Comcare Australia v Wilson, Peter - [1997] FCA 555

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY ) No. VG 690 of 1996
)

GENERAL DIVISION )

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE AUSTRALIA

(Applicant)

AND: PETER WILSON

(Respondent)

CORAM:    Ryan J
DATE:     26 June 1997
PLACE:    Melbourne

MINUTES OF ORDER

THE COURT ORDERS:

That the application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY ) No. VG 690 of 1996
)

GENERAL DIVISION )

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE AUSTRALIA

(Applicant)

AND: PETER WILSON

(Respondent)

CORAM:    Ryan J
DATE:     26 June 1997
PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J: This is an application by way of appeal under s. 44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") setting aside a reviewable decision of a delegate of the applicant, Comcare Australia ("Comcare") disallowing a claim for compensation under the Rehabilitation and Compensation Act 1988 ("the Act"). The delegate disallowed the respondent's claim on the basis of a Final Medical Board Report which stated that the respondent had failed to disclose bilateral spondylosis L5/S1 on a form designated "PM165".

The respondent, who is now aged twenty-five years, on 27 November 1991 completed a medical history questionnaire as a prerequisite to recruitment in the Australian Army. He had earlier sustained a number of sporting injuries including an incident in summer of 1989/1990 as a result of which he suffered back pain which he attributed to being a medium pace bowler with a local cricket club. He was treated by Dr James of the Croydon Sports Medicine Clinic and was required to wear a spinal brace for about six weeks and to undertake physiotherapy and exercise. Thereafter, his back was asymptomatic and he played soccer with Monbulk in the Second Division Provincial League in 1990 and 1991. In the latter year, he completed his full-time secondary education. The evidence before the Tribunal as to the respondent's history from the end of 1991 until his discharge from the Army on 1 November 1992 disclosed that he had filled up a medical questionnaire on 27 November 1991. The Tribunal summarised the evidence of that matter in these words:

On 27 November 1991 (as is evidenced by T-19) Mr Wilson completed a medical history questionnaire prior to entry into the army. A number of questions were asked as to whether he had ever suffered any prior illnesses or injuries. He disclosed having previously suffered a hernia, an ankle injury and "fractured bones" but placed a tick in a column headed "no" beside the question of whether he had ever suffered a back injury. When asked by Mr Moulds whether he could explain that entry Mr Wilson said "made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Comcare Australia v Wilson, Peter

Details

AGLC: Comcare Australia v Wilson, Peter [1997] FCA 555
Case: [1997] FCA 555
Decision Date: 26 Jun 1997

CaseChat Overview and Summary

Comcare Australia brought an appeal against a decision of the Administrative Appeals Tribunal (AAT) which set aside a reviewable decision of a delegate of Comcare disallowing a claim for compensation under the Rehabilitation and Compensation Act 1988. The delegate disallowed the respondent's claim on the basis of a Final Medical Board Report stating that the respondent had failed to disclose bilateral spondylosis L5/S1 on a form designated "PM165." The respondent, who is now aged twenty-five years, completed a medical history questionnaire as a prerequisite to recruitment in the Australian Army, on 27 November 1991. The Tribunal found that the statement in the original Army medical questionnaire that the respondent had never had, and did not suffer from, a back injury was false but not wilful. The Tribunal's reasoning on the application of the concept of "wilful and false representation" to the facts before it was based on the respondent's evidence that he made a mistake in ticking the "no" column in answer to the question whether he had ever suffered a back injury.

The court held that the Tribunal clearly saw the reference in s. 7(7) to a "wilful and false representation" as being conjunctive in the sense that a merely false representation does not, of itself, render a disease or the aggravation of a disease, non-compensable as an injury. The representation must also be "wilful" in the sense that it is made deliberately without any belief as to its truth. The Tribunal's finding that the misrepresentation in the form completed on 27 November 1991 was not wilful was supported by the respondent's evidence that he had made a mistake. It was open to the Tribunal to have regard to the fact that the respondent did not perpetuate what he claimed to have been a mistaken non-disclosure of a back injury when he completed the January 1992 questionnaire disclosing a "fractured lower vertebrae 1990."

The court also held that the Tribunal's finding that the respondent had suffered a permanent aggravation of his thoraco-lumbar spine as a result of his Army service and that consequently he had been incapacitated from working full-time as a barman between November 1992 and May 1994 was supported by the evidence. It was open to the Tribunal to prefer the opinion evidence of Mr. Speck and Mr. Hadley to that of Dr. Lefkovits. The Tribunal's expression of the conclusion reached in para. 116 of its reasons was sufficient compliance with s. 43(2B) of the AAT Act.

The court dismissed the application with costs.

Orders