Farrow-Smith v Comcare

Case [2024] FCA 835

FEDERAL COURT OF AUSTRALIA

Farrow-Smith v Comcare [2024] FCA 835

Appeal from: Re Farrow-Smith and Comcare (Compensation) [2022] AATA 3157 (26 September 2022)
File number(s): NSD 897 of 2022
Judgment of: KENNETT J
Date of judgment: 30 July 2024
Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal (Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) affirming Comcare decision to decline applicant’s compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where applicant contracted Ross River Virus (RRV) – where applicant alleges RRV infection was the result of mosquito bite sustained during employment activities – whether Tribunal erred in law by denying the applicant procedural fairness in breach of the rule in Browne v Dunn – whether Tribunal erred in law by failing to give adequate reasons and make sufficient findings of fact to support its decision – whether Tribunal erred in law in finding, if it did so find, that RRV caused by a mosquito bite is a disease or an ‘injury (other than a disease)’ for the purposes of the SRC Act
Legislation:

Constitution s 75(v)

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 30, 32, 33, 35, 39, 40, 42C, 43, 44

Migration Act 1958 (Cth) Parts 5 and 7

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 54, 60, 61, 62, 63, 64
Cases cited:

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Bale v Mills [2011] NSWCA 226; 81 NSWLR 498

Browne v Dunn (1893) 6 R 67 (HL)

Canute v Comcare [2006] HCA 47; 226 CLR 535

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28

Comcare v Canute [2005] FCAFC 262; 148 FCR 232

Comcare v Martin [2016] HCA 43; 258 CLR 467

Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494

Coward v Military Compensation and Rehabilitation Service [2006] FCA 840; 153 FCR 535

Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 98 ALJR 623

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506.

Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80

Norton v Comcare [2000] FCA 1446

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909

South Australia v Roberts [2018] SASCFC 25; 130 SASR 274
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 84
Date of hearing: 27 March 2024
Counsel for the Applicant: Mr T Lynch SC and Ms M Fraser
Solicitors for the Applicant: Castagnet Lawyers
Counsel for the Respondent: Mr C Clark
Solicitors for the Respondent: HBA Legal

ORDERS

NSD 897 of 2022
BETWEEN:

ELLOISE FARROW- SMITH

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Details
AGLC
Farrow-Smith v Comcare [2024] FCA 835
Case
[2024] FCA 835
Decision Date

CaseChat Overview and Summary

The appeal before the court involves Farrow-Smith, the applicant, against Comcare, the respondent. The dispute arises from the applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) following her contracting Ross River Virus (RRV), which she alleges resulted from a mosquito bite sustained during her employment activities. The decision of the Administrative Appeals Tribunal (Tribunal) to decline the applicant’s compensation claim was the subject of an appeal to the court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The central legal issues before the court were whether the Tribunal erred in law by denying the applicant procedural fairness in breach of the rule in Browne v Dunn, whether it failed to give adequate reasons and make sufficient findings of fact to support its decision, and whether it erred in law in finding that RRV caused by a mosquito bite is a disease or an ‘injury (other than a disease)’ for the purposes of the SRC Act.

The court examined the grounds of appeal, particularly focusing on the procedural fairness aspect as articulated under the rule in Browne v Dunn. This rule, which is a principle of fairness in adversarial proceedings, requires that any proposed contradiction of a witness's evidence must be clearly put to them to allow for a response. The court noted that while the Tribunal is not bound by the rules of evidence, the principle of procedural fairness underlying the rule in Browne v Dunn is crucial and its contravention may invalidate a decision. The court found that the Tribunal did not adequately address the applicant’s evidence concerning the mosquito bite and the subsequent infection, thereby failing to observe procedural fairness. Additionally, the court found that the Tribunal's reasoning and findings were insufficient to support its decision, particularly regarding the classification of RRV under the SRC Act.

In light of these findings, the court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration according to law. The court also ordered Comcare to pay the applicant's costs of the appeal as agreed or assessed. This decision underscores the importance of procedural fairness and adequate reasoning in administrative law proceedings.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision made by the Administrative Appeals Tribunal on 26 September 2022 in matter number 2021/0312 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for consideration according to law.

4. The respondent pay the applicant’s costs of the appeal as agreed or assessed.

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

The grounds articulated in Ms Farrow-Smith’s amended notice of appeal are as follows.(a) The Tribunal, being under a duty to arrive at the correct or preferable decision in the case before it according to the material before it, erred in law in failing to reach a decision that discharged the jurisdiction conferred upon it. (b) The Tribunal denied the applicant procedural fairness, by rejecting unchallenged evidence in breach of the rule in Browne v Dunn. (c) The Tribunal erred in law in failing give adequate reasons and make sufficient findings of fact to support its decision. (d) The Tribunal erred in law in finding, if it did so find, that RRV caused by a mosquito bite is a disease or an “injury (other than a disease)”. Grounds (a) to (c): treatment of the evidence Grounds (a), (b) and (c) tended to merge into each other in the written and oral submissions. However, ground (b) is relatively specific and can be dealt with discretely.Browne v Dunn The so-called rule in Browne v Dunn (named after the case of that name: (1893) 6 R 67 (HL)) has been formulated by an experienced New South Wales judge in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 (Hunt J) as follows:It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. The rule is a rule of fairness which applies in relation to witnesses, whether or not they are also parties, and applies to trial judges as well as legal practitioners: Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at [64] (Allsop P, Giles JA and Tobias AJA). Although the Tribunal is not bound by the rules of evidence (AAT Act s 33(1)(c)), the rule in Browne v Dunn has been understood to be an aspect of procedural fairness “so that, subject to taking account of the particular statutory context and functions, its contravention may invalidate a decision of the Tribunal”: Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122 at [60] (Mansfield J). This is consistent with the adversarial nature of proceedings under the AAT Act. (It is to be contrasted with reviews conducted under Parts 5 and 7 of the Migration Act 1958 (Cth), where the process is inquisitorial: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [57] (Gummow and Heydon JJ, Gleeson CJ agreeing).) Thus, the decision of the Tribunal is liable to be set aside if it depended on a finding contrary to Ms Farrow-Smith’s evidence without the point having been put to her in such a way that she could respond to it in her evidence. Practically, that is usually expected to be done in the course of cross-examination.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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