Munswamy v Australia Postal Corporation

FEDERAL COURT OF AUSTRALIA

Munswamy v Australian Postal Corporation [2015] FCA 678

Citation:	Munswamy v Australian Postal Corporation [2015] FCA 678
Appeal from:	Ishwari Munswamy and Australian Postal Corporation [2014] AATA 757
Parties:	ISHWARI MUNSWAMY v AUSTRALIAN POSTAL CORPORATION
File number:	NSD 1229 of 2014
Judge:	JAGOT J
Date of judgment:	7 July 2015
Catchwords:	ADMINISTRATIVE LAW – questions of law – whether Tribunal erred – appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), 14(1)
Cases cited:	Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Haritos v Commissioner of Taxation [2015] FCAFC 92 Kennedy v Comcare [2014] FCA 82; (2014) 63 AAR 100 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 Munswamy and Australian Postal Commission [2014] AATA 757 O’Kane v Comcare [2014] FCA 341; (2014) 221 FCR 482 Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Date of hearing:	17 June 2015
Date of last submissions:	6 July 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	56
Counsel for the Applicant:	J Macken and A Anforth
Solicitor for the Applicant:	Capital Lawyers
Counsel for the Respondent:	G Johnson SC and M Gollan
Solicitor for the Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1229 of 2014

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ISHWARI MUNSWAMY Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	7 JULY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs as agreed or taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1229 of 2014

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ISHWARI MUNSWAMY Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	JAGOT J
DATE:	7 JULY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Competency of this appeal

1. This is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that:

   A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

2. Before a recent decision of a five member bench of the Full Court of the Federal Court, the most expansive position concerning the scope of s 44 was perhaps that expressed by Robertson J in O’Kane v Comcare [2014] FCA 341; (2014) 221 FCR 482 (O’Kane) at [81] as follows:

   I reject the respondent’s submission that the present appeal may not be brought on a mixed question of fact and law. I do…