Woodbridge, G.J. v Comcare
[1995] FCA 98
•23 FEBRUARY 1995
CATCHWORDS
ADMINISTRATIVE LAW - Commonwealth employees' compensation - construction of para 19(4)(g) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
COSTS - whether appellate court should interfere with order in respect of costs.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19, 68, 69; sub-s 19(4)
GRANT JAMES WOODBRIDGE V. COMCARE
NO. NG 577 OF 1994
WILCOX, EINFELD, LEE JJ.
SYDNEY
23 FEBRUARY 1995
IN THE FEDERAL COURT )
OF AUSTRALIA )
NEW SOUTH WALES )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. NG 577 OF 1994
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N: GRANT JAMES WOODBRIDGE
Appellant
and
COMCARE
Respondent
MINUTE OF ORDER
THE COURT: WILCOX, EINFELD, LEE JJ.
DATE OF ORDER: 23 FEBRUARY 1995
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
The appeal be allowed to the extent that the orders made by his Honour are to be varied by replacing item 3 thereof with an order that Comcare pay half of the appellant's costs but otherwise the appeal be dismissed.
Comcare pay half the appellant's costs of the appeal.
The cross-appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
NEW SOUTH WALES )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. NG 577 OF 1994
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N: GRANT JAMES WOODBRIDGE
Appellant
and
COMCARE
Respondent
CORAM: WILCOX, EINFELD, LEE JJ.
DATE : 23 FEBRUARY 1995
PLACE: SYDNEY
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of a Judge of this Court (Hill J.) which set aside the decision of the Administrative Appeals Tribunal ("the Tribunal") and returned the matter to the Tribunal for re-determination in accordance with law.
The matter before the Tribunal giving rise to the question of law before his Honour arose under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") formerly known as the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth). The question of law concerned construction of the Act.
The appellant, the applicant in the proceedings before his Honour, was formerly employed as a boilermaker by Australian Defence Industries Ltd. and on 3 September 1990 suffered a physical injury, namely to his right knee, in the course of his employment. The injury to the appellant resulted in the appellant being incapacitated for work for a period of approximately four weeks until February 1991.
In March 1991 the appellant resigned from his employment. Later he claimed that at the time he ceased employment he had been incapacitated for work as a result of the injury he had suffered. Alternatively, he contended that he became incapacitated for employment in July 1991.
The respondent ("Comcare") was the body corporate established by s.68 of the Act to carry out, inter alia, the functions adumbrated in s.69 of the Act. Comcare determined that no compensation was payable to the appellant under s.14 of the Act and that determination was upheld by the Tribunal.
Before the Tribunal the issue raised by the parties, particularly, relied upon by Comcare, was that the provisions of s.19 of the Act precluded liability to pay compensation arising on the facts of this case. The need to establish the occurrence of an incapacity and the date of commencement of that incapacity was not addressed in the course of the proceedings.
The grounds of the appellant's appeal to his Honour included the following:
"d.The Tribunal wrongly construed sub-section 19(4) of the Act in concluding that having resigned from his employment when certified fit to work, the Applicant would thereafter be precluded forever from recovering compensation from his employer in the event that he was, remained or subsequently became incapacitated for work as a result of the original injury."
In the course of argument his Honour identified as the real question to be decided a more specific question of construction of sub-s.19(4) of the Act which resulted in an application being made for leave to further amend the grounds of appeal as follows:
"(h)That the Tribunal erred in law in applying Section 19(4)(c) of the 1988 Act to the facts found by it in this case;
(i)That absent any finding by the Tribunal that on 23 February and/or 8 March 1991 the Applicant received an offer of suitable employment and having accepted that offer failed to engage or continue to engage in that employment, the Tribunal erred in law in applying Section 19(4)(c) of the 1988 Act;
(j)That the Tribunal erred in law in that having found that s.19(4)(c) of the 1988 Act applied and that s.19(4)(f) did not apply, it proceeded on the basis that the Applicant was thereby automatically disentitled to receive any compensation and did not have regard to any other relevant matters pursuant to s.19(4)(g) of the said Act."
The application for leave to amend was not opposed although Comcare reserved its position on the question of costs and continued to present arguments opposing the grounds of appeal as amended. In due course Comcare submitted that if the appeal succeeded on the amended grounds each party to the appeal should bear his and its own costs.
The appeal did succeed on the amended grounds and, as we have said, his Honour ordered the matter to be resubmitted to the Tribunal to be determined in accordance with law and that there be no order as to costs.
The appeal to this Court contended that his Honour erred in failing to direct the Tribunal that the appellant is entitled to have compensation assessed by Comcare from 11 March 1991, or alternatively, from 25 July 1991. The nature of the order sought only has to be thus stated to show that the appeal had no prospect of success.
What was identified by the appeal below, as shown in the reasons provided by his Honour, was that the proceeding before the Tribunal miscarried by reason of a failure to apply a proper construction of s.19 of the Act. For the Tribunal to now determine the matter according to law will require it to decide relevant matters of fact as required by the proper construction of the Act, which may include detailed consideration of the appellant's medical condition, his subsequent work history and efforts to obtain employment. Depending on the facts found, an entitlement to compensation from 11 March 1991, or from 25 July 1991, may follow but obviously no direction in those terms could have been made by his Honour.
The second issue of the appeal was whether his Honour's discretion miscarried in failing to order that Comcare pay the appellant's costs. Although mindful that only in rare cases will it be appropriate for an appellate court to interfere with the exercise by a Judge of a discretion in respect of costs, we are satisfied that the appeal should be upheld in that regard, for the following reasons.
First, the result of the appeal showed that the appellant's rights had not been properly determined by the Tribunal and the appellant had to commence the appeal to obtain an order that the matter be reconsidered by the Tribunal. The appellant succeeded in obtaining that order.
Second, the proceedings were not equivalent to litigation between civil parties. Comcare had prescribed responsibilities under the Act under the umbrella of its due administration. Not only did Comcare have a responsibility to ascertain and apply the proper construction of the Act, it had to assist the Tribunal to do likewise. By maintaining before his Honour the arguments it had submitted to the Tribunal, Comcare continued its opposition to the appeal after the amendments were made to the grounds of appeal and did not subsequently indicate that it would consider the appeal in the light of the amendments or that it would have conceded the appeal had the amendments been made before hearing of the appeal commenced.
Third, in so far as the result of the appeal provided instruction and guidance for the Tribunal, Comcare and other parties to whom the Act applies, it rendered a service that was in the public interest.
Although the appellant's costs of the appeal were met by arrangements made with the Legal Aid Office (A.C.T.), that would not be a reason to deny the appellant an order for costs that otherwise should be made.
We are of the opinion that a proper exercise of the discretion having regard to all of those matters would have resulted in an order being made that Comcare pay the appellant's costs of the appeal discounted in some degree by reason of a late amendment that better identified the true grounds of the appellant's appeal.
We have determined, therefore, that the appeal be allowed to the extent that his Honour's order be varied by replacing item 3 thereof with an order that Comcare pay half of the appellant's costs of that hearing but otherwise the appeal be dismissed. Comcare is to pay half of the appellant's costs of the appeal.
The cross-appeal, not proceeded with by the respondent when called upon, will be dismissed with costs.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of the Court.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: B. Hull
Solicitors for the Appellant: Peter Baker
Counsel for the Respondent: C.E. Adamson
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing : 23 February 1995
Date of Judgment : 23 February 1995
0
0
0