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Kara v Comcare

Kara v Comcare

Case [2011] FCA 951 23 August 2011

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FEDERAL COURT OF AUSTRALIA
Kara v Comcare [2011] FCA 951

Citation: Kara v Comcare [2011] FCA 951

Appeal from: Kara v Comcare [2010] AATA 1031

Parties: NEAL KARA v COMCARE

File number: SAD 17 of 2011

Judge: LANDER J

Date of judgment: 23 August 2011

Catchwords: PRACTICE AND PROCEDURE – Notice of Appeal – application to strike out – s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether Notice of Appeal discloses an error of law – whether Notice of Appeal should be struck out

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 39(1), s 44(1), s 44(2A)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A, s 5B, s 24(7)

Cases cited: Attorney-General for The State of New South Wales v Quin (1990) 170 CLR 1 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Australian Postal Corporation v Burch (1998) 85 FCR 264 cited
Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 cited
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 cited
Comcare v Etheridge (2006) 149 FCR 522 cited
Repatriation Commission v Hayes (1982) 64 FLR 423 cited
TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited
Waterford v The Commonwealth of Australia (1987) 163 CLR 54 cited

Date of hearing: 28 July 2011

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 68

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr S Cole

Solicitor for the Respondent: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 17 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:
NEAL KARA
Applicant

AND:
COMCARE
Respondent

JUDGE:

LANDER J

DATE OF ORDER:

23 AUGUST 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The further amended Notice of Appeal filed by the applicant on 20 June 2011 be struck out.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 17 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:
NEAL KARA
Applicant

AND:
COMCARE
Respondent

JUDGE:

LANDER J

DATE:

23 AUGUST 2011

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

On 28 July 1997 Dr Kara was involved in a motor vehicle accident. At the time he was employed by the Defence, Science and Technology Organisation (DSTO) of the Department of Defence. He claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for the injuries that he sustained.
Over a period of time Comcare made various determinations pursuant to the SRC Act accepting liability for “severe bruising to chest and right shoulder with damage to AC joint region, depressive disorder, unspecified hearing loss, tinnitus, lumbar sprain (left), lipoma[s] of other specified sites (right), specified gastritis and closed fracture of rib(s) (right)”.
Dr Kara was incapacitated until 21 August 1997 when he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kara v Comcare

Details

AGLC: Kara v Comcare [2011] FCA 951
Case: [2011] FCA 951
Decision Date: 23 August 2011

CaseChat Overview and Summary

Dr Kara brought an appeal against Comcare before the Federal Court, challenging a decision of the Administrative Appeals Tribunal. The core issue was whether the Notice of Appeal filed by Dr Kara disclosed an error of law, thereby warranting a full hearing, or if it should be struck out as merely a rehash of the merits of the case. The court had to determine if the Notice of Appeal met the legal threshold for identifying questions of law, as required by section 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

In examining the Notice of Appeal, the court noted that Dr Kara attempted to supplement his appeal with additional documents, which were accepted by the court without objection. However, upon review, these documents largely reiterated the inconsistencies and errors already mentioned in the Notice of Appeal, with some irrelevant or factually based observations. The court concluded that the Notice of Appeal was essentially an attempt to have the court review the merits of the case, rather than identifying specific legal errors warranting appellate jurisdiction.

The court found that Dr Kara's Notice of Appeal did not properly identify any questions of law. Instead, it appeared to seek a reconsideration of the evidence and findings of the AAT, which is beyond the scope of appellate review. Therefore, the court decided to strike out the Notice of Appeal, ruling that it failed to disclose any error of law as required by the legislation. The respondent did not seek costs from the applicant.

The court's final order was that the further amended Notice of Appeal filed by Dr Kara on 20 June 2011 be struck out. This decision was in accordance with the requirements of Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such cases.

Orders

Orders of the court

1. The further amended Notice of Appeal filed by the applicant on 20 June 2011 be struck out.

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

I should add that during the hearing Dr Kara asked if he could hand up a bundle of documents that he said supported his grounds of appeal. Mr Cole did not object to me receiving these documents. I have done my best to comb through them. With one or two exceptions, they appear to be no more than a collection of documents prepared by Dr Kara which purport to identify inconsistencies in the evidence, and errors in the decision of the AAT. Many of these alleged errors are already identified in the Notice of Appeal. Those that are not are either irrelevant or relate to factual findings made by the AAT.Conclusion When properly analysed, Dr Kara’s Notice of Appeal is no more than an application for this Court to undertake a review of the merits of his claims. For this reason, and for the reasons given, there will be an order that the further amended Notice of Appeal filed by Dr Kara on 20 June 2011 be struck out on the basis that the Notice does not identify any questions of law. The Court was advised that the respondent does not seek an order for costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kara v Comcare [2011] FCA 951

Most Recent Citation

Evans v Secretary, Department of Social Services [2014] FCA 491

Cases citing this decision · 9 of 9 shown

Stark v Commissioner of Taxation
[2023] FCA 1523 Para 12

…22], by reference to several prior authorities, as follows: The role of the Court is not to conduct a merits review: Kara v Comcare [2011] FCA 951 at [31], citing Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. The Court is not at liberty to find the facts on which a question o…
Logic Accountants & Tax Professionals Pty Ltd v Tax Practitioners Board
[2022] FCA 830 Para 1

…2010) 186 FCR 410 at [13]. It is not a merits review. Review of the merits of a decision are for the Tribunal, not this Court: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36; Evans v Secretary, Department…
Onassys v Comcare
[2022] FCA 90 Para 6

…The role of the Court is not to conduct a merits review: Kara v Comcare [2011] FCA 951 at [31], citing Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. The Court is not at liberty to find the facts on which a question of law might emerge, nor is it sufficient to merely assert th…
Hickey and Australian Postal Corporation (Compensation)
[2020] AATA 2646 Para 10

…ent Indigenous Advisory Committee (2003) 131 FCR 28 at [8] (Gray ACJ and North J); Kara v Comcare [2011] FCA 951 at [27] (Lander J); s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ii)The fact that the applicant did not raise the question of whether it might reasonably have been appreh…
BRT19 v Minister for Home Affairs
[2020] FCA 449

…491 GKQK v Minister for Home Affairs [2019] FCA 1223 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 Kara v Comcare [2011] FCA 951 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391;…
Chen v Secretary, Department of Social Services (No 2)
[2020] FCA 384 Para 6

…It is not a merits review, the merits of a review are for the Tribunal, not this Court: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 per Brennan J; Evans v Secretary, Department of Social Services [2014]…
Manikantan v Secretary, Department of Jobs and Small Business
[2019] FCA 2103 Para 11

…to this Court “on a question of law, from any decision of the Tribunal”: section 44(1) of the AAT Act. It is not a merits review: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Brennan J in Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36; Evans v Secre…
Chen v Secretary, Department of Social Services
[2019] FCA 1155 Para 34

…to this Court “on a question of law, from any decision of the Tribunal”: section 44(1) of the AAT Act. It is not a merits review: Kara v Comcare [2011] FCA 951 at [31]; Evans v Secretary, Department of Social Services [2014] FCA 491 at [21].…
Evans v Secretary, Department of Social Services
[2014] FCA 491 Para 19

…Other examples were identified by Lander J in Kara v Comcare [2011] FCA 951 at [28]: “A question of law will include a matter of statutory construction: Repatriation Commission v Hayes (1982) 64 FLR 423. Further, a question of law will be raised where it is contended that the AAT failed to comply with s 39(1) of…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

NEAL Kara v Comcare
[2010] AATA 1031 Para 9

…ember Professor Reilly) published its decision on the four applications relating to the reviewable decisions to which I have referred: Kara v Comcare [2010] AATA 1031. The Tribunal made the following orders: 1.In matters numbered 2007/2448 and 2009/4384, the tribunal sets aside the decisions under review, and in pl…
Birdseye v Australian Securities and Investments Commission
[2003] FCAFC 265 Para 24

…An appeal “on a question of law” is narrower than an appeal that involves a question of law: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [10]-[18] per Branson and Stone JJ; Comcare v Etheridge (2006) 149 FCR 522 at [13] per Branson J with whom Spender and Nicholson JJ agreed.…
Australian Postal Corporation v Burch
[1998] FCA 944 Para 40

…accordingly “an injury simpliciter ”. In reaching this conclusion, it followed a decision of this Court in Australian Postal Corporation v Burch (1998) 85 FCR 264.…
Australian Broadcasting Tribunal v Bond
[1990] HCA 33

…mpensation Act 1988 (Cth), s 5A, s 5B, s 24(7) Cases cited: Attorney-General for The State of New South Wales v Quin (1990) 170 CLR 1 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited Australian Postal Corporation v Burch (1998) 85 FCR 264 cited Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 cited Birdsey…
Attorney-General (NSW) v Quin
[1990] HCA 21 Para 31

…conclusion. The merits of a review are for the AAT, not for this Court. As Brennan J said in Attorney-General for The State of New South Wales v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which dete…
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation
[1988] FCA 198 Para 23

…In TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, after speaking of previous legislation, Gummow J said: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v…
Waterford v the Commonwealth
[1987] HCA 25

…ion v Hayes (1982) 64 FLR 423 cited TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Waterford v The Commonwealth of Australia (1987) 163 CLR 54 cited Date of hearing: 28 July 2011 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Applica…
Repatriation Commission v Hayes
[1982] FCA 116 Para 28

…A question of law will include a matter of statutory construction: Repatriation Commission v Hayes (1982) 64 FLR 423. Further, a question of law will be raised where it is contended that the AAT failed to comply with s 39(1) of the AAT Act and did not allow the party seeking to appeal a reasonable opportunity to pre…
Mr Jacobs relied are concerned with appeals under other statutes and may be distinguished. Comcare v Etheridge
[2006] FCAFC 27 Para 24

…n of law: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [10]-[18] per Branson and Stone JJ; Comcare v Etheridge (2006) 149 FCR 522 at [13] per Branson J with whom Spender and Nicholson JJ agreed.…
Pty Ltd v Federal Commissioner of Taxation
381 US 479 Para 23

…In TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, after speaking of previous legislation, Gummow J said: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4…

Legislation cited in this decision · 4

Administrative Appeals Tribunal Act 1975 (Cth)
39(1) 2 mentions (from Para 10)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
5 2 mentions (from Para 27)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
5A 2 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention

Citation:		Kara v Comcare [2011] FCA 951
Appeal from:		Kara v Comcare [2010] AATA 1031
Parties:		NEAL KARA v COMCARE
File number:		SAD 17 of 2011
Judge:		LANDER J
Date of judgment:		23 August 2011
Catchwords:		PRACTICE AND PROCEDURE – Notice of Appeal – application to strike out – s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether Notice of Appeal discloses an error of law – whether Notice of Appeal should be struck out
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth), s 39(1), s 44(1), s 44(2A) Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A, s 5B, s 24(7)
Cases cited:		Attorney-General for The State of New South Wales v Quin (1990) 170 CLR 1 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited Australian Postal Corporation v Burch (1998) 85 FCR 264 cited Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 cited Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 cited Comcare v Etheridge (2006) 149 FCR 522 cited Repatriation Commission v Hayes (1982) 64 FLR 423 cited TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Waterford v The Commonwealth of Australia (1987) 163 CLR 54 cited
Date of hearing:	28 July 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr S Cole
Solicitor for the Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 17 of 2011

BETWEEN:	NEAL KARA Applicant
AND:	COMCARE Respondent

JUDGE:	LANDER J
DATE OF ORDER:	23 AUGUST 2011
WHERE MADE:	ADELAIDE

JUDGE:	LANDER J
DATE:	23 AUGUST 2011
PLACE:	ADELAIDE