Military Rehabilitation and Compensation Commission v McGuire

REASONS FOR JUDGMENT 1 Mr McGuire is aged 80 years. He has great difficulty in hearing and considerable difficulty in fully understanding the events described in these reasons. Fifty-six years ago while in service with the Defence Forces he sustained a back injury. Relatively recently he claimed against Comcare for compensation in respect of that injury. Compensation was declined. He pursued appeals. They failed. Costs orders were made against him in favour of the Military Rehabilitation and Compensation Commission (the Commission) in lieu of Comcare. He failed to meet any of those costs orders. The Commission has now relied upon State legislation to compel Mr McGuire to make payment of its costs. The main function of these reasons is to collect the history of the matters and the grounds on which the Commission is entitled to rely in seeking relief.

BACKGROUND 2 On 2 July 2004 Justice Nicholson delivered reasons on an 'appeal' (McGuire v Comcare [2004] FCA 848) from a decision of a Senior Member, Mr BH Pascoe, of the Administrative Appeals Tribunal (the Tribunal), given on 18 April 2002 in McGuire v Comcare [2002] AATA 268. In that decision the Tribunal had affirmed the decision of Comcare. It affirmed, on 15 May 2001, a determination made on 31 March 2000 that Mr McGuire was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine. 3 The Tribunal concluded that Mr McGuire had suffered an injury to his cervical spine in November 1951 which may have been aggravated in 1952 and which occurred in compensable circumstances. However the question was whether or not the injury resulted in permanent impairment of 10% or more and whether that impairment became permanent after 1 December 1988. On the evidence of Mr McGuire and the medical evidence the Tribunal was satisfied that the impairment caused by the 1951 injury was less than 10% under the Guide and became permanent well prior to 1 December 1988. The Tribunal held that further impairment had been a result of degeneration of the cervical spine resulting from congenital fusions exacerbated by degenerative osteoarthritis of the thoracic spine and rotator cuff tear. 4 The 'appeal' his Honour heard was pursuant to the provisions of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). By that decision his Honour dismissed the 'appeal' and ordered Mr McGuire to pay Comcare's costs of the application. His Honour observed that Comcare's case before the Tribunal had been that whatever impairment was suffered by Mr McGuire as a result of his injury in 1951 while he was enlisted with the Army, the impairment had stabilised long before 1 December 1988 and any impairment since 1 December 1988 was unrelated to the original injury. 5 His Honour found no error of law or, indeed any error in the determination of the Tribunal and dismissed the 'appeal' with costs. 6 This then led to an appeal to the Full Federal Court on 11 April 2005, (McGuire v Military Rehabilitation and Compensation Commission [2005] FCAFC 52). After canvassing the history, the Full Court concluded that Mr McGuire's notice of appeal disclosed no identifiable legal issues and his submissions did not assist in elucidating the matter further. In addition, after considering the evidence and the legislative framework the Full Court concluded that for its part it could discern no legal error in the approach taken nor in the ultimate conclusion made by the primary judge. The Full Court also dismissed that appeal with costs. 7 The consequence of those two adverse determinations in this Court was that Mr McGuire was required to pay costs to each of the successful respondents.