O'Connor v COMCARE
[2005] FMCA 1891
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O’CONNOR v COMCARE | [2005] FMCA 1891 |
| ADMINISTRATIVE LAW – Appeal from AAT |
| Administrative Appeals Tribunal Act 1975, ss.44 Safety Rehabilitation and Compensation Act 1988 (Cth), ss.4, 14 |
| Brown v Repatriation Commission (1985) 60 ALR 289 Waterford v Commonwealth (1987) 71 ALR 673 Blackwood Hodge Australia Proprietary Limited v Collector of Customs Number 2 (1983) Australian Law Digest 38 Linel v Repatriation Commission (1982) 4ACN Thiele v Commonwealth of Australia (1990) 22 FCR 342 Treloar v Australian Telecommunications Commission (1990) 26 FLR 316 |
| Applicant: | DAVID O’CONNOR |
| Respondent: | COMCARE |
| File Number: | BRG390 of 2005 |
| Judgment of: | Rimmer FM |
| Hearing date: | 7 October 2005 |
| Date of Last Submission: | 7 October 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kent |
| Solicitors for the Applicant: | Hall Dayne |
| Counsel for the Respondent: | Mr King-Scott |
| Solicitors for the Respondent: | Dibbs Abbott Stillman |
ORDERS
That the appeal be dismissed.
That the appellant shall pay the respondent’s costs to be taxed in default of agreement pursuant to the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG390/2005
| DAVID O’CONNOR |
Applicant
And
| COMCARE |
Respondent
REASONS FOR JUDGMENT
Proceedings
This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") from a decision of the Administrative Appeals Tribunal delivered on 25 May 2005.
The Tribunal affirmed the decision of the respondent dated
4 July 2003 which affirmed the determination made by the respondent on 27 March 2003. The determinations related to a claim made by the applicant under Section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act").
The applicant filed a notice of appeal on 21 June 2005 in the Federal Court of Australia. By order made on 7 July 2005, Registrar Reynolds of that court transferred the appeal to the Federal Magistrates Court.
Background
The applicant was previously an employee of the Australian Taxation Office. He claimed compensation from the Respondent in respect of a psychiatric injury suffered in circumstances related to his work.
The respondent denied liability to compensate the applicant by a determination of 27 March 2003 and pursuant to Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). This decision was confirmed by an independent review officer on the 4 July 2003 and a subsequent appeal to the Administrative Appeals Tribunal. The applicant now appeals to this Court from the determination of the Administrative Appeals Tribunal dated the 25 May 2005.
The relevant facts are not in dispute. They are set out in pages 21 & 22 of the Members reasons. The applicant was an employee of the Australian Taxation Office. He took part in a salary packaging arrangement for the acquisition of a motor vehicle which was at times to be used for work purposes. He was not required to obtain a private motor vehicle through salary packaging, although the Australian Taxation Office did facilitate the salary packaging arrangement which the applicant took advantage of.
The salary packaging arrangements were not administered properly causing the applicant financial loss. The applicant first noticed symptoms responding to this condition on 15 January 2003 and first sought medical intervention for this condition on 16 January 2003.
The applicant suffers from adjustment disorder (unspecified) with features of depression, anxiety, anger and frustration. The learned member made a finding that the dispute that the applicant had with his employer in relation to this is the cause of his adjustment disorder.
By determination dated 27 March 2003 the respondent denied liability to compensate the applicant in relation to “unspecified acute reaction to stress”. On 6 May 2003 the applicant requested a reconsideration of the March 2003 determination. On 4 July 2003 an Independent review Officer affirmed the 27 March 2003 determination. The applicant then appealed to the Administrative Appeals Tribunal on 5 September 2003.
Decision of the Tribunal
In the Administrative Appeals Tribunal the learned member, Mr Fischer treated the case as involving three principal issues:
(a)Does the applicant suffer from a diagnosed injury or disease?
(b)If so, has the injury or disease been materially contributed to by the employment of the applicant?
(c)Has any injury or disease (or any aggravation of any injury or disease) suffered by the applicant arisen as a result of the failure to obtain a benefit in connection with the applicant’s employment within the meaning of the exclusion to the definition of “injury” in Section 4 of the Act? (J17-18)
The Administrative Appeals Tribunal found that the applicant did suffer from a diagnosed injury or disease within the meaning of the Act, determining this first issue in the appellant’s favour. However the Tribunal did not find that the injury or disease had been materially contributed to by the employment of the respondent with the respondent. Finally, although stating that in view of his earlier findings it was not necessary to do so he went on to find that the injury or disease suffered by the respondent had arisen as a result of the failure to obtain a benefit within the meaning of the exclusion to the definition of “injury” in Section 4 of the Act.
Grounds of appeal
The relevant questions of law and grounds of appeal are set out in the Notice of Appeal. In summary, the matters to be determined are firstly whether or not the tribunal was correct in the findings made that the methods of remuneration (of which his salary packaging arrangements concerning the motor vehicle were a part) did not have anything to do with the conditions under which the respondent performed his work as GST field officer on a day to day basis, that is that methods of remuneration are too remote from the conditions under which an employee does his or her work.
If I determine the above aspect of the appeal in the appellant’s favour then the appeal raises for consideration whether the learned member was correct in the finding that the injury or disease suffered by the respondent has arisen as a result of a failure to obtain a benefit in connection with the respondents employment within the meaning of the exclusion to the definition of injury in section 4 of the Act.
Section 44 of the AAT Act provides that a party to a proceeding before the Tribunal may appeal from any decision of the Tribunal on a question of law. Therefore pursuant to section 44 of the AAT Act, the appeal lies to the Federal Court and on transfer now to the Federal Magistrates Court only in respect of errors of law. In respect of this requirement, the full Federal Court in Brown v Repatriation Commission (1985) 60 ALR 289 at 291 said:
The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal and the ambit of the appeal is confined to it.
Brennan J in the High Court decision of Waterford v Commonwealth (1987) 71 ALR 673 at 689 expanded on this requirement, and I quote:
A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia (and now to the Federal Magistrates Court) from any decision of the Tribunal in that proceeding but only on a question of law. The error of law which an appellant must rely on to succeed, must arise on the facts as the AAT found them to be or it must vitiate the findings made or it must have led the AAT to admit a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.
In Blackwood Hodge Australia Proprietary Limited v Collector of Customs Number 2 (1983) Australian Law Digest 38, the Full Court stated that:
To succeed, an appellant must show that there was no basis upon which the Tribunal could reach the conclusion that it came to.
In that decision Fisher J at 49 put it as follows:
“ It is my firm view that this Court, when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of an administrative nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision.
Lockhart J in Polites v FCT (1988) 16 Australian Law Digest 707 was critical of what he saw as a distinct and growing tendency for the Court to be asked to construe the Tribunal's reasons for its decisions minutely and finely, with an eye keenly attuned to the perception of error.
The Court, he said, should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they must be related or taking particular passages out of context of the reasons as a whole.”
The Full Court in Brown v Repatriation Commission (supra) warned that the Court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of a specialist body like the AAT. Northrop and Shepherd JJ in Linel v Repatriation Commission (1982) 4ACN at 29 said:
“ A Court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decision even if the Court feels that the Tribunal's language may have a degree of looseness. Certainly, it ought not to indulge in an exercise of over-zealously picking the Tribunal up in the way that it has expressed itself. That is particularly so where it appears properly to have understood the legal principle which it is to apply.”
First ground of appeal
The appellant’s counsel submits that the salary packaging arrangements were not merely methods of remuneration but were also methods of supplying an essential tool of trade for the appellant to undertake his employment as a GST field officer with the Australian Taxation Office. It is contended therefore that in the case of the appellant the salary packaging arrangements were integral rather than too remote. It is further submitted that the learned member failed to refer to the principle that the Act being beneficial legislation should be interpreted such that the construction favourable to the worker should be preferred such as held in Thiele v Commonwealth of Australia (1990) 22 FCR. It is submitted that if this principle is taken into account than the Tribunal was in error in concluding that the appellants medical condition was not work related and this aspect of the decision should be set aside.
The respondent submits that the Tribunals finding on this issue was the correct one according to law given the findings of fact made by the Tribunal.
The respondent contends that the Tribunal correctly found that the salary packaging was too remote from the conditions under which the employee did his work. Further the respondent contends that the Tribunal found that although the appellant had a dispute with his employer and that this dispute caused him an adjustment disorder that the employment of the appellant did not contribute to a material degree to the adjustment disorder, rather that it was the dispute that did and that this was clearly a finding on the evidence before the learned member which was open to him.
Reasoning on the first ground of appeal
The Tribunal made the following findings relevant to this point.
“C.The applicant was not required to obtain a private motor vehicle through salary packaging means through the Australian Taxation Office, although the Australian Taxation Office did facilitate the salary packaging arrangement which the applicant took advantage of in relation to the acquisition of the motor vehicle.
D.The applicant did use his salary package for work purposes and lodged FBT declarations in respect to that vehicle.
E.The salary package and arrangements were not administered properly causing the applicant financial loss.
F.The applicant first noticed symptoms responding to this condition on 15th January 2003 and first sought medical intervention with this condition on 16th January 2003.
G.The dispute that the applicant had with the Australian Taxation Office is the cause of his adjustment disorder.
I do not accept that the learned member has made an error of law by finding that the salary packaging arrangements was too remote and not sufficiently causal to the actual work that the appellant did for the respondent. It is immaterial that the appellant used a vehicle obtained through the salary packaging in his day to day work as a GST field officer. Such does not make the injury one which arose in the course of his employment or part of the conditions in which the employment was performed. The learned member found clearly that the cause of the injury was the dispute that the appellant had with his employer about the management of the salary packaging arrangements that he had entered into with respect to a private vehicle he leased. The fact that he used this vehicle in his employment was not found to be relevant to that dispute. There was sufficient evidence before the learned member for him to come to the decision that he did in this matter. The learned member carefully reviewed the evidence of the psychiatrist Dr Mullholland. He had the benefit of the evidence of the appellant and the witnesses of the respondent. He found that the causal link to his employment was too remote.
The learned member did not fail to correctly identify the applicable authorities. From those authorities distilled the relevant principles of law. At paragraph [46] the learned member states
“The Tribunal considered that there are three separate and distinct limbs in this formulation (with the second and third formulations being alternatives). The first is some event or occurrence in the course of employment. The second is some characteristic of the work performed. The third is the conditions in which it was performed. Because of the definition of ‘disease’, the ailment or aggravation of the ailment must be contributed to in a material degree by the employment of applicant by the Australian Taxation Office. So to paraphrase or adapt what Windeyer J said in Federal Broom Co Pty Ltd v Semlitch, the contributing actor between the applicant and his employment must be contributed to in a material degree by either (1) some event or occurrence in the course of the employment or (2) some characteristic of the work performed or (3) the conditions in which it was performed, so long as those contributions are related to the practical working out of the employee’s tasks.”
In paragraph [49] the learned member correctly set out the statements of the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FLR 316.
The learned member then carefully evaluated the evidence before the Tribunal as he was required to about the nature of the salary packaging arrangements which the Australian Taxation Office facilitated between its employees and external car financers. He made necessary findings of fact as to the evidence about how then such vehicle was used by the respondent in the course of his duties as a GST field officer. The learned member then correctly identified that such evidence then had to be fitted within some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed before the requisite nexus between the appellant’s employment and his injury is established. The learned member then determined that there was nothing that is characteristic of the work performed that satisfies the nexus between the employment of the respondent and his injury.
In paragraph [54] the learned member found that the tribunal was not satisfied that the conditions under which the respondent performed his work include his salary packaging arrangements concerning the motor vehicle and that in effect, the methods of remuneration are too remote from the conditions under which an employee does his or her work. He found that the “employment” of the respondent did not contribute to a material degree to his adjustment disorder in the sense that contribution was required to do so.
I have considered all of the submissions made by counsel for the appellant. There is nothing in those that persuade me that in undertaking the above the learned member made an appealable error. The learned member considered carefully those arguments and rejected them as was clearly open to him. I cannot discern any flaw in his reasoning or approach to this task in his reasons.
Counsel for the appellant submits that in light of the fact that a different construction could have been placed on the application of the facts and the applicable legislation so as to make a favourable finding to the appellant. Reliance was placed by the appellant on the decision of Thiele v Commonwealth of Australia (1990) 22 FCR 342 and it was submitted that the learned member should have considered this principle and then construed this matter in favour of the appellant given that there was more than one interpretation open to him.
I do not accept this submission for the appellant. In this matter the effect of that submission this would have meant that the learned member was in effect required to interpret the legislation and the facts in the appellant’s favour because it is “beneficial legislation” and some other decision could have been reached on the facts before the Tribunal. Where the learned member has properly and carefully determined on the applicable facts that the appellant is not entitled to the benefit of the legislation, no error of law is established. If an applicant is not entitled to the benefit of the legislation than the learned member is obliged to make such a finding and in this matter, he did just that. In this regard I refer to Pearce D C and Geddes R S Statutory Interpretation in Australia 5th edition (2001) p222:
“A remedial or beneficial provision is one that gives some benefit to a person and thereby remedies some injustice. The most commonly cited examples are social welfare and pensions legislation, workers’ compensation Acts, safety legislation and so on. However, any legislation that is taken to make a change in existing law or adopt new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial … The orthodox view of the approach to be adopted in relation to the interpretation of this type of legislation is provided by Isaacs J (dissenting) in Bull v Attorney-General (NSW) (1913) 17 CLR 370.”
The authors qualify this interpretation as follows:
“The approach to interpretation of beneficial provisions enunciated here is subject to the rider that the interpretation adopted ‘must be restrained within the confines of the actual language employed and what is fairly open on the words used’: Khoury (M & S) v Government Insurance Office of NSW (1984) 54 ALR 639 at 650; Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 at 68 per Burchett J citing the discussion above.”
I can not discern from the manner in which the learned member approached his task, made his findings of fact nor applied the principles of law to those facts that he has failed to interpret the legislation as required, bearing in mind the beneficial nature of the legislation he was considering. He failed to determine this critical issue in the appellant’s favour and that I am satisfied was plainly a proper course open to him, given his careful review of the facts and the law.
For all of these reasons I am not satisfied that the appellant has demonstrated that the learned member has made any error of law nor any error of fact which is such that it would constitutes an error of law in relation to this first ground of the appeal.
Second ground of appeal
The next ground requiring determination in this appeal is whether the salary packaging was a method of remuneration which delivered tax effective benefits to employees and as such was therefore a “benefit” within the meaning of the definition of “injury” as defined in Section 4(1) of the Act.
Given my findings in relation to this first issue it is not strictly necessary to determine whether in fact the learned member was correct in determining this second issue because if the appellant does not have a medical condition or “injury” which is work related it is immaterial whether the salary packaging constitutes a benefit within the meaning of the definition of “injury” as defined by Section 4(1) of the Act. This was clearly recognised by the Tribunal in paragraph [57] of the learned member’s reasons.
Given that is the case, I do not propose to consider the second ground raised in the appeal as it is not necessary that I do so.
Conclusion
For those reasons I propose making the following orders:
(1)The appeal be dismissed.
(2)The appellant shall pay the respondent’s costs to be taxed in default of agreement pursuant to the Federal Magistrates Court Rules.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate: Lynnette Chin
Date: 20 December 2005
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