Dunkerley v Comcare

Case [2012] FCAFC 132

FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2012] FCAFC 132

Citation: Dunkerley v Comcare [2012] FCAFC 132
Appeal from: Dunkerley v Administrative Appeals Tribunal [2012] FCA 41
Parties: ULLA-MAIJA DUNKERLEY v COMCARE and ADMINISTRATIVE APPEALS TRIBUNAL
File number: ACD 16 of 2012
Judges: LANDER, LOGAN AND BARKER JJ
Date of judgment: 13 September 2012
Catchwords:

ADMINISTRATIVE LAW – appeal – appeal from a decision of the Court in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – affirmation by Tribunal of refusal of compensation because injury resulted from “reasonable administrative action” in terms of s 5A of the Safety Rehabilitation Act 1988 (Cth) – administrative action that of Selection Advisory Committee (SAC) – Tribunal conclusion that, though SAC not legally bound by a particular policy concerning its activities, it had nonetheless followed that policy and that SAC actions were reasonable – conclusion of primary judge that it was unnecessary to answer a question as to whether policy legally binding because SAC had followed the policy in any event

Held:  no error by primary judge – policy not inconsistent with APS values or code of conduct in Public Service Act 1999 (Cth) and because Tribunal made finding of fact that it was followed and did not lead to unreasonable action no need to consider whether SAC legally bound to follow that policy
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Public Service Act 1999 (Cth) ss 10, 13
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5A
Cases cited: Dunkerley v Administrative Appeals Tribunal [2012] FCA 41 cited
Dunkerley and Comcare [2010] AATA 915 cited
Date of hearing: 14 August 2012
Place: Brisbane (via video link to Canberra)
(Heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: Mr A Berger
Solicitor for the First Respondent: Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 16 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ULLA-MAIJA DUNKERLEY
Appellant
AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:

LANDER, LOGAN AND BARKER JJ

DATE OF ORDER:

13 SEPTEMBER 2012

WHERE MADE:

BRISBANE (VIA VIDEO LINK TO CANBERRA)
(HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed if not agreed.

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 16 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ULLA-MAIJA DUNKERLEY
Appellant
AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:

LANDER, LOGAN AND BARKER JJ

DATE:

13 SEPTEMBER 2012

PLACE:

BRISBANE (VIA VIDEO LINK TO CANBERRA)
(HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE COURT:

  1. This appeal has its origins in 2009 in…

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Details
AGLC
Dunkerley v Comcare [2012] FCAFC 132
Case
[2012] FCAFC 132
Decision Date

CaseChat Overview and Summary

Dunkerley was an employee of the Commonwealth who sought compensation for injuries sustained during the course of employment. The dispute reached the Federal Court of Australia, where it was determined whether the appellant, Dunkerley, was entitled to compensation following an injury sustained during a selection process for a job. The decision was made by the Selection Advisory Committee (SAC) and Comcare, the respondent, had refused compensation on the basis that the injury resulted from "reasonable administrative action" under section 5A of the Safety Rehabilitation and Compensation Act 1988 (Cth). The Administrative Appeals Tribunal (AAT) upheld this decision, leading to Dunkerley’s appeal.

The primary legal issue before the court was whether the SAC was legally bound to follow a particular policy concerning its activities, and if not, whether the actions taken by the SAC were reasonable. The court also had to consider whether the policy was inconsistent with the Australian Public Service (APS) values or the code of conduct in the Public Service Act 1999 (Cth). A secondary issue was whether the Tribunal's finding that the SAC had followed the policy meant that there was no need to determine if the SAC was legally bound to do so.

The court found no error in the decision of the primary judge. It held that the policy in question was not inconsistent with the APS values or the Public Service Act. Since the Tribunal found that the SAC had followed the policy and their actions were reasonable, there was no need to consider whether the SAC was legally bound to follow that policy. The court dismissed the appeal and ordered Dunkerley to pay Comcare’s costs of and incidental to the appeal, to be taxed if not agreed. This ruling was made under Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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