FEDERAL COURT OF AUSTRALIA
Comcare v SDCS [2023] FCA 1509
Appeal from: SDCS v Comcare [2022] AATA 1327 File number: QUD 217 of 2022 Judgment of: THOMAS J Date of judgment: 1 December 2023 Catchwords: WORKERS’ COMPENSATION – appeal from decision of the Administrative Appeals Tribunal (Tribunal) – whether Tribunal erred in finding that SDCS had suffered an “injury” within the meaning of the Safety Rehabilitation and Compensation Act (the Act) as early as August 2016 – whether the Tribunal erred in finding that SDCS’ “symptoms onset” in August 2016 was not the result of reasonable administrative action – where legal test for injury incorrectly applied or reasons insufficiently exposed – where Tribunal failed to deal with submission put by Comcare – where findings unsupported by probative evidence – error of law demonstrated – appeal upheld Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases cited: Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Comcare v Mooi (1996) 69 FCR 439
Comcare v Moon (2003) 75 ALD 160; [2003] FCA 569
Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13
De Tarle v Comcare (2022) 178 ALD 339; [2022] FCA 175
Dranchnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] FCA 26
Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
O’Donnell v K & S Freighters Pty Ltd (2015) 66 AAR 370; [2015] FCA 573
Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579; [2002] FCA 30
Stateships v Lawson (2009) 107 ALD 42; [2009] FCA 59
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 94 Date of hearing: 28 April 2023 Counsel for the Applicant: Mr C Clark Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: The Respondent appeared with a support person ORDERS
QUD 217 of 2022 BETWEEN: COMCARE
Applicant
AND: SDCS
Respondent
ORDER MADE BY:
THOMAS J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal be allowed and the decision of 20 May 2022 be set aside.
2.Pursuant to ss 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.
3.The respondent pay the applicant’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THOMAS J:
OVERVIEW
This is an appeal by the…
Continue reading Comcare v SDCS
Sign in free to access the full text
- AGLC
- Comcare v SDCS [2023] FCA 1509
- Case
- [2023] FCA 1509
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily whether the AAT had correctly applied the statutory tests for determining the date of injury and whether its findings were adequately supported by evidence. Comcare contended that the AAT erred by not applying the correct legal tests for determining when an injury occurred and by failing to consider evidence that suggested an injury on 10 November 2017. Comcare further argued that the AAT’s finding regarding the date of injury was not supported by probative evidence and was contrary to medical evidence.
The court found that the AAT had indeed erred in several respects. The AAT’s decision that SDCS had suffered an injury in August 2016 was not supported by relevant probative evidence and did not address the statutory requirements regarding incapacity for work or impairment. Additionally, the AAT failed to consider evidence indicating an injury on 10 November 2017 and did not properly address the submissions made by Comcare regarding reasonable administrative action. The AAT also breached procedural fairness by not advising Comcare of its provisional opinion and inviting submissions on this matter. Furthermore, the AAT’s reasons for finding that the injury in August 2016 was not due to reasonable administrative action were insufficient.
As a result of these findings, the court allowed the appeal, set aside the AAT’s decision, and remitted the matter back to the AAT for reconsideration. The respondent was ordered to pay the applicant’s costs, to be taxed if not agreed.
Orders
Orders of the court
1. The appeal be allowed and the decision of 20 May 2022 be set aside.
2. Pursuant to ss 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.
3. The respondent pay the applicant’s costs, to be taxed if not agreed.
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
The upshot of this decision, as confirmed by the Full Court in Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 (Perry J, with whom Siopis J agreed), is that legal error may be found if the Tribunal bases a conclusion upon its own views in circumstances where the matter required expert evidence.Consideration Comcare’s submissions alleged essentially three forms of error in the Tribunal’s finding as to injury:(a)that the Tribunal failed to apply the correct legal tests in determining “injury” under the SRC Act;(b)that the Tribunal failed to have regard to the evidence which pointed to the respondent having suffered an injury on 10 November 2017; and(c)that the Tribunal’s finding regarding the date of the respondent’s injury was unsupported by probative evidence and/or contrary to the medical evidence.To a large extent, each of these alleged errors is closely related.Evidence as to injury Before the Tribunal and this Court, Comcare identified the respondent’s psychiatric condition as a “disease” under s 5A of the SRC Act – that is, an ailment or aggravation of an ailment within the meaning of s 5B(1). The Tribunal appeared to accept this in its reasons and the respondent did not challenge this characterisation on appeal. At the conclusion of the hearing before the Tribunal, there were two competing positions regarding when the respondent’s condition might have qualified as a “disease” under the SRC Act:(a)Comcare’s position: that on 10 November 2017, the respondent developed a temporary exacerbation of his pre-existing adjustment disorder following the disciplinary action at his employment; and (b)the respondent’s position: that in August 2016, he developed the adjustment disorder following exposure to aggressive customers. In its written closing submissions before the Tribunal, Comcare submitted that s 5B(1) required the respondent to point to “evidence which establishes that his employment – more specifically the exposure to aggressive customers – has ‘contributed to a significant degree’ to the development of any psychiatric condition”. This, it was said:involves a two-fold process. Initially, the [respondent] must be able to point to factual evidence which shows that he suffered mental health symptoms on account of exposure to aggressive customers. The second stage involves expert medical evidence which confirms that this alleged exposure has in fact resulted in a psychiatric condition and that the level of contribution of that factor reaches the threshold of “contributed to a significant degree”. Later in its written submissions, Comcare further submitted that:36.[Section 14] mandates that not only must a claimant show that he has suffered an injury (as that term encompasses a “disease”), but that such an injury “results in death, incapacity for work or impairment”.37.Here, the evidence establishes that [the respondent] did not have any incapacity for work until after the meeting with [his supervisor] on the 10th November 2017 and thereafter visited his general practitioner.