Comcare v Forbutt

Case [2000] FCA 837

FEDERAL COURT OF AUSTRALIA

Comcare v Forbutt [2000] FCA 837

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – claim for compensation by Commonwealth employee – assaults and intimidatory treatment while respondent serving in Army – whether failure by Tribunal to give adequate reasons – whether failure to deal with arguments advanced by Comcare

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), (2B), 44

Addo v Ministerfor Immigration and Multicultural Affairs [1999] FCA 940 followed
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at par 64 to 65 followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359-360 mentioned
Dornan v Riordan (1990) 24 FCR 564 at 567 applied
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 followed
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 followed
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667
Warren v Coombes (1979) 142 CLR 531 mentioned
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liquidation) (1999) 160 CLR 588 mentioned
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 discussed

COMCARE v ANNE LISA FORBUTT
NO. T 1 of 2000

HEEREY J
22 JUNE 2000
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T 1  of 2000

BETWEEN:

COMCARE
Applicant

AND:

ANNE LISA FORBUTT
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

22 JUNE 2000

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T 1  of 2000

BETWEEN:

COMCARE
Applicant

AND:

ANNE LISA FORBUTT
Respondent

JUDGE:

HEEREY J

DATE:

22 JUNE 2000

PLACE:

MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

  1. Comcare appeals from a decision of the Administrative Appeals Tribunal constituted by Deputy President A M Blow OAM QC (now a Judge of the Supreme Court of Tasmania) and Ms A F Cunningham.  The respondent was a soldier in the Australian Regular Army from 12 February 1985 until 11 February 1988.  On 23 March 1994 she lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the 1988 Act”) in respect of a condition which she described as “emotional distress, probably post-traumatic stress disorder”. In particular, her claim alleged intimidatory behaviour and assaults by a non-commissioned officer when she was in a military detention centre.

  2. A delegate of Comcare determined that the Department of Defence was not liable to pay compensation and another delegate confirmed that determination.  On 23 December 1999 the Tribunal, after a hard fought hearing extending over eight days, set aside the decision under review and remitted the matter to Comcare for reconsideration in accordance with directions that

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Details
AGLC
Comcare v Forbutt [2000] FCA 837
Case
[2000] FCA 837
Decision Date

CaseChat Overview and Summary

In the case between Comcare and Forbutt, the dispute centred around the respondent's employment and the timeline of her activities. The matter was brought before the Administrative Appeals Tribunal (AAT) for adjudication. The primary issue before the court was whether the Tribunal was required to refer to all evidence presented, including that which was inconsistent with its findings of fact, or if it was only obligated to refer to evidence that supported its conclusions. This question arose from the interpretation of sections 43(2B) of the Administrative Appeals Act (AAT Act) and similar provisions in other statutes, such as section 430(1) of the Migration Act 1958 (Cth). The respondent argued that the Tribunal should have addressed certain evidence that conflicted with her timeline of events.

The court examined relevant case law, including Addo v Minister for Immigration and Multicultural Affairs, which established that a decision-maker is not required to refer to evidence inconsistent with findings of fact. The court found that the statutory language did not impose an obligation to address such evidence unless the rejection of that evidence was a reason for the decision. The court emphasised that while the Tribunal must provide reasons for its decisions, it was not necessary to give a detailed refutation of evidence that was contrary to the findings made. This principle was further affirmed in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham, where the High Court noted that findings of credibility were within the purview of the primary decision-maker, and detailed reasons for rejecting evidence were not required.

Based on this reasoning, the court concluded that the Tribunal did not breach any statutory requirements by not referring to all evidence. The application was dismissed, and the applicant was ordered to pay the respondent's costs, including reserved costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Seventhly, the respondent said in her evidence before the Tribunal that she worked at Stepping Stones for approximately three to three and a half months and that she commenced this job about six months after she started living at Mr Curtis’ property at Palmer’s Lookout. So it was said even if she came to Tasmania in March 1998 (one of the two dates in her statement) she would not have finished at Stepping Stones before December rather than November as she said. The Tribunal did not deal with this. Findings of fact and referring to evidence The language of s 43(2B) of the AAT Act suggests that the only evidence or other material which the Tribunal is obliged to refer to is evidence or material which provides a basis for the findings of fact made. If there is evidence or other material which is inconsistent with such findings there is no obligation to refer to it. There is clear authority for this conclusion in decisions made in the context of s 430(1) of the Migration Act 1958 (Cth) which is in terms not substantially different from s 43(2) and (2B) of the AAT Act. In Addo v Ministerfor Immigration and Multicultural Affairs [1999] FCA 940 the Full Court said (at par 24):“Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made.” In the same vein the Full Court said (at par 31):“It is not necessary, in order to comply with s 430(1), for the [Refugee Review] Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.” Those passages were approved by McHugh J sitting as a single justice of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at par 64 to 65. At par 65 his Honour said:“… whenever rejection of evidence is one of the reasons for the decision, the [Refugee Review] Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.” Later his Honour said (at par 67):“… the prosecutor alleges that the [Refugee Review] Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were ‘utterly implausible’. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”

Decision

Reasons for decision

HEEREY J

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Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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