2.The appellant pay the respondent’s costs of the appeal which costs are to be taxed in default of agreement.
3.Each party pay her and its costs in respect of the notices of motion respectively filed by the parties in these proceedings.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 58 OF 2002
BETWEEN:
VIVIENNE HOLT APPELLANT
AND:
COMCARE RESPONDENT
JUDGE:
O’LOUGHLIN J
DATE:
28 NOVEMBER 2002
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The appellant in these proceedings is Mrs Vivienne Holt (“Mrs Holt”), who has challenged a decision of the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal upheld an earlier decision of the respondent, Comcare, that concerned Mrs Holt’s state of health. Comcare had concluded that it was no longer liable to pay compensation to Mrs Holt, pursuant to ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth), in respect of any aggravation of her stress-related asthma.
Mrs Holt is presently fifty-four years of age or thereabouts. She was born and educated in Adelaide. She left school having attained her Intermediate Certificate and, after working for an accounting firm for a short period of time, she worked for a construction firm in a clerical capacity for approximately ten years. In November 1971, Mrs Holt married; her husband was then a member of the Australian Public Service and had been so since August 1965. She later joined the Public Service in Adelaide in July 1973 and worked in the Department of Social Security as a clerical assistant Grade 1. She was, in due course, accepted as a permanent officer and she was also accepted into the superannuation fund.
In February 1974, Mrs Holt and her husband were transferred to Canberra. He was posted as an Acting Class 5 officer in the Department of Aboriginal Affairs and she as a clerk, Class 1 in the Department of Health. However, within a relatively short time, she was promoted to an Acting Clerk Class 2/3 dealing with Ministerial correspondence, briefs and submissions.
At this stage, it is appropriate to address Mrs Holt’s medical history. The Tribunal recorded…
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.
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Details
AGLC
Holt v Comcare [2002] FCA 1484
Case
[2002] FCA 1484
Decision Date
CaseChat Overview and Summary
The appeal was heard by the Full Bench of the Federal Court of Australia. The appellant, Ms. Holt, was a former employee of the Commonwealth who claimed that she was unfairly dismissed by the respondent, Comcare. Ms. Holt's claim was dismissed by the trial judge, and she appealed this decision. The central issue before the Full Bench was whether the trial judge had correctly exercised his discretion in dismissing the appeal. The court had to determine whether there were any errors in the trial judge's approach to the assessment of the evidence and whether the trial judge had properly exercised his discretion in dismissing the appeal.
The Full Bench found that the trial judge had correctly exercised his discretion in dismissing the appeal. The court held that the trial judge had given proper consideration to the evidence and had not made any errors in his assessment of the evidence. The Full Bench found that the trial judge's reasons for dismissing the appeal were sufficient and that there were no grounds for allowing the appeal. The court also held that the appellant had not demonstrated any error on the part of the trial judge that would warrant the setting aside of the trial judge's decision.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. Each party was also ordered to pay their own costs in respect of the notices of motion filed by the parties in these proceedings. The Full Bench found that the respondent was entitled to costs on the standard basis and that the appellant had not demonstrated any special circumstances that would warrant an order for costs on an indemnity basis.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal which costs are to be taxed in default of agreement.
3. Each party pay her and its costs in respect of the notices of motion respectively filed by the parties in these proceedings.