Hewett v Comcare (No 2)

[2020] FCA 703

FEDERAL COURT OF AUSTRALIA

Hewett v Comcare (No 2) [2020] FCA 703

Appeal from:

Hewett and Comcare (Compensation) [2018] AATA 302

File number:

VID 82 of 2018

Judge:

SNADEN J

Date of judgment:

26 May 2020

Catchwords:

PRACTICE AND PROCEDURE – judgment and orders – determination on orders to give effect to published reasons – identification of orders that should be made in consequence of partially successful appeal – remittal of some matters for rehearing before the Administrative Appeals Tribunal – limited remittal

COSTS – separate issues raised on appeal – appellant successful only on some of them – whether any order should be made as to costs – whether the appellant should be entitled to recover all of her costs of the appeal – costs awarded in part

Cases cited:

Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102

Hewett v Comcare [2020] FCA 527

Date of hearing:

30 September 2019

Date of last submissions:

14 May 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Appellant:

Mr M X Carey

Solicitor for the Appellant:

Patrick Robinson & Co

Counsel for the Respondent:

Mr J R Wallace

Solicitor for the Respondent:

Sparke Helmore

ORDERS

VID 82 of 2018

BETWEEN:

MONTIRA HEWETT

Appellant

AND:

COMCARE

Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	26 MAY 2020

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The decision of the Administrative Appeals Tribunal published on 4 January 2018 as Re Hewett and Comcare (Compensation) [2018] AAT 302 is set aside insofar as it pertains to reviewable decisions that concerned claims made by the appellant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an alleged psychiatric injury.

3.The applications that were the subject of the following matters in the Administrative Appeals Tribunal, namely:

(a)matter 2015/4950; and

(b)matter 2015/4953,

be remitted to the Administrative Appeals Tribunal for rehearing in their entirety.

4.The application that was the subject of matter 2017/2841 in the Administrative Appeals Tribunal be remitted to the Administrative Appeals Tribunal for rehearing insofar as it pertains to reviewable decisions that concerned claims made by the appellant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an alleged psychiatric injury.

5.The applications remitted for rehearing by reason of orders 3 and 4 are to be heard by a member of the Administrative Appeals Tribunal other than the member that made the decision referred to in order 2 above.

6.The respondent pay 50 per cent of the appellant’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN‑COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1. On 23 April 2020, the court part-allowed Ms Hewett’s appeal against a decision of the Administrative Appeals Tribunal:  Hewett v Comcare [2020] FCA 527 (Snaden J; hereafter, the…