Goodricke v Comcare

Case [2011] FCA 694

FEDERAL COURT OF AUSTRALIA

Goodricke v Comcare [2011] FCA 694

Citation: Goodricke v Comcare [2011] FCA 694
Appeal from: Re Goodricke and Comcare [2010] AATA 410
Parties: PETER GOODRICKE v COMCARE
File number: ACD 27 of 2010
Judge: FLICK J
Date of judgment: 20 June 2011
Catchwords:

PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal – failure to identify question of law – unrepresented party – ability to reframe questions – appeal dismissed

ADMINISTRATIVE LAW – reasonable opportunity to present case

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(b), 39, 44
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Federal Court Rules O 53 r 3(2)(b)
Safety, Rehabilitation and Compensation Act1988 (Cth) ss 4, 8, 19
Cases cited:

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 76 ALD 321, referred to
Brown v Repatriation Commission (1985) 7 FCR 302, considered
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, cited
Goodricke and Comcare, Re [2010] AATA 410, considered
Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453, 33 AAR 76, referred to
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10, 114 ALD 8, cited
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, referred to
Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86, 89 FCR 435, considered
Opitz v Repatriation Commission (1991) 29 FCR 50, referred to
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, referred to
Robinson, Re [1955] NZLR 106, cited
Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438, referred to
Secretary, Department of Family and Community Services v Verney [2000] FCA 570, 60 ALD 737, referred to
Sullivan v Department of Transport (1978) 20 ALR 323, referred to
Woodley v Woodley and Meldrum [1928] NZLR 465, cited

Benjamin, Commissioner Robert M, ‘Administrative Adjudication in the State of New York: Report to the Honourable Herbert H. Lehman’, 1942.

Date of hearing: 4 April 2011
Place: Sydney (Heard in Brisbane)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 68
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr T M Howe QC
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 27 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PETER GOODRICKE
Applicant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

20 JUNE 2011

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The Further Amended Notice of Appeal as filed on 10 December 2010 is dismissed.

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

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AGLC
Goodricke v Comcare [2011] FCA 694
Case
[2011] FCA 694
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal from Mr. Goodricke against Comcare, contesting the decision of the Administrative Appeals Tribunal (AAT). The central issue was whether the AAT had erred in its interpretation and application of certain sections of the Act, specifically sections 8 and 19, and whether Mr. Goodricke's rights under the Universal Declaration of Human Rights had been violated. Mr. Goodricke argued that the AAT had miscalculated his normal weekly earnings and failed to consider his entitlement to overtime, thereby exposing him to "abject poverty." Additionally, he contended that the AAT had misinterpreted "suitable employment" by requiring him to change his place of residence, which he believed contravened Article 23 of the Universal Declaration of Human Rights.

The court meticulously examined the AAT's reasoning and found no discernible error. It noted that the AAT had clearly set forth the evidence and had not engaged in any calculation process but rather considered Mr. Goodricke's incapacity for work. The court also dismissed Mr. Goodricke's reliance on the Universal Declaration of Human Rights, stating it was misplaced as it did not apply to the interpretation of the Act. The court further found that the AAT had appropriately assessed the availability and nature of suitable employment, considering Mr. Goodricke's vocational skills and the job market in relevant locations.

The Federal Court concluded that the appeal did not meet the criteria for consideration and was dismissed. It found no manifest error in the AAT's decision and highlighted that Mr. Goodricke had not been denied an opportunity to present his case. The court ordered the dismissal of the appeal and made no order regarding costs.

Orders

Orders of the court

1. The Further Amended Notice of Appeal as filed on 10 December 2010 is dismissed.

2. There be no order as to costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Paragraphs [14] and [71] of the Tribunal’s reasons provide as follows:Evidence of Mr Goodricke…[14] From 13 October 1999, Mr Goodricke was employed by Health Services Australia as a senior systems engineer preparing systems for the “Y2K” changeover. His employment was under a fixed-term contract on a salary of $1150.16 per week with no provision for overtime. It is accepted that his working hours were 36.75 hours per week. He said when he arrived the system was a “mess” and he had to work intensively and do a lot of overtime to resurrect the situation. Prior to then, he had worked with the Australian Prudential Regulation Authority (APRA), also on the Y2K changeover.…Incapacity for work…[71] Mr Goodricke’s evidence was that his position with Health Services Australia as a computer systems engineer was full-time and indeed required extensive overtime. However, as the position was under a fixed-term contract with no provision for overtime, his contract was considered to mean a 36.75 hour week. So his capacity must be tested against work as a computer systems engineer on at least a full-time basis. Since the testing is being done for the period 2004 to 2006, the Tribunal has had regard to the earlier medical assessments. The concern of the Applicant is expressed in his written correspondence as follows:“… It will most probably be argued that the August decision is definitive with regards to NWE and that once the tribunal has decided the NWE the tribunal will not revisit it. However in saying ‘It is accepted that his working hours were 36.75 hours per week.’ paragraph 14 the member has made an error at law if read in the context of section 8. If the senior member had wanted to leave the door closed to section 8 entitlements she would have simply referred to the August determination in her reasoning and not revisiting the hour worked and not made an error at law by spelling out the calculation. …”The “August determination” is a reference to a determination made by consent by the Tribunal on 6 August 2004 as to the Applicant’s “normal weekly earnings” as earlier noted at paragraph [4] of the present reasons of the Tribunal. It is understood that the Applicant seeks to contend that the Tribunal erred in undertaking its own calculation of “normal weekly earnings” for the purposes of s 8(1) and also failed to include an overtime component in accordance with s 8(2). Neither contention is accepted. Before the Tribunal it was common ground that there was “no issue” as to “normal weekly earnings”. The following exchange thus occurred between the Counsel for the Applicant (Mr Livingston) and Counsel for the Respondent (Ms Walker) during submissions:MR LIVINGSTON: … I assume there is no issue about the net weekly earnings figure, and I assume that it’s not capable of being an issue. I think I raised this matter earlier, but it seems to me if there is an order from the tribunal that the net weekly figure at a particular point in time was X, then that presumably would have to be the position as far as the proceedings are concerned.MS WALKER: The respondent’s position is that there is no argument about the normal weekly earnings, and I had to wrack my brain as to what I said, but actually, in the facts and contentions, we have put a summary of the normal weekly earnings and the increases in CPI over – on it for, I think, the last five or six years. And those are what we would say are the correct calculations, and do stem from that which was agreed in consent terms previously,PROF CREYKE: Thank you.That exchange should also be considered in the factual context where there had been repeated references made throughout the written materials before the Tribunal, which remained uncontested, as to the “normal weekly earnings” of the Applicant.

Decision

Reasons for decision

There has been no denial of any opportunity for the present Applicant to present his case before the Tribunal. CONCLUSIONS The Further Amended Notice of Appeal as filed on 10 December 2010 should be dismissed. It fails to comply with Order 53 r 3(2)(b) of the Federal Court Rules. No occasion arises for any exercise of the discretion to dispense with compliance with this provision as the decision of the Tribunal exposes no manifest error such as would have any real prospects of success on appeal. Error is not discernible in the manner in which the Tribunal construed or applied either s 8 or s 19 of the Act. There is no substance in the Applicant’s argument that the Respondent has so applied the terms of the legislation as to expose him to “abject poverty”. The Respondent has applied the legislation in accordance with law. The Respondent does not seek costs in the event that the appeal is dismissed.ORDERS The Orders of the Court are:1.The Further Amended Notice of Appeal as filed on 10 December 2010 is dismissed.2.There be no order as to costs.

Ratio Decidendi

Legal Principle Established

It is not considered that any error of law – or “question of law” – emerges from the paragraphs of the Tribunal’s reasons now relied upon by the Applicant. The Tribunal was simply setting forth at paragraph [14] the evidence of Mr Goodricke. Paragraph [71] is also an account of his evidence and considered, not in the context of the Tribunal itself engaging any process of calculation, but rather in the context of considering his “incapacity for work”. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS The reliance sought to be placed by the Applicant upon the Universal Declaration of Human Rights is misplaced. Express reliance is placed upon Article 23 which provides as follows:(1)Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.(2) Everyone, without any discrimination, has the right to equal pay for equal work.(3)Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.(4)Everyone has the right to form and to join trade unions for the protection of his interests. The argument for the Applicant is understood to be a challenge to the conclusions of the Tribunal expressed at paragraphs [92] and [103]. Paragraph [92] provides as follows:[92] Finally, the Tribunal notes that what is “suitable employment” must take account of the fact “that where employment is available in a place that would require [him] to change his place of residence, whether it is reasonable to expect [him]” to do so. The Tribunal notes that in order to undertake most of these occupations Mr Goodricke would need to return to live in Australia. However, the Tribunal, while accepting that Mr Goodricke has a strong commitment to his current missionary/support role for Pacific Partners and that he believes he is doing worthwhile work in that position, it is not unreasonable in deciding whether Comcare should be liable to compensate him, that he should be prepared to move in order to obtain work commensurate with his skill level and experience, thus reducing the burden on the public purse. In that context, the Tribunal notes that the information in the DEEWR table headed Vocational Capacity Centre for these occupations in the Australian locations with which Mr Goodricke has closest links, Tasmania and the ACT, indicate that the job prospects are good for all these occupations with the exception of an ICT trainer, where the prospects are average.Paragraph [103] likewise repeats the Tribunal’s approach to what constitutes “suitable employment”. The argument in reliance upon Article 23 is variously expressed but is understood to be an argument that the Tribunal has misconstrued both ss 8 and 19(4). The former argument is understood to be that Article 23 precludes an approach to the construction of the phrase “suitable employment” which requires a person to change his place of residence.