FEDERAL COURT OF AUSTRALIA
Comcare v Martin [2015] FCA 4
Citation: Comcare v Martin [2015] FCA 4 Appeal from: Re Peta Martin and Comcare [2014] AATA 553 Parties: COMCARE v PETA MARTIN File number: NSD 913 of 2014 Judge: GRIFFITHS J Date of judgment: 8 January 2015 Catchwords: WORKERS’ COMPENSATION – appeal from decision of Administrative Appeals Tribunal (Tribunal) – where Tribunal found Comcare was liable to pay compensation to an employee under s 14 of the Safety, Rehabilitation and Compensation Act (1988) (Cth) (SRC Act) – whether Tribunal erred in law in concluding that “administrative action” was not taken in a reasonable manner in respect of the respondent’s employment for purposes of s 5A of the SRC Act – appeal allowed – notice of contention – whether Tribunal’s decision should be affirmed on the basis that the exclusion in s 5A(2)(f) had no application because the injury resulted not from the decision not to promote the respondent but rather from indirect and unintended consequences of that decision, namely her anxiety at having to resume her previous position working under a supervisor whom she alleged had bullied and harassed her – notice of contention dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Federal Court of Australia Act 1976 (Cth) s 27
Federal Court Rules 2011 (Cth) r 33.29
Safety, Rehabilitation and Compensation Act (1988) (Cth) ss 5A, 14Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555
Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272
Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Florance v Andrew (1985) 58 ALR 377
Greater Wollongong City Council v Cowan (1955) 93 CLR 435
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
IW v The City of Perth (1997) 191 CLR 1
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436
Preston v Carmody (1993) 44 FCR 1
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Whitaker v Comcare (1998) 86 FCR 532Date of hearing: 23 December 2014 Date of last submissions: 23 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 110 Counsel for the Appellant: A Berger Solicitor for the Appellant: Lehmann Snell Lawyers Counsel for the Respondent:
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- Comcare v Martin [2015] FCA 4
- Case
- [2015] FCA 4
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CaseChat Overview and Summary
The court found that the Tribunal erred in its interpretation of section 5A, noting that the exclusion was intended to narrow entitlements to compensation by broadening the relevant exclusion in respect of legitimate management actions. The court held that Ms Martin’s adjustment disorder was inextricably linked to the decision not to appoint her to a position, and thus, it would be artificial to separate out certain indirect or unintended consequences of that decision from the decision itself. The court concluded that the Tribunal's findings did not support the contention that the injury resulted from indirect and unintended consequences rather than the decision itself.
The appeal was allowed, and the Tribunal's decision dated 11 August 2014 was set aside. The matter was remitted to the Tribunal to be heard and determined according to law. Furthermore, the notice of contention was dismissed, and Ms Martin was ordered to pay Comcare’s costs of and incidental to the appeal and the notice of contention.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision dated 11 August 2014 of the Administrative Appeals Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
4. The notice of contention be dismissed.
5. The respondent is to pay the appellant’s costs of and incidental to the appeal and the notice of contention.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted above, Ms Martin opposed the proposed amendments, substantially on the basis that they were foreshadowed only three weeks before the hearing. As matters transpired, the scheduled hearing of the appeal was deferred for another week. In any event, however, Ms Martin could point to no substantive prejudice and, Mr Grey, who appeared for Ms Martin, candidly acknowledged that he was in a position to deal with the amendments. In my view, leave should be granted to permit Comcare to rely upon the amended notice of appeal. Consideration of appeal It is convenient to deal with the first two grounds of appeal together because they relate to the question whether the Tribunal committed an appealable error of law for the purposes of s 44 of the AAT Act in relation to that aspect of its decision concerning the question whether or not administrative action was taken in a reasonable manner for the purposes of s 5A(1) of the SRC Act. It should also be noted at this point that these two grounds plainly relate to a question of law which, in my view, is properly raised by the amended notice of appeal as relating to the proper construction of s 5A of the SRC Act. For the reasons which follow, I consider that the Tribunal did fall into appealable error. It is to be noted that, in contrast with the position concerning what constitutes “reasonable administrative action” (which is defined non-exhaustively in s 5A(2) of the SRC Act), there is no comparable provision which attempts to define – exhaustively or non-exhaustively – what amounts to “taken in a reasonable manner” for the purposes of that provision. It is necessary therefore, to construe that phrase having regard to the text considered in its context, consistently with the modern approach to statutory construction (see generally, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] per French CJ, Hayne, Kiefel, Gageler and Keane JJ). In Keen, which is a decision of the Full Court of the Supreme Court of South Australia, the comparable statutory provision requiring construction was s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA), which relevantly provided:30AA disability consisting of an illness or disorder of the mind is compensable if and only if -(a) the employment was a substantial cause of the disability; and(b)the disability did not arise wholly or predominantly from - (i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or(ii)a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker's employment; or(iii)reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment; or(iv)reasonable action taken in a reasonable manner under this Act affecting the worker.