Comcare v Broadhurst [2011] FCAFC 39

FEDERAL COURT OF AUSTRALIA

Comcare v Broadhurst [2011] FCAFC 39 Citation: Comcare v Broadhurst [2011] FCAFC 39

Appeal from: Broadhurst v Comcare [2010] FCA 1034

Parties: COMCARE v KAREN BROADHURST; KAREN BROADHURST v COMCARE

File number: ACD 36 of 2010

Judges: DOWNES, TRACEY AND FLICK JJ

Date of judgment: 18 March 2011

Catchwords: ADMINISTRATIVE LAW – legislative instruments – need for certainty – cannot incorporate material "from time to time" – remittal of proceeding to Administrative Appeals Tribunal – whether it should be differently constituted PRACTICE AND PROCEDURE – notice of contention

Legislation: Acts Interpretation Act 1901 (Cth) s 46 Administrative Appeals Tribunal Act 1975 (Cth) ss 20B, 44 Federal Court of Australia Act 1976 (Cth) s 28(1)(b) Legislative Instruments Act 2003 (Cth) ss 13, 14, 38, 42 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 28, 68 Federal Court Rules 1979 (Cth) O 52 r 22 Guide to the Assessment of the Degree of Permanent Impairment

Cases cited: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68, 176 FCR 203, cited Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 2 ALR 89, referred to Bargwanna v Commissioner of Taxation (No 3) [2011] FCAFC 18, referred to Bashar v Comcare Australia [2002] FCA 837, 69 ALD 784, cited Broadhurst and Comcare, Re [2010] AATA 251, cited Broadhurst v Comcare [2010] FCA 1034, considered Byrne v Repatriation Commission [2007] FCAFC 126, 97 ALD 359, referred to Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137, 179 FCR 554, referred to Condell v Federal Commissioner of Taxation [2007] FCAFC 44, [2007] ATC 4404, referred to Industry Research and Development Board v IMT Ltd [2001] FCA 85, referred to Jordan v Australian Postal Corporation [2007] FCA 2028, 99 ALD 303, referred to Mines v Repatriation Commission [2004] FCA 1331, 86 ALD 62, cited Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, 215 CLR 518, cited NBMB v Minister for Immigration and Citizenship [2008] FCA 149, 100 ALD 118, cited Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, cited Ross, Re; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers' Union [2001] FCA 770, 108 FCR 399, referred to Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40, 124 CLR 468, cited SZJFI v Minister for Immigration and Multicultural Affairs [2006] FMCA 1860, 206 FLR 205, cited Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905, 99 ALD 268, considered Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758, 176 FCR 153, cited Toohey and Tax Agents' Board, Re [2009] AATA 142, 49 AAR 427, cited M Batskos, "Natural Justice and the Constitution of Tribunal Membership" (1998) 16 AIAL Forum 22