Comcare v Martinez (No 2)

Case [2013] FCA 439

FEDERAL COURT OF AUSTRALIA

Comcare v Martinez (No 2) [2013] FCA 439

Citation: Comcare v Martinez (No 2) [2013] FCA 439
Parties: COMCARE v MARIA MARTINEZ
File number: ACD 90 of 2012
Judge: ROBERTSON J
Date of judgment: 17 May 2013
Catchwords: ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – Commonwealth workers compensation – statutory construction – injury “does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” – whether concurrent causes each within the proviso – whether error of law in making certain findings of fact – misconstruing statute – adequacy of reasons – whether denial of procedural fairness
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 43(2), 43(2B) and 44
Federal Proceedings (Costs) Act 1982 (Cth) s 6(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases cited:

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Comcare v Broadhurst (2011) 192 FCR 497
Comcare v Etheridge (2006) 149 FCR 522
Commissioner of Taxation v Raptis (1989) 89 ATC 4994
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24

Pfizer Pty Ltd v Birkett [1999] FCA 1778

Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Robert Bosch (Aust) Pty Ltd v Secretary, Dept of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13

Date of hearing: 3 May 2013
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 105
Counsel for the Applicant: Mr A Berger
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr LT Grey
Solicitor for the Respondent: Colquhoun Murphy

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 90 of 2012
BETWEEN:

COMCARE
Applicant
AND:

MARIA MARTINEZ
Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

17 MAY 2013

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decisions of the Administrative Appeals Tribunal in application 2011/3380 be set aside, being the decision made on 14 November 2012 and the decision made on 19 November 2012 dealing with costs.

3.Application 2011/3380 be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

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

5.Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1982 (Cth), a costs certificate be granted stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a…

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AGLC
Comcare v Martinez (No 2) [2013] FCA 439
Case
[2013] FCA 439
Decision Date

CaseChat Overview and Summary

In the case of Comcare v Martinez, the Federal Court of Australia was called upon to review a decision made by the Administrative Appeals Tribunal (AAT) concerning a workers' compensation claim. The primary dispute was whether the Tribunal had correctly applied the statutory exclusion under section 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which excludes compensability for injuries resulting from reasonable administrative actions taken in a reasonable manner. Comcare, the appellant, argued that the AAT erred in its determination that certain administrative actions did not fall within the exclusion proviso of the statute.

The central legal issues revolved around whether the Tribunal had properly assessed the administrative actions taken and if these actions, either individually or cumulatively, contributed significantly to Ms Martinez's psychological condition. Comcare contended that the Tribunal failed to adequately address whether the administrative actions constituted reasonable actions taken in a reasonable manner, which was necessary to exclude the condition from compensability under section 5A. Specifically, Comcare argued that the Tribunal did not make the requisite findings to determine if the events in the NICP prior to Ms Martinez's transfer to the employment team were reasonable administrative actions.

The Court found that the Tribunal's reasoning was flawed as it did not properly consider whether the administrative actions significantly contributed to Ms Martinez's condition in a manner that would exclude it from compensability. The Court noted that the Tribunal’s focus on whether the actions were taken in a reasonable manner was misplaced and that it needed to determine whether the actions themselves constituted reasonable administrative actions. Furthermore, the Court highlighted that the Tribunal did not make explicit findings on whether the actions in question were reasonable administrative actions, which was a critical oversight. Consequently, the Court concluded that the Tribunal had erred in law and did not provide adequate reasons for its decision.

As a result of these findings, the Court allowed the appeal, set aside the AAT's decisions, and remitted the matter back to the AAT for reconsideration in accordance with the law. The Court also ordered that the respondent, Ms Martinez, pay Comcare's costs of the appeal and granted a costs certificate under the Federal Proceedings (Costs) Act 1982 (Cth) to facilitate the payment of the respondent's costs incurred during the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decisions of the Administrative Appeals Tribunal in application 2011/3380 be set aside, being the decision made on 14 November 2012 and the decision made on 19 November 2012 dealing with costs.

3. Application 2011/3380 be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

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

5. Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1982 (Cth), a costs certificate be granted stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal, and

(b) any costs payable to the applicant, Comcare, as a result of Order 4.

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

As to failing to consider a relevant factor or misapprehending the matters of which the Tribunal had to be satisfied in reaching a decision, the applicant Comcare submitted that the Tribunal was not entitled to conclude that the exclusion contained in s 5A of the SRC Act did not apply merely by finding that certain administrative action did not satisfy the section. Before reaching this conclusion, the applicant submitted, the Tribunal needed to make findings that there was no reasonable administrative action taken in a reasonable manner that significantly contributed to the injury or disease: Hart v Comcare (2005) 145 FCR 29 at [22]. The applicant submitted that it was not entirely clear whether the Tribunal found that the three events set out in [69] of the Tribunal’s reasons contributed significantly to Ms Martinez’ condition cumulatively or each of them did so. If each of them did so then, the applicant submitted, the Tribunal was required to make a finding that each of these events did not constitute reasonable administrative action undertaken in a reasonable manner before setting aside the decision under review on the basis that Ms Martinez’ adjustment disorder was not excluded by s 5A(2) [sic] of the SRC Act. However, the Tribunal failed to make a finding that events in the NICP prior to Ms Martinez moving to the employment team did not constitute reasonable administrative action and in [75] of its reasons expressly declined to do so. On the same hypothesis, that the three matters referred to in [69] of the Tribunal’s reasons cumulatively contributed significantly to Ms Martinez’ condition then, the applicant submitted, the Tribunal was required to either find that events in the NICP prior to Ms Martinez moving to the employment team did not, on their own, contribute significantly to Ms Martinez’ condition or that those matters did not constitute reasonable action undertaken in a reasonable manner before concluding that s 5A did not apply. Either way, the applicant submitted, the Tribunal made an error of law in failing to properly deal with events in the NICP prior to Ms Martinez moving to the employment team. The applicant next submitted that the Tribunal’s treatment of Ms Ward’s management of Ms Martinez as supervisor suffered from the same error. The applicant referred to Ms Ward’s management as including but not limited to meetings beginning on 21 June 2010 and “claims of bullying and harassment of Ms Martinez by Ms Ward” as a significant contributor to Ms Martinez’ condition. The applicant submitted that as the Tribunal found at [89] of its reasons that having one on one meetings with Ms Martinez in a separate room from 21 June 2010 onwards constituted bullying by Ms Ward, it was unclear what the Tribunal treated as falling within the second as opposed to the third bullet point set out in [69] of its reasons. In [79] the Tribunal found that Ms Ward’s management of Ms Martinez between March and June was reasonable administrative action before stating that the real issue was whether Ms Ward’s implementation in June 2010 of the more formal process of a weekly meeting in a separate room was reasonable. The applicant submitted that the real issue was whether there was any management of Ms Martinez by Ms Ward that significantly contributed to Ms Martinez’ condition which constituted reasonable administrative action taken in a reasonable manner. The applicant submitted the Tribunal failed to make the necessary findings to properly address this issue.

Ratio Decidendi

Legal Principle Established

In reply, the applicant submitted that if the Tribunal was only dealing in [85] onwards with the question of whether the relevant actions were taken in a reasonable manner, the Tribunal’s consideration in [91]-[92] of matters relating to the administrative action selected by Ms Ward and whether other actions could have been taken constituted asking itself the wrong question in order to determine whether such action was “taken in a reasonable manner”.Consideration As to ground 4.1, the context is provided by the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29 at [22] concerning concurrent matters referred to in the proviso in s 5A(1) “but does not include …” The Tribunal in that case had identified two concurrent causes: the failure to obtain promotion, which was excluded by the then s 4(1), and the events connected with the process of promotion, which was not excluded by s 4(1). The Full Court was dealing with a submission that where there were two operative causes, one compensable and the other not, the approach taken by the Tribunal was correct. The Full Court held that the Tribunal’s approach was incorrect and said as follows:[22] The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.[23] It will in any case be for the Tribunal to examine the facts, and assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, maybe a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion. The applicant’s point in the present appeal is that the Tribunal did not exclude the results of one of the matters it had held to be within the proviso and instead focussed exclusively on whether another matter it held to be within the proviso was reasonable administrative action taken in a reasonable manner. The Tribunal at [69] found that events in the NICP prior to Ms Martinez moving to the employment team contributed significantly to her condition up to and including 30 August 2010. The expression “contributed to, to a significant degree” is of statutory significance: see s 5B of the SRC Act. Although later in the same paragraph the Tribunal said that the actions, the events in the NICP, made a “contribution” to Ms Martinez’ adjustment disorder that was for the purpose of noting the gap in time between those events and the manifestation of her psychological condition some eight months later. I would not construe the absence of the adjective “significant” as intended to convey a different concept when the Tribunal referred a second time in that paragraph to the contribution the events in the NICP made. Further, the Tribunal then considered at some length, at [72]-[75] the character of the administrative actions in the NICP. It would not have needed to do so if those actions were not ones which were, within s 5A of the SRC Act, causally related to the respondent’s condition. As the applicant submitted, that consideration by the Tribunal confirms that its reasoning was that the events in the NICP had made a significant contribution to Ms Martinez’ condition.