Carson v Comcare

Case [2003] FCA 1550

FEDERAL COURT OF AUSTRALIA

Carson v Comcare [2003] FCA 1550

WORKERS’ COMPENSATION – appeal from decision of Administrative Appeals Tribunal (AAT) upholding decision of Independent Review Officer refusing application for compensation in respect of permanent impairment – where appellant had made claim in respect of depression – where AAT found pre-existing impairment – where AAT had regard to materials not considered by primary decision marker - whether AAT committed error of law – appeal dismissed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 28, 60, 62 and 64
Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 43 and 44

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited
Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295 referred to
Commonwealth of Australia v Ford (1986) 65 ALR 323 referred to
Re Flynn and Department of Aviation (1987) 13 ALR 279 referred to
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 referred to
Comcare v Fiedler (2001) 115 FCR 328 referred to
Servos v Repatriation Commission (1995) 56 FCR 377 followed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

PETER JOHN CARSON v COMCARE

No S 396 of 2003

LANDER J
ADELAIDE
22 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 396 OF 2003

BETWEEN:

PETER JOHN CARSON
APPELLANT

AND:

COMCARE
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

22 DECEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the respondent’s costs of the appeal. 

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

S 396 OF 2003

BETWEEN:

PETER JOHN CARSON
APPELLANT

AND:

COMCARE
RESPONDENT

JUDGE:

LANDER J

DATE:

22 DECEMBER 2003

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) affirming the decision of an Independent Review Officer to disallow a claim made by the appellant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’). The appellant was unrepresented on this appeal.

  2. The appellant was formerly employed by the Defence, Science and Technology Organisation (DSTO) as a Research Scientist. He made a claim under the Act for stress and depression which he claimed had arisen out of his employment with DSTO and had resulted in permanent impairment and non-economic loss. The stressors in the workplace that are said to have caused the injuries complained of relate to the appellant’s relationships with other employees at DSTO. The appellant claims to have suffered victimisation and harassment at the hands of his superiors in the workplace.

  3. In February 1995 the appellant made a claim for injuries resulting in permanent impairment under the Act. Comcare disallowed the claim on the basis that it was not satisfied that the appellant had in fact been subjected to harassment. That decision was affirmed…

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Details
AGLC
Carson v Comcare [2003] FCA 1550
Case
[2003] FCA 1550
Decision Date

CaseChat Overview and Summary

Carson, the appellant, brought an appeal against a decision of Comcare, the respondent, with the Administrative Appeals Tribunal (AAT). The central issue in the case was the admissibility of fresh evidence on appeal from the AAT to the Federal Court. Specifically, the appellant sought to introduce new evidence, including a report and MRI scan results, to support his claim against Comcare. The respondent argued that the Federal Court's jurisdiction under the Administrative Appeals Tribunal Act 1975 (Cth) did not allow for the introduction of fresh evidence on appeal, as such appeals are limited to questions of law. The appellant, however, contended that the new evidence could be admitted as it did not challenge the factual findings of the AAT but rather supported his legal argument.

The court examined the statutory framework governing appeals from the AAT to the Federal Court. It noted that the Federal Court Act 1976 (Cth) confers original jurisdiction on the court to hear appeals from the AAT, but the scope of this jurisdiction is defined by other laws. The court further clarified that appeals from the AAT are generally limited to questions of law, and the policy behind this limitation is to ensure the finality of the AAT's factual determinations. The court referenced the decision in Servos v Repatriation Commission to underscore the principle that appeals to the Federal Court should not be used to re-litigate factual matters already decided by the AAT.

The court ruled that the appellant's attempt to introduce fresh evidence on appeal was not permissible under the statutory framework. It held that the Federal Court's jurisdiction to hear appeals from the AAT does not extend to allowing new evidence that would alter the factual findings of the AAT. Consequently, the court dismissed the appeal and ordered the appellant to pay the respondent's costs. This decision reinforces the principle that appeals to the Federal Court from the AAT are confined to legal questions and do not permit the re-examination of factual matters decided by the AAT.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In any event, the AAT Act provides for a statutory offence for false evidence. Section 62A provides:‘False or misleading evidenceA person appearing as a witness before the Tribunal shall not give evidence that, to his or her knowledge, is false or misleading.Penalty: $1,000 or imprisonment for 3 months.’ Professor Goldney referred the appellant’s counsel to his reports where he said any referrals for psychometric testing would be recorded. The referrals were, in fact, there recorded. There is not a scintilla of evidence to support any allegation that Professor Goldney committed perjury. There is no evidence that Professor Goldney gave evidence that was, to his knowledge, false or misleading. One statement may have been wrong but that is not an offence. It does not become an offence unless it can be established that Professor Goldney knew what he said was false or misleading. There is nothing in the second ground. The respondent submitted that, in any event, the results of the testing add nothing to the appellant’s case. The appellant, on the other hand, says that the results show the absence of neurological abnormalities which supports his contention that he had no pre-existing disorder which accounts for any proportion of the 10% impairment he now suffers. The appellant tendered the report of Dr Wood dated 2 July 1995 and the results of the MRI scan. Ms Bean objected on the basis that I did not have power to receive fresh evidence on an appeal such as this. I marked the reports for identification and said I would rule on the admissibility of the material in my reasons. In written submissions filed with leave after the hearing, the respondent submitted that whilst the application pursuant to s44(1) of the AAT Act is described as an ‘appeal’ it is in reality brought in the Court’s original jurisdiction conferred by s19 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). Section 19 of the Federal Court Act does not of itself confer jurisdiction on the Court. Rather, it provides that the original jurisdiction of the Court may be conferred by other laws of the Parliament. However, s19(2) does provide that ‘the original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of … tribunals other than courts’. Therefore, appeals heard by the Federal Court in the exercise of jurisdiction conferred by the AAT Act are heard in the court’s original jurisdiction. There may be circumstances where fresh evidence is admissible on appeal to the Federal Court from a decision of the AAT. Those circumstances would necessarily be rare because the appeal to this Court is on a question of law: s 44, Administrative Appeals Tribunal Act 1975. I agree with Spender J’s observations in Servos v Repatriation Commission (1995) 56 FCR 377 at 385:‘As s44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the Court on an application pursuant to s44 of the Act, the object of which is to invite the Court to disagree with the factual conclusion reached by that tribunal.’

Decision

Reasons for decision

LANDER J

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Ratio Decidendi

Legal Principle Established

Established by: LANDER J

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