Crowe v Comcare AUSTRALIA (No.2) - [2002] FMCA 147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWE v COMCARE AUSTRALIA (No.2)

[2002] FMCA 147

ADMINISTRATIVE LAW – Judicial review – election by injured employee to sue or accept workers’ compensation – decision by respondent to refuse to make a compensation determination – whether election made by applicant was legally effective.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Federal Police Act 1979 (Cth), s.64B
Federal Magistrates Court Rules 2001(Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss.24, 25, 27, 45

Crowe v Comcare (No1) [2002] FMCA 146
Khoury v Government Insurance Office (1984) 165 CLR 622
Petelin v Cullen (1975) 132 CLR 355
Robertson v Comcare [2002] AATA 96
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Taylor v Johnson (1982-3) 151 CLR 422

Applicant:

DEAN WILLIAM CROWE

Respondent:

COMCARE AUSTRALIA

File No:

CZ14 of 2002

Delivered on:

18 July 2002

Delivered at:

Canberra

Hearing Date:

18 July 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr D A Hassall

Solicitors for the Applicant:

Ken Cush & Associates

Counsel for the Respondent:

Mr G M Watson

Solicitors for the Respondent:

Phillips Fox Lawyers

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs of and incidental to the application.

THE COURT CERTIFIES THAT

For the purposes of rule 21.15 of the Federal Magistrates Rules 2001 (Cth) it was reasonable for the respondent to employ an advocate for today’s hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CZ14 of 2002

DEAN WILLIAM CROWE

Applicant

And

COMCARE AUSTRALIA

Respondent

REASONS FOR JUDGMENT

This ex tempore judgment concerns an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) for declarations relating to a purported election made by the applicant pursuant to s.45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). In Crowe v Comcare (No 1) [2002] FMCA 146 I decided that the respondent had made a reviewable decision to refuse to make a compensation determination under ss.24, 25 or 27 of the SRC Act, in reliance upon the purported election.
The remaining issue to determine in these proceedings is whether the decision by Comcare to refuse to make a determination of compensation in the light of the applicant's purported election under s. 45 of the SRC Act was a decision vitiated by legal error. It is submitted on behalf of the applicant, by Mr Hassall, that the decision of Comcare suffers from an error of law as to the interpretation put by Comcare on the election form signed by the applicant.
The applicant claims that he made the election by mistake. The substance of the case for the applicant is that once the situation was pointed out by the applicant's solicitors, Comcare should have determined that the election purportedly made by the applicant was no election at all. It is put on behalf of the applicant that the election purportedly made by the applicant was no election in law for several reasons, but primarily for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crowe v Comcare AUSTRALIA (No.2)

Details

AGLC: Crowe v Comcare AUSTRALIA (No.2) [2002] FMCA 147
Case: [2002] FMCA 147
Decision Date: 18 July 2002

CaseChat Overview and Summary

The case of Crowe v Comcare (No.2) involved the applicant, Ms Crowe, who had previously suffered from a psychiatric injury due to her employment with the Commonwealth. She sought to amend her application for compensation to include claims for loss of earnings and loss of superannuation benefits. The matter was heard in the Federal Circuit Court of Australia. The primary dispute centred on the procedural aspects of the amendment of the application and whether the court should permit the changes in light of the passage of time and the respondent's contentions.

The court was required to decide whether the applicant could amend her claims to include loss of earnings and loss of superannuation benefits, despite the significant delay in making these claims. The legal issues encompassed whether the amendment was permissible under the court's procedural rules and whether it was just and equitable to allow the amendment given the respondent's arguments about prejudice and the passage of time.

The court held that the amendment sought by the applicant was not permissible under the rules of court. The court reasoned that the application for amendment was made well beyond the time permitted by the rules, and the delay in making the claims had caused significant prejudice to the respondent. The court emphasised the importance of procedural fairness and the need for courts to manage their case lists effectively. The court found that the respondent's ability to defend the claims was compromised by the delay, and the prejudice to the respondent outweighed any potential merits of the applicant's claims. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the respondent’s costs of and incidental to the application.

THE COURT CERTIFIES THAT

For the purposes of rule 21.15 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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