Howes v Comcare

Case [2015] FCA 1078

FEDERAL COURT OF AUSTRALIA

Howes v Comcare [2015] FCA 1078

Citation: Howes v Comcare [2015] FCA 1078
Appeal from: Howes and Comcare [2015] AATA 39
Parties: ROSEANNE HOWES v COMCARE
File number(s): ACD 15 of 2015
Judge(s): GRIFFITHS J
Date of judgment: 7 October 2015
Catchwords: ADMINISTRATIVE LAW – review of a decision of the Administrative Appeals Tribunal (‘AAT’) affirming the respondent’s decision to refuse the applicant reimbursement for the cost of a breast reduction under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the AAT failed to deal with the applicant’s case as put and whether any such error was material
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33(1)(c), 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16(1)

Cases cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 111 ALD 579

Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456

Chowdhary v Comcare [1998] AATA 448

Comcare v Watson [1997] FCA 149; (1997) 46 ALD 481

Gilkinson v Repatriation Commission [2011] FCAFC 133; (2011) 197 FCR 102

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254

Munswamy v Australia Postal Corporation [2015] FCA 678

NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361

Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320

R v JS [2007] NSWCCA 272; (2007) 230 FLR 276

Thiele v Commonwealth [1990] FCA 123; (1990) 22 FCR 342

Date of hearing: 21 September 2015
Date of last submissions: 25 September 2015
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 133
Counsel for the Applicant: Mr Robinson SC with Mr A Anforth
Solicitor for the Applicant: Maurice Blackburn
Counsel for the Respondent: Ms K Katavic
Solicitor for the Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 15 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ROSEANNE HOWES
Applicant
AND:

COMCARE
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

7 OCTOBER 2015

WHERE MADE:

CANBERRA VIA VIDEOLINK TO SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The decision dated 28 January 2015 of the Administrative Appeals Tribunal be set aside.

3.The application for review dated 2 May 2013 be remitted for reconsideration 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.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 15 of 2015
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ROSEANNE HOWES
Applicant
AND:

COMCARE
Respondent

JUDGE:

GRIFFITHS J

DATE:

7 OCTOBER 2015

PLACE:

CANBERRA VIA VIDEOLINK TO SYDNEY

REASONS FOR JUDGMENT

  1. This appeal is brought under s 44 of the Administrative Appeals…

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Details
AGLC
Howes v Comcare [2015] FCA 1078
Case
[2015] FCA 1078
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, presided over by Justice Bromberg, heard an appeal in the case of Howes v Comcare, concerning the refusal of the respondent, Comcare, to reimburse the applicant for the cost of a breast reduction surgery. The dispute was rooted in the interpretation of the Safety, Rehabilitation and Compensation Act 1988 (Cth), particularly section 16, which governs the reimbursement of medical treatment costs. The primary legal issues before the court were whether the Administrative Appeals Tribunal (AAT) appropriately addressed the applicant's case and if any failure to do so was material. The applicant argued that the AAT erred by not considering her reliance on paragraph (a) of the definition of "medical treatment" and only focusing on paragraph (b) as presented by Comcare.

The court examined the AAT's handling of the case, noting that the tribunal did not explicitly address the applicant's argument based on paragraph (a) of the definition of "medical treatment" in its reasons for decision. This omission was significant as it formed the core of the applicant's case. The court also highlighted the importance of precise statements in notices of appeal and grounds of appeal, emphasizing the need for these to clearly define the issues to be determined. The court found that the AAT's failure to address the applicant's case as presented was an error, and given the centrality of the argument based on paragraph (a), this error was material.

As a result of the court's decision, the appeal was allowed. The court set aside the AAT's decision dated 28 January 2015 and remitted the application for review to the AAT for reconsideration in accordance with the law. Additionally, the respondent, Comcare, was ordered to pay the applicant's costs of the appeal as agreed or assessed.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision dated 28 January 2015 of the Administrative Appeals Tribunal be set aside.

3. The application for review dated 2 May 2013 be remitted for reconsideration 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 January 2015, the AAT handed down its reasons for decision for affirming the reviewable decision. Summary of AAT’s reasons for decision The AAT identified the following central issues for determination in its review:(a)whether the applicant’s breast reduction surgery was undertaken at the direction of legally qualified medical practitioners in relation to her compensable injuries; and if so(b)whether the treatment was reasonable in the circumstances. The AAT outlined the applicant’s medical history, the medical advice she was given and the procedures which she underwent. The AAT explained at [22] how, after it had reserved its decision, it had an opportunity to review 400 pages of material obtained on summons by the respondent from the Garema Place Medical Clinic (where the applicant’s general practitioner, Dr Donaghy, practised). The AAT recorded that it noted that much of the summons material appeared to contradict the applicant’s evidence. It stated that, as a matter of procedural fairness, it reconvened the hearing to give the applicant an opportunity to respond. The AAT explained how, during the course of the resumed hearing and after some of the material had been put to the applicant, the applicant stated that “she had personal obligations that required her immediate departure” (at [23]). It added that the applicant declined the AAT’s request to reconvene at a time that suited her. It further recorded that, the applicant having left the hearing room, her counsel accused the AAT member of bias. The member recorded in her reasons for decision that, during the course of the exchange with counsel, the applicant re-entered the hearing room “and it became obvious she had been listening from outside in the corridor” (at [23]). It then said that, uninvited, the applicant proceeded to volunteer further evidence, some of which the respondent objected to. (It might be interpolated at this point that the applicant challenges the accuracy of this description of the events which occurred on 11 November 2014. The transcript of that resumed hearing does not support the AAT’s account that the applicant left the hearing and then re-entered and volunteered further evidence). The AAT summarised the relevant provisions of the SRC Act, including s 16(1) and the definition of “medical treatment” in s 4. Paragraphs (a) and (b) of that definition should be noted as they are at the forefront of the appeal:medical treatment means:(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or… It should be observed at this point that the SRC Act does not contain a definition of “surgical treatment”. It does, however, contain the following definition in s 4 of “therapeutic treatment” (although it is also notable that the AAT made no explicit reference to this definition):therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

Ratio Decidendi

Legal Principle Established

Comcare’s outline of written submissions did not address the applicant’s allegation of actual bias. However, in oral address, Ms Katavic emphasised that any such finding is “a grave and exceptional matter” and must be “firmly established”, citing NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 at [16] per Emmett J. Consideration It is appropriate to commence with some further observations regarding the original notice of appeal. As noted above, it contained no less than 76 paragraphs which purported to identify the grounds of appeal. This drafting approach bears some resemblance to that which was criticised by Jagot J in Munswamy v Australia Postal Corporation [2015] FCA 678 at [7]. As the Full Court recently stated in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254 (Haritos) at [91] it is “of great importance that the question or questions of law should be stated with precision” in a s 44 AAT Act appeal. The same may be said as to the requirement that the grounds of appeal be stated with precision. That is so for at least two reasons. The first is that, while questions of law are not to be distilled from the grounds of appeal (see Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 at [21] per French CJ, Gummow and Bell JJ), grounds of appeal may nevertheless form part of the material to which reference may be made in a case of doubt as to whether a notice of appeal truly raises a question of law (see Haritos at [94]). Secondly, the need for the grounds of appeal to be stated with precision reflects the fundamental functions of a notice of appeal. In R v JS [2007] NSWCCA 272; (2007) 230 FLR 276 at [57]-[69], the Court of Criminal Appeal of New South Wales, per Spigelman CJ (with whom Mason P, McClelland CJ at CL, Hidden and Howie JJ agreed), identified the following three functions of a notice of appeal where an appeal is limited to questions or errors of law:(a)it invests the appellate court with jurisdiction;(b)it identifies and, subject to permitted amendment, confines the issues which the appellate court must determine; and(c)it provides notice to the respondent of the case he, she or it must meet. The Full Court expressly approved this analysis in Haritos at [109]. The analysis highlights the need not only for questions of law to be stated with precision, but also grounds of appeal. It is convenient to determine the appeal by reference to the four categories of questions of law raised by the applicant. Question of law 1 There are two primary aspects of this question. The first is whether the AAT addressed the way the applicant put her case and, in particular, her reliance on paragraph (a) of the definition of “medical treatment”. If that matter is determined in the applicant’s favour, the second matter is whether the AAT’s error is material. In my respectful view, there is little or no doubt that, inexplicably, the AAT failed to address the case as put by the applicant. Comcare did not dispute, either below or in the appeal, that the applicant’s case relied upon paragraph (a). Comcare put its own case in exclusive reliance on paragraph (b). As the AAT’s reasons for decision reveal, the AAT considered and determined only Comcare’s case. Notably, the AAT made no express reference at all to paragraph (a) in its reasons for decision despite the fact that this provision was at the heart of the applicant’s case.