Comcare v Lofts

Case [2013] FCA 1197

FEDERAL COURT OF AUSTRALIA

Comcare v Lofts [2013] FCA 1197

Citation: Comcare v Lofts [2013] FCA 1197
Parties: COMCARE v MICHELE LOFTS and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 388 of 2013
Judge: MORTIMER J
Date of judgment: 18 November 2013
Catchwords: ADMINISTRATIVE LAW — jurisdiction of the Administrative Appeals Tribunal — scope of the reviewable decision — whether claim made by the respondent for costs of medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) — Tribunal acted beyond jurisdiction — Tribunal decision set aside.
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44
Judiciary Act 1903 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth)
ss 14, 16, 19, 24, 27, 54, 60, 62, 63, 64, 69(a)

Cases cited: Abrahams v Comcare (2006) 93 ALD 147
Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
Canute v Comcare (2006) 226 CLR 535
Comcare v Holt (2007) 94 ALD 576
Comcare v Rope (2004) 135 FCR 443
Director-General of Social Services v Chaney (1980) 31 ALR 571
Fuad and Telstra Corp Ltd (2004) 39 AAR 496
Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574
Lees v Comcare (1999) 56 ALD 84
Lofts and Comcare [2013] AATA 122
Telstra Corp Ltd v Hannaford (2006) 151 FCR 253
Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Date of hearing: 4 October 2013
Date of last submissions: 4 October 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 88
Counsel for the Applicant: Mr T Howe QC
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondents: Mr M Carey
Solicitor for the Respondents: Slater & Gordon Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 388 of 2013
BETWEEN:

COMCARE
Applicant
AND:

MICHELE LOFTS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

18 NOVEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:

1.In proceeding number 2011/5248, the Administrative Appeals Tribunal does not have jurisdiction to determine the claim by Ms Lofts for compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of medical treatment obtained in relation to the condition of dysphagia.

THE COURT ORDERS THAT:

2.The decision made on 8 March 2013 in the Administrative Appeals Tribunal is set aside.

3.The applicant pay costs incurred by the first respondent and thrown away by reason of the initial proceeding issued under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

4.There is otherwise no order as to the costs of this proceeding.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 388 of 2013
BETWEEN:

COMCARE
Applicant
AND:

MICHELE LOFTS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

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Details
AGLC
Comcare v Lofts [2013] FCA 1197
Case
[2013] FCA 1197
Decision Date

CaseChat Overview and Summary

Comcare sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) in relation to a claim by Ms Lofts for compensation for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The claim was made in the context of a broader claim for compensation under s 14 of the SRC Act for an injury suffered by Ms Lofts in the course of her employment. The primary issue before the Court was whether the AAT had jurisdiction to determine the claim for compensation under s 16 of the SRC Act. The Court held that the AAT had acted beyond its jurisdiction in making an order in relation to the claim for compensation under s 16 of the SRC Act and set aside the AAT's decision.

The Court considered the scope of the reviewable decision and the relevant considerations that the AAT should have taken into account in determining the scope of its jurisdiction. The Court found that the AAT had erred in characterising the reviewable decision as one that included consideration of Comcare's liability for compensation by way of medical expenses under s 16 of the SRC Act. The Court held that the AAT was not authorised to consider and determine that issue as it was not part of the reviewable decision. The Court also found that the AAT had departed from the approach to the SRC Act set out by the High Court in Canute, which required decision-making about a liability to pay compensation to focus on the "injury" the employee is alleged to have suffered.

Ms Lofts submitted that the AAT had jurisdiction to award compensation for medical treatment under s 16 of the SRC Act because it stood in the shoes of the original decision-maker and could exercise such powers and discretions to the fullest extent permitted. The Court rejected this submission, holding that the question as to what was the subject matter of a claim was a jurisdictional, not a practical, problem. The Court held that the AAT must decide for itself whether the compensation sought by the employee was the subject matter with which the preceding decisions dealt, regardless of whether the earlier decision-makers dealt with it explicitly or even understood that matter was before them.

The Court set aside the AAT's decision and ordered Comcare to pay costs incurred by the first respondent and thrown away by reason of the initial proceeding issued under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). There was otherwise no order as to the costs of this proceeding.

Orders

Orders of the court

2. The decision made on 8 March 2013 in the Administrative Appeals Tribunal is set aside.

3. The applicant pay costs incurred by the first respondent and thrown away by reason of the initial proceeding issued under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

4. There is otherwise no order as to the costs of this proceeding.

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

Background

Background to the litigation

For reasons that follow, the Tribunal does not have jurisdiction to make orders in respect of compensation for medical expenses said to have been incurred by Ms Lofts in relation to her dysphagia. A declaration and an order setting aside the Tribunal’s decision are the appropriate relief. It is not necessary to grant an order in the nature of prohibition: the Court can expect the Tribunal to act in accordance with its orders and reasons.BACKGROUND Ms Lofts’ application for review to the Tribunal was on the cusp of being resolved by a consent determination pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Court was informed it should proceed on the basis that Comcare now accepted liability for compensation to be payable to Ms Lofts under s 14 of the SRC Act in relation to her dysphagia. What remains in issue, and what prevented the Tribunal’s consent determination process from being completed, is whether as part of that determination the Tribunal could make orders requiring Comcare to pay compensation to Ms Lofts under s 16 of the SRC Act for identified medical expenses alleged to be in relation to her dysphagia. Those expenses totalled either $3,754.45 or $3,391.00, depending on which document is relied upon of the two available in the evidence before the Court. The former figure is drawn from a document entitled “Notice of Past Benefits”, to which the Tribunal refers in its reasons. The latter figure is drawn from a document entitled “Proposed Orders” which represents the orders Ms Lofts proposed be made by the Tribunal as part of the consent determination process. The differences between them are not material to the Court’s decision. Since the former document is the one on which the Tribunal’s decision is based, that is the one to which I shall refer. The non-resolution of the application for review by consent determination means that the review in the Tribunal is not completed. Accordingly, no appeal under s 44 of the AAT Act is available and the matter must come before this Court in an exercise of its jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth): Director-General of Social Services v Chaney (1980) 31 ALR 571; Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18. Although this proceeding began life as an appeal under s 44, it has been regularised and there was no debate between the parties about this Court’s jurisdiction to entertain Comcare’s application under s 39B of the Judiciary Act. The existence of jurisdiction under s 39B(1A)(c) of the Judiciary Act means that the grant of prohibition is not a necessary condition of the Court’s jurisdiction. RELEVANT ASPECTS OF THE SRC ACT The provisions in issue in the SRC Act are some of the foundational provisions concerning Comcare’s liability to pay compensation to Commonwealth employees. Section 14 provides for the general liability of Comcare to pay compensation:Compensation for injuries(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This is the “three tiered decision-making process” to which the Full Court in Lees referred: 56 ALD 84 at [32]. Comcare rightly placed considerable emphasis on the three-tier decision-making process as a central feature of the legislative scheme of the SRC Act.COMCARE’S DECISION-MAKING IN RELATION TO MS LOFTS The course of Comcare’s decision-making was canvassed in the Tribunal’s decision to some extent, but was also the subject of submissions in this Court. On Comcare’s part, the purpose of those submissions was to illustrate why some of the Tribunal’s findings were not open to it and could not give it jurisdiction or alter the character of the reviewable decision. On Ms Lofts’ part, the purpose was to support the Tribunal’s findings that Comcare had made decisions under s 16 of the SRC Act in relation to medical expenses for dysphagia, alternatively to demonstrate that what had been sought all along by Ms Lofts was compensation for medical expenses and that was what Comcare’s decision-making had been about. This provided the foundation for the submission by Ms Lofts that a claim for compensation for medical expenses was part of the subject matter of the reviewable decision for the purposes of the Tribunal’s jurisdiction. The evidence before the Court consisted of many but not all of the T documents which are before the Tribunal. Ms Lofts’ submission spent some time describing the history of her injuries and Comcare’s decision-making in respect of them, at least from her perspective. Her submissions invited the Court to make fairly wideranging findings of fact about what had and had not been claimed by her at various times, about why she had been prescribed various medications and about why certain medical procedures were undertaken. Whilst in a proceeding under s 39B of the Judiciary Act it is possible, and may be necessary, for the Court to make findings of fact based on evidence, it is not necessary in this proceeding for the Court to make findings of fact about all of the matters outlined in Ms Lofts’ written submissions. What is necessary is for the Court to make findings whether Ms Lofts made a claim to Comcare under s 16 of the SRC Act in respect of reasonable costs of medical treatment for her dysphagia. That involves making some findings about Ms Lofts’ injuries and how Comcare dealt with her claims. Findings on those matters provide the foundation for the answer to the question about the scope of the Tribunal’s jurisdiction in the review before it. The following facts are established on the evidence before the Court. Ms Lofts worked for Centrelink and in the course of her work dealt with distressed and unbalanced people who could sometimes be violent. It is not contentious between the parties that, in 2002, Ms Lofts suffered an injury to her right shoulder at the hands of one such person in the Centrelink office in which she then worked. She claimed compensation under the SRC Act for that injury. In 2004, Ms Lofts was also diagnosed with multiple sclerosis. This condition was not claimed by her to be the result of any employment-related event. The diagnosis is significant in the proceedings before the Tribunal and these proceedings only because some medical examiners thought that the dysphagia symptoms might have been the result of multiple sclerosis, and the delegate who made the reviewable decision in Ms Lofts’ matter also referred to this possibility.

Ratio Decidendi

Legal Principle Established

What the Court is required to identify is the reviewable decision that was made by Comcare under s 62 of the SRC Act. That identification will delineate the jurisdiction of the Tribunal. If the reviewable decision included, expressly or impliedly, consideration of Comcare’s liability for compensation by way of medical expenses in the terms of s 16 of the SRC Act, as well as a decision on liability under s 14, then the Tribunal was also authorised to consider and determine that issue.Second ground of review as expressed: relevant considerations The relevant consideration Comcare identifies is that dysphagia is a “separate condition to the injuries previously accepted by Comcare”. Strictly, that may be evidence, or a factual conclusion, rather than a relevant consideration. What the scheme of the SRC Act does require is that decision-making about a liability to pay compensation must focus on the “injury” the employee is alleged to have suffered:First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident.Canute 226 CLR 535 at [10]. The hierarchy of provisions in the SRC Act (see Canute 226 CLR 535 at [37]) indicates that it is the occurrence of an injury which both “actuates and defines the ambit of Comcare’s duty” to pay compensation. In Canute, the Court used this description when speaking about Comcare’s duty under s 24 of the SRC Act, but the description applies with equal force to Comcare’s duties under other provisions, including ss 14 and 16. As with the first ground of review as expressed, Comcare’s characterisation of the nature of the error might be debatable, but Comcare is correct to identify in the Tribunal’s reasoning and conclusion a departure from the approach to the SRC Act set out by the High Court in Canute.Ms Lofts’ contentions Ms Lofts submits that, once the Tribunal’s jurisdiction to hear and determine a denial of compensation is engaged then, on setting aside the decision, it undoubtedly has power to award compensation for medical treatment under s 16. She submits it holds such power because it stands in the shoes of the original decision-maker and may exercise such powers and discretions to the fullest extent permitted. She submits this is a consequence of the three-tier decision-making scheme created by the SRC Act. Relying on the reasoning of the Tribunal in Fuad (and its approval by a Full Court of this Court in Irwin), Ms Lofts submits that the question as to what is the subject matter of a claim is a practical, but not a jurisdictional, problem. The Tribunal must decide for itself whether the compensation sought by the employee was the subject matter with which the preceding decisions dealt, regardless of whether the earlier decision-makers dealt with it explicitly or even understood that matter was before them.