Martin and Comcare
[2017] AATA 1070
•2 June 2017
Martin and Comcare [2017] AATA 1070 (2 June 2017)
Division:GENERAL DIVISION
File Number: 2013/0404
Re:Peta Martin
APPLICANT
AndComcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President J W Constance
Date:2 June 2017
Place:Sydney
The Parties may lodge in the Tribunal and give to the other such further witness statements and/or other documents (including medical reports) as they intend to rely upon at the hearing of this application.
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J W Constance
Deputy PresidentCATCHWORDS
PRACTICE AND PROCEDURE – matter remitted by the High Court – whether parties be permitted to provide further evidence for the hearing on remittal – parties to be given reasonable opportunity to present their case – parties are permitted to provide further evidence on which the parties intend to rely at the hearing on remittal
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25(4A), 33, 39
CASES
Comcare v Broadhurst [2011] FCAFC 39
Comcare v Martin [2015] FCA 4
Comcare v Martin [2016]HCA 43
Hollis v Comcare [2017] FCA 558
Lim v Comcare [2016] FCA 709Martin v Comcare [2015] FCAFC 169
REASONS FOR INTERLOCUTORY DECISION
Deputy President J W Constance 2 June 2017
INTRODUCTION
Ms Martin’s claim for compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) has a long history before Comcare, this Tribunal, the Federal Court and the High Court.
In December 2012 Comcare decided to reject a claim by Ms Martin in respect of psychological conditions which she claims were suffered by her as a result of her employment by the Australia Broadcasting Corporation.
After hearings in the Tribunal, before Griffiths J and a Full Bench of the Federal Court, Comcare appealed the Full Court’s judgement to the High Court. The High Court reinstated the orders of Griffiths J, which had the effect of remitting the matter to the Tribunal.
The issue for determination in this interlocutory application is to what extent, if any, should the parties be permitted to provide further evidence on the re-hearing before the Tribunal. Ms Martin argues that the parties should be able to call such witnesses and provide such further documents as they wish, subject to the evidence being relevant to the issues in contention. On the other hand, Comcare argues that the parties should be limited to submissions on the evidence before the Tribunal during the initial hearing in 2014.
BACKGROUND
In 2014 the Tribunal set aside Comcare’s decision in respect of Ms Martin’s claim and substituted a decision that Comcare was liable to pay compensation to Ms Martin in respect of her injury.
On appeal to the Federal Court, Griffiths J made the following orders:
(1) The appeal be allowed.
(2) The decision dated 11 August 2014 of the Administrative Appeals Tribunal be set aside.
(3) The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
(4) The notice of contention be dismissed.
(5) The respondent is to pay the appellant’s costs of and incidental to the appeal and the notice of contention.[1]
[1] [2015] FCA 4.
The Full Court of the Federal Court allowed Ms Martin’s appeal and set aside the orders made by Griffiths J.[2] The matter was remitted to the Tribunal to be determined according to law.
[2] [2015] FCAC 169.
The relevant orders of the High Court are:
(1) Appeal allowed.
(2) Set aside the orders of the Full Court of the Federal Court of Australia made on 30 November 2015, except insofar as order 2 sets aside order five of Griffiths J made on 8 January 2015, and in their place order that the appeal be otherwise dismissed.[3]
[3] [2016] HCA 43.
Before making the orders the High Court said:
The orders disposing of the appeal will have the effect of restoring the orders made by Griffiths J at first instance, except the order his Honour made in relation to costs. Those orders include that the matter be remitted to the Tribunal to be heard and determined according to law. Comcare accepts that Ms Martin will not be constrained on remitter by the prior findings of fact made by the Tribunal.[4]
[4] At para. 50.
COMCARE’S ARGUMENT
Counsel for Comcare provided detailed written submissions. Briefly summarised they are:
(1)the Tribunal has the power to re-decide the matter without hearing further evidence;
(2)the Tribunal should not accept fresh evidence as the issues in dispute have not changed and the recollection of witnesses at the initial hearing in June 2014 would be better than they are now;
(3)further evidence is not required to address the error of law (i.e. in the application of the facts to the law) in the Tribunal’s decision as identified by the High Court;
(4)the parties have already had a reasonable opportunity to present evidence.
CONSIDERATION
Clearly the Tribunal has the power to decide the matter without further evidence, as Comcare has argued.[5] However that power must be exercised with due consideration of the principles of procedural fairness and the requirement in section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) that parties must be given a reasonable opportunity to present his or her case.
[5] See sections 25(4A) and 33 of the Administrative Appeals Tribunal Act 1975 (Cth)
Whilst the words “to be heard and determined according to law” do not necessarily require a full re-hearing,[6] unless there is an indication from the Court or the parties agree otherwise, I am of the view that, absent special circumstances, the matter should be heard on the basis that it was the first hearing before the Tribunal.
[6] Comcare v Broadhurst [2011] FCAFC 39 at para [36].
Of course, it may be that the parties agree that some, or all, of the transcript of the previous hearing be taken as evidence in the re-hearing. Further it may be that a transcript may be taken as evidence of a prior inconsistent statement of a witness.
The form of remittal order in this matter is to be contrasted with those made in the Federal Court (by Katzmann J) in Hollis v Comcare[7]:
…
(3)The matter be remitted for rehearing according to law before a differently constituted tribunal.
(4)Unless the Tribunal otherwise orders the parties agree, except for additional medical evidence, the rehearing be conducted on the evidence adduced in the previous hearing.
In the Hollis appeal, Comcare argued that restrictions should be placed on the terms of the remittal.
[7] [2017] FCA 558.
Similarly, in Lim v Comcare,[8] the Full Federal Court made clear the basis on which the matter was to be re-heard by the Tribunal when it made the following order:
The matter be remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein upon the evidence already given in the proceeding before the Tribunal, unless the Tribunal considers it appropriate to receive further evidence limited to the question set out in paragraph [44] of these reasons.
[8] [2016] FCA 709.
In the matter before me the High Court re-instated the order of Griffiths J that “the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.” Griffiths J did not limit the manner in which the hearing was to be conducted and the High Court did not impose any such limitations. In fact, the statement by the High Court that Comcare accepted that Ms Martin would not be constrained on remitter by the prior findings of facts suggests that fresh evidence may be adduced. In these circumstances I propose to set a timetable for the filing and service of any further evidence on which the parties intend to rely at the hearing on remittal.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated: 2 June 2017
Date of hearing: 12 May 2017 Solicitors for the Applicant: Mr J Clarke, Maurice Blackburn Lawyers Solicitors for the Respondent: Mr P Lehmann, Lehmann Snell Lawyers
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