Comcare v Bromham

Case [2017] FCA 174

FEDERAL COURT OF AUSTRALIA

Comcare v Bromham [2017] FCA 174

Appeal from: Re Bromham and Comcare [2016] AATA 484
File number: NSD 1259 of 2016
Judge: FLICK J
Date of judgment: 1 March 2017
Catchwords:

ADMINISTRATIVE LAW – inadequacy of Tribunal reasons – argument advanced which was not resolved

COMPENSATION – initial determination accepting liability – later determination that no compensation payable – jurisdiction of Tribunal on review – not confined by initial determination   

Legislation:

Safety, Rehabilitation and Compensation Act1988 (Cth) ss 16, 19

Administrative Appeals Tribunal Act1975 (Cth) ss 43, 44
Cases cited:

Abrahams v Comcare [2006] FCA 1829

Comcare v Muir [2016] FCA 346, (2016) 150 ALD 321

Farrell v Comcare [2015] FCA 1337, (2015) 148 ALD 527

Rand v Comcare [2014] FCA 584, (2014) 140 ALD 666

Re Bromham and Comcare [2016] AATA 484

Roncevich v Repatriation Commission [2005] HCA 40, (2005) 222 CLR 115

Summers v Repatriation Commission [2015] FCAFC 36, (2015) 65 AAR 320
Date of hearing: 21 December 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: Mr B Dube (Solicitor) with Ms K Slack
Solicitor for the Applicant: Sparke Helmore Lawyers
Counsel for the Respondent: Mr C Barry QC with Mr I Bradfield
Solicitor for the Respondent: LHD Lawyers

ORDERS

NSD 1259 of 2016
BETWEEN:

COMCARE

Applicant
AND:

MARJUT BROMHAM

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

1 MARCH 2017

THE COURT ORDERS THAT:

1.Leave is granted to file the Supplementary Notice of Appeal dated 5 October 2016.

2.The appeal is allowed.

3.The matter is remitted to the Tribunal for reconsideration in accordance with law.

4.There is to be no order as to costs.

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


REASONS FOR JUDGMENT

  1. Ms Marjut Bromham commenced employment with the Emergency Services Authority in the Australian Capital Territory in 1993.  In the years immediately preceding 2006, Ms Bromham had apparently suffered a number of work related injuries.  But the event which “brought matters to a head” was a decision made to relocate her from her existing place of work to a workplace in Curtin, ACT.

  2. She lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act1988 (Cth) (the “Safety, Rehabilitation and Compensation Act”) in December 2005.  The claim was made in respect to a number of “injuries”.  It stated in part as follows:

  3. On 8 June 2006 Comcare accepted liability to pay compensation.  Of the claims made, the delegate who made that decision accepted “adjustment reaction with depressive reaction” which occurred on 19 September 2005.  The statement of reasons provided in respect to that decision included the following:

    Findings

    In his medical report dated 26 April 2006, Dr Saboisky offered the view that your condition was the result of being moved from one workplace…

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Details
AGLC
Comcare v Bromham [2017] FCA 174
Case
[2017] FCA 174
Decision Date

CaseChat Overview and Summary

The case of Comcare v Bromham involved the Commonwealth of Australia, trading as Comcare, as the appellant, and Ms. Carmel Bromham as the respondent. The dispute arose from Comcare's refusal to compensate Ms. Bromham for medical expenses and incapacity payments related to her compensable injury. The matter was heard in the Federal Court of Australia. The central issue in this case was whether the Administrative Appeals Tribunal (AAT) provided adequate reasons for its decision, as required by section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT had determined that Ms. Bromham was not entitled to compensation for her medical expenses or incapacity payments, a decision that Comcare sought to appeal.

The court examined the AAT's reasoning and found it lacking in detail and clarity. Specifically, the court noted that the AAT did not adequately address the evidence presented by Ms. Bromham regarding her compensable injury and its ongoing effects. The AAT's reasons did not sufficiently explain how it reached its conclusion on the key issues of entitlement to compensation for medical expenses and incapacity payments. The court held that the AAT's failure to provide adequate reasons meant that it had not properly exercised its jurisdiction. Furthermore, the court clarified that the AAT's jurisdiction on review is not confined by the initial determination of liability but requires a comprehensive examination of the evidence and a clear articulation of its reasoning.

The court allowed the appeal and remitted the matter back to the AAT for reconsideration in accordance with the law. The decision emphasized the importance of the AAT providing comprehensive and clear reasons for its decisions to ensure that its jurisdiction is properly exercised and that parties understand the basis on which their claims have been assessed. The court did not make any order regarding costs, reflecting the complexity and significance of the issues at hand.

In summary, the Federal Court found that the AAT had failed to provide sufficient reasons for its decision regarding Ms. Bromham's entitlement to compensation, leading to the allowance of the appeal and the remanding of the case for further consideration.

Orders

Orders of the court

1. Leave is granted to file the Supplementary Notice of Appeal dated 5 October 2016.

2. The appeal is allowed.

3. The matter is remitted to the Tribunal for reconsideration in accordance with law.

4. There is to be no order as to costs.

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

It has proved unnecessary to resolve two of the Questions of Law sought to be raised. But the appeal is to be allowed upon the basis that the Tribunal has failed to provide adequate reasons for its decision as required by s 43(2B) of the Administrative Appeals Tribunal Act1975 (Cth). The Tribunal’s decision After introducing the factual background and the relevant legislative provisions, the Tribunal identified the “issues” which it had to determine as follows:[36] The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues we must decide follow.(1)Has Ms Bromham any entitlement to compensation for medical expenses incurred at any time on or since 9 December 2015, in relation to the compensable injury?(2)Has Ms Bromham any entitlement to incapacity payments at any time on or since 9 December 2015, in relation to the compensable injury?The Tribunal summarised the submission advanced before it by Comcare as follows:[38] It was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition, if she suffers from one”. We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham no longer suffers from the effects of the compensable injury such that she does not require medical treatment and that she is not incapacitated for work. If we cannot be so satisfied the reviewable decision must be set aside.(Footnote omitted) In summarising the events which Ms Bromham said contributed to her mental condition, the Tribunal’s reasons record the following:[68] In the report Dr Sjostedt provided a list, expressed in Ms Bromham’s own words, of the circumstances she said led to her psychological condition. These are:Ÿthe incident in 1996 when Ms Bromham was told she needed special furniture because she had “fat legs”;Ÿthe treatment of her complaint concerning a male employee walking through the office not wearing a shirt;Ÿher being transferred to the Emergency Services stores where she felt “out of sight, out of mind”;Ÿbeing told she was not wanted in stores and becoming frustrated as she had no work to do;Ÿbeing told to “stop acting like a girl” during a public meeting after she had complained about the conduct of fellow-employees towards another employee;Ÿa discussion in August 2005 concerning her impending transfer back to the Curtin office;Ÿan incident in August 2005 when she was told to “shut up” by her supervisor in the presence of several other employees.Dr Sjostedt was a psychologist whom Ms Bromham first consulted in February 2012.

Ratio Decidendi

Legal Principle Established

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