The heading above [27] to be amended by deleting the word “discourse” and inserting “condition” so that Question 3 reads as follows:
“QUESTION 3: COULD THE TRIBUNAL FIND THE 30 JANUARY DECISION CAUSED AN AGGRAVATION OF A PRE-EXISTING CONDITION?”
I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Rares, McKerracher and Murphy.
Associate:
Dated: 13 June 2012
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 228 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
SARAH MARGARET DRENTH Applicant
AND:
COMCARE Respondent
JUDGES:
RARES, MCKERRACHER AND MURPHY JJ
DATE OF ORDER:
21 MAY 2012
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The applicant file and serve an amended notice of appeal that identifies each question of law for the purposes of s 44 of the Administrative Appeals Act 1975 (Cth) by 5:00 pm on 21 May 2012.
2. The appeal be dismissed.
3. The applicant pay the respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 228 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
SARAH MARGARET DRENTH Applicant
AND:
COMCARE Respondent
JUDGES:
RARES, MCKERRACHER AND MURPHY JJ
DATE:
21 MAY 2012
PLACE:
ADELAIDE
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)
THE COURT:
This is an appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975. On 29 November 2011, the Chief Justice directed under s 44(3)(b) of that Act that the appeal be heard by a Full Court. The issue that arises on such an appeal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Drenth v Comcare [2012] FCAFC 86
Case
[2012] FCAFC 86
Decision Date
CaseChat Overview and Summary
The case of Drenth v Comcare is an appeal from the Administrative Appeals Tribunal under section 44 of the Administrative Appeals Tribunal Act 1975. The appellant, Sarah Drenth, sought to appeal a decision of the Tribunal on several questions of law, including whether the Tribunal correctly construed and applied certain statutory provisions in its decision. The Federal Court was required to determine whether the appellant had properly identified a question of law for the purposes of the appeal.
The court examined the appellant’s notices of appeal and found that they did not initially identify any questions of law. The court cited precedents, including Brown v Repatriation Commission, that emphasised the necessity of identifying a question of law for an appeal to proceed. After the hearing, three questions of law were identified and the appellant was directed to amend her notice of appeal to reflect these questions. The court then considered whether these questions were properly formulated and whether they identified questions of law that could be the subject of an appeal.
The court held that the appellant had not properly identified a question of law in her initial notices of appeal, which was a fundamental requirement for an appeal under section 44 of the Administrative Appeals Tribunal Act. The court directed the appellant to file an amended notice of appeal that correctly identified the questions of law to be considered on appeal. In the meantime, the court dismissed the appeal and ordered the appellant to pay the respondent’s costs. The court’s decision underscores the importance of correctly identifying questions of law in administrative appeals to ensure that the appeal process is properly grounded in legal principles.
Orders
Orders of the court
1. The applicant file and serve an amended notice of appeal that identifies each question of law for the purposes of s 44 of the Administrative Appeals Act 1975 (Cth) by 5:00 pm on 21 May 2012.
2. The appeal be dismissed.
3. The applicant pay the respondent’s costs.
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
The heading above [27] to be amended by deleting the word “discourse” and inserting “condition” so that Question 3 reads as follows:“QUESTION 3: COULD THE TRIBUNAL FIND THE 30 JANUARY DECISION CAUSED AN AGGRAVATION OF A PRE-EXISTING CONDITION?” This is an appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975. On 29 November 2011, the Chief Justice directed under s 44(3)(b) of that Act that the appeal be heard by a Full Court. The issue that arises on such an appeal is determined by s 44(1), which provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. Until this morning, the applicant had failed to identify any question of law in a number of her notices of appeal. As long as ago as Brown v Repatriation Commission (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ said:“The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it, and it alone, is the subject matter of the appeal, and the ambit of the appeal is confined to it.” Their Honours remarks have been echoed in a number of subsequent decisions of this Court that have also insisted upon the question raised actually identifying a question of law: see e.g. Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 323-325 [10]-[18] per Branson and Stone JJ, 332 [61] per Marshall J; Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40 at 41 [5] per Flick, Jagot and Barker JJ. At the hearing three questions of law were identified orally as being raised in this appeal. The Court directed the applicant, Sarah Drenth, to file an amended notice of appeal to reflect those questions. In substance, these questions were: (1)whether the Tribunal correctly construed and applied s 5A of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in finding that the decision recorded in a letter dated 30 January 2008 to Ms Drenth from her employer, the Australian Taxation Office (ATO), was “administrative action” within the meaning of s 5A (the 30 January decision);(2)whether it was legally open to the Tribunal to find that the 30 January decision was reasonable within the meaning of s 5A;(3)whether it was legally open to the Tribunal to find that the 30 January decision was causative of an aggravation of Ms Drenth’s pre-existing psychiatric conditions (i.e. in substance whether there was any evidence before the Tribunal to support its conclusion).BACKGROUND We will explain the circumstances of the 30 January decision later in these reasons. Suffice to say that the ATO’s letter of that date told Ms Drenth that a psychiatrist considered that she was not fit for work and, accordingly, could not return to work until further medical evidence was made available on which the ATO could decide the question of her fitness to return to work .