Clement v Comcare

Case [2014] FCAFC 164

FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2014] FCAFC 164

Citation: Clement v Comcare [2014] FCAFC 164
Appeal from: Clement v Comcare [2014] FCA 654
Parties: KRISTINE THERESE CLEMENT v COMCARE
File number: ACD 53 of 2014
Judges: BENNETT, KATZMANN & WIGNEY JJ
Date of judgment: 28 November 2014
Catchwords:

ADMINISTRATIVE LAW – whether primary judge failed to exercise jurisdiction

CONSTITUTIONAL LAW – whether s 44 of Administrative Appeals Tribunal Act 1975 (Cth) unconstitutional – whether ceasing of compensation payments under Safety, Rehabilitation and Compensation Act 1988 (Cth) involved acquisition of property otherwise than on just terms

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, ss 51, 58, 77(i), 128
Federal Court of Australia Act 1976 (Cth), s 59
Federal Court Rules 2011 (Cth), r 33.12(2)(b)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases cited:

Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232
Clement and Comcare [2010] AATA 296
Clement and Comcare [2013] AATA 638
Clement v Comcare [2012] FCA 166
H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348
JT International SA v Commonwealth (2012) 250 CLR 1
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Victoria v Commonwealth (1996) 187 CLR 416
Date of hearing: 28 November 2014
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 38
Counsel for the Appellant: The appellant appeared in person.
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 53 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

KRISTINE THERESE CLEMENT
Appellant
AND:

COMCARE
Respondent

JUDGES:

BENNETT, KATZMANN & WIGNEY JJ

DATE OF ORDER:

28 NOVEMBER 2014

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 53 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

KRISTINE THERESE CLEMENT
Appellant
AND:

COMCARE
Respondent

JUDGES:

BENNETT, KATZMANN & WIGNEY JJ

DATE:

28 NOVEMBER 2014

PLACE:

CANBERRA

REASONS FOR JUDGMENT

(Revised from transcript)

THE COURT

  1. Appeals from the Administrative Appeals Tribunal (“AAT”) may only be brought on a question of law:  Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 44. Consequently, a decision of the AAT may only be set aside for error of law. The primary issue in this appeal is whether this limitation on the role of the Court is unconstitutional.

  2. Kristine Clement is a former Commonwealth public servant.  She was employed by the Australian Bureau of Statistics…

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Details
AGLC
Clement v Comcare [2014] FCAFC 164
Case
[2014] FCAFC 164
Decision Date

CaseChat Overview and Summary

The appeal in Clement v Comcare arises from the Administrative Appeals Tribunal’s (AAT) affirmation of Comcare’s decisions to close Ms Clement’s return to work plan and to appoint Health Access as her rehabilitation provider. Ms Clement sought review and set aside of these decisions in the Federal Circuit Court, but the primary judge dismissed her appeal. Ms Clement appealed to this Court, arguing that the AAT erred in law and that the AAT Act and Federal Court Rules are unconstitutional. The primary judge dismissed the appeal, holding that the AAT made no error of law and that the Court had no jurisdiction to entertain the appeal because the notice of appeal did not identify any question of law.

The legal issues before the Court were whether the primary judge failed to exercise jurisdiction, whether the AAT Act is unconstitutional, and whether the cessation of compensation payments involved the acquisition of property without just terms. The Court considered whether the primary judge correctly dismissed the appeal for failing to identify a question of law and whether the AAT Act and Federal Court Rules are valid. The Court also considered whether the cessation of compensation payments amounted to an acquisition of property without just terms.

The Court held that the primary judge correctly dismissed the appeal because the notice of appeal did not identify any question of law, as required by s 44 of the AAT Act and r 33.12(2)(b) of the Federal Court Rules. The Court found that the AAT Act and Federal Court Rules are valid and that the primary judge correctly exercised his jurisdiction. The Court also held that the cessation of compensation payments did not amount to an acquisition of property without just terms.

The Court dismissed the appeal and ordered Ms Clement to pay the respondent’s costs. The appeal was dismissed because the notice of appeal did not identify any question of law, contrary to the requirements of s 44 of the AAT Act and r 33.12(2)(b) of the Federal Court Rules. The Court found that the AAT Act and Federal Court Rules are valid and that the primary judge correctly exercised his jurisdiction. The Court also held that the cessation of compensation payments did not amount to an acquisition of property without just terms.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant 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

This appeal arises out of decisions made by Comcare on 23 July 2010 and 14 February 2013 to affirm two decisions of the ABS and Ms Clement’s failure to have those decisions set aside on review in the AAT and to persuade the primary judge that the AAT erred in law. The first decision concerns the closure of her return to work plan. The second affirmed the ABS’s decision to appoint Health Access Pty Ltd (“Health Access”) as her rehabilitation provider. After Ms Clement failed in the AAT, she appealed to this Court. The primary judge made orders dismissing the appeal, holding that the AAT made no error of law. This is an appeal against those orders.Background Ms Clement was referred to Health Access for a rehabilitation assessment and a return to work plan was developed. Ms Clement’s general practitioner recommended that the return to work plan exclude further counselling with the Health Access team and Ms Clement wrote to Comcare seeking a change of rehabilitation provider. In May 1993 the ABS closed the return to work program. On 4 September 1994 Ms Clement accepted an offer of redundancy from the Australian Public Service. Thereafter compensation payments ceased and Comcare refused to reinstate them. Ms Clement applied to the AAT to review Comcare’s decision but the AAT affirmed it, finding that Ms Clement had not suffered an injury for which compensation was payable (“the first tribunal decision”). It found that Ms Clement suffers from a delusional disorder produced by a disease of unknown aetiology, unrelated to her employment: Clement and Comcare [2010] AATA 296. Ms Clement appealed from the first tribunal decision without success: Clement v Comcare [2012] FCA 166. She then launched fresh proceedings in the AAT again without success (“the second tribunal decision”). The second tribunal decision dealt with two questions:(a)whether the choice of rehabilitation provider was reasonable;(b)whether it was reasonable to close Ms Clement’s return to work plan. The tribunal decided both questions in Comcare’s favour: Clement and Comcare [2013] AATA 638. Once again, Ms Clement appealed to this Court. But the primary judge dismissed the appeal, finding no question or error of law in any of the matters raised by Ms Clement. The decision of the primary judge The primary judge first observed that the notice of appeal did not identify any question of law, contrary to the requirements of s 44 of the AAT Act and r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules” or “Rules”). It was open to his Honour to dismiss the appeal on this account because, unless such a question could be identified, the Court had no jurisdiction to entertain the appeal. The need to identify with precision the question or questions of law to be raised on appeal has been emphasised in case after case in this Court. The primary judge referred to two of them in his reasons: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The tribunal decided both questions in Comcare’s favour: Clement and Comcare [2013] AATA 638. Once again, Ms Clement appealed to this Court. But the primary judge dismissed the appeal, finding no question or error of law in any of the matters raised by Ms Clement. The decision of the primary judge The primary judge first observed that the notice of appeal did not identify any question of law, contrary to the requirements of s 44 of the AAT Act and r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules” or “Rules”). It was open to his Honour to dismiss the appeal on this account because, unless such a question could be identified, the Court had no jurisdiction to entertain the appeal. The need to identify with precision the question or questions of law to be raised on appeal has been emphasised in case after case in this Court. The primary judge referred to two of them in his reasons: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290. Nevertheless, in view of Ms Clement’s psychological condition and the fact that she was unrepresented, his Honour proceeded to carefully examine the material before the Court to decide for himself whether the appeal could be said to have raised a question of law. After considering the notice of appeal and a document entitled “Statement of Real Issues in Dispute”, the AAT’s reasons for decision and Ms Clement’s written submissions, his Honour concluded that there was no error of law. Grounds of appeal The notice of appeal was prolix, encompassing 18 grounds spread over eight pages of single spaced typing. There was also a supplementary notice of appeal. Neither accorded with the Federal Court Rules, which stipulate that a notice of appeal must state briefly and specifically the grounds relied on in support of the appeal (r 36.01) and Ms Clement was ordered to file an amended notice of appeal. The amended notice of appeal contains only seven grounds which summarise the grounds in the original and supplementary notices of appeal. None of them engages with the primary judge’s reasons. Ms Clement alleges that:·The Court complied with s 44 of the AAT and thereby disregarded the constitutional law as to separation of powers. Further, the AAT Act is made “without power” and is invalid.·By complying with s 44, the Court failed to reconsider the evidence for itself, including evidence not before the AAT, evidence from other proceedings, and evidence which had emerged since the first tribunal decision, and to make its own findings of fact as to the matter before it and as to matters which had been decided in previous cases.·The Court applied authorities, including those to which Ms Clement was a party, which themselves applied s 44 of the AAT Act and have not been overturned “due to the illegal prohibition on appeals to the High Court” and applied the Federal Court Rules, which are “invalid”. ·The Court erred in failing to consider, or rejecting, certain evidence, including evidence purportedly supporting Ms Clement’s assertions of alleged illegal and fraudulent conduct by various people in her employment with the ABS.·The Court misapplied the Australian Constitution.·The Court made an error of law on the face of the record by ordering that the appeal be dismissed instead of dismissing the application, the case having been brought in the original jurisdiction of the Court.

Ratio Decidendi

Legal Principle Established

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