Howes v Comcare (No 1) [2016] FCA 1396

FEDERAL COURT OF AUSTRALIA

Howes v Comcare (No 1) [2016] FCA 1396 File number: ACD 62 of 2016

Judge: GRIFFITHS J

Date of judgment: 22 November 2016

Catchwords: PRACTICE AND PROCEDURE – application for hearing to be vacated because of unavailability of senior counsel. Held: interlocutory application for adjournment dismissed.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Federal Court of Australia Act 1976 (Cth), s 37M(2) Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16

Cases cited: Howes v Comcare [2015] FCA 1078

Date of hearing: 22 November 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 11

Counsel for the Applicant: Mr A Anforth

Solicitor for the Applicant: Maurice Blackburn Lawyers

Solicitor for the Respondent: Mr L Woolley from Sparke Helmore Lawyers

ORDERS ACD 62 of 2016

BETWEEN: ROSEANNE HOWES Applicant

AND: COMCARE Respondent

JUDGE: GRIFFITHS J DATE OF ORDER: 22 November 2016

THE COURT ORDERS THAT:

1. The interlocutory application dated 14 November 2016 be dismissed. 2. Costs of the interlocutory application be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J: 1 By an interlocutory application dated 14 November 2016, the applicant seeks to vacate the date of the hearing of her appeal which is currently scheduled to take place on 14 December 2016. 2 That hearing date was fixed on 12 September 2016. The applicant seeks to have that date vacated and another date found in 2017 for her appeal to be heard. 3 The sole basis for the application, which is supported by an affidavit of the applicant's solicitor, is the unavailability of the applicant's senior counsel who will be overseas receiving medical treatment. 4 The proceedings concern Comcare's decision that it is not liable to pay for the cost of the applicant's breast reduction surgery. In Howes v Comcare [2015] FCA 1078, I set aside an earlier decision of the Administrative Appeals Tribunal (AAT) which rejected the applicant's claim for reimbursement in relation to that matter. Her application under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) was remitted to the AAT for reconsideration according to law. 5 The application was reconsidered by a different member of the AAT. The application was again unsuccessful. It is this decision, which was made on 30 June 2016, which is the subject of the current appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The notice of appeal was drafted by senior counsel and junior counsel. 6 Orders were made by Jagot J on 30 August 2016 for the preparation for the hearing of the appeal. 7 In accordance with those orders, on 21 November 2016 the applicant filed a written outline of submissions and a chronology. Both documents were signed by junior counsel alone. This junior counsel has been involved in the applicant's dispute with Comcare for some time. He conducted the first appeal in the AAT unled. He also appeared in the previous appeal before me, led by the same senior counsel who is now unavailable for the December hearing. The same junior counsel also appeared in the second AAT hearing unled. As noted above, the same junior counsel apparently settled the applicant's chronology and outline of written submissions in the current appeal. 8 The respondent neither consents to nor opposes the interlocutory application. 9 In my view no sufficient basis has been demonstrated to disturb the hearing date. The applicant's claim for compensation dates back to events which occurred in 2009. A claim for reimbursement was first made in 2012 and was rejected by Comcare in August 2012. 10 Having regard to the overarching purpose provisions in the Federal Court of Australia Act 1976 (Cth), and in particular the objectives specified in s 37M(2), I consider that it is in the interests of justice that this appeal be heard and determined as soon as is reasonably practicable and in accordance with the orders made back in September 2016 for the appeal to be heard in Canberra on 14 December 2016. The unavailability of senior counsel, which has only recently become known, is regrettable but it does not provide a sufficient basis for vacating the scheduled hearing date. Junior counsel is very familiar with the litigation, having been involved with it from its outset several years ago. There is no reason to doubt his competency properly to represent the applicant in the appeal. 11 The interlocutory application is dismissed. Costs will be costs in the cause. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.