ADMINISTRATIVE LAW – appeal under s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) – where the Tribunal dismissed the applicant’s application for review on the grounds that it constituted an abuse of process under s 42B(1) of the AAT Act – where the applicant is self-represented – where the respondent objects to the competency of this Court on the basis that the notice of appeal fails to disclose an arguable basis on which a question of law arises – power to dismiss or strike out purported questions of law from a notice of appeal – notice of appeal dismissed without leave to amend
PRACTICE AND PROCEDURE – application under r 33.12(2)(b) and (e) of the Federal Court Rules 2011 (Cth) to dismiss or strike out the notice of appeal on the basis that it fails to state with precision the questions of law said to arise on the appeal and/or briefly, but specifically, the grounds relied on in support – notice of appeal dismissed without leave to amend
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Onassys v Comcare [2022] FCA 90
Case
[2022] FCA 90
Decision Date
CaseChat Overview and Summary
The case of Onassys v Comcare concerns an appeal from the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT). The applicant, Onassys, sought to appeal the AAT's decision dismissing her application for review on the grounds that it constituted an abuse of process. The respondent, Comcare, objected to the competency of the court to hear the appeal, arguing that the notice of appeal did not disclose an arguable basis for a question of law. The court was required to determine whether the notice of appeal met the requirements of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and the Federal Court Rules 2011 (Cth). Specifically, the court had to decide whether the notice of appeal raised a seriously arguable question of law and whether it complied with the rules in stating the questions of law and the grounds relied upon.
The court found that the notice of appeal did not meet the requirements for competency and was dismissed without leave to amend. The court held that the applicant's criticisms of the AAT's decision were essentially directed at the merits of her compensation claim, which is not a sufficient basis for a question of law. The court also found that the notice of appeal did not articulate the questions of law with sufficient precision, as required by the rules. The court considered the difficulties faced by an unrepresented party but ultimately found that the defects in the notice of appeal were issues of substance, not just form, and that leave to replead should be refused. The court ordered that the notice of appeal be struck out without leave to re-plead and that the applicant pay the respondent's costs.
Orders
Orders of the court
1. The Notice of Objection to Competency dated 18 May 2021 be upheld.
2. The applicant is to pay the costs of the respondent, to be 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
For the reasons below, the notice of appeal is dismissed.Background The relevant background is set out in the Tribunal’s decision at [1]-[32]. It is not necessary to repeat that background, however, for present purposes it suffices to note that:(1)The applicant was employed as a Quarantine Inspector by the former Australian Quarantine and Inspection Service, which was administered by the Department of Agriculture, Forestry and Fisheries (as the department was then known). (2)On 1 October 2003, the applicant lodged an application for compensation for a condition described as “depression” which she claimed to have first noticed on 1 October 2003. The applicant indicated that she had not previously suffered from a similar injury or illness. (3)On 25 February 2004, the respondent denied liability to compensate the applicant pursuant to s 14 of the SRC Act for post-traumatic stress disorder (PTSD) and anxiety state, on the basis that the exclusionary provisions applied. The applicant never sought a review of that decision.(4)On 20 May 2015, the applicant ceased employment with the Commonwealth when she was invalidity retired.(5)On 5 March 2020, the applicant made an application for compensation for PTSD, adjustment disorder and major depressive disorder (MDD). In her application, the applicant stated that she first noticed symptoms on 21 January 2003 and first sought treatment on 8 October 2003.(6)On 15 May 2020, the respondent determined that it was not liable to compensate the applicant, pursuant to s 14 of the SRC Act, because the respondent had previously denied liability to compensate the applicant for PTSD and psychological injuries.(7)On 15 May 2020, the applicant sought a reconsideration of that decision.(8)On 17 June 2020, the respondent affirmed the decision on the basis that, inter alia, the applicant was, in effect, attempting to re-litigate issues which had been the subject of previous determinations (the reviewable decision).(9)On 23 June 2020, the applicant made an application to the Tribunal for review of the reviewable decision. As the Tribunal noted, the applicant has also made a number of other related worker’s compensation claims in respect of her employment with the Commonwealth which have had varied outcomes. The Tribunal identified at [41] three issues for its consideration:(a)whether the Applicant should be permitted to re-litigate her claim for workers compensation which the Respondent denied on 25 February 2004, and which the Respondent has since treated as finalised; (b)if the Applicant is so permitted, whether the Applicant gave notice in writing of her claimed injuries as soon as practicable after she became aware of them, as required by section 53 of the SRC Act, and, if not, whether the Respondent is prejudiced as a result; and (c)whether the Tribunal has jurisdiction to deal with the Applicant’s claim that she suffered multiple aggravations of the mental ailments she sustained or first noticed in January 2003.
Evidence
Evidence Before The Court
I am satisfied that the notice of appeal does not state, with sufficient precision, a seriously arguable basis on which these questions of law are said to arise. No evidence As foreshadowed above, this issue was not specifically stated as a question of law or separate ground in the notice of appeal. Rather, the contention was described on the second last page of the annotated Tribunal decision. It is closely related to the other grounds relied upon by the applicant. Nevertheless, for completeness I will separately address this contention, owing to the fact that the applicant is unrepresented and the contention could, at least in theory if properly pleaded, raise a question of law for the purposes of s 44(1). Whether a fact is supported by evidence is a question of law: see ABT v Bond at 355; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [83] per Jagot J, citing Kostas at [91]. However, a factual finding based on no evidence must usually be of a “critical” fact in order to constitute a jurisdictional error: ABT v Bond at 355-357. “No evidence” has “traditionally meant not a skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [17]. Precision is therefore important to identifying the nature of the factual finding under challenge: Darin v Olzomer [2012] NSWCA 60 at [23] per Basten JA. As previously discussed, the applicant identified numerous purported factual errors throughout the Tribunal’s reasons, some of which would presumably be relied upon to support this ground. It is difficult to discern from this submission which, if any, of the Tribunal’s findings are said by the applicant to be unsupported by evidence as opposed to those which are merely purported factual inaccuracies. There is no error of law in simply making a wrong finding of fact. Further, the applicant has not articulated with any precision which findings said to be unsupported by evidence (if any) are material. I also note that the applicant’s criticism that the Tribunal’s failed to apply Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 is, in the circumstances of this case, misguided, given that the Tribunal is not bound by the rules of evidence: AAT Act, s 33(1)(c); see Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [115] per Flick and Perry JJ. The notice of appeal and submissions contain other similarly misguided criticisms regarding the Tribunal’s treatment of the evidence and the sufficiency of proof that is required for the Tribunal to be satisfied of certain matters. For these reasons, I consider that there is no seriously arguable basis on which this contention could give rise to a question of law, nor has such an allegation been articulated with sufficient precision as required by the Rules.Jurisdiction As noted above, the applicant took issue at the hearing with the Tribunal’s decision with respect to jurisdiction. She submitted that [revised from transcript]:…the most important question that the judge had to ask in his decision was concerning the jurisdiction. If you look at the three questions that the judge answers, all question 3, he says that AAT has jurisdiction. …The error of the law being the most important the jurisdiction. Question 3 clearly stipulates the AAT had jurisdiction, and its misconduct and denying procedural fairness in the moment when this has not been given, as in [Wonson v] Comcare. All the effect that this happened [was it is a] jurisdictional error. And I would appreciate if your Honour would let me present my case in front of the judge and let the file go for its merits.
Decision
Reasons for decision
The respondent submitted that in the circumstances, leave to replead should be refused. I am satisfied, as the respondent submitted, that the defects in the notice of appeal go beyond mere issues of form. They are issues of substance. There is no seriously arguable basis for the grounds of appeal and so-called questions of law relied upon. The notice of appeal would need to be substantially re-written in order to be made compliant with the Rules and s 44(1). In effect, an entirely new notice of appeal would need to be prepared. Notwithstanding that the applicant is unrepresented, I do not consider it appropriate in those circumstances and having regard to the principles in s 37M of the FCA Act to grant leave to the applicant to replead this notice of appeal. Conclusion For the reasons stated above, the notice of appeal does not disclose a seriously arguable basis on which a question of law arises, nor are any such questions of law articulated with sufficient clarity, as required by s 44(1) of the AAT Act and the Rules respectively. Accordingly, the Notice of Objection is upheld, and the notice of appeal is struck out, without leave to re-plead. In respect to a costs order, the applicant submitted the Court should take into account some financial circumstances which she detailed. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: Northern Territory v Sangare [2019] HCA 25, (2019) 265 CLR 164 (Sangare) at [24]-[25]. A litigant’s impecuniosity is not a basis for some other order being made: Sangare at [36]. The applicant is to pay the respondent’s costs to be agreed or assessed.
Ratio Decidendi
Legal Principle Established
The questions as framed by the respondent are a useful amalgam of the questions of law posed and grounds relied upon by the applicant. They take the content of the notice at its highest, or most favourable to the applicant. Although, generally speaking, questions of law are not to be distilled from the grounds of appeal: Osland (No 2) at [21], issues of form should not prevail over matters of substance: Haritos at [105]. That is particularly so in the case of an unrepresented litigant.Consideration This is a matter that goes to the competency of this Court to determine an appeal from the Tribunal on a question of law under s 44(1) of the AAT Act and to the clarity with which those questions of law are expressed in compliance with the Rules. The respondent submits that the notice of appeal should be dismissed and/or struck out because it does not: first, raise a seriously arguable question of law for the purposes of s 44 of the AAT Act; second, precisely state the question or questions of law to be raised on the appeal and therefore fails to comply with r 33.12(2)(b); and third, state briefly, but specifically, the grounds of appeal relied on and therefore fails to comply with r 33.12(2)(e). I am mindful of the difficulties faced by an unrepresented party in this Court when attempting to file appropriate documents and make submissions. I have taken that into account when considering the manner in which the applicant made her submissions and the respondent’s application to dismiss the appeal: see AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at 44-47; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]. Nonetheless, the respondent’s submissions are to be accepted. Many of the submissions quarrelled with findings of fact made by the Tribunal. Properly read, the applicant’s submissions do not elucidate the purported questions of law nor do they grapple with the issue of whether or not there is a seriously arguable basis for those questions. The applicant’s submission does not meaningfully engage with the respondent’s contentions. Needless to say, I have considered the applicant’s submissions in my decision to the extent that they are relevant. At the outset, I note that at least on its face the notice of appeal arguably does raise some issues that are capable, in theory, of constituting questions of law for the purposes of s 44(1) of the AAT Act. The respondent accepted that this was the case. The issue however is whether, as a matter of substance, the notice of appeal discloses an arguable basis on which these alleged questions of law arise. If not, then the notice of appeal is liable to be struck out. There is considerable overlap between the grounds of appeal. However, at its heart, the thrust of the applicant’s case is that the Tribunal made a number of so-called errors of law and, therefore, the decision is “wrong”. As a result, the applicant says that the Tribunal’s decision should be quashed and her compensation claim should be reconsidered by a judge of this Court. The errors of law that are said to arise on the appeal are primarily underpinned by supposed factual inaccuracies contained in the Tribunal’s reasons. These are identified in the annotated Tribunal decision and elaborated on in the applicant’s submissions. This was the focus of the applicant’s complaints. Properly read, many of these criticisms are, as a matter of substance, essentially directed at the merits of the applicant’s compensation claim. It is not a sufficient basis on which a question of law arises for the purposes of an appeal under s 44(1) of the AAT Act.