Favas v Comcare

Case [2018] FCA 1156

FEDERAL COURT OF AUSTRALIA

Favas v Comcare [2018] FCA 1156

Appeal from: Favas and Comcare (Compensation) [2017] AATA 1317
File number: VID 1009 of 2017
Judge: TRACEY J
Date of judgment: 8 August 2018
Catchwords: WORKERS’ COMPENSATION – appeal on a question of law under the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal – where the Tribunal had affirmed a decision of Comcare to refuse the applicant’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Tribunal had erred by finding that the applicant’s medical condition began on 21 March 2014 – whether the Tribunal erred by finding that his medical condition was caused by “reasonable administrative action taken in a reasonable manner” in respect of his employment” under s 5A(1) of the Act
Legislation:

Administrative Appeal Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5A(1), 5A(2)(b), 5A(2)(e), 5B, 7, 7(4), 14(1)

Cases cited:

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

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

Drenth v Comcare (2012) 128 ALD 1; [2012] FCAFC 86

Favas and Comcare (Compensation) [2017] AATA 1317

Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Lim v Comcare (2017 (2017) 250 FCR 298; [2017] FCAFC 64

Peters v Comcare (2006) 137 ALD 375; [2006] FCA 1361

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

Waterford v The Commonwealth (1987) 163 CLR 54
Date of hearing: 14 December 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Sparke Helmore

ORDERS

VID 1009 of 2017
BETWEEN:

GEORGE FAVAS

Applicant
AND:

COMCARE

Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

8 AUGUST 2018

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

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


REASONS FOR JUDGMENT

TRACEY J:

  1. Dr George Favas “appeals” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) on a question of law under s 44 of the Administrative Appeal Tribunal Act 1975 (Cth) (“the AAT Act”).  The Tribunal had determined to affirm a decision of Comcare to refuse a claim which he had made for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”): see Favas and Comcare (Compensation) [2017] AATA 1317.

  2. Dr Favas had been represented by counsel before the Tribunal but he represented himself on the appeal to this Court.  I mention this matter at the outset because, as will become apparent later in these…

Continue reading Favas v Comcare

Sign in free to access the full text

Details
AGLC
Favas v Comcare [2018] FCA 1156
Case
[2018] FCA 1156
Decision Date

CaseChat Overview and Summary

The appeal in Favas v Comcare involved Dr Favas, an employee of the Joint Fuels and Lubricants Agency in the Department of Defence, who sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a medical condition he claimed was caused by workplace stress. The Administrative Appeals Tribunal had previously dismissed his claim, finding that his condition began on 21 March 2014 and that it was not caused by reasonable administrative action taken in a reasonable manner in respect of his employment. Dr Favas appealed to the Court on questions of law.

The primary legal issues were whether the Tribunal erred in determining the onset date of Dr Favas's medical condition and whether it correctly assessed whether his condition was caused by reasonable administrative action. The Court considered whether the Tribunal appropriately applied the legal tests and whether the factual findings were supported by evidence. The Court held that the Tribunal's findings were supported by substantial evidence and that no error of law was made. The Tribunal found that Dr Favas's condition began on 21 March 2014, a finding supported by medical evidence and Dr Favas's own statements. The Tribunal also correctly assessed whether the condition was caused by reasonable administrative action, concluding that it was not.

The Court dismissed the appeal and ordered that Dr Favas pay Comcare's costs of the proceeding. The findings of the Tribunal were upheld as the evidence supported their conclusions on both the onset date of the condition and the nature of the administrative action. The Court's decision emphasised the importance of focusing on the substance of the applicant's complaint, particularly when the applicant is unrepresented.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

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

Background

Background to the litigation

Dr Favas had been represented by counsel before the Tribunal but he represented himself on the appeal to this Court. I mention this matter at the outset because, as will become apparent later in these reasons, some difficulties were occasioned by Dr Favas’s inability to identify a relevant question of law and frame grounds of appeal.BACKGROUND FACTS Dr Favas was employed in 2012 as Chief Engineer in the Joint Fuels and Lubricants Agency (“the JFLA”) in the Maritime Systems Division of the Defence Materiel Organisation in the Department of Defence. In February 2013 he was seconded to a new positon entitled Director, HAZCHEM. At relevant times the Director of the JFLA was Colonel Mark Harnwell. In the latter part of 2013 disputes arose between Dr Favas and Colonel Harnwell about work-related matters. Dr Favas said that these disputes caused him anxiety and hypertension. In late November 2013 he had suffered a mini-stroke. Colonel Harnwell arranged for him to work from home following this event. In early 2014 Dr Favas raised his concern about safety issues with JFLA managers. Contemporaneously, issues arose relating to what Dr Favas regarded as his marginalisation within the organisation and what he perceived as attempts by Colonel Harnwell to force him to leave his position. This, he said made him deeply depressed: he felt worthless, undervalued, insignificant and unwanted. On 17 March 2014 Colonel Harnwell sent an email to Dr Favas in which he foreshadowed a meeting on 21 March 2014 for “mid-term discussions” of Dr Favas’s performance. Colonel Harnwell also raised the prospect that Doctor Favas might apply for an alternative position. Dr Favas had no interest in the alternative position and said that he considered that Colonel Harnwell’s actions constituted bullying. On 18 March 2014, in response to a request in the 17 March email, Dr Favas forwarded a copy of his performance agreement to Colonel Harnwell. On 19 March 2014 Dr Favas consulted his general practitioner because he was feeling increasingly anxious. He told the Tribunal that his general practitioner had diagnosed his condition as anxiety and depression. He had been advised to seek counselling. On 21 March 2014 he had a pre-arranged face-to-face meeting with Colonel Harnwell in his (Doctor Favas’s) office. Dr Favas said the meeting had continued for about 15 or 20 minutes. There was a dispute about precisely what passed between them in the course of the meeting. What was not in dispute was that, immediately after the meeting, Dr Favas left the workplace and consulted his general practitioner. Before leaving he sent an email to Colonel Harnwell saying: “I’m not feeling well. I’m off to see a doctor.” During the consultation the general practitioner certified that he was unfit for work. Having received the certificate on the following day, Colonel Harnwell advised Dr Favas by email that he had granted Dr Favas four weeks of personal and annual leave and wished Dr Favas a speedy recovery.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The need to concentrate on the substance of an applicant’s complaint is all the more apparent when the applicant is unrepresented before the Court. CONSIDERATION It was for the Tribunal to find, as a matter of fact, when the disease was suffered and whether it had been suffered as a result of reasonable administrative action by the Department which was reasonably taken. No error of law is made simply by a decision-maker making a wrong finding of fact: see Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J)). Error only arises if a decision-maker fails to identify the relevant legal test and apply it to facts found which are supported by the evidence: cf Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 at 415; [2010] FCAFC 94 at [13] (Dowsett and Gordon JJ). There was an abundance of evidence before the Tribunal which supported its finding that the disease had been suffered on 21 March 2014 and that its onset was occasioned by the meeting. In his compensation claim Dr Favas nominated 21 March 2014 as the date on which he first suffered the condition at work and sought medical attention relating to his depression (at [9]). He had done so following the interview with Colonel Harnwell which, he said, had led to him feeling unwell and going immediately to see his general practitioner. Dr Favas’s lawyer also nominated 21 March 2014 as the relevant date in a statement made in support of his application to Comcare for internal review. There was medical evidence to support the choice of that date. The medical certificate which was relied on to grant Dr Favas leave was issued during the consultation on 21 March 2014. There was no medical evidence called relating to Dr Favas’s condition on 19 March 2014. The Tribunal did not avowedly make the impugned finding under s 7(4) of the SRC Act. There was no need for it to have done so. Once it had made a factual finding for the purposes of paragraphs (a) and (b) of the subsection the deeming provision in the prefatory words operated. I am prepared to assume, in Dr Favas’s favour, that the Tribunal’s finding that he suffered his relevant disease on 21 March 2014 was made under s 7(4). The Tribunal made this finding before determining whether Comcare had incurred liability to pay compensation to Dr Favas under s 14. There may be cases in which a premature determination, made under s 7(4), may deflect the Tribunal from its statutory task and give rise to error: see Smith v Comcare (2013) 212 FCR 335; [2013] FCAFC 65. This is not such a case. Ironically, it might have become one had Dr Favas urged the Tribunal to find that he had suffered the disease on 16 October 2013 or 19 March 2014 (as he did in this Court), because that finding may have foreclosed the answer to the antecedent question as to whether liability to pay compensation to him arose under s 14: cf Peters v Comcare (2006) 137 ALD 375 at 379; [2006] FCA 1361 at [24] (Tracey J). The answer to the antecedent question, in turn, depended upon a finding as to whether Dr Favas’s diagnosed disease was suffered as a result of reasonable administrative action taken in a reasonable manner on 21 March 2014.