Comcare v Broadhurst [2011] FCAFC 39

Comcare v Broadhurst [2011] FCAFC 39

Principle 12 of the Comcare Guide could not operate according to its terms to incorporate the American Medical Association's Guides current at the time of assessment, because s 14(2) of the Legislative Instruments Act 2003 (Cth) precluded incorporation of such material as in force from time to time and no contrary intention appeared. Applying s 13 of that Act, Principle 12 was to be read down so that the edition incorporated was the fifth edition, which was current when the Comcare Guide took effect in March 2006. The primary judge's order setting aside the Tribunal's decision was not varied, but the matter was remitted to the Tribunal to be heard and decided again consistently with the...

Jurisdiction
Australia
Judgment Date
18 March 2011
Procedural Posture
Appeal and Cross Appeal From a Federal Court Decision on Appeal From the Administrative Appeals Tribunal / Full Court of the Federal Court
Outcome
Appeal dismissed; cross-appeal dismissed; case remitted to the Administrative Appeals Tribunal to be heard and decided again consistently with the reasons.
Legal Topics
['legislative Instruments' 'incorporation of External Material From Time to Time' 'comcare Guide to the Assessment of the Degree of Permanent Impairment' 'permanent Impairment Assessment' 'remittal to Administrative Appeals Tribunal' 'notice of Contention']
['administrative Law' 'practice and Procedure' 'workers Compensation'] ['legislative Instruments' 'incorporation of External Material From Time to Time' 'comcare Guide to the Assessment of the Degree of Permanent Impairment' 'permanent Impairment Assessment' 'remittal to Administrative Appeals Tribunal' 'notice of Contention']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From a Federal Court Decision on Appeal From the Administrative Appeals Tribunal / Full Court of the Federal Court

Legal Issues

  1. 1 ["Whether Principle 12 of the Comcare Guide validly incorporated the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the time of assessment." "Whether Principle 12 should be read down so as to incorporate the fifth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment rather than the sixth edition." "Whether the reference in Principle 12 to chronic pain conditions prevented use of the American Medical Association's Guides in assessing Ms Broadhurst's impairment." 'Whether observations by the primary judge about Table 15.3 of the fifth edition bound the Tribunal on remittal.' 'Whether the matter should be remitted to the Administrative Appeals Tribunal and whether any direction should be given about its constitution.' 'Whether the issues should have been raised by notice of contention rather than appeal or cross-appeal.']

Ratio Decidendi

Principle 12 of the Comcare Guide could not operate according to its terms to incorporate the American Medical Association's Guides current at the time of assessment, because s 14(2) of the Legislative Instruments Act 2003 (Cth) precluded incorporation of such material as in force from time to time and no contrary intention appeared. Applying s 13 of that Act, Principle 12 was to be read down so that the edition incorporated was the fifth edition, which was current when the Comcare Guide took effect in March 2006. The primary judge's order setting aside the Tribunal's decision was not varied, but the matter was remitted to the Tribunal to be heard and decided again consistently with the...

Court Disposition

Appeal dismissed; cross-appeal dismissed; case remitted to the Administrative Appeals Tribunal to be heard and decided again consistently with the reasons.

Orders

  • ['The appeal be dismissed.' "The appellant is to pay the respondent's costs of the appeal." 'The cross-appeal be dismissed.' 'The cross-respondent is to pay the costs of the cross-appellant.' 'The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.' 'Liberty is reserved to...