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Comcare v Farrell

Comcare v Farrell

Case [2016] FCAFC 115 16 September 2016

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FEDERAL COURT OF AUSTRALIA
Comcare v Farrell [2016] FCAFC 115

Appeal from: Farrell v Comcare [2015] FCA 1337; (2015) 148 ALD 527

File number: ACD 140 of 2015

Judges: JAGOT, BROMBERG AND MURPHY JJ

Date of judgment: 16 September 2016

Catchwords: ADMINISTRATIVE LAW – whether the primary judge erred in concluding that the Tribunal failed to make a critical finding of fact about the respondent’s “permanent impairment”– whether the Tribunal misconstrued s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

Legislation:
Administrative Appeals Tribunal Act1975 (Cth) ss 44(1), 43(2B)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1)(b), 14, 14(1), 24, 24(1), 24(2), 24(5), 54

Cases cited:
Broadhurst v Comcare [2010] FCA 1034; (2010) 189 FCR 561

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Farrell and Comcare [2015] AATA 268

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

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Newport v Australian Postal Corporation [2015] FCAFC 194

Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532

Date of hearing: 11 August 2016

Registry: Australian Capital Territory

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 55

Counsel for the Appellant: Mr P J Hanks QC with Mr P Woulfe

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr T Thawley SC with Mr A Anforth

Solicitor for the Respondent: Blumers Personal Injury Lawyers

Table of Corrections

23 September 2016 In [16], “…” replaces “no”.

23 September 2016 In [40], “Barnsley” replaces “Bradley”.

ORDERS

ACD 140 of 2015

BETWEEN:
COMCARE

Appellant

AND:
DONNA FARRELL

Respondent

JUDGES:

JAGOT, BROMBERG AND MURPHY JJ

DATE OF ORDER:

16 SEPTEMBER 2016

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the primary judge made on 30 November 2015 be set aside.
3.In lieu thereof, it be ordered that in the appeal below:
(a)The appeal be dismissed.
(b)The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

4.The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT
THE COURT:

Comcare contends that in allowing an appeal on a question of law from the Administrative Appeals Tribunal (the Tribunal) under s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) (the AAT Act) the primary judge erred in his conclusion that the Tribunal had failed to make a critical finding of fact (the fact finding issue) and misconstrued the applicable legislation (the Safety, Rehabilitation and Compensation Act 1988 (Cth)) (the SRC Act) (the legislation issue).
The fact finding issue
The respondent, Ms Farrell, sought…

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 v Farrell

Details

AGLC: Comcare v Farrell [2016] FCAFC 115
Case: [2016] FCAFC 115
Decision Date: 16 September 2016

CaseChat Overview and Summary

Comcare appealed against a decision of the Administrative Appeals Tribunal (AAT) that had dismissed its application for review of a decision of a delegate of the Secretary for the Department of Employment, relating to the assessment of permanent impairment for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The AAT had concluded that the delegate had erred in the assessment of the impairment of Ms Farrell’s wrist, finding that the Tribunal had not erred in concluding that the range of movement of the wrist was able to be assessed under table 9.9 of the relevant schedule.

The legal issues in the case centred on whether the primary judge erred in concluding that the AAT failed to make a critical finding of fact about the respondent’s “permanent impairment” and whether the AAT misconstrued section 24 of the SRC Act. The court considered the function of the AAT in making findings of fact and whether the primary judge had erred in his interpretation of the AAT’s function.

The court held that the AAT had not erred in its conclusion that the range of movement of Ms Farrell’s wrist was able to be assessed under table 9.9. The court found that the AAT had properly exercised its fact-finding function and that the primary judge had erred in concluding otherwise. The court held that to conclude otherwise would be to interfere with the fact-finding function of the Tribunal in a manner impermissible in an appeal limited to questions of law. The court allowed the appeal, set aside the orders of the primary judge, and dismissed the appeal before the AAT. The court also ordered that the appellant pay the respondent’s costs of the appeal and that the respondent pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the primary judge made on 30 November 2015 be set aside.

3. In lieu thereof, it be ordered that in the appeal below:

(a) The appeal be dismissed.

(b) The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

4. The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

Full text does not contain this section.

Decision

Reasons for decision

Once the correct statutory context is identified, it is apparent that it was within the Tribunal’s fact finding function to conclude on the basis of Professor Barnsley’s evidence that Ms Farrell’s impairment was able to be assessed under table 9.9, dealing with the range of movement of the wrist. To conclude otherwise, on a proper appreciation of the task vested in the Tribunal by the provisions of the SRC Act, would be to interfere with the fact finding function of the Tribunal in a manner impermissible in an appeal limited to questions of law.Conclusions For the reasons given above, the appeal must be allowed, and orders made to ensure the decision of the Tribunal stands.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Comcare v Farrell [2016] FCAFC 115

Most Recent Citation

Singleton v Comcare [2019] FCA 2104

Cases Citing This Decision

BWFS and Comcare (Compensation) [2021] AATA 324
Citation 1

…ute v Comcare [2006] HCA 47 Collector of Customs v Brian Lawlor Automotive (1979) 2 ALD 1 Comcare v Farrell [2016] FCAFC 115 Comcare v Howard [2019] FCA 1031 Comcare v Lofts [2013] FCA 1197 Comcare v Nichols [1999] FCA 209 Comcare v Power [2015] FCA 1502 Commonwealth v Borg [1991] FCA 710 Dillon and Comcare (Compen…
Singleton v Comcare [2019] FCA 2104
Citation 2 (Para 24)

…The focus on the concept of “an injury” is also apparent in the decision of Comcare v Farrell [2016] FCAFC 115; (2016) 250 FCR 432 ( Farrell ) where the Full Court (Jagot, Bromberg and Murphy JJ) stated: 43. As noted, at [34] the primary judge said that the “proper approach to the resolution of the claim is, initia…
Simon and Australian Capital Territory (Compensation) [2019] AATA 527
Citation 3

…Sellick [2008] FCA 236 Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 Comcare v Bromham [2017] FCA 174 Comcare v Farrell (2016) 250 FCR 432; [2016] FCAFC 115 Comcare v Grimes [1994] FCA 1054 Comcare v Muir [2016] FCA 346 Comcare v Wuth (2018) 159 ALD 1; [2018] FCAFC 13 Dranichnikov v Centreli…
Singleton and Comcare (Compensation) [2018] AATA 4088
Citation 4 (Para 7)

…As the Full Court of the Federal Court observed in Comcare v Farrell [2016] FCAFC 115 at [13], s 24(1) of the SRC Act is concerned with an ‘injury’ which ‘results in a permanent impairment’.…

See all citing cases →

Cases Cited

Newport v Australian Postal Corporation [2015] FCAFC 194
Citation 1 (Para 14)

…ary Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28 at [19] to [28] (and see also Newport v Australian Postal Corporation [2015] FCAFC 194 at [17] and [18]).…
Farrell v Comcare [2015] FCA 1337
Citation 2 (Para 9)

…In his reasons for judgment ( Farrell v Comcare [2015] FCA 1337; (2015) 148 ALD 527) the primary judge concluded that the Tribunal had made no finding as to the “permanent impairment” as required (at [29]). Instead, the Tribunal’s reasons “have all of the hallmarks of the Tribunal assessing the degree of impairmen…
Farrell and Comcare [2015] AATA 268
Citation 3 (Para 6)

…In its decision of 28 April 2015 ( Farrell and Comcare [2015] AATA 268) the Tribunal recorded this at [12]: Comcare has accepted liability, under s 14 of the SRC Act, for: Ÿtenosynovitis hand and wrist (right); Ÿlateral epicondylitis (bilateral)—commonly known as “tennis elbow”; Ÿsynovitis and tenosynovitis (left)…
Broadhurst v Comcare [2010] FCA 1034
Citation 4 (Para 3)

…ng) used to deny liability imposed by the SRC Act. We accept that the approved Guide cannot alter the operation of the SRC Act ( Broadhurst v Comcare [2010] FCA 1034; (2010) 189 FCR 561 at [16]), but the relevant point for present purposes is that it was for the Tribunal to determine whether the appellant suffered…
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Citation 5 (Para 14)

…assessing permanent impairment arising from each injury, was repeated as necessary in Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28 at [19] to [28] (and see also Newport v Australian Postal Corporation [2015] FCAFC 194 at [17] and [18]).…
Canute v Comcare [2006] HCA 47
Citation 6 (Para 13)

…serve here that it is an “injury” which “results in a permanent impairment” with which s 24(1) is concerned. As explained in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 ( Canute ): [10] At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare…
Lees v Comcare [1999] FCA 753
Citation 7 (Para 9)

…It is true that a determination under s 24 is not dependent on Comcare first having determined that there is an injury under s 14. In Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [49] the Full Court of this Court said: It may be that a situation could arise in which an employee has a claim for compensation…
Whittaker v Comcare [1998] FCA 1099
Citation 8 (Para 10)

…such impairment is determined to be permanent, to decide the degree of any impairment. As the Full Court of this Court said in Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 545: …it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the m…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Citation 9 (Para 18)

…with the orthodox approach to the review of reasons of an administrative decision-maker ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). We do not accept that this reading of the Tribunal’s reasons involves an “uncertain process of implication” as concluded…

Legislation Cited

Safety, Rehabilitation and Compensation Act 1988 (Cth) 14, 14(1), 24, 24(1), 24(2), 24(5), 4(1)...
10 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth) 43(2B), 44(1)
3 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention

Appeal from:	Farrell v Comcare [2015] FCA 1337; (2015) 148 ALD 527
File number:	ACD 140 of 2015
Judges:	JAGOT, BROMBERG AND MURPHY JJ
Date of judgment:	16 September 2016
Catchwords:	ADMINISTRATIVE LAW – whether the primary judge erred in concluding that the Tribunal failed to make a critical finding of fact about the respondent’s “permanent impairment”– whether the Tribunal misconstrued s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
Legislation:	Administrative Appeals Tribunal Act1975 (Cth) ss 44(1), 43(2B) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1)(b), 14, 14(1), 24, 24(1), 24(2), 24(5), 54
Cases cited:	Broadhurst v Comcare [2010] FCA 1034; (2010) 189 FCR 561 Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 Farrell and Comcare [2015] AATA 268 Farrell v Comcare [2015] FCA 1337; (2015) 148 ALD 527 Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28 Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Newport v Australian Postal Corporation [2015] FCAFC 194 Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532
Date of hearing:	11 August 2016
Registry:	Australian Capital Territory
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	55
Counsel for the Appellant:	Mr P J Hanks QC with Mr P Woulfe
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr T Thawley SC with Mr A Anforth
Solicitor for the Respondent:	Blumers Personal Injury Lawyers

Table of Corrections
23 September 2016	In [16], “…” replaces “no”.
23 September 2016	In [40], “Barnsley” replaces “Bradley”.

JUDGES:	JAGOT, BROMBERG AND MURPHY JJ
DATE OF ORDER:	16 SEPTEMBER 2016