FEDERAL COURT OF AUSTRALIA
Clement v Comcare [2014] FCA 654
Citation: Clement v Comcare [2014] FCA 654 Appeal from: Clement v Comcare [2013] AATA 638 Parties: KRISTINE CLEMENT v COMCARE File number: ACD 103 of 2013 Judge: FLICK J Date of judgment: 20 June 2014 Catchwords: ADMINISTRATIVE LAW – Administrative Appeals Tribunal – reliance upon earlier decision – absence of any question of law – irrelevance of submissions to claims for compensation being made – impermissible challenge to finding as to the absence of any compensable injury Legislation: Administrative Appeals Tribunal Act1975 (Cth) ss 39, 44
Australian Constitution s 77
Crimes Act 1914 (Cth)
Federal Court Rules 2011 (Cth) r 33.12
Safety, Rehabilitation and Compensation Act1988 (Cth) ss 36, 37Cases cited: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, (2003) 133 FCR 290
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, (2003) 38 AAR 55
Clement v Comcare [2012] FCAFC 118
Clement v Comcare [2012] FCA 166
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, (2011) 55 AAR 300
Re Clement and Comcare [2010] AATA 296
Re Clement and Comcare [2013] AATA 638Re Shaeed and Tax Practitioners’ Board [2011] AATA 938, (2011) 56 AAR 222
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, (2006) 151 FCR 253Date of hearing: 20 May 2014 Date of last submissions: 16 May 2014 Place: Sydney (heard in Canberra) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Solicitor 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 103 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KRISTINE CLEMENT
AppellantAND: COMCARE
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
20 JUNE 2014
WHERE MADE:
SYDNEY (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the Respondent.
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 103 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KRISTINE CLEMENT
AppellantAND: COMCARE
Respondent
JUDGE:
FLICK J
DATE:
20 JUNE 2014
PLACE:
SYDNEY (HEARD IN CANBERRA)
REASONS FOR JUDGMENT
The facts of the present case go back some years.
It would appear that in the early 1990s the Applicant, Ms Kristine Clement, was employed by the Australian Bureau of Statistics. She reported on data security issues and, in the course of that employment, maintains she discovered data security problems in the Foreign Trade Section. In January 1991 she presented a paper outlining those concerns. She maintains that she was thereafter treated badly.
That led her to lodge a claim with Comcare claiming a psychological injury.…
Continue reading Clement v Comcare
Sign in free to access the full text
Details
- AGLC
- Clement v Comcare [2014] FCA 654
- Case
- [2014] FCA 654
- Decision Date
CaseChat Overview and Summary
In the case of Clement v Comcare, the applicant, Ms Clement, appealed a decision of the Administrative Appeals Tribunal (AAT) which dismissed her claim for compensation. The AAT had previously ruled against Ms Clement in 2010, a decision which was affirmed on appeal to the Federal Court in 2012 and the Full Federal Court in 2013. Ms Clement's latest appeal focused on procedural fairness and the Tribunal's reliance on its earlier decision, as well as alleged errors in the application of the Hannaford principle and claims of new evidence.
The legal issues before the court were whether the AAT erred in its handling of the appeal, particularly in relation to procedural fairness and the application of earlier decisions. Ms Clement argued that the AAT denied her procedural fairness and failed to consider new evidence, which she claimed disproved the medical diagnoses relied upon by the Tribunal in 2010. Additionally, she asserted that the AAT had incorrectly applied the principle from Telstra Corporation Ltd v Hannaford.
The court found that the AAT's reliance on its earlier decision was justified as there was no new evidence presented and no grounds to question the findings from 2010. The court also dismissed Ms Clement's claims regarding procedural fairness and the application of the Hannaford principle, noting that these arguments had already been rejected in previous appeals. The court held that the AAT's decision was consistent with previous rulings and that Ms Clement's submissions were attempts to re-litigate findings that had already been determined.
The appeal was dismissed, and Ms Clement was ordered to pay the costs of the respondent. The court concluded that the AAT's decision was correct and that there was no basis for a finding of procedural unfairness or any other legal error. The dismissal of the appeal affirmed the AAT's earlier determination that Ms Clement did not suffer from a compensable injury under the Safety, Rehabilitation and Compensation Act.
The legal issues before the court were whether the AAT erred in its handling of the appeal, particularly in relation to procedural fairness and the application of earlier decisions. Ms Clement argued that the AAT denied her procedural fairness and failed to consider new evidence, which she claimed disproved the medical diagnoses relied upon by the Tribunal in 2010. Additionally, she asserted that the AAT had incorrectly applied the principle from Telstra Corporation Ltd v Hannaford.
The court found that the AAT's reliance on its earlier decision was justified as there was no new evidence presented and no grounds to question the findings from 2010. The court also dismissed Ms Clement's claims regarding procedural fairness and the application of the Hannaford principle, noting that these arguments had already been rejected in previous appeals. The court held that the AAT's decision was consistent with previous rulings and that Ms Clement's submissions were attempts to re-litigate findings that had already been determined.
The appeal was dismissed, and Ms Clement was ordered to pay the costs of the respondent. The court concluded that the AAT's decision was correct and that there was no basis for a finding of procedural unfairness or any other legal error. The dismissal of the appeal affirmed the AAT's earlier determination that Ms Clement did not suffer from a compensable injury under the Safety, Rehabilitation and Compensation Act.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Just as the Full Court in Rana, supra, concluded that the circumstances there presented “did not bring any of these considerations into play” ([2011] FCAFC 80 at [29]; (2011) 55 AAR 300 at 306), the same conclusion applies equally to the facts of the present appeal. Although Ms Clement was self-represented in both the earlier Tribunal proceeding and the current proceeding, she did not introduce any “new evidence at the current hearing”. Although it is by now far too late to seek to impugn the conclusions reached in the April 2010 Tribunal decision, its analysis of the facts and its reasons for decision appear comprehensive. An appeal was, in any event, dismissed. In the absence of any reason to question the findings then made, and in the absence of any new evidence, the Tribunal was correct in deciding not to “reopen the matters decided in that case”: [2013] AATA 638 at [43].The evidence presented & procedural fairness The final two issues addressed in Ms Clement’s Statement of Real Issues in Dispute focus attention upon: ·evidence she maintains “disproves the medical diagnoses relied on by the Tribunal in 2010”; and ·the erroneous application by the Tribunal of “the principle in Hannaford”.There is no substance in either submission. The evidence referred to is not identified. In any event, the submission has all the hallmarks of an attempt to impermissibly challenge the factual merits of the April 2010 Tribunal decision. The error in the application of “the principle in Hannaford” is a reference to Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, (2006) 151 FCR 253. The difficulty in the path of Ms Clement now raising that submission is that it has previously been concluded that the reasoning of the Tribunal in its earlier decision was “consistent with the approach in Hannaford … and gives effect to the statutory scheme”: Clement v Comcare [2012] FCA 166 at [9]. On appeal, it was further concluded that there was “no error” in this conclusion: Clement v Comcare [2012] FCAFC 118 at [42]. Both of these further arguments are, accordingly, rejected. The Notice of Appeal, it may finally be noted, contained an assertion that the Tribunal “denied procedural fairness to the Applicant”. When appealing from the April 2010 decision of the Tribunal, Ms Clement – it may be noted – also argued that both the primary Judge and the Tribunal had denied her procedural fairness and a reasonable opportunity to present her case as set forth in s 39 of the Administrative Appeals Tribunal Act. With respect to the challenge to the decision of the Tribunal, the primary Judge concluded that “the numerous claims of bias and procedural unfairness find no support in the available material”: [2012] FCA 166 at [28]. On appeal, the Full Court summarised the arguments there advanced as follows: [49] Ms Clement raised a number of procedural fairness arguments which she claims involve an error of law by the primary judge, some of which are also said to demonstrate bias. These arguments generally include:· the way in which her case was listed and managed involved procedural unfairness;· the procedure by which the court dealt with the interlocutory applications was improper;· documents were relied upon by the court that should not properly have been before the court;· not giving Ms Clement a reasonable opportunity to submit all the material she considered relevant to the issues to be addressed;· providing “biased transcript extracts” to Drs Skinner, Saboisky and Tym and “tampering” with witnesses;· the publication of the AAT decision was a violation of her privacy; and· The AAT’s refusal to accept certain documents into evidence.The arguments were rejected by the Full Court. That Court concluded that “[n]o error is demonstrated in the conclusions of the primary judge” and that “Ms Clement has not demonstrated a denial of procedural fairness nor provided a proper basis, or any basis, for findings of bias”: [2012] FCAFC 118 at [57].
Decision
Reasons for decision
The present challenge to the decision of the Tribunal now under appeal equally fails. There is no basis for any argument that the Tribunal denied Ms Clement procedural fairness or denied her a reasonable opportunity to present her case. With specific reference to the adverse findings of fact made by the April 2010 decision of the Tribunal and the approach that the Tribunal should pursue when conducting its review in July 2013, Comcare had filed with the Tribunal on 28 June 2013:·a “Supplementary Statement of Facts, Issues and Contentions” which submitted that the Tribunal should adopt the findings of fact previously made and should decline to proceed on the assumption that there was a compensable injury.Ms Clement, thereafter, filed with the Tribunal on 9 July 2013:·a “Response to the Respondent’s Supplementary Statement of Facts, Issues and Contentions” which detailed the case which she wished to advance.The reasons for the 2013 decision of the Tribunal detail consideration being given to the submissions advanced. Any suggestion of a lack of procedural fairness on the part of the Tribunal whose decision is now under appeal is, with respect, misplaced. CONCLUSIONS Some difficulty has been experienced in ascertaining the facts of relevance to the claims being made by Ms Clement and the manner in which they were resolved by Comcare. To a large extent the facts have been ascertained from the reasons for decision of either the Tribunal itself or from the decisions of this Court when resolving the earlier appeals filed by Ms Clement. Each of the five “questions of law” identified in the Notice of Appeal filed on 4 October 2013 are without substance. Nor does any viable error emerge from Ms Clement’s Statement of Real Issues. In large part the present appeal seeks to re-canvas findings of fact which have been adverse to the interests of Ms Clement. In large part, the appeal also involves the repetition of a series of “unsubstantiated” allegations. Such issues do not give rise to any “question of law” for the purposes of s 44(1) of the Administrative Appeals Tribunal Act. Irrespective of the form in which the Notice of Appeal is presently expressed, it is respectfully considered that no “question of law” could be formulated which would give rise to any success on the part of Ms Clement. The simple fact is that a finding has been made that she suffers from no “compensable injury” arising under the Safety, Rehabilitation and Compensation Act. Her present psychological problems do not fall within the reach of that Act. It is unnecessary to resolve many of the other arguments advanced by Ms Clement which do not seek to address the findings made by the Tribunal and which are adverse to her interests. Those arguments, included, for example, a submission that s 44 of the Administrative Appeals Tribunal Act is contrary to s 77 of the Constitution. The appeal should be dismissed with costs. THE ORDERS OF THE COURT ARE:1.The appeal is dismissed.2.The Appellant is to pay the costs of the Respondent.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.