Leach v Comcare

Case [2021] FCAFC 134

FEDERAL COURT OF AUSTRALIA

Leach v Comcare [2021] FCAFC 134  

Appeal from: Leach v Comcare [2019] FCA 1698
File number(s): QUD 704 of 2019
Judgment of: COLLIER, CHARLESWORTH, SNADEN JJ
Date of judgment: 30 July 2021
Catchwords: WORKERS COMPENSATION – where primary Judge dismissed an appeal from the Administrative Appeals Tribunal (Tribunal) with respect to the operation of s 53(3)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where appellant sought relief under SRC Act for mental injury claimed to have been suffered prior to 1997 – where workers’ compensation claim in respect of injury not lodged until 2016 – whether appellant gave notice as soon as practicable after becoming aware of injury – whether Tribunal and primary Judge erred in findings concerning onus of proof – whether open to Tribunal to make factual findings concerning advice given to appellant in 1997 by appellant’s psychologist – whether Tribunal ignored the operation of the rule in Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35 – whether primary Judge incorrectly applied principles of reasonableness – whether primary Judge conducted impermissible merits review
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35(3)(b), 44

Occupational Health and Safety (Machinery) Regulations 1985 (Vic)

Occupational Health and Safety Act 1985 (Vic) ss 21(1). 21(2)(a)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 53(1)(a), 53(3)
Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303

Carr v Baker (1936) 36 SR (NSW) 301

Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; [1990] HCA 41

Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407

Cox v Smail [1912] VLR 274

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459; [2014] FCAFC 180

Green v Minister for Immigration and Citizenship [2008] FCA 125

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Hart v Commissioner of Taxation (2018) 261 FCR 406

Howes v Comcare [2016] FCA 1521

Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35

Leach v Comcare [2018] AATA 1632

Leach v Comcare [2019] FCA 1698

McDonald v Director-General of Social Security (1984) 1 FCR 354

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26

Re Day (2017) 340 ALR 368; [2017] HCA 2

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328; [2015] FCAFC 8

JD Heydon, Cross on Evidence (LexisNexis, 12th ed, 2020)
Division: General Division
Registry Queensland

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Leach v Comcare [2021] FCAFC 134
Case
[2021] FCAFC 134
Decision Date

CaseChat Overview and Summary

The appellant in Leach v Comcare sought review of a decision of the Administrative Appeals Tribunal (AAT) which had dismissed his claim for workers’ compensation in respect of a mental injury that he claimed to have suffered prior to 1997. The appellant lodged a claim for workers’ compensation on 8 March 2016. The respondent accepted that this constituted notice in writing for the purposes of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act); however, the respondent contended that there was no evidence that the appellant had given notice of his condition prior to 2016, that he did not give notice “as soon as practicable after [he became] aware of the injury” within the meaning of s 53(1) of the SRC Act, and that it was prejudiced by that failure to give notice within the meaning of s 53(c) because this delay resulted in lost opportunities to obtain contemporaneous factual and medical evidence and to determine the veracity of his claims. The appellant contended that the Tribunal and the primary Judge erred in their findings concerning the onus of proof, and that the Tribunal ignored the operation of the rule in Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35. The primary Judge found that the Tribunal’s decision was not flawed and dismissed the appeal. The appellant appealed to the Full Court of the Federal Court.

The Full Court found that the principles the primary Judge applied were correct, by reference to the decision of the High Court in Li and the Full Court in Ekinci, if not the decision in Eden. The Full Court observed that the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. The Full Court found that the primary Judge did not “recast” the evidence before the Tribunal. Rather, it was appropriate for the primary Judge to have regard to that evidence in considering whether there was probative evidence supporting the findings of the Tribunal, or whether those findings were illogical, irrational or legally unreasonable. The Full Court found that the issue had no merit. The Full Court also found that there was a material error in paragraph 3 (1.) of the primary Judge’s decision. However, the Full Court found that the error did not impact the outcome of the appeal.

The Full Court dismissed the appeal and ordered that the appellant pay the first respondent’s costs of the appeal. The Full Court found that the Tribunal’s decision was not flawed and that the primary Judge’s principles were correct. The Full Court found that the appellant’s arguments were without merit and that the Tribunal’s decision should be upheld.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

Background

Background to the litigation

The appeal should be dismissed for the following reasons.BACKGROUND The appellant was employed by the AFP between 3 February 1986 and 21 November 1997. The majority of the appellant’s work was as a detective in organised crime and in drug related areas. In 1989, an AFP Assistant Commissioner was murdered, and the appellant was subsequently involved in investigating the Calabrian Mafia aspect of this murder. In 1995, an investigation was launched by the AFP’s Internal Security and Auditing Division (ISA). As part of this investigation process, the appellant became aware in 1996 that he was the subject of surveillance and “special projects”, which included telephone intercepts, hidden cameras and listening devices. On 23 May 1997 the appellant’s employment was suspended based on suspicions that he had committed a disciplinary offence, being threats of physical violence against members of ISA and other members of the AFP during a security interview on 8 April 1997. On 21 November 1997 the appellant’s employment was formally terminated. The appellant lodged a workers’ compensation claim on 8 March 2016 with respect to a “mental injury” he alleged was a result of his employment with the AFP. On 6 May 2016, the respondent made a determination that the appellant’s claim for compensation was excluded by operation of section 53(1)(a) of the SRC Act, as the appellant had not provided notice of the injury as soon as practicable after he had become aware of his injury. It also determined that, on the balance of probabilities, there was insufficient medical evidence to support the appellant’s claim that his employment with the AFP was more than a mere contributing factor to his condition. The appellant requested a review of the determination on 6 May 2016. On 1 July 2016 the original determination was affirmed. On 9 August 2016, the appellant lodged an application for review with the Tribunal.DECISION OF THE TRIBUNAL At [60] of its reasons the Tribunal found that the appellant had not given notice of his injury to the respondent as soon as practicable after he became aware of his injury in accordance with s 53(1) of the SRC Act. The Tribunal examined whether any of the exceptions in s 53(3)(c) of the SRC Act were satisfied. The Tribunal divided its consideration of s 53(3)(c) into four parts. First, the Tribunal considered whether the respondent was prejudiced by the appellant not having given notice to the respondent as soon as practicable after he became aware of the injury in accordance with s 53(1) of the SRC Act. It observed that it was not possible to draw a conclusion that the respondent would not, by reason of the failure to give notice, be prejudiced if the notice given by the appellant was treated as a sufficient notice. When the appellant first noticed his injury in 1996, he attended upon Ms Sonja Jacob, a psychologist, and Dr Peter Jones, a psychiatrist. The Tribunal noted that the medical records and reports of Ms Jacob and Dr Jones from 1996 were not available. The Tribunal considered that these records would contain evidence which in turn would have enabled the Tribunal to make a decision as to whether the appellant was actually injured in the course of his employment with the AFP. Moreover, in cross-examination, the appellant conceded that he would not be able to remember precisely what was said at the sessions with Ms Jacob. In light of this, the Tribunal found that the respondent was prejudiced by reason of not having access to the records of Ms Jacob and Dr Jones.

Evidence

Evidence Before The Court

Returning to the present appeal, it is evident that the principles the primary Judge applied were correct, by reference to the decision of the High Court in Li and the Full Court in Ekinci, if not the decision in Eden. e. Whether the primary Judge himself evaluated the evidence and made reliability findings arising from a witness’ evidence, thus straying into impermissible merits review. Relevantly the appellant submitted as follows:13.The primary judge also made another error at P[27] by undertaking his own evaluation of Mr Leach’s evidence to recast what his Honour had held to be a faulty finding of fact by the Tribunal to support the Tribunal’s finding of plausibility and its conclusion (at AATD [72]). It is clear to me that the primary Judge did not “recast” the evidence before the Tribunal. Rather, it was appropriate for the primary Judge to have regard to that evidence in considering whether there was probative evidence supporting the findings of the Tribunal, or whether those findings were illogical, irrational or legally unreasonable. As this Court observed in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92:194.As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.(Emphasis added). In my view this issue has no merit.f. Whether there was a material error in paragraph 3 (1.) of the primary Judge’s decision. The appellant in submissions takes issue with the final sentence in paragraph 3(1.) of the primary Judge’s decision, which the appellant submitted was entirely mistaken and unsupported by evidence, had caused him significant personal distress, and should be corrected under the slip rule. I note that there appears to be a partial redaction of para 1 of the reasons of the Tribunal pursuant to s 35(3)(b) of the AAT Act. Section 35(3)(b) provides that:(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:(a) information tending to reveal the identity of:(i) a party to or witness in a proceeding before the Tribunal; or(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or(b) information otherwise concerning a person referred to in paragraph (a). On the material before the Court, the reason for the partial redaction of para 1 of the reasons of the Tribunal in terms of s 35(3)(b) of the AAT Act is unclear to me. It is also unclear to me whether the redacted material relates to the final sentence of para 3(1.).

Decision

Reasons for decision

On 9 August 2016, the appellant lodged an application for review with the Tribunal.DECISION OF THE TRIBUNAL At [60] of its reasons the Tribunal found that the appellant had not given notice of his injury to the respondent as soon as practicable after he became aware of his injury in accordance with s 53(1) of the SRC Act. The Tribunal examined whether any of the exceptions in s 53(3)(c) of the SRC Act were satisfied. The Tribunal divided its consideration of s 53(3)(c) into four parts. First, the Tribunal considered whether the respondent was prejudiced by the appellant not having given notice to the respondent as soon as practicable after he became aware of the injury in accordance with s 53(1) of the SRC Act. It observed that it was not possible to draw a conclusion that the respondent would not, by reason of the failure to give notice, be prejudiced if the notice given by the appellant was treated as a sufficient notice. When the appellant first noticed his injury in 1996, he attended upon Ms Sonja Jacob, a psychologist, and Dr Peter Jones, a psychiatrist. The Tribunal noted that the medical records and reports of Ms Jacob and Dr Jones from 1996 were not available. The Tribunal considered that these records would contain evidence which in turn would have enabled the Tribunal to make a decision as to whether the appellant was actually injured in the course of his employment with the AFP. Moreover, in cross-examination, the appellant conceded that he would not be able to remember precisely what was said at the sessions with Ms Jacob. In light of this, the Tribunal found that the respondent was prejudiced by reason of not having access to the records of Ms Jacob and Dr Jones. Second, the Tribunal dismissed the availability of the exceptions in s 53(3)(c) of the SRC Act relating to death or absence from Australia as having no relevance. Third, the Tribunal considered whether the appellant’s failure to comply with s 53 was a result of ignorance or mistake. It acknowledged the evidence given by the appellant that he was only made aware of his right to make a claim with the respondent by 2008, and that he only appreciated that a psychological injury was a valid injury in 2014 when he made a claim with AMP. However, in evidence before the Tribunal was a file note of Ms Jacob, bearing the date of 15 May 1997, which indicated that the appellant had been told of his right to make a claim to the respondent. The Tribunal observed at [72] of its reasons:72. I have to consider whether the applicant knew of Comcare before 2008. In evidence is a file note by Ms Jacobs bearing the date 15 May 1997 which was made after the applicant had been subject to a probe by the ISA. The applicant was asked if he had been told of his right to make a claim to Comcare as early as 1997. The file note of Ms Jacobs referred to “Comcare”. In cross-examination the applicant was asked if it was possible that Ms Jacobs had then told him that he was able to lodge a Comcare claim. The applicant answered: “It's possible that she could have done that, but she didn't”. It was put to the applicant that after the telephone conference recorded in the file note that Ms Jacobs had then said to him that he was experiencing symptoms and that he is able to lodge a Comcare claim; the applicant answered: “I'm saying definitely not”. The answers that were given in cross-examination by the applicant are not consistent and do not satisfy me that the applicant was not advised by Ms Jacobs of his right to then make a claim. At that time the applicant was in regular contact by telephone and personal visits with the AFP psychologist over a period of some six months. I consider that it is entirely plausible that Ms Jacobs had informed the applicant of his right to make a claim. I do not consider that this is a case of either ignorance or mistake.

Ratio Decidendi

Legal Principle Established

In the event that the Court were to allow this appeal, the respondent further submitted, in summary:·The appellant submitted that this Court should make a factual finding that reversed the Tribunal’s conclusion that the appellant was not ignorant of his right to lodge a claim prior to 2016. No such order, however, was sought in the appellant’s notice of appeal.·The appropriate course was for the Tribunal to reconsider the evidence having regard to any further submissions the parties wished to advance.·Even if the appellant is ultimately found to have been ignorant of his right to claim compensation prior to 2016, that ignorance must nevertheless have resulted in the appellant’s failure to make the claim within time. There was therefore a subsidiary question that remained outstanding, and determination of both issues should be made by the Tribunal.·Subject to findings made by this Court, it may be fresh evidence could be required. Accordingly, remitting the matter would not be a futile exercise in the circumstances of this case.·Whether the Tribunal should be differently constituted should be left to be resolved by the President of the Tribunal.CONSIDERATION The key issue before the Tribunal, the primary Judge, and in turn this Court, is the interpretation and application of s 53 of the SRC Act by the Tribunal. Section 53(1) provides:Notice of injury or loss of, or damage to, property(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:(a) as soon as practicable after the employee becomes aware of the injury; or(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death. However, s 53(3) relevantly provides:(3) Where:(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;the notice shall be taken to have been given under this section. The appellant sought relief under the SRC Act in respect of a mental injury he claims to have suffered prior to 1997. He lodged a workers’ compensation claim on 8 March 2016 in respect of this claimed injury. The respondent accepted that the appellant’s claim constituted notice in writing for the purposes of s 53 of the SRC Act; however, the respondent contended that there was no evidence that he gave notice of his condition prior to 2016, that he did not give notice “as soon as practicable after [he became] aware of the injury” within the meaning of s 53(1) of the SRC Act, and that it was prejudiced by that failure to give notice within the meaning of s 53(c) because this delay resulted in lost opportunities to obtain contemporaneous factual and medical evidence and to determine the veracity of his claims. The appellant was unsuccessful in respect of his claim