FEDERAL COURT OF AUSTRALIA
Comcare v Moon [2003] FCA 569
Administrative Appeals Tribunal Act 1975 (Cth) s 25, 29, 33, 37, 39, 42, 43
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 14, 24, 27, 28, 64, 67Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 referred to
Lees v Comcare [1999] FCA 753 followed
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to
Willcocks v Comcare [2001] FCA 1315 referred to
Comcare v Amorebieta (1996) 66 FCR 83 explained
Comcare v Fiedler [2001] FCA 1810 referred to
Whittaker v Comcare (1998) 28 AAR 55 referred to
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 referred to
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 followed
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 referred to
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; [2001] FCA 73
Community and Public Sector Union v Telstra Corporation Ltd (No.2) (2000) 101 FCR 45; [2000] FCA 872 applied
Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 applied
Ridge v Baldwin (1964) AC 40 applied
Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 appliedX v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 319 referred to
Re Rebeiro and Comcar (1996) 44 ALD 632 followed
John v Rees [1970] Ch 345 cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 cited
COMCARE v JASON CHARLES MOON
D 11 of 2002
MANSFIELD J
6 JUNE 2003
ADELAIDE (HEARD IN DARWIN)
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D 11 OF 2002
BETWEEN:
COMCARE
APPLICANTAND:
JASON CHARLES MOON
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
6 JUNE 2003
WHERE MADE:
ADELAIDE (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D 11 OF 2002
BETWEEN:
COMCARE
APPLICANTAND:
JASON CHARLES MOON
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
6 JUNE 2003
PLACE:
ADELAIDE (HEARD IN DARWIN)
REASONS FOR JUDGMENT
This is an application by way of appeal on a matter of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Administrative Appeals Tribunal (the Tribunal) on 23 April 2002 set aside a decision of a delegate of the applicant (Comcare) made on 3 January 2001 rejecting the application of the respondent (Mr Moon) for a payment for permanent impairment in respect of a work caused injury made under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the SRC Act). Comcare’s delegate had affirmed an earlier decision made on…
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- AGLC
- Comcare v Moon [2003] FCA 569
- Case
- [2003] FCA 569
- Decision Date
CaseChat Overview and Summary
The legal issues before the court pertained to whether the Tribunal had the authority to review the decision of Comcare from 12 April 1999, which accepted the injury as service-related, and whether the Tribunal had correctly interpreted the Guide in determining the level of Mr Moon's permanent impairment. Comcare argued that the Tribunal had no jurisdiction to review the earlier decision and that the Tribunal erred in its interpretation of the Guide. The court examined the scope of the Tribunal's powers under the Administrative Appeals Tribunal Act 1975 (Cth) and the Safety, Rehabilitation & Compensation Act 1988 (Cth). The court found that the Tribunal was only empowered to review the decision of 3 January 2001 and did not have the jurisdiction to revisit the decision of 12 April 1999. However, even if the Tribunal had jurisdiction, it did not make an error in its analysis of the Guide. The court concluded that the Tribunal's interpretation of the Guide in determining the level of Mr Moon's impairment was correct.
The court dismissed the appeal, holding that the Tribunal's decision was legally sound and within its jurisdiction. The court found that the Tribunal did not err in determining that Mr Moon had a service-related injury and correctly assessed his permanent impairment at 10%. The appeal was dismissed, and the Tribunal's decision to award Mr Moon compensation for his permanent impairment was upheld. The final order was that the application be dismissed.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
Finally, Comcare contended that the Tribunal failed to provide reasons for its decision as required by s 43(2) of the AAT Act, because it failed to consider (or to indicate why it did not accept) the contention of Comcare about the objective nature of the criteria specified in Table 9.5 of the Guide and about the asserted irrelevance of pain to the question of the level of his permanent impairment.consideration The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. So too is there an error of law in the drawing of an inference in the absence of evidence which could support the inference: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481. The first class of the applicant’s contentions will therefore, if made out, entitle the Court to set aside the Tribunal’s decision under s 44 of the AAT Act. It is necessary to deal first with the matter raised by the grounds of appeal of Comcare. It is the first of the findings said by Comcare not to be supported by evidence, namely that Mr Moon sustained a work related injury. The issue is also the subject of the cross-contention of Mr Moon. In my view, the Tribunal did not purport to revisit the decision of 12 April 1999 that the respondent suffered the condition, namely bilateral anterior compartment syndrome, on 21 June 1993 to which his military service had contributed in a material way. The Tribunal needed to address in some detail the nature and extent of the compensatable injury to address the contentions of Comcare that Mr Moon had no permanent disability as a result of the condition, even though activity may have led to him experiencing pain. It was part of Comcare’s case that pain of itself, unless it led to some physical restriction during the activity, could not be a matter relevant to the existence of impairment under the SRC Act. The Tribunal’s analysis of Dr Lugg’s evidence to understand the aetiology of the condition and its relationship to Mr Moon’s army service must be understood as being in that context. If the Tribunal did address whether Mr Moon had in fact suffered a work related injury by reason of the condition, in my view it was in error in doing so. If I am wrong about why the Tribunal addressed the nature and extent of the injury, so that it did entertain the first argument of Comcare referred to in [21], I do not consider it was empowered to do so. It is entitled to review certain decisions under s 25 of the AAT Act and s 64 of the SRC Act. Both the decision of 12 April 1999 and the decision of 3 January 2001 were reviewable decisions. No application for review of the decision of 12 April 1999 was made by Mr Moon in accordance with s 29 of the AAT Act. The application for review before the Tribunal was in respect of the decision of 3 January 2001. As noted earlier, the decision of 3 January 2001 was in respect of the renewed application for compensation for permanent impairment was made on 17 April 2000. In that part of the form completed by Mr Moon, it described the ‘Accepted Condition’ as the condition. The medical officer responded affirmatively to the question whether the condition then suffered by Mr Moon was related to the ‘Accepted Condition’. Dr Homolka was asked by Comcare to assess the degree of permanent impairment as a result of the condition Mr Moon suffered at work on Monday, 21 January 1993”. The documents lodged by Comcare pursuant to s 37 of the AAT Act were those relating to the decision of 3 January 2001. The statement dated 2 March 2001 pursuant to s 37 of the AAT Act described the reviewable decision as the decision of 3 January 2001 affirming that Comcare is not liable to pay to Mr Moon lump sum compensation for permanent impairment in respect of the condition. It recited as part of the ‘background’ the decision of 12 April 1999 accepting Mr Moon suffered injury arising out of or in the course of his military service, namely the condition, which for the purposes of the SRC Act was suffered on 21 June 1993. It did not suggest the decision of 12 April 1999 was under review. It identified the letter of 3 January 2001 as containing the reasons for the reviewable decision.