FEDERAL COURT OF AUSTRALIA
O’Kane v Comcare [2014] FCA 341
Citation: O’Kane v Comcare [2014] FCA 341 Appeal from: O’Kane v Comcare [2013] AATA 722 Parties: LAURENCE O'KANE v COMCARE File number: ACD 106 of 2013 Judge: ROBERTSON J Date of judgment: 9 April 2014 Catchwords: WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – claims of hearing loss and tinnitus – whether legal error in the Tribunal’s finding that applicant suffered injury other than a disease – whether in those circumstances, as a matter of construction, s 7(2) or s 7(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) had any application
ADMINISTRATIVE LAW – whether failure to give reasons in respect of issues which, on the findings of the Tribunal, did not arise
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(2), 7(3) Cases cited: Australian Postal Corporation v Burch (1998) 85 FCR 264
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Martinez (No 2) (2013) 212 FCR 272
Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564
Kennedy Cleaning Services Pty Ltdv Petkoska (2000) 200 CLR 286
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517
Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310Date of hearing: 24 March 2014 Date of last submissions: 1 April 2014 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 102 Counsel for the Applicant: Mr D Richards Solicitor for the Applicant: Blumers Counsel for the Respondent: Mr PG Woulfe Solicitor for the Respondent: Comcare
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 106 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LAURENCE O'KANE
ApplicantAND: COMCARE
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
9 APRIL 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Costs are reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 106 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LAURENCE O'KANE
ApplicantAND: COMCARE
Respondent
JUDGE:
ROBERTSON J
DATE:
9 APRIL 2014
PLACE:
CANBERRA
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 8 October 2013. In matter 2013/0975 the reviewable decision was affirmed and in matter 2012/2313 the decision was set aside and in substitution the Tribunal decided that the applicant was not entitled to compensation for the permanent impairment claim.
The notice of appeal invokes not only s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) but also, for a reason which is not clear,…
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- O'Kane v Comcare [2014] FCA 341
- Case
- [2014] FCA 341
- Decision Date
CaseChat Overview and Summary
The applicant argued that the AAT failed to consider whether sections 7(2) or 7(3) could apply given the high incidence of hearing loss and tinnitus among certain employees, suggesting that these sections might still be relevant despite the conditions being classified as injuries. The applicant further contended that the AAT was obligated to provide reasons for not considering these sections, particularly in light of section 5A of the Act, which defines 'injury' to include 'a disease suffered by an employee'. The respondent, Comcare, maintained that the AAT's findings were correct and that the applicant's submissions did not change the outcome.
The court found that the applicant's claims regarding the AAT's failure to consider the sections in question were not sustainable. The court reasoned that the AAT's conclusion that the applicant's conditions were injuries, rather than diseases, was determinative of the applicability of sections 7(2) and 7(3). The court further held that the AAT was not required to address these sections if it found the conditions to be injuries, as the sections pertained specifically to diseases. Regarding the failure to provide reasons, the court held that this was not a valid ground of appeal as the AAT was not obliged to discuss sections of the Act that did not apply based on its findings.
The court dismissed the appeal and reserved the question of costs, indicating that it would address the issue if the applicant were unsuccessful. The court's decision underscored the importance of the AAT's findings on the nature of the injuries and the subsequent implications for the applicability of certain statutory provisions.
Orders
Orders of the court
1. The appeal be dismissed.
2. Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In reply, the applicant submitted that given the significance and prominence of the s 7 argument at the hearing, the Tribunal was required at law to refer to the submission in its reasons. It failed to do so. It did not make findings as to whether s 7 applied to diseases only. In fact s 5A of the SRC Act is the definition section for the term “injury” and defined injury to include a “disease suffered by an employee”. The applicant submitted that if the Tribunal wished to reject the applicant’s s 7 argument on the basis that s 7 only applied to a disease, then the Tribunal was required to provide reasons as to why s 7 did not apply to injuries, having regard to s 5A of the SRC Act. The applicant also submitted that the respondent’s submissions, in the alternative, as to its construction of s 7 highlighted the very complaint that the applicant had with the decision of the Tribunal.Consideration The applicant’s submission that the Tribunal misdirected itself by failing to apply the definition in s 5B is, in my view, merely a consequence of the Tribunal finding that the hearing loss and tinnitus were each an injury rather than a disease. There is no separate substance in this point. In order to succeed on it the applicant would first need to succeed in establishing at least an error of law in the Tribunal’s finding that the hearing loss and tinnitus were each an injury rather than a disease. The applicant’s submission that the Tribunal failed to consider a submission of substance capable of altering the outcome of the hearing in that the applicant’s substantive argument at the hearing was that s 7(2) or s 7(3) would apply because of the high incidence of hearing loss and tinnitus amongst the drivers of ‘301’ trams does not seem to me to be aptly expressed. The real error, if there be an error, is whether the Tribunal’s finding that the hearing loss and tinnitus were each an injury and not a disease meant that the Tribunal did not have to consider the argument concerning s 7(2) or s 7(3). This would only be a separate ground if those provisions could apply as a matter of construction in light of that finding, assuming for the purposes of this ground that the Tribunal’s finding that the hearing loss and tinnitus were each an injury and not a disease was not an error of law. Similarly, the submission concerning a failure to provide reasons is not, in my opinion, a sustainable separate ground. In my opinion it does not provide an appropriate tool of legal analysis. Section 43(2B) of the AAT Act provides that the Tribunal’s written reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is to be recalled that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 established that s 430 of the Migration Act 1958 (Cth) obliged the tribunal to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision (at [10] per Gleeson CJ, [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ, [217] per Callinan J). Section 430 provided that where the Tribunal made its decision on a review, the Tribunal must prepare a written statement that: (a) set out the decision of the Tribunal on the review; (b) set out the reasons for the decision; (c) set out the findings on any material questions of fact; and (d) referred to the evidence or any other material on which the findings of fact were based.