Goodricke v Comcare

[2015] FCA 611

FEDERAL COURT OF AUSTRALIA

Goodricke v Comcare [2015] FCA 611

Citation:	Goodricke v Comcare [2015] FCA 611
Appeal from:	Goodricke v Comcare [2015] FCCA 506
Parties:	PETER GOODRICKE v COMCARE
File number:	QUD 127 of 2015
Judge:	COLLIER J
Date of judgment:	19 June 2015
Catchwords:	COSTS – interlocutory application dismissed as incompetent – whether order for costs of and incidental to interlocutory application should be made or reserved pending determination of substantive appeal – s 43 Federal Court of Australia Act 1976 (Cth)
Legislation:	Constitution s 51(xxxi) Administrative Appeals (Judicial Review) Decisions Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	Goodricke v Comcare [2015] FCCA 506
Date of hearing:	Heard on the papers
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	Ms FE Dempsey of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 127 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	PETER GOODRICKE Appellant
AND:	COMCARE Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	19 JUNE 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

Costs be reserved pending judgment in the substantive appeal in QUD 127/2015.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 127 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	PETER GOODRICKE Appellant
AND:	COMCARE Respondent

JUDGE:	COLLIER J
DATE:	19 JUNE 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 19 May 2015 I ordered that an interlocutory application filed by the appellant in this matter be dismissed. I made no orders as to costs, other than that both parties file short submissions in respect of the costs of the interlocutory application.

2. In his substantive application Mr Goodricke appeals from a decision of the Federal Circuit Court given 5 March 2015 (Goodricke v Comcare [2015] FCCA 506). In that decision the learned trial Judge dismissed Mr Goodricke’s application under the Administrative Appeals (Judicial Review) Decisions Act 1977 (Cth) in respect of an action proposed to be taken by the respondent, Comcare. The proposed action of the respondent was the cessation of compensation payments to Mr Goodricke, although at the time of the hearing before the Court below the respondent had not made a decision as to whether it would cease making those payments.

3. In summary, the grounds of appeal filed 25 March 2015 relate to:

   ·whether the Commonwealth has acquired property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution;

   ·whether the matter of discretion and refusal of the application for review of the determination of the appellant’s normal weekly earnings constituted an error of law;

   ·the medical evidence before the trial Judge.

4. As a factual matter, it appears that following the decision of the Federal Circuit Court the respondent (on 31 March 2015) proceeded to actually make a decision, which was to cease making compensation payments to Mr Goodricke.

5. In an interlocutory application filed on 24 April 2015 in this appeal, Mr Goodricke sought the following orders:

   (1)Act on the determination of the 31ST of March 2015 of Monique Buerckner claiming the applicant has no entitlement under section 16 and 19 of the SRC ACT

   (2)The respondedent pay the applicant the entitlements under section 19 of the SRC ACT and Medical expences under section 16 of the SRC ACT

   (Errors in original.)

6. In the course of case managing the appeal and in light of the filing of the interlocutory application, I ordered that the matter be listed for directions on 19 May 2015. On that date I put to Mr Goodricke the proposition that his interlocutory application was misconceived because it sought review of a decision of the respondent made on 31 March 2015 (that is after, but following on from, the decision of the Court below) and to that extent it was not possible to simply incorporate a review of the later decision of the respondent into the appeal from the decision of the Federal Circuit Court. I further put it to Mr Goodricke that, as a result, his interlocutory application was not competent.

7. Mr Goodricke was unable to provide a satisfactory response to these propositions, and I considered that the proper course was to dismiss the interlocutory application without further argument. I also suggested to Mr Goodricke that he endeavour to obtain legal advice in respect of his appeal.

8. In so far as concerns the costs of the interlocutory application, Mr Goodricke submits he is endeavouring to obtain legal advice, and that an appropriate order is to reserve costs pending the outcome of the appeal.

9. The respondent seeks its costs of and incidental to the interlocutory application, in summary because:

   ·the interlocutory application was without merit, sought orders which were unclear and related to a determination that did not form part of the decision under appeal;

   ·the interlocutory decision was dismissed for want of competence on the first return date;

   ·the determination, which was the subject of the interlocutory application, was made prior to the filing of the appeal, albeit only the day before, yet despite this them appellant did not:

   ○make reference to the relevant determination or any intention to seek to have it form part of the appeal in the notice of appeal;

   ○file the interlocutory application prior to the first directions hearing, meaning that it could have been dealt with on that occasion; or

   ○raise the possible interlocutory application at the first directions hearing on 21 April 2015, despite this being part of the case management discussion;

   ·as a result of the appellant’s conduct the Court listed a further directions hearing to deal with the interlocutory application. Given the timetabling orders that had already been made by the Court this additional appearance would not otherwise have been required.

10. The Court clearly has a broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) concerning costs orders. In my view the appropriate order is to reserve costs in respect of the appellant’s interlocutory application pending the outcome of the appeal from the Court below. While I consider that the interlocutory application was incompetent, it may be that with proper legal advice Mr Goodricke would have sought interlocutory relief framed in a manner more appropriate to his circumstances, for example, a stay of the decision of the respondent of 31 March 2015 pending the outcome of the appeal. The incompetence of the interlocutory application was clearly referable to Mr Goodricke being a litigant in person without skilled legal advice. It appears that the outcome of the appeal will directly affect the status of the respondent’s decision of 31 March 2015. I note that I am the docket Judge on the substantive appeal. In such circumstances I consider it proper that the question of costs of the interlocutory application filed 24 April 2015 be dealt with at the same time as costs of the substantive appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        19 June 2015