James v Comcare

Case [2011] FCA 1030

FEDERAL COURT OF AUSTRALIA

James v Comcare [2011] FCA 1030

Citation: James v Comcare [2011] FCA 1030
Appeal from: James v Comcare [2010] AATA 393
Parties: ALLAN JAMES v COMCARE
File number: ACD 25 of 2010
Judge: FOSTER J
Date of judgment: 2 September 2011
Catchwords: ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the applicant has made out that there was no evidence to support certain findings of primary fact – whether the applicant has also made out that certain inferences apparently drawn by the Administrative Appeals Tribunal were reasonably open – whether, in the event that the postulated questions of law are answered favourably to the applicant, the matter should be remitted to the Administrative Appeals Tribunal for further consideration
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 5A, 5B, 19, 20, 21, 21A, 22
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
Husband v Repatriation Commission (2000) 171 ALR 69 cited
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 cited
Date of hearing: 28 February 2011
Place: Sydney via video link to Canberra (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 108
Counsel for the Applicant: Mr LT Grey
Solicitor for the Applicant: Capital Lawyers
Counsel for the Respondent: Mr AP Berger
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 25 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ALLAN JAMES
Applicant
AND:

COMCARE
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

2 SEPTEMBER 2011

WHERE MADE:

SYDNEY VIA VIDEO LINK TO CANBERRA (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the appeal.   

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 25 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ALLAN JAMES
Applicant
AND:

COMCARE
Respondent

JUDGE:

FOSTER J

DATE:

2 SEPTEMBER 2011

PLACE:

SYDNEY VIA VIDEO LINK TO CANBERRA (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. The applicant has appealed to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal) (James v Comcare [2010] AATA 393) by which the Tribunal affirmed two reconsideration decisions made by delegates of the respondent (Comcare) to deny compensation to the applicant for total incapacity for work as a result of an injury suffered by him on 24 September 2007 whilst at work.  Comcare admitted…

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Details
AGLC
James v Comcare [2011] FCA 1030
Case
[2011] FCA 1030
Decision Date

CaseChat Overview and Summary

The applicant, James, sought a judicial review of a decision made by Comcare, an Australian Government agency, which denied his claim for compensation for an injury suffered in the course of his employment. The Federal Court of Australia considered whether the Administrative Appeals Tribunal (AAT) had made any errors in its decision to affirm Comcare's denial of liability for James' incapacity for work following a total knee replacement surgery. The central issue was whether James' incapacity was related to his compensable condition or the pre-existing condition requiring the surgery. The court noted that under the Safety, Rehabilitation and Compensation Act 1988, compensation could only be paid if the incapacity was a consequence of the compensable condition.

The court examined whether the AAT made any errors of law in its decision. The applicant argued that the AAT erred by not considering certain evidence and by drawing inferences that were not reasonably open. However, the court held that for there to be an error of law, the applicant needed to demonstrate that there was no evidence to support the AAT's findings or that the inferences drawn were not reasonably open. The court found that the AAT had correctly identified the relevant statutory concepts and had made findings based on the evidence presented. The AAT concluded that James' incapacity was due to a pre-existing condition requiring surgery, which was not related to his compensable injury.

The court dismissed the appeal, finding no errors of law in the AAT's decision. It further ordered that the applicant pay the respondent's costs of and incidental to the appeal. This decision underscores the high threshold required for a successful appeal based on errors of law, particularly in cases where findings of fact are supported by evidence and inferences are reasonably open.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the appeal.

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

At [8] of its reasons, the Tribunal correctly identified the relevant statutory concepts and also correctly identified the questions which it had to decide. Injury includes disease. Disease includes the aggravation of an ailment if the employment contributed to the aggravation in a significant or material degree. The No Evidence Grounds In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–356, Mason CJ said: The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137–8. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light at 137–8; Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483. But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 163 CLR 54, per Brennan J at 77. Similarly, Menzies J observed in R v District Court; Ex parte White (1966) 116 CLR 644 at 654: “Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.” Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference—in other words, the particular inference is reasonably open—even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. At 357, Mason CJ said that the approach adopted in some English cases and by Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67–68 to the effect that the relevant test is a “no sufficient evidence” test had not by 1990 been accepted by the High Court. That remains the position. Therefore, in the context of judicial review, there is no error of law in making a wrong finding of fact and no error of law in drawing an inference based upon illogical reasoning as long as the inference drawn was reasonably open on the facts. As long as there is some evidence to support a finding of fact, no error of law will have been committed. In the present case, in respect of his “no evidence” grounds, the applicant must demonstrate that there was no evidence to support the findings of primary fact which he challenges and that the inferences which he challenges were not reasonably open to be drawn by the Tribunal. These are high hurdles for the applicant to overcome. Ground 4.1.1—The applicant had a history of gouty complaints including complaints relating to his left knee spanning a number of years prior to 2006

Decision

Reasons for decision

The applicant seeks an order setting aside the Tribunal’s decision, an order that the matter be remitted to a differently constituted Tribunal for determination according to law and in accordance with such directions as this Court might make and an order for the costs of the appeal.THE DECISION OF THE DELEGATE MADE ON 17 JULY 2008 By this decision, the delegate affirmed a determination made by an officer of Comcare on 14 April 2008. In the decision made on 14 April 2008, the Comcare officer said:The evidence indicates that in March 2007, approximately 6 months prior to the workplace incident of 24 September 2007, Dr Miniter advised that you required a total knee replacement due to an underlying constitutional condition.Your treating practitioner certified you unfit for work for 6 weeks following the total knee replacement surgery on 31 January 2008. Your incapacity for work relates to a medical procedure which was required prior to and regardless of the compensable conditions sustained on the 24 September 2007. Therefore I cannot be satisfied that your incapacity for work for this period was related to your accepted compensable condition. Accordingly, having regard to the available evidence and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I am denying liability for a period of total incapacity from the 31 January 2008 to 15 March 2008, pursuant to section 19 of the Act. The Comcare officer who made the decision dated 14 April 2008 stated, at the commencement of the Decision Record, that she was answering the applicant’s “claim for compensation and rehabilitation for aggravation of osteoarthrosis – localised – knee (left), which occurred on 24 September 2007, and in particular the claim for incapacity benefits for the period 31 January 2008 to 15 March 2008”. By letter dated 12 May 2008, the applicant’s lawyers sought a review of that decision. In support of that application, those lawyers asserted that the decision was wrong at law and, on the available facts, was based upon a very narrow interpretation of beneficial legislation. In the Reasons for Decision published by the delegate on 17 July 2008, the delegate:(a)Referred to two reports of Dr Paul Miniter, orthopaedic surgeon. Those reports were dated 7 March 2007 and 12 April 2007 respectively;(b)Referred to a report of Dr Virginia Pascall, occupational physician, of 5 December 2007; and (c)Stated her conclusion in the following terms:Discussion/findingAt issue is to determine whether the employee is entitled to compensation under section 19 in respect of his incapacity from 31 January 2008 to 15 March 2008.Under section 19 of the Act, claims for incapacity can only be paid if the incapacity incurred by the employee was as a consequence of the compensable condition.The available specialist evidence clearly indicated that the employee’s condition was due to constitutional pseudogout requiring surgery; namely total knee replacement.The evidence also clearly indicates that prior to the compensable injury, this surgical operation was already proposed. I also note that Comcare has not accepted liability in respect of this surgical operation and it is clearly evident that the employee’s claimed incapacity related to this surgical operation. Having regard to the above, I am satisfied that the employee’s subject incapacity claim does not relate to the compensable condition.THE DECISION OF THE DELEGATE MADE ON 1 SEPTEMBER 2008

Ratio Decidendi

Legal Principle Established

Finally, the respondent submitted that the Tribunal had come to grips with and addressed the so-called omitted central submissions (Grounds 4.3.1 to 4.3.3). CONSIDERATION Under s 19(1) of the Act, Comcare is liable to compensate a Commonwealth employee (for the definition of which, see s 5) “… who is incapacitated for work as a result of an injury …” other than an employee to whom ss 20, 21, 21A or 22 applies. The applicant fell within the definition of employee for the purposes of s 19 and was not excluded by any of the succeeding sections. Section 5A contains the definition of injury for the purposes of the Act (including s 19). Section 5A(1) provides:5A Definition of injury(1) In this Act:injury means:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Section 5B provides:5B Definition of disease(1) In this Act:disease means:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a)the duration of the employment;(b)the nature of, and particular tasks involved in, the employment;(c)any predisposition of the employee to the ailment or aggravation;(d)any activities of the employee not related to the employment;(e)any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material. In the present case, the applicant must show that his incapacity in the period from 1 October 2007 to 15 March 2008 resulted from the injury suffered by him at work on 24 September 2007 (or from some other work-related injury) or from an aggravation of an injury, which aggravation arose out of, or in the course of, his employment. At [8] of its reasons, the Tribunal correctly identified the relevant statutory concepts and also correctly identified the questions which it had to decide. Injury includes disease. Disease includes the aggravation of an ailment if the employment contributed to the aggravation in a significant or material degree. The No Evidence Grounds In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–356, Mason CJ said: The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137–8. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light at 137–8; Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483. But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 163 CLR 54, per Brennan J at 77. Similarly, Menzies J observed in R v District Court; Ex parte White (1966) 116 CLR 644 at 654: “Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.” Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference—in other words, the particular inference is reasonably open—even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.