Comcare v Broadhurst

TRACEY AND FLICK JJ: 2 On 18 March 2011 the Full Court published its reasons in this proceeding: Comcare v Broadhurst [2011] FCAFC 39. The presiding Judge, Downes J, published his own reasons; the remaining Judges published joint reasons. 3 The orders then made by the Court dismissed the appeal and dismissed the cross-appeal. Orders were made as to costs. Liberty was reserved to the parties to apply to vary the orders then made. 4 By way of a Notice of Motion filed on 24 March 2011, the appellant/cross-respondent (Comcare) sought orders varying Order 4 which ordered the cross-respondent to pay the costs of the cross-appellant. The Notice of Motion sought an order setting aside Order 4 and, in lieu, an order that the cross-appellant pay the cross-respondent's costs of the cross-appeal. 5 The Notice of Motion was initially listed for mention on 31 March 2011 before one of the Judges who constituted the Full Court. Directions were then made for the filing of written submissions in respect to the Notice of Motion to avoid the necessity for the Full Court to be reconstituted in order to hear oral argument. 6 Having considered those written submissions, it is concluded that Order 4 should be varied - but not in the manner sought in the Notice of Motion. Order 4 is to be varied such that there is to be no order for costs in respect to the cross-appeal. Each party is to bear its own costs of the cross-appeal. 7 Irrespective of whether or not it was open to Comcare to invoke Order 35 r 7 of the Federal Court Rules, liberty was expressly reserved to the parties to apply to vary the orders then made. Two considerations lead to a revision of the order as to costs previously made in respect to the cross-appeal. First, the principal issue focussed upon during the course of oral submissions was the identification of the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment to be applied - if any - when using the Comcare Guide to the Assessment of the Degree of Permanent Impairment. That issue, together with the related issue as to the application of the Legislative Instruments Act 2003 (Cth), occupied by far the greater portion of hearing time - but not all of the time. The ultimate conclusion was that the appeal should be dismissed. The conclusion was that there should be no variation to the order of the primary Judge setting aside the decision of the Tribunal. The variation of the orders made by the primary Judge as sought by Comcare on the appeal was not made. But, second, the cross-appeal was in fact dismissed. To that limited extent Comcare secured some success. It was previously not considered appropriate to either apportion costs or to make any separate order as to costs by reason of the discrete concern raised on behalf of Ms Broadhurst as to the proper construction of paragraph [61] of the reasons for decision of the primary Judge. Nor is it now considered appropriate to do so. 8 The limited success of Comcare, it is concluded, is now sufficiently recognised if there be no order as to costs in respect to the cross-appeal. Comcare should have its costs in respect to its Notice of Motion seeking a variation of Order 4. 9 Two further matters may conveniently be mentioned. 10 First, paragraph [71] of the reasons for decision set forth the deletions that were to be made to the text of Principle 12 as follows: In the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provision of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the time of assessment. There should have been no deletion of the words "under the". The text of the reasons for decision as previously published will incorporate this correction. 11 Second, in paragraph [99] there was a reference to the Federal Court Rules 1977 (Cth). That should have been a reference to the Federal Court Rules 1979 (Cth). Again, the text of the reasons for decision as previously published will incorporate this variation.