Comcare v Simmons (No 2) [2014] FCAFC 44

Comcare v Simmons (No 2) [2014] FCAFC 44

Comcare was ordered to pay the Respondent/Cross-Appellant's costs of and incidental to both the appeal and the cross-appeal because it showed no good reason to depart from that result: although the cross-appeal failed, its issues concerning s 8(10)(a) of the Act had to be addressed in the appeal and it was responsive and protective. The Court considered remitter to Comcare appropriate because no s 19(4) determination had yet been made by Comcare or the Tribunal, and a primary determination by Comcare would preserve the opportunity for full merits review before the Tribunal; no further remitter order was needed because the primary judge had already remitted the matter to Comcare.

Jurisdiction
Australia
Judgment Date
11 April 2014
Procedural Posture
Appeal From the Federal Court of Australia Concerning Costs and Remitter Following Dismissal of Appeal and Cross Appeal / Additional Orders After Judgment in Comcare V Simmons [2014] FCAFC 4
Outcome
Additional costs order made; no further remitter order made because the primary judge's remitter to Comcare remained in place.
Legal Topics
['costs of Appeal and Cross Appeal' 'remitter to Administrative Appeals Tribunal or Primary Decision Maker' 'safety, Rehabilitation and Compensation Act 1988 (cth) S 19(4)' 'construction of Safety, Rehabilitation and Compensation Act 1988 (cth) S 8(10)']
['administrative Law' 'workers Compensation' 'practice and Procedure' 'costs'] ['costs of Appeal and Cross Appeal' 'remitter to Administrative Appeals Tribunal or Primary Decision Maker' 'safety, Rehabilitation and Compensation Act 1988 (cth) S 19(4)' 'construction of Safety, Rehabilitation and Compensation Act 1988 (cth) S 8(10)']

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Procedural Posture

Appeal From the Federal Court of Australia Concerning Costs and Remitter Following Dismissal of Appeal and Cross Appeal / Additional Orders After Judgment in Comcare V Simmons [2014] FCAFC 4

Legal Issues

  1. 1 ["Whether Comcare should pay the Respondent/Cross-Appellant's costs of both the appeal and the cross-appeal despite the cross-appeal being unsuccessful." 'Whether the matter should be remitted to the Administrative Appeals Tribunal or to Comcare for reconsideration under s 19(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).' 'Whether the Court had power to remit the matter directly to Comcare.']

Ratio Decidendi

Comcare was ordered to pay the Respondent/Cross-Appellant's costs of and incidental to both the appeal and the cross-appeal because it showed no good reason to depart from that result: although the cross-appeal failed, its issues concerning s 8(10)(a) of the Act had to be addressed in the appeal and it was responsive and protective. The Court considered remitter to Comcare appropriate because no s 19(4) determination had yet been made by Comcare or the Tribunal, and a primary determination by Comcare would preserve the opportunity for full merits review before the Tribunal; no further remitter order was needed because the primary judge had already remitted the matter to Comcare.

Court Disposition

Additional costs order made; no further remitter order made because the primary judge's remitter to Comcare remained in place.

Orders

  • ["The Appellant/Cross-Respondent is to pay the Respondent/Cross-Appellant's costs of and incidental to the appeal and the cross-appeal."]