FEDERAL COURT OF AUSTRALIA
Bailey v Broadsword Marine Contractors Pty Ltd
[2017] FCAFC 219
Appeal from: Bailey v Broadsword Marine Contractors Pty Ltd [2016] AATA 1048 File number: QUD 21 of 2017 Judges: RARES, REEVES AND DERRINGTON JJ Date of judgment: 22 December 2017 Catchwords: ADMINISTRATIVE LAW – whether the appellant had suffered an “injury” under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – distinction between “disease” and “injury” in its primary sense considered – effect of “sudden” or “dramatic” change considered – exclusionary effect of s 10(7) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) considered
ADMINISTRATIVE LAW – whether the appellant had suffered an “injury” under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – whether the adjustment disorders were the same disease – whether the appellant made a “wilful” and “false” representation
ADMINISTRATIVE LAW – construction of reasons of Tribunal – whether Tribunal turned its mind to the central issue in contention – effect of reading reasons as a whole
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 10, 10(7), 26, 78
Workers’ Compensation Act 1951 (ACT) s 7
Cases cited: Cadbury UK Ltd v Registrar of Trademarks (2008) 316 ALD 608
Comcare v Martin (2016) 258 CLR 467
Comcare v Porter (1996) 70 FCR 139
Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246
Department of Veterans’ Affairs v Studdert [2001] FCA 1642
Hume Steel Ltd v Peart (1947) 75 CLR 242
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lawrance v Centrelink (2005) 88 ALD 664
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Prain v Comcare [2017] FCAFC 143
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Re Ruddock; ex parte S154/2002 (2003) 201 ALR 437
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister For Immigration and Border Protection (2016) 243 FCR 220
Date of hearing: 7 August 2017 Date of last submissions: 6 October 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 156 Counsel for the Applicant: Ms SD Anderson Solicitor for the Applicant: Woods Prince Lawyers Counsel for the Respondent: Mr PE Hack QC with Mr AC Harding Solicitor for the Respondent: Sparke Helmore ORDERS
QUD 21 of 2017 BETWEEN: TRAVIS BAILEY
Applicant
AND: BROADSWORD MARINE CONTRACTORS PTY LTD
Respondent
JUDGES:
RARES, REEVES AND DERRINGTON JJ
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- Case
- [2017] FCAFC 219
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether Mr. Bailey's condition qualified as an "injury (other than a disease)" under the SRCA, allowing him to receive compensation despite the exclusionary provision of section 10(7). The court had to determine whether the Tribunal properly exercised its jurisdiction in interpreting the evidence and applying the statutory definitions of "disease" and "ailment" as they pertained to Mr. Bailey's claims. Furthermore, the court needed to assess whether the Tribunal's reasons for decision sufficiently identified and addressed the material questions of fact and provided adequate references to the evidence supporting its findings.
The court found that the Tribunal had failed to exercise its jurisdiction correctly. Instead of analyzing the evidence before it, the Tribunal assumed that Mr. Bailey's adjustment disorder was a "disease" based on prior decisions and cases that had not contested this characterization. The Tribunal's failure to address the critical factual issue of whether Mr. Bailey's condition was a "disease" or an "injury (other than a disease)" meant it did not fulfill its statutory obligation to consider the precise evidence on a fact-by-fact basis. Consequently, the Tribunal's reasons did not meet the requirements of section 43(2B) of the Administrative Appeals Tribunal Act, which mandates that the Tribunal include its findings on material questions of fact and references to the evidence supporting those findings. The court concluded that the Tribunal's reasoning process was flawed, leading to an improper application of the law.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal found that it was not material whether the onset of the ailment was sudden or gradual. That was, it found, because the definition of “ailment” in s 3 included both ones of sudden onset and of gradual development. It then found that each of Mr Bailey’s psychiatric illnesses in 2011 and 2014 was, first, an “ailment” and a “disease” within the meaning of ss 3 and 10(7) of the Seafarers Act and, secondly, the same condition. Accordingly, the Tribunal reasoned, the 2014 condition the subject of his claim was the same disease which he had “previously suffered” in 2011.Consideration The Tribunal must give what it considers to be the correct or preferable decision: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. It must also give reasons for its decision under s 43(2) of the Administrative Appeals Tribunal Act and, where, as here, it does so, s 43(2B) required that:those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said in Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 at 250 that the purpose of an analogue of s 43(2B) was:to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. (emphasis added) Moreover, the purpose of a provision such as s 43(2) is to enable a court judicially reviewing the Tribunal’s reasons for its decision, first, to identify the findings that it made in reaching its conclusion, and, secondly, to infer, in appropriate cases, that the Tribunal did not consider to be material any matter that it did not mention in those reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. As McHugh, Gummow and Hayne JJ said in Yusuf 206 CLR at 346 [69]: The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration [Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24]. (emphasis in original) A purpose of the Parliament in providing for the three classifications in the definition of “injury” in s 3, was to expand the range of injuries for which compensation could be payable by providing for it to include a disease, an injury (other than a disease) and an aggravation of a physical or mental injury (other than a disease). Importantly, the definitions of both “disease” and “injury (other than a disease)” included physical and mental affects, namely, in the former case, by reference to the definition of “ailment”, as meaning “any physical or mental ailment, disorder, defect or morbid condition” and in the latter, by reference to the definition of “injury (other than a disease”) as meaning “a physical or mental injury arising out of, or in the course of, the employee’s employment”.