Comcare v Stewart

Case [2019] FCA 365

FEDERAL COURT OF AUSTRALIA

Comcare v Stewart [2019] FCA 365

File number: ACD 83 of 2018
Judge: ROBERTSON J
Date of judgment: 21 March 2019
Catchwords:

WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal on questions of law from a decision of the Administrative Appeals Tribunal – statutory construction – where injury “does not include a disease… suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” – whether Tribunal misconstrued or misapplied this statutory provision – whether error in respect of one integer infected the Tribunal’s conclusion in relation to another

ADMINISTRATIVE LAW – appeal on questions of law from a decision of the Administrative Appeals Tribunal – Commonwealth workers’ compensation – statutory construction – where injury “does not include a disease… suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” –  whether Tribunal misconstrued or misapplied this statutory provision – whether error in respect of one integer infected the Tribunal’s conclusion in relation to another

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A

Cases cited:

Comcare v Drinkwater [2018] FCAFC 62; 158 ALD 244

Comcare vMartin [2016] HCA 43; 258 CLR 467

Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; 199 FCR 463

Drenth and Comcare [2011] AATA 582

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Long v Comcare [2016] FCA 737

Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; 185 CLR 259

Smith v Comcare [2013] FCAFC 65; 212 FCR 335

Stieglitz v Comcare [2010] AATA 263

Thompson and Comcare [2012] AATA 752

Wiegand v Comcare Australia [2002] FCA 1464; 72 ALD 795
Date of hearing: 8 March 2019
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 87
Counsel for the Applicant: Mr PG Woulf
Solicitor for the Applicant: Lehmann Snell Lawyers
Counsel for the Respondent: Mr PJ Hanks QC with Mr K Pattenden
Solicitor for the Respondent: Bradley Allen Love Lawyers

ORDERS

ACD 83 of 2018
BETWEEN:

COMCARE

Applicant
AND:

PAUL ANTONY PATRICK STEWART

Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

21 MARCH 2019

THE COURT ORDERS THAT:

1.The application is dismissed.

2.Subject to order 3, the applicant is to pay the respondent’s costs, as agreed or assessed.

3.If either party wishes to contend for a costs order different to the order proposed in order 2, they notify my associate and the other party within 5 business days of the date of these orders and thereafter a timetable to determine that issue will be set.

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


REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

  1. This appeal…

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Details
AGLC
Comcare v Stewart [2019] FCA 365
Case
[2019] FCA 365
Decision Date

CaseChat Overview and Summary

Comcare v Stewart involved an appeal by Comcare against a decision of the Administrative Appeals Tribunal (AAT) regarding a claim for workers' compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue was whether the Tribunal had misconstrued or misapplied the statutory provision that excludes diseases suffered as a result of reasonable administrative action taken in a reasonable manner in respect of an employee’s employment. The central questions concerned the characterisation and manner of the administrative action, specifically a meeting held on 15 January 2016, and whether this meeting constituted reasonable administrative action taken in a reasonable manner.

The court examined whether the Tribunal’s reasoning, particularly in respect of the characterisation of the administrative action, was flawed. It was noted that the Tribunal assumed the meeting was reasonable administrative action and proceeded to evaluate if it was conducted in a reasonable manner. The court found that this approach did not reveal error as it was merely an issue of characterisation rather than fact. The court also scrutinised whether errors in the Tribunal’s reasoning regarding the nature of the administrative action affected its conclusion on whether it was taken in a reasonable manner. It was held that such errors did not infect the Tribunal’s consideration of the reasonableness of the manner in which the action was taken.

The court concluded that the appeal should be dismissed as the Tribunal’s reasoning, despite some errors, was sound in its overall approach to the statutory interpretation and application. The court ordered that the applicant should pay the respondent’s costs, subject to any further contention on costs within a specified period. The decision underscored the importance of correctly characterising administrative actions and the manner in which they are conducted in the context of workers' compensation claims.

Orders

Orders of the court

1. The application is dismissed.

2. Subject to order 3, the applicant is to pay the respondent’s costs, as agreed or assessed.

3. If either party wishes to contend for a costs order different to the order proposed in order 2, they notify my associate and the other party within 5 business days of the date of these orders and thereafter a timetable to determine that issue will be set.

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

In my opinion, the infection for which Comcare contends in this case, by the Tribunal’s erroneous reasoning as to Question 1 infecting its reasoning as to Question 3, is not made out because the Tribunal approached the issue of whether the reasonable administrative action was taken in a reasonable manner on the express assumption that the meeting on 15 January 2016 was reasonable administrative action: see [66]. I take into account that earlier, at [54], the Tribunal had said it was not necessary for it to consider the issues canvassed by Questions 2 and 3 and was addressing whether the administrative action was reasonable and taken in a reasonable manner “for completeness”. But as it made clear also at [55], the Tribunal went on to make findings on the assumption that it was wrong in its conclusion or conclusions that the meeting held on 15 January 2016 was not “administrative action”, and on the further assumption that it was “reasonable administrative action”, thus giving rise to its analysis of whether that reasonable administrative action was taken in a reasonable manner. This approach of reasoning from an assumption made in the alternative does not reveal error, at least where, as in the present context, the assumption goes merely to a question of characterisation, rather than fact. Relevantly, the reasoning of the Tribunal on the matters canvassed by Question 3 proceeded by considering whether Mr Linehan’s conduct at the meeting on 15 January 2016 – that event being assumed to bear the character of reasonable administrative action taken in respect of the applicant’s employment – was taken in a reasonable manner.Conclusion and orders For these reasons my conclusion is that the appeal should be dismissed. My provisional view is that the applicant should pay the respondent’s costs. If necessary, I will hear the parties in relation to costs.

Ratio Decidendi

Legal Principle Established

Comcare submitted that to the extent Stieglitz was inconsistent with the later judgments in Martin and in Martinez (No 2), insofar as they eschewed reliance on the subject of psychological drivers of the employee concerned, it must be regarded as incorrectly decided. The Tribunal’s findings did not demonstrate that it approached the matter in the manner endorsed by Martinez (No 2), Keen and by the Tribunal in Drenth. On the contrary, the Tribunal basically set out a list of subjective matters without saying how (if at all) they offended the requirements of the SRC Act by reference to the other authorities and cases to which it alluded, but did not actually apply, before its misplaced insertion of the ratio decidendi in Wiegand. It was by no means “clear” from the whole of the Tribunal’s reasoning that the Tribunal was not influenced by the observations in Wiegand. If it was said that the Tribunal’s reasons must be read as a “whole” then those reasons must include the passage from Wiegand, which the parties now agreed had no role to play in the application of s 5A(1) of the SRC Act in the circumstances.Consideration I am not persuaded that any errors of law made by the Tribunal in respect of Questions 1 and 2 infect the Tribunal’s consideration of Question 3. Having said that, I would have thought that the expression “disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” was best considered, at least ultimately, in a composite way, even though a decision-maker might wish to examine each element separately before coming to a conclusion. Nevertheless, it is appropriate to consider the three questions posed by Comcare’s three questions of law and grounds. I proceed on the basis that the reasons given by the Tribunal were the entirety of its reasons: see s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). I also proceed on the basis that the Tribunal’s reasons should be read in accordance with the principles in Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; 185 CLR 259 at 272, that is, the reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.Question 1 In my opinion, the Tribunal, at [53], took too narrow a view of what is encompassed by the word “action” in the statutory expression “a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” The Tribunal’s reasoning, in part, was that no relevant “action” was taken at the meeting because the meeting concluded without any decision being made. This is too narrow a view, at least in the present circumstances where the issue was whether the meeting itself constituted reasonable administrative action. The parties agreed before the Tribunal that the onset of the applicant’s “disease” followed the meeting.