Clement v Comcare

Case [2012] FCAFC 118

FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2012] FCAFC 118

Citation: Clement v Comcare [2012] FCAFC 118
Appeal from: Clement v Comcare [2012] FCA 166
Parties: KRISTINE THERESE CLEMENT v COMCARE
File number: ACD 27 of 2012
Judges: BENNETT, LOGAN AND BARKER JJ
Date of judgment: 29 August 2012
Catchwords: APPEAL AND NEW TRIAL – appeal from dismissal of appeal from decision of Administrative Appeals Tribunal (AAT) – whether AAT correctly exercised jurisdiction – whether AAT denied appellant procedural fairness – whether primary judge erred in dismissal of interlocutory applications
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44 and 45
Australian Capital Territory (Self Government) Act 1988 (Cth) s 23(1A)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 37, 38, 57 and 64
Cases cited: Clement v Comcare [2007] FCA 2039
Clement v Comcare [2008] FCA 1779
Clement v Comcare [2008] FCA 1780
Clement v Comcare [2011] FCA 404
MIMA v Betkoshabeh (1999) 55 ALD 609
Telstra Corporation v Hannaford (2006) 151 FCR 253
Date of hearing: 13 August 2012
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 61
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr B Dubé
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 27 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

KRISTINE THERESE CLEMENT
Appellant
AND:

COMCARE
Respondent

JUDGES:

BENNETT, LOGAN AND BARKER JJ

DATE OF ORDER:

29 AUGUST 2012

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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 27 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

KRISTINE THERESE CLEMENT
Appellant
AND:

COMCARE
Respondent

JUDGES:

BENNETT, LOGAN AND BARKER JJ

DATE:

29 AUGUST 2012

PLACE:

CANBERRA

REASONS FOR JUDGMENT

  1. Ms Clement appeals from the dismissal of her appeal against a decision of the Administrative Appeals Tribunal (AAT).  The AAT decision affirmed 11 decisions by Comcare rejecting Ms Clement’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Comcare rejected Ms Clement’s claims for payment of compensation for incapacity and medical treatment expenses in relation to her accepted condition. The AAT found that, although Ms Clement was incapacitated for work from time to time as a result of her condition, neither the injury nor the incapacity were caused by her work and neither her incapacity nor her requirement for medical treatment arose from a compensable injury under the SRC Act.

  2. Ms Clement also appeals from the determination by the primary judge of three interlocutory applications:

    1.Filed 30 June 2011 seeking the determination of two questions as follows:

    (a)Has the applicant's employment in the Australian Public Service ceased?

    (b)       Has the onus to…

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AGLC
Clement v Comcare [2012] FCAFC 118
Case
[2012] FCAFC 118
Decision Date

CaseChat Overview and Summary

In the case of Clement v Comcare, the appellant, Ms Clement, appealed against a decision of the Administrative Appeals Tribunal (AAT) which dismissed her claim for workers' compensation. The primary judge dismissed Ms Clement's appeal, and she now appeals against that decision. The central issue for the court was to determine whether the primary judge erred in dismissing the appeal from the AAT's decision. Specifically, the court was required to assess whether the AAT correctly exercised its jurisdiction, whether it denied Ms Clement procedural fairness, and if the primary judge was correct in dismissing her interlocutory applications.

The court considered the detailed findings of the AAT regarding the medical evidence provided in relation to Ms Clement's condition. The AAT found that Ms Clement suffered from a Delusional Disorder which predated her employment and was not caused by work-related events. The AAT preferred the evidence of three medical experts over others, explaining its reasons thoroughly. The primary judge held that the appeal was limited to questions of law and that factual findings were not open for review. The court further examined the grounds of appeal, which included claims of jurisdictional error, serious errors of fact amounting to errors of law, and denial of procedural fairness by the AAT. The court concluded that the primary judge was correct in dismissing the appeal, as the AAT had properly exercised its jurisdiction and provided adequate reasons for its decision.

The court found no merit in the arguments that the AAT lacked jurisdiction, committed serious errors of fact, or denied procedural fairness. The court upheld the primary judge's decision to dismiss the appeal, noting that the AAT had considered all relevant evidence and provided sufficient reasons for its findings. Consequently, the appeal was dismissed, and Ms Clement was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In coming to its conclusion, the AAT considered, in some detail, the competing medical evidence in respect of Ms Clement. The AAT said that it preferred the evidence of three medical experts over others and explained, again in some detail, its reasons for doing so. The AAT said (at [18]) that it was reasonably satisfied, and found, that:(a)Ms Clement suffers from a Delusional Disorder;(b)the Delusional Disorder was present and operative prior to September 1991 and persists presently;(c)the perceptions and beliefs that Ms Clement held (and holds) in relation to her discovery of data security issues in March 1991, especially concerning fears for her safety and the significance of her ‘discovery’, are not based in fact and are delusional;(d)these perceptions and beliefs were the products of disease: they focused on events in the employment but were not produced or materially contributed to by those events; and(e)the aetiology and causes of Ms Clement’s Delusional Disorder are simply unknown – it is possible that the condition has a constitutional basis, it is possible that it arose as a result of the head injury Ms Clement sustained in a motor vehicle accident in 1987, it is possible that events in her workplace added their measure and played a causal role, but none of these possibilities emerge from opaque uncertainty into the relative light of probability on the present evidence.The decision of the primary judge Ms Clement’s appeal to the primary judge was under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). As her Honour observed, the appeal may be brought only on a question of law. That Ms Clement has appealed against the judgment given by the primary judge does not mean that questions of fact may now be examined. The question is whether the disposition of the specified, asserted questions of law was attended with error as particularised in a ground of appeal. The primary judge characterised the sixteen matters said by Ms Clement to be questions of law and numerous associated grounds as grounds that the AAT:(i)lacked jurisdiction or power to make the decisions or otherwise erred in making the decisions in all of the circumstances,(ii)made such serious erroneous findings of fact as to amount to errors of law; and(iii)denied the applicant procedural fairness in numerous ways said to evidence bias by the AAT against the applicant. Her Honour noted that the notice of appeal also contended that the AAT erred by reason of insufficient evidence. Her Honour also characterised Ms Clement’s submissions as raising, in addition to and/or in support of some of the groups of claims in the notice of appeal, the following grounds:(i)the legal requirements for closure of her rehabilitation program had not been met, and therefore the medical reports obtained by Comcare (and relied on by the AAT) were obtained unlawfully; (ii)the AAT unfairly excluded all the medical evidence on which the applicant relied; and(iii)it was a breach of procedural fairness for the AAT to rely on the three illegally obtained medical reports.

Ratio Decidendi

Legal Principle Established

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