FEDERAL COURT OF AUSTRALIA
Lim v Comcare [2019] FCAFC 104
Appeal from: Re Lim and Comcare (Compensation) [2018] AATA 4354 File number: NSD 2257 of 2018 Judges: MCKERRACHER, MARKOVIC AND SNADEN JJ Date of judgment: 25 June 2019 Catchwords: ADMINISTRATIVE LAW – claim for compensation for psychological condition – performance appraisal – whether condition was suffered a result of reasonable administrative action taken in a reasonable manner – whether condition would have arisen absent performance appraisal – Administrative Appeals Tribunal – scope of matter remitted for redetermination – whether tribunal provided adequate reasons for decision – whether reasons disclosed errors of law – appeal dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 34A
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 7, 14, 64, 68
Cases cited: Ascic v Comcare [2019] FCA 819
Athens v Randwick City Council (2005) 64 NSWLR 58
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129
Comcare v Martin (2016) 258 CLR 467
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Dornan v Riordan (1990) 24 FCR 564
Drenth v Comcare (2012) 128 ALD 1
Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385
Hart v Comcare (2005) 145 FCR 29
Kaluza v Repatriation Commission (2011) 122 ALD 448
Lim v Comcare (2017) 250 FCR 298
Lim v Comcare (2016) 69 AAR 420
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Northern NSW FM Pty Limited v Australian Broadcasting Tribunal and Another (1990) 26 FCR 39
Peacock v Repatriation Commission (2007) 161 FCR 256
Re Lim and Comcare (Compensation) [2018] AATA 4354
Re Lim and Comcare [2015] AATA 189
Repatriation Commission v Nation (1995) 57 FCR 25
Smith v Comcare (2014) 64 AAR 205
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78
Date of hearing: 9 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 83 Counsel for the Appellant: The appellant appeared in person (with the assistance of a McKenzie friend) Counsel for the Respondent: Mr A. Berger Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
NSD 2257 of 2018 BETWEEN: SHARON LIM
Appellant
AND: COMCARE
Respondent
JUDGES:
MCKERRACHER, MARKOVIC AND SNADEN JJ
DATE OF ORDER:
25 JUNE 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The appellant (“Dr Lim”) is a former employee of a Commonwealth authority, the…
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- Lim v Comcare [2019] FCAFC 104
- Case
- [2019] FCAFC 104
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CaseChat Overview and Summary
In the case of Lim v Comcare, Dr Lim, a Commonwealth employee, appealed against a decision of the Administrative Appeals Tribunal (AAT) that rejected her claim for compensation for a psychological condition. The Federal Court of Australia was required to determine the validity of the appeal against the AAT’s decision, focusing on whether the psychological condition was a result of reasonable administrative action taken in a reasonable manner, specifically a performance appraisal, and if the condition would have arisen even in the absence of the appraisal. The court also had to consider whether the AAT provided adequate reasons for its decision and if those reasons disclosed any errors of law.
The court found that Dr Lim’s appeal grounds primarily sought to challenge factual findings made by the AAT, particularly the finding that her psychological condition was sustained as a result of the performance appraisal. The court held that such findings, if supported by evidence, were not open to review on appeal unless they constituted errors of law. The court dismissed Dr Lim’s grounds of appeal, finding them to be attempts to impugn factual findings rather than pointing to legal errors. Moreover, the court observed that the AAT had provided adequate reasons for its decision, and those reasons did not disclose any errors of law.
The court concluded that the AAT’s decision to dismiss Dr Lim's claim for compensation was correct and that the appeal should be dismissed. The court ordered that the appeal be dismissed and that Dr Lim pay the respondent's costs.
The court found that Dr Lim’s appeal grounds primarily sought to challenge factual findings made by the AAT, particularly the finding that her psychological condition was sustained as a result of the performance appraisal. The court held that such findings, if supported by evidence, were not open to review on appeal unless they constituted errors of law. The court dismissed Dr Lim’s grounds of appeal, finding them to be attempts to impugn factual findings rather than pointing to legal errors. Moreover, the court observed that the AAT had provided adequate reasons for its decision, and those reasons did not disclose any errors of law.
The court concluded that the AAT’s decision to dismiss Dr Lim's claim for compensation was correct and that the appeal should be dismissed. The court ordered that the appeal be dismissed and that Dr Lim pay the respondent's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
This appeal ground suffers from the same deficiency as the second ground: it amounts to nothing more than an attempt to impugn a finding of fact, in this case one that the Popple Tribunal made (namely, that Dr Lim’s Condition was sustained in March 2011 and not, as she contended, prior to the Performance Appraisal). That finding was not disturbed on appeal and was beyond the scope of what the previous full court remitted. In any event, the Tribunal accepted that that finding was correct and adopted it as its own. It was plainly open on the evidence. If, contrary to what we have expressed above, it was proper for the Tribunal to revisit that question, it did so. Its conclusion, even if wrong—and it is not, by any means, clear that it is—is beyond what this court can correct in an appeal instituted under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).Ground four: reliance upon Dr Shaikh’s evidence Dr Lim’s fourth ground of appeal is clearer than those that precede it. It criticises the Tribunal insofar as its decision was based upon evidence received from Dr Shaikh. His evidence was that, absent the Performance Appraisal, Dr Lim would not have sustained her Condition. Dr Lim is critical of the Tribunal’s acceptance of that evidence, which she says did not “identify the process of inference by which Dr Shaikh formed such opinion some 8-years subsequent to the event in question…” (original emphasis). As with Dr Lim’s second ground of appeal, this ground can be swiftly dismissed. It does no more than seek to impugn the Tribunal’s factual finding that Dr Lim’s condition was suffered as a result of the Performance Appraisal. The criticisms that Dr Lim levels at Dr Shaikh’s evidence reflect her submission to the Tribunal that it ought not to be accepted: Tribunal Decision, [73] (Humphries DP). Those submissions were not accepted. It was open to the Tribunal to receive Dr Shaikh’s evidence and to give to it the weight that it was given. Even if it is wrong, the resultant factual finding—namely, that Dr Lim’s condition was suffered as a result of the Performance Appraisal—is not an error of law that this court can correct on appeal. Dr Lim’s fourth ground of appeal is, respectfully, without merit.Ground five: failure to explain implicit rejection of 2015 finding Dr Lim’s fifth ground of appeal charges the Tribunal with a failure to provide reasons for its implicit dismissal of a finding that the Popple Tribunal made in 2015. On that occasion, the Popple Tribunal considered the extent to which the Performance Appraisal had contributed to Dr Lim’s Condition. It concluded (Re Lim and Comcare [2015] AATA 189, [42] (Popple SM)):[The Performance Appraisal] was not the only cause [of the Condition]. It may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim’s position being declared excess. But Dr Lim suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A [of the SRC Act].
Decision
Reasons for decision
On 21 November 2018, the Tribunal again affirmed Comcare’s decision to decline Dr Lim’s application for compensation: Re Lim and Comcare (Compensation) [2018] AATA 4354 (Humphries DP—hereafter, the “Tribunal Decision”). It is from that decision that the present appeal arises.LEGISLATIVE FRAMEWORK Dr Lim’s appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Pursuant to s 44(3), the appeal proceeded before a full court of this court. As summarised above, Dr Lim seeks to overturn the rejection of her claim for compensation under the SRC Act. Section 14(1) of that Act relevantly provides:Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5(1) of the SRC Act defines “employee” to include “a person who is employed by the Commonwealth or by a Commonwealth authority…” Section 4(1) defines “impairment” as, “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.” Section 5A(1) defines what is meant by “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.(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(a) a reasonable appraisal of the employee's performance;(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;(c) a reasonable suspension action in respect of the employee's employment;(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. Section 5B of the SRC Act defines what is meant by “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.
Ratio Decidendi
Legal Principle Established
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