respondent:

Gabbedy Milson Lee

ORDERS

ACD 29 of 2017

BETWEEN:

COMCARE

Appellant

AND:

NICOLE WUTH

Respondent

JUDGES:	SIOPIS, FLICK AND PERRY JJ
DATE OF ORDER:	18 APRIL 2018

THE COURT ORDERS THAT:

1.The appeal is allowed in part.

2.Order 1 of the primary judge made on 27 April 2017 is set aside.  In substitution, it is ordered that:

a.The appeal is allowed.

b.Decision 2 made by the Administrative Appeals Tribunal in application 2014/4007 on 9 December 2015, to set aside the appellant’s decision and substitute another decision, is set aside.

c.The matter is remitted to the Tribunal, differently constituted by reason of the expiry of the term of the presiding member, for reconsideration according to law.

d.In reconsidering the matter:

i. the Tribunal is to give the parties an opportunity to lead evidence and make submissions directed to the "clinical judgment" assessment methodology provided by Section 1.5 of the fifth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5); and

ii. in so doing, the Tribunal is not to confine the parties to any particular table or tables of the AMA5.

3.Order 4 of the primary judge made on 27 April 2017 is set aside.

4.Each party is to bear their own costs of the appeal and cross-appeal before the primary judge.

5.Each party is to bear their own costs of the appeal to the Full Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.               INTRODUCTION

1. On 3 April 2018, we made orders allowing Comcare’s appeal in part:  Comcare v Wuth [2018] FCAFC 13 (Wuth (No. 1)).  Order 2(a) of those orders also afforded the parties the opportunity to file written submissions as to…