Comcare v Farrell

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.