FEDERAL COURT OF AUSTRALIA
Kennedy v Comcare [2014] FCA 82
Citation: Kennedy v Comcare [2014] FCA 82 Appeal from: Kennedy v Comcare [2013] AATA 696 Parties: JULIE KENNEDY v COMCARE and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 2223 of 2013 Judge: KATZMANN J Date of judgment: 18 February 2014 Catchwords: WORKERS’ COMPENSATION – Commonwealth employees – jurisdiction of Administrative Appeals Tribunal – whether Tribunal erred in law in failing to consider a claim – proper construction of claim – Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 54, 60, 61, 62, 64 – Administrative Appeals Tribunal Act 1975 (Cth), s 25
PRACTICE AND PROCEDURE – application for judicial review for alleged errors of law by Administrative Appeals Tribunal – whether proceeding properly constituted where applicant could have filed a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)
ADMINISTRATIVE LAW – judicial review – whether discretion should be exercised to refuse application, where notice of appeal could have been filed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Administrative Decisions (Judicial Review) Act 1977 (Cth), s 10
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 25
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 54, 60, 61, 62, 64Cases cited: Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829
ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Comcare v Burton (1998) 50 ALD 846; [1998] FCA 1144
Comcare v Etheridge (2006) 227 ALR 75; [2006] FCAFC 27
David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Geographical Indications Committee v The Honourable Justice O’Connor (2000) 64 ALD 325; [2000] FCA 1877
Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574
Kimberly Clark Ltd v Commissioner of Patents (1988) 83 ALR 714
Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753
Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129
Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 62 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: RMB Lawyers Counsel for the First Respondent: Mr T Howe QC Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2223 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JULIE KENNEDY
ApplicantAND: COMCARE
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
18 FEBRUARY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The…
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CaseChat Overview and Summary
Kennedy v Comcare involved Ms Kennedy, a former employee of Centrelink, who sought workers’ compensation for mental injuries and other conditions she claimed were caused by workplace bullying. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had jurisdiction to review Comcare’s decision not to award compensation for an injury Ms Kennedy claimed to have suffered in mid to late 2009. The AAT had dismissed Ms Kennedy’s application for review, finding it was not properly constituted because she could have filed a notice of appeal under the Administrative Appeals Tribunal Act 1975 (Cth). Ms Kennedy challenged the AAT’s decision in the Federal Court of Australia, arguing that the AAT had failed to consider her claim and erred in law.
The primary legal issue was whether the AAT had jurisdiction to review Comcare’s decision and whether the AAT erred in finding that Ms Kennedy could have filed a notice of appeal instead of an application for review. Ms Kennedy argued that the AAT had jurisdiction to consider her claim and that it had neglected to do so, which was an error of law. The court had to determine if the application for judicial review was properly constituted and whether the AAT’s failure to consider the claim was indeed an error of law.
The court held that the application should be treated as a notice of appeal and that the AAT had jurisdiction to review Comcare’s decision. The AAT’s failure to consider Ms Kennedy’s claim for an injury in mid to late 2009 was an error of law. The court found that the AAT had neglected to decide whether Ms Kennedy’s employment contributed significantly to the claimed injury, and this omission was a jurisdictional error. Consequently, the court allowed the appeal in part and remitted the question of whether Ms Kennedy suffered an injury in mid to late 2009 to the AAT for reconsideration.
The court made specific orders to treat the application as a notice of appeal, dispensed with compliance with certain Federal Court Rules, allowed the appeal in part, and remitted the question of the 2009 injury to the AAT. Costs were reserved for further argument between the parties.
The primary legal issue was whether the AAT had jurisdiction to review Comcare’s decision and whether the AAT erred in finding that Ms Kennedy could have filed a notice of appeal instead of an application for review. Ms Kennedy argued that the AAT had jurisdiction to consider her claim and that it had neglected to do so, which was an error of law. The court had to determine if the application for judicial review was properly constituted and whether the AAT’s failure to consider the claim was indeed an error of law.
The court held that the application should be treated as a notice of appeal and that the AAT had jurisdiction to review Comcare’s decision. The AAT’s failure to consider Ms Kennedy’s claim for an injury in mid to late 2009 was an error of law. The court found that the AAT had neglected to decide whether Ms Kennedy’s employment contributed significantly to the claimed injury, and this omission was a jurisdictional error. Consequently, the court allowed the appeal in part and remitted the question of whether Ms Kennedy suffered an injury in mid to late 2009 to the AAT for reconsideration.
The court made specific orders to treat the application as a notice of appeal, dispensed with compliance with certain Federal Court Rules, allowed the appeal in part, and remitted the question of the 2009 injury to the AAT. Costs were reserved for further argument between the parties.
Orders
Orders of the court
1. The application be treated as a notice of appeal.
2. Compliance with r 36.01 of the Federal Court Rules 2011 (Cth) be dispensed with.
3. The appeal be allowed in part.
4. The question of whether the applicant suffered an injury in mid to late 2009, which entitles the applicant to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), be remitted to the Administrative Appeals Tribunal for consideration according to law.
5. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The tribunal has power to review any decision in respect of which an application is made to it under an enactment: Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 25(4).Facts Ms Kennedy worked as a customer service adviser in a Centrelink call centre. She lodged her claim with Comcare on 25 June 2010. The claim was for mental injury, hearing loss and alopecia said to have resulted from “ongoing harassment/bullying”. She also complained of “dental trauma” and migraines. In support of her claim, Ms Kennedy submitted a lengthy statement “regarding harassment/bullying during [her] employment at the Illawarra Call Centre from 2005–2010”. I will return to this statement later. The claim was made with respect to injuries which Comcare deemed to have occurred on 12 July 2007 and 3 May 2010, although the date Ms Kennedy gave in the claim form was August 2005 – about three months after she had started work at the call centre. The tribunal described Ms Kennedy’s claimed injury in 2007 as “an adjustment disorder with consequential alopecia and a dental condition”. Ms Kennedy attributed the disorder to intimidating and threatening behaviour in which she alleged her team leader, Sean Golden, had engaged. She was transferred out of that work group and apparently reported no significant work stressors until mid to late 2009, when she claimed that she was bullied by her then team leader, Belinda Oostendorp. On 9 April 2010 Ms Oostendorp and the acting manager of the call centre, Trent Newton, visited Ms Kennedy at her home after a prolonged absence from work (apparently due to a viral illness). Ms Kennedy claimed she was bullied on this occasion, too. On 30 April 2010, after she had returned to work, she was called to a meeting with Mr Newton about an allegedly inappropriate email that she had circulated around the office. After the meeting Ms Kennedy stopped work altogether and has not worked since. She claimed (and it appears to have been accepted) that at about that time her condition was much worse and that she was diagnosed with a major depressive disorder and associated physical conditions. In two separate determinations (which were assigned two different claim numbers) Comcare decided that Ms Kennedy suffered an adjustment disorder in 2007 (determination in respect of claim 1108633/1, which I shall call the “first determination”) and a panic disorder with agoraphobia and a concomitant adjustment disorder in 2010 (determination in respect of claim 1108633/2, which I shall call the “second determination”). But the decision-maker said that she was not satisfied that either condition was significantly contributed to by Ms Kennedy’s employment with Centrelink and that, if it were, it was contributed to by reasonable administrative actions undertaken in a reasonable manner. The decision-maker also found that Ms Kennedy’s employment did not make a significant contribution to any of the other conditions of which she complained.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I am therefore satisfied that the preconditions to the exercise of the tribunal’s jurisdiction to consider the submission have been made out. Ms Kennedy had given notice to Comcare of an injury in 2009 and had made a claim that she be compensated for it. In the original determination Comcare did not allow it. Ms Kennedy sought to have Comcare’s determination reconsidered. The reconsideration was unfavourable. It follows that the tribunal had jurisdiction to consider the submission relating to the alleged injury and it erred in law in neglecting to do so.Conclusion The application is to be treated as a notice of appeal. The appeal should be allowed on the single ground which was pressed. The tribunal should be directed to review Comcare’s determination not to award compensation for an injury in 2009. Ms Kennedy asked for a declaration that the decision was contrary to law and an order setting the decision aside. Both these orders seem to me to be inappropriate. The declaration is unnecessary and there is no justification for setting the decision aside as, ultimately at least, Ms Kennedy did not challenge any part of what the tribunal actually decided. Her only quarrel was with something which the tribunal neglected to decide. As requested, I will hear argument from the parties on the question of costs.
Ratio Decidendi
Legal Principle Established
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