FEDERAL COURT OF AUSTRALIA Wiegand v Comcare Australia (No 2) [2007] FCA 237 PRACTICE AND PROCEDURE – set aside judgment not entered to avert miscarriage of justice – O 35 r 7(1) Federal Court Rules – relevant authority discovered in different proceedings – authority inconsistent with authorities applied ADMINISTRATIVE LAW – whether remittal to the Administrative Appeals Tribunal futile Administrative Appeals Tribunal Act 1975 (Cth) s 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) Wiegand v Comcare Australia [2006] FCA 1620 disapproved Comcare v Canute (2005) 148 FCR 232 followed Comcare v Sahu-Khan [2007] FCA 15 cited Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 cited JOACHIM WIEGAND v COMCARE AUSTRALIA No SAD 215of 2005 FINN J 1 MARCH 2007 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 215 OF 2005 BETWEEN: JOACHIM WIEGAND Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: FINN J DATE OF ORDER: 16 FEBRUARY 2007 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The judgment in Wiegand v Comcare Australia [2006] FCA 1620 be set aside. 2. The appeal be allowed. 3. The decision of the Administrative Appeal Tribunal be set aside. 4. The matter be remitted to the Tribunal to be decided again. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 215 OF 2005 BETWEEN: JOACHIM WIEGAND Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: FINN J DATE: 1 MARCH 2007 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 27 November 2006 I gave judgment in this matter in which I dismissed an appeal brought by Mr Wiegand under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Wiegand v Comcare Australia [2006] FCA 1620. His application related to an unsuccessful claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). In the following week I caused Comcare to be called on not to enter judgment. I then foreshadowed the possibility that I would exercise my power to set aside my judgment, then allow Mr Wiegand's application, set aside the Tribunal decision in question and remit the matter to the Tribunal to be reheard and determined: see O 35 r 7(1) of the Federal Court Rules. 2 My reason for so acting can be shortly explained. On 29 November 2006 I heard a matter in another judge's docket which involved an appeal under the AAT Act, this time by Comcare, raising an issue of construction of the definition of "disease" in s 4(1) of the SRC Act which was contrary to that assumed to be, or else accepted by Comcare as, correct in the earlier matter and on which I had relied. Different counsel appeared in each matter. 3 It was only during the hearing of the latter matter that I became aware of the dictum of French and Stone JJ in Comcare v Canute (2005) 148 FCR 232 at [63]-[66] with which, with respect, I agreed, but which nonetheless was inconsistent with the test that I had applied in Wiegand. 4 On 19 January 2007 I delivered judgment in the latter matter. I upheld the construction of the s 4(1) definition propounded by Comcare, but dismissed the application on the basis that it would be futile to remit the matter having regard to the findings made by the Tribunal: Comcare v Sahu-Khan [2007] FCA 15. 5 I subsequently heard the parties in this matter on the question whether my judgment should be set aside and the orders made that I had foreshadowed. On 16 February 2007 I made those orders. Accepting that the discretion to set aside a judgment not entered should be exercised with caution, I am satisfied that the circumstances of this matter warrant the course I have taken. A miscarriage of justice is being averted. 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute, I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation). 7 It clearly was the case in the present matter that Dr Coyte, the medical practitioner whose evidence the Tribunal accepted, gave his evidence concerning what matters contributed in a material degree to Mr Wiegand's condition after being directed by the Tribunal in accordance with the less exacting Treloar test. That direction was given after Dr Coyte had been asked by Mr Wiegand in oral examination about whether his employment did or did not contribute materially to his condition, to which Dr Coyte replied: "one would have to define what degree of contribution is material". 8 I am satisfied that Dr Coyte's evidence was contrived by the Treloar direction. I am not satisfied that it would not have been different and more discerning if he had been properly directed. Given the significance attributed to Dr Coyte's evidence in the Tribunal's reasons, I am not prepared to say that it would be futile to remit the matter to the Tribunal because if it applied the proper test it would nonetheless be driven ineluctably to the same conclusion. 9 Accordingly, I have made the orders I earlier foreshadowed. I would add that, in my view, Comcare should have appropriate procedures in place to ensure consistency in the stances it takes on matters of statutory interpretation. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 1 March 2007 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr S Cole Solicitor for the Respondent: Sparke Helmore Date of Hearing: 16 February 2007 Date of Judgment: 1 March 2007