Concetta Ilardo v Australian Telecommunications Commission

[1983] FCA 305

Re: CONCETTA ILARDO
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G. 239 of 1983

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.

HEARING

SYDNEY

#DATE 25:10:1983

ORDER

(1) The Notice of Appeal is struck out.

(2) The appellant is to pay the respondent's costs.

JUDGE1

This is an application to strike out a notice of appeal, the grounds of which have been recently amended, the appeal being from the decision of the Administrative Appeals Tribunal to deny the appellant, Concetta Ilardo, workers compensation pursuant to the relevant act.

In the amended notice of appeal, the question of law raised is stated thus:-

"That the Tribunal erred in law in finding that any incapacity suffered by the Applicant as a result of her injury had ceased as of 26 August, 1983 in that it misapprehended and failed to take into account relevant considerations or alternatively gave weight to irrelevant considerations."

Counsel for the appellant has put to me that the considerations which the Tribunal failed to take into account were the evidence of Dr. Gatenby, a psychiatrist, whose report on the appellant was before the Tribunal. In the judgement of the Tribunal reference is made to Dr. Gatenby's report, and they discount its weight for two express reasons at page 10 of the judgment in paragraph 25 where they say:-

"As we earlier indicated we are not prepared to place great reliance upon the report by Dr Gatenby as he obviously had difficulty in communicating with the applicant and he appears to have accepted a greater degree of organic disability to the left shoulder than the orthopaedic evidence otherwise clearly establishes."

Broadly, the injury suffered by the appellant was an injury to her left shoulder when she tripped and fell on her way to her place of employment on 13 October 1978. Thereafter she was treated by her local general practitioner, who referred her to Dr. Tooth, an orthopaedic specialist who continued to see her and reported on her up until 1982 at least.

Dr. Tooth made mention on a number of occasions of a functional overlay being the explanation for the appellant's professed symptoms, but there were other aspects of his evidence which the Tribunal was entitled to take into account in assessing the credibility of the appellant, and in particular, she attended for a number of medical examinations with bruising inconsistent, because of the lapse of time, with the original injury.

Dr. Gatenby expressed the view that, in his opinion, the appellant was not malingering, but the Tribunal took the view that the bruising that I have referred to was self-inflicted for the purpose of perpetuating her compensation elegibility. In addition, the Tribunal took the view that she was not credible, at least in some aspects of her evidence.

What has been raised or attempted to have been raised in the notice of appeal is, in my view, not a question of law, but a question of fact, to which the Tribunal addressed itself and, so far as I can determine from reading the judgment, the Tribunal addressed itself in a conscientious and thorough manner to the evidence which was before it.

The motion to strike out the appeal, because of its failure to state in it a question of law, therefore, succeeds. I strike out the notice of appeal.