Novosel v Comcare

Case [2017] FCA 722

FEDERAL COURT OF AUSTRALIA

Novosel v Comcare [2017] FCA 722

Appeal from: Novosel and Comcare (Compensation) [2015] AATA 476
File number: ACD 77 of 2015
Judge: PERRY J
Date of judgment: 26 June 2017
Catchwords: COMPENSATION – where applicant sustained work related injury –where Comcare affirmed decision that compensation was not payable for incapacity under s 19, Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRCAct) – where multiple earlier applications to Administrative Appeals Tribunal (AAT) either withdrawn or determined by consent - whether AAT erred in dismissing application for review of Comcare’s determination on ground of abuse of process under s 43B(1)(c), Administrative Appeals Tribunal Act 1975 (Cth) – application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 34D, 42A, 42B, 43, 44

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19, 62, 64, 67

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Judiciary Act 1902 (Cth), s 39B

Cases cited:

Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 134 FCR 179

Australian Postal Corporation v Oudyn [2003] FCA 318

Bortolazzo v Comcare (1997) 75 FCR 385

Batistatos v Roads and Traffic Authority of New South Wales  [2006] HCA 27; (2006) 226 CLR 256

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Comcare v Grimes (1994) 50 FCR 60

Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220

Comcare v Simmons [2014] FCAFC 4

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Novosel v Comcare [2015] AATA 476; (2015) 66 AAR 549

Plumb v Comcare (1992) 39 FCR 236

Re Quinn v Australian Postal Corporation (1992) 15 AAR 519

Repatriation Commission v Owens (1996) 70 ALJR 904

Ridgeway v The Queen (1995) 184 CLR 19

Rogers v The Queen (1994) 181 CLR 251

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Wong v Minister for Immigration  and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10
Date of hearing: 31 March 2016
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 116
Counsel for the Applicant: Mr TH Thawley SC, Mr Anforth and Mr Cosgrove
Solicitor for the Applicant: Capital Lawyers
Counsel for the Respondent: Mr PG Woulfe
Solicitor for the Respondent: Sparke Helmore

ORDERS

ACD 77 of 2015
BETWEEN:

ANTHONY NOVOSEL

Applicant
AND:

COMCARE

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

26 JUNE 2017

THE COURT ORDERS THAT:

1.The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2.The application for judicial review is dismissed.

3.The applicant is to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt…

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AGLC
Novosel v Comcare [2017] FCA 722
Case
[2017] FCA 722
Decision Date

CaseChat Overview and Summary

In the case of Novosel v Comcare, the applicant sought judicial review of a decision by Comcare not to pay compensation for a work-related injury. The dispute centred on the denial of compensation for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant had previously made multiple unsuccessful applications to the Administrative Appeals Tribunal (AAT) regarding the same issue, either withdrawn or determined by consent. The AAT dismissed the applicant's application for review on the ground of abuse of process under section 43B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant appealed to the Federal Court of Australia, which upheld the AAT's decision.

The primary legal issue was whether the AAT erred in dismissing the application for review on the ground of abuse of process. The court had to consider the scope and effect of the decisions made by Comcare and the AAT, particularly the reviewable decisions under section 64 of the SRC Act. The court also needed to determine if the AAT's dismissal of the application for review was justified under section 43B(1)(c) of the Administrative Appeals Tribunal Act.

The court found that the AAT's decision was not in error. It held that the AAT correctly dismissed the application for review on the ground of abuse of process. The court reasoned that the applicant had made multiple unsuccessful applications to the AAT regarding the same issue, which indicated an abuse of process. The court further held that the AAT's decision was not irrational or unjust, as it was based on the available evidence and the relevant provisions of the SRC Act. Therefore, the court dismissed the applicant's appeal and application for judicial review.

The final orders of the court were that the appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was dismissed, the application for judicial review was dismissed, and the applicant was to pay the respondent's costs as agreed or assessed.

Orders

Orders of the court

1. The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2. The application for judicial review is dismissed.

3. The applicant is to pay the respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

Part VI of the SRC Act in turn creates three tiers of decision-making for s 14 liability and with respect to the award of compensation. (1)First, Comcare (relevantly) as the determining authority makes an initial decision under s 61. (2)Secondly, Comcare may reconsider the s 61 determination of its own motion under s 62(1) or pursuant to a request under s 62(2) by a claimant to reconsider the s 61 determination. The reconsideration must be undertaken by a person who is independent of the initial determination under s 61 (s 62(4)). Under s 62(5), the decision-maker on the reconsideration has power to make a decision affirming, revoking or varying the initial determination. The decision under s 62 must be notified in writing with reasons (s 63). (3)Thirdly, under s 64 of the SRC Act an application may be made, relevantly, by the claimant to the Tribunal for review of the determining authority’s decision under s 62, that decision being a “reviewable decision” as defined in s 60(1). In this regard, the Full Court held in Lee at [39] that “the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.”3. FACTUAL BACKGROUND3.1 Introduction The background facts which are summarised below were not in issue before the Tribunal; nor were they in issue in this Court. However, as I later explain, the scope and effect of certain decisions made in the relevant chronology of events was in issue. 3.2 The work related injury to the left knee The applicant was born in 1973. On 14 June 2006, he made a claim for compensation under the SRC Act. The applicant alleged that he had suffered a ligamentous sprain/tear affecting his left knee on 7 June 2006 while engaged in a work endorsed sporting activity. At the time of the injury, he was employed as a parking inspector (ASO2) with the ACT Urban Services (the employer).3.3 Acceptance of the applicant’s claim under s 14, SRC Act and subsequent medical reports On 13 June 2006, an MRI of the applicant’s left knee revealed a ruptured anterior cruciate ligament with bony contusions in the posterolateral tibial plateau. 29 June 2006, Comcare accepted liability under s 14 of the SRC Act to pay compensation to the applicant for what was described as a “sprain of other specified sites of knee & leg (left)” which occurred on 7 June 2006. In his report dated 11 December 2006, Dr David Hughes (sports physician) noted that Dr Kevin Woods (treating surgeon) reconstructed the applicant’s anterior cruciate ligament on 17 July 2006. Dr Hughes considered that the applicant had had a successful reconstruction, did not appear to have a major problem with his left knee, and was not at significant risk of further knee injury. Dr Hughes was of the opinion that the applicant could return to normal work activities without any restrictions from 17 January 2007. On 14 March 2007, Dr Virginia Pascall (occupational physician) assessed the applicant at his employer’s request. In her report dated 28 March 2007, Dr Pascall agreed with Dr Hughes that examination of the applicant’s left knee demonstrated a very good recovery from surgery. She considered that further muscle strengthening of the left thigh should occur before it could be said that the applicant had achieved a full recovery.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that the reconsideration request raised only the denial of liability to pay medical expenses, and did not raise the denial of compensation for incapacity under s 19 of the SRC Act, a matter on which the applicant placed particular weight for reasons which will later become apparent. 3.9.3The reviewable decision by Comcare on 5 February 2013 On 5 February 2013 Comcare affirmed the determination dated 30 October 2012. The reviewing officer found that, having regard to the available evidence including Dr Woods report dated 7 August 2012, she was not satisfied that the applicant continued to suffer the effects of his accepted knee condition. In her reasons, the review officer stated that: By determination dated 30 October 2012, Comcare determined that compensation for incapacity or medical treatment for your claimed condition of ‘torn/ruptured ACL and meniscus tear left knee injury’ was not payable. …ReasonsIn reviewing the determination of 30 October 2012, I have had regard to all the evidence contained within your claim file, the reasons for requesting a reconsideration and the relevant provisions of the SRC Act.Dr Kevin Woods, Orthopaedic Surgeon, in a report dated 24 July 2012 wrote that recent x-rays of your knee were satisfactory with the exception of what he considered some minor medial joint space narrowing. Dr Woods wrote that your MRI demonstrated an intake ACL graft with satisfactory menisci. Dr Woods considered that the medial meniscus which previously had a partial meniscectomy performed was thinner in volume but showed no recurrent tears. Dr Woods considered the articular surface of the medial femoral condyle and medial compartment looks satisfactory and there was no subchondral oedema. Dr Woods wrote that he reassured you that structurally your knee was quite satisfactory and that he could see no cause for your ongoing symptoms on your investigations.Dr Woods, in a report dated 7 August 2012, wrote that he discussed the results of the MRI of your left new knee with you. Dr Woods wrote that he advised you surgical treatment was not recommended. Dr Woods wrote nonoperative measures including the possible benefits of Chondolitin, Glucosamine preparastion and possible fish oil were discussed. DiscussionMr Chen stated you had suffered an aggravation/exacerbation of your accepted knee condition which was clearly borne out by Dr Wood’s report of 7 August 2012 which recommended an injection of fish oil and Glucosamine preparations.I have reviewed the evidence on your claim and I note that in his report of 24 July 2012, Dr Woods considered that your left knee was structurally satisfactory and he could find no cause for your ongoing symptoms. Whilst Dr Woods recommended non-operative measures in his report of 7 August 2012, he has given no causation of your current systems.I am not satisfied, having regard to the available evidence that you continue to suffer the effects of your accepted left knee condition.Therefore, I have decided to affirm the determination dated 30 October 2012. (emphasis added.)

Ratio Decidendi

Legal Principle Established

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