Comcare v Simmons

REASONS FOR JUDGMENT THE COURT 1 The Court delivered its judgment in the appeal on 13 February 2014 (see Comcare v Simmons [2014] FCAFC 4). Orders were made at that time that the appeal and cross-appeal be dismissed. The parties were invited, however, to seek to agree and, if necessary, provide short submissions on the question of the making of other orders to give effect to the Court's reasons. 2 In response to the Court's invitation, the Appellant (Comcare) filed submissions dated 26 February 2014. On the issue of costs, Comcare submitted that the parties had come to an agreement. Comcare contended that the agreement was to the effect that it should be ordered to pay 80 per cent of the Respondent's costs of the appeal and cross-appeal. As will emerge shortly, the Respondent denies that any such agreement was reached. 3 On the question of whether an order should be made remitting the matter to the Administrative Appeals Tribunal (the Tribunal) or to Comcare, Comcare submitted that it was appropriate to remit the matter to the Tribunal to determine whether the Respondent's failure or refusal to take up an offer of suitable employment was reasonable in all the circumstances for the purposes of s 19(4)(f) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). 4 The Respondent filed submissions on 28 February 2014. He disputed that there was any agreement between the parties on the question of costs. He submitted that Comcare should pay his costs of both the appeal and the cross-appeal. He also submitted that the matter should be remitted not to the Tribunal, but to Comcare for it to make a primary determination in respect of s 19(4) of the Act. As such, he submitted that the orders made by the primary judge remitting the matter to Comcare should not be disturbed. 5 On 27 February 2014 Comcare filed further short submissions on the issue of costs, having regard to the Respondent's denial that there was any agreement on that issue. Comcare argued that it should not have to bear the Respondent's costs of both the appeal and the cross-appeal because the Respondent was unsuccessful in his cross-appeal and Comcare had incurred costs in relation to the cross-appeal, such as in preparing written submissions on matters raised by that cross-appeal. It submitted that it should pay no more than 80 per cent of the Respondent's costs in the Court. 6 On 18 March 2014, the Court invited the parties to provide brief supplementary submissions on the specific question of the Court's power to remit the matter to Comcare, as opposed to the Tribunal. 7 In its supplementary submissions dated 25 March 2014, Comcare elaborated on the reasons why it considered that this was an appropriate case to remit the matter to the Tribunal, noting that the Tribunal had indicated that it considered that it had the power to address issues under s 19 of the Act. Comcare did not contest that the Court had the power to remit the matter to it. 8 In his supplementary submissions dated 24 March 2014, the Respondent submitted that the Court had power under both s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) to remit the matter directly to Comcare, as was done (albeit by consent) by Bennett J in Australian Capital Territory v Comcare (2012) 201 FCR 287 at 295.