Hewett v Comcare

Case [2020] FCA 527

FEDERAL COURT OF AUSTRALIA

Hewett v Comcare [2020] FCA 527

Appeal from: Hewett and Comcare (Compensation) [2018] AATA 302
File number: VID 82 of 2018
Judge: SNADEN J
Date of judgment: 23 April 2020
Catchwords: WORKERS’ COMPENSATION – administrative law – neck injury – psychological condition – appeal from a decision of the Administrative Appeals Tribunal (hereafter, the “AAT”) – claim for compensation for physical injury – claim for compensation for psychiatric condition – whether the AAT made findings without a proper evidential basis – whether the AAT applied the correct test in assessing whether compensation should be paid – whether the AAT’s reasons failed to make findings on material questions of fact – whether the AAT failed to address a submission advanced by the appellant – whether the AAT’s reasons identified material findings of fact and supporting evidential references – whether the AAT’s reasons otherwise disclosed error of law – appeal allowed in part
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 43, and 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 24, 27, 60 and 68

Cases cited:

Azaey v Minister for Immigration and Border Protection (2015) 238 FCR 341

Bashar v Comcare (2002) 69 ALD 784

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Comcare v Power (2015) 238 FCR 187

Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224

Dodds v Comcare Australia (1993) 31 ALD 690

Lennell v Repatriation Commission (1982) 4 ALN N29

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Date of hearing: 30 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 76
Counsel for the Appellant: Mr M Carey
Solicitor for the Appellant: Patrick Robinson & Co
Counsel for the Respondent: Mr J Wallace
Solicitor for the Respondent: Sparke Helmore

ORDERS

VID 82 of 2018
BETWEEN:

MONTIRA HEWETT

Appellant
AND:

COMCARE

Respondent

JUDGE:

SNADEN J

DATE OF ORDER:

23 APRIL 2020

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.Within 21 days, the parties confer and provide to the court either:

(a)an agreed minute of orders reflecting the reasons published in support of these orders; or, in the event that agreement cannot be reached,

(b)minutes of the orders that each proposes as a fair reflection of the reasons published in support of these orders.

3.Further orders, including as to costs, be made in chambers upon consideration of that minute, or those minutes.

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


REASONS FOR JUDGMENT

SNADEN J:

  1. The appellant (“Ms Hewett”), is a former employee of the Commonwealth Department of Social Security.  The respondent (“Comcare”) is a statutory body established by s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (hereafter, the “SRC Act”).  Amongst other things, its function is to receive and…

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AGLC
Hewett v Comcare [2020] FCA 527
Case
[2020] FCA 527
Decision Date

CaseChat Overview and Summary

Ms Hewett appealed against decisions of the Administrative Appeals Tribunal (AAT) regarding her workers' compensation claims for physical and psychiatric injuries sustained during her employment. The court found that the AAT erred in its decision concerning Ms Hewett's psychiatric condition, but not in its decision regarding her neck injury and physical impairment. The appeal was partially upheld, and the case was remitted to the AAT for further hearing and determination concerning Ms Hewett's psychiatric condition. The court found that the AAT had made findings without a proper evidential basis and failed to address certain submissions advanced by Ms Hewett. The court also found that the AAT's reasons did not adequately identify material findings of fact and supporting evidential references. The court's orders included allowing the appeal in part, requiring the parties to confer and provide proposed orders within 21 days, and making further orders, including as to costs, in chambers upon consideration of the proposed orders.

Orders

Orders of the court

1. The appeal be allowed in part.

2. Within 21 days, the parties confer and provide to the court either:

(a) an agreed minute of orders reflecting the reasons published in support of these orders; or, in the event that agreement cannot be reached,

(b) minutes of the orders that each proposes as a fair reflection of the reasons published in support of these orders.

3. Further orders, including as to costs, be made in chambers upon consideration of that minute, or those minutes.

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

By the present appeal, Ms Hewett challenges the AAT Decision. For the reasons that follow, the appeal will be upheld in part. Insofar as concerns her present psychiatric condition, I accept that the AAT Decision was the product of legal error. Insofar as concerns her neck condition and physical impairment, I do not accept that the AAT Decision was affected by legal error. The applications before the AAT (or at least some of them) shall be remitted for further hearing and determination but only insofar as they concern Ms Hewett’s psychiatric condition.THE DECISIONS UNDER REVIEW The Comcare decisions that Ms Hewett seeks to overturn date back to 18 May 2015. On that date, Comcare made a determination that appears to have concerned Ms Hewett’s ongoing psychiatric (or psychological) treatment. The particulars of that determination were not before me but, regardless, its nature is apparent (at least partially so) from the application that Ms Hewett made to the AAT by way of challenge to it (or, perhaps more precisely, by way of challenge to Comcare’s decision of 4 September 2015 to affirm it upon internal review). By that application, Ms Hewett identified what it was that she felt Comcare ought to have determined: namely, that she ought to have been afforded “…psychology treatment from 9 March 2015 to 31 December 2015 and continuing at fortnightly intervals.” It is apparent—and not in contest—that, by its determination (and the later affirmation of it), Comcare resolved to limit what it would pay in respect of psychology treatments that Ms Hewett maintained were (and still maintains are) necessary on account of her psychiatric (or psychological) condition. Ms Hewett attributes that condition to her former employment (and, in particular, to the events that took place in February 2004). On 6 August 2015, Comcare appears to have made another decision regarding Ms Hewett’s ongoing psychiatric (or psychological) treatment. Again, the particulars of that decision were not before me but, again, its essential nature—or, at the least, the essential nature of the decision made, following an internal review, on 7 September 2015 to vary that initial decision—can be divined through analysis of the parties’ submissions and the application that Ms Hewett made to the AAT. By the latter, in particular, Ms Hewett identified what it was that she felt Comcare ought to have decided. Again, she identified in that respect the same outcome as was identified in respect of Comcare’s 4 September 2015 affirmation (above, [8]). On 27 November 2015, Comcare made another decision: this time, it appears, concerning medical expenses incurred in connection with Ms Hewett’s neck condition. Again, the court was left to divine the specifics of that determination from other material; but it is apparent (and not obviously in doubt) that the decision was to limit, or perhaps more probably to cease, payments relating to medical expenses for treatment that Ms Hewett maintains (and maintained) was reasonable in light of the neck injury that she sustained in 2004. Again, that decision was the subject of an internal review. It was affirmed on 6 January 2016.

Ratio Decidendi

Legal Principle Established

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