Perry v Comcare

Case [2006] FCA 33


FEDERAL COURT OF AUSTRALIA

Perry v Comcare [2006] FCA 33

ADMINISTRATIVE LAW – exercise of discretion conferred upon the Administrative Appeals Tribunal – scope of discretion – consideration of principles governing the exercise of discretion – acting judicially – consideration of the influence of authorities dealing with the exercise of curial discretion compared with discretion exercised by an administrative tribunal – consideration of whether questions of law properly raised – consideration of the need to formulate questions of law properly – consideration of principles derived from Calderbank v Calderbank and Cutts v Head. 

COSTS – consideration of the exercise of discretion by an administrative tribunal – consideration of “without prejudice” letters of offer.

PRACTICE AND PROCEDURE – consideration of need to formulate questions of law – consideration of Order 53, Rule 3 of the Federal Court Rules. 

Administrative Appeals Tribunal Act 1975, s.44
Safety, Rehabilitation and Compensation Act 1988, s.62, s.67, s.69, s.70, s.72, s.124(1A), s.139, s.142
Compensation (Commonwealth Government Employees) Act 1971, s.5, s.20, s.27, s.29, s.64(2)
Military Rehabilitation and Compensation Act 2004
Federal Court of Australia Act 1976, s.43
Federal Court Rules, Order 53

Calderbank v Calderbank (1975) 3 All ER 333; (1976) Fam 93
Cutts v Head (1984) Ch 290
Messiter v Hutchinson (1987) 10 NSWLR 525
AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486
Grbavac v Hart (1997) 1 VR 154
Perry v Comcare [2004] AATA 289
FCT v Brixius (1987) 87 ATC 4963 at 4967
TNT Skypack International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178;
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 202 ALR 450
House v The King (1936) 55 CLR 499
Oshlack v Richmond River Council (1998) 193 CLR 72
Comcare v Labathas (1995) 133 ALR 744
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No. 2) [2000] FCA 602
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Smallacombe v Lockyer Investment Co. Pty Ltd (1993) 42 FCR 97 at 102
Hanave Pty Ltd v Loft Pty Limited [1998] FCA 1429
Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212
Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
White v Director of Housing [2003] VSC 124
Leichhardt Municipal Council v Green [2004] NSWCA 341
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited & Ors (2003) 201 ALR 55
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 163
Miller v Australian Telecommunications Commission (1985) 5 FCR 480
Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Knight v F P Special Assets Limited (1992) 174 CLR 178
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Norris v Norris (1986) 161 CLR 513

Mallet v Mallet (1984) 156 CLR 605

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Details
AGLC
Perry v Comcare [2006] FCA 33
Case
[2006] FCA 33
Decision Date

CaseChat Overview and Summary

The Applicant, Perry, sought review of a decision by the Military Rehabilitation and Compensation Commission (MRCC) to disallow his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Applicant contended that he was entitled to compensation for an injury suffered in the course of his employment as a member of the Army Reserve Forces. The MRCC had previously admitted liability for the Applicant’s condition of schizophrenia but later reconsidered and disallowed the claim, finding that there was insufficient evidence to show that his military service was a contributing factor to the causation, aggravation, acceleration or recurrence of the disease.

The central legal issues before the court were whether the MRCC had properly exercised its discretion in disallowing the claim for compensation, and whether the Tribunal had properly reviewed the exercise of that discretion. The Applicant argued that the MRCC had failed to properly consider all the evidence and had placed undue weight on certain medical reports. The Respondent contended that the MRCC had properly exercised its discretion and that the Tribunal had properly reviewed the exercise of that discretion.

The court found that the MRCC had properly exercised its discretion in disallowing the claim for compensation. The court noted that the MRCC had considered all the available evidence, including the Applicant’s service medal records and reports by the Consultant Psychiatrist. The court also found that the Tribunal had properly reviewed the exercise of that discretion and had not made any errors of law. The court held that it was not appropriate for the Federal Court to substitute its own view of how the discretion might be exercised.

The court dismissed the Applicant’s appeal and affirmed the decision of the Tribunal. The court noted that the evidence did not show a connection between the Applicant’s condition and his military service, and that the MRCC was obliged by the relevant provisions of the Act to make the decision it did. The Applicant’s claim for compensation was therefore disallowed.

Orders

Orders of the court

1. The Application is dismissed.

Background

Background to the litigation

The Respondent contends that the Tribunal properly took into account the letter of offer, properly outlined the principles governing the exercise of the discretion, made no error of law and consistent with the well understood approach to the supervisory review of the exercise of a discretion, it is not appropriate by way of an appeal to the Federal Court to simply invite the Court to substitute its own view of how the discretion might be exercised. THE BACKGROUND On 3 April 1976, the Applicant was involved in an accident as an enlisted member of the Army Reserve Forces. The Applicant had enlisted in the Army Reserve in 1975 having previously served with the Citizens Military Forces for two years from 1960 to 1962. On 3 April 1976, the Applicant suffered a fall from an army jeep whilst on exercises. The Applicant suffered an injury to his right shoulder and was admitted to Singleton District Hospital where he was diagnosed as suffering from an injury to his right scapula. Part X of the SRC Act deals with the transitional arrangements and consequential amendments arising out of the enactment of the SRC Act and the repeal by section 139 of the SRC Act of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”). Section 124(1A) of the SRC Act provides that subject to Part X, “a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the Compensation (Commonwealth Government Employees) Act 1971”. The Applicant’s injury, loss or damage arose prior to the date of commencement of the SRC Act. Part XI of the SRC Act conferred on the Military Rehabilitation and Compensation Commission (“MRCC”) the functions of “determining and managing claims under [the SRC Act] relating to defence service that occurred before the commencement of the [Military Rehabilitation and Compensation Act 2004]” and the function of “managing the provision of compensation” as a result of the making of a claim under the SRC Act. Accordingly, the Applicant’s entitlement to compensation arose under section 124(1A) of the SRC Act in respect of compensation that would have been payable under the 1971 Act and the function of determining and managing the claim was conducted by the MRCC in providing a military compensation and rehabilitation service to qualifying claimants. Under the 1971 Act, the Commonwealth is liable by section 27 to pay compensation, subject to the Act, in respect of personal injury of an employee arising out of or in the course of employment of that employee. By section 5 of the 1971 Act, injury means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but does not include a disease or the aggravation, acceleration or recurrence of a disease. The circumstances governing an entitlement to compensation in respect of a disease are dealt with by section 29 of the 1971 Act. Under that section, relevantly in the present case, where an employee contracts a disease or suffers an aggravation or acceleration of a disease and any employment of the employee is a contributing factor to the contraction, aggravation or acceleration as the case may be and total or partial incapacity for work results, the contraction, aggravation or acceleration shall be deemed to be a personal injury and susceptible to compensation under section 27.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

Section 62 relevantly provides:“62 Reconsideration of determinations(1)A determining authority may, on its own motion:(a)reconsider a determination made by it; or(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.” The MCRS having conducted a reconsideration of the earlier determination, revoked the earlier admission and disallowed the claim, in these terms:“Dear Mr Perry,SAFETY, REHABILITATION & COMPENSATION ACT 1988 (SRCA)…For a claim to be successful under the Act, the evidence has to show that it is probable, and not merely possible, that your military service was a contributing factor to the causation, aggravation, acceleration or recurrence of the disease. …DECISIONThe determination of 5 February 2001 that admitted liability for schizophrenia is revoked.I determine that the claim for schizophrenia is disallowed. In making my decision I refer to all the available medical evidence, including your service medal records and reports by the Consultant Psychiatrist Dr Igor Petroff dated 2 January 2001 and 12 March 2001.In his report of 10 January 2001, Dr Petroff stated, among other things, that:1. You developed schizophrenic illness late in life at the age of 34.2.There was firm evidence that your illness may well have preceded the accident in the Army camp and that you were showing prodromal symptoms as observed by your wife some months prior to April 1976.3.It is more likely that your fall at the CMF camp was more a symptom of your distractability due to the schizophrenic progress and not the cause of your schizophrenic breakdown and the fall off the truck may have been the final precipitant.Dr Petroff was asked to further comment and advise whether it is probable, and not merely possible, that your military service was a contributing factor to the causation, aggravation, acceleration or recurrence of the disease.On 12 March 2001, Dr Petroff advised that:‘After considering the case and my report, I must say that it is more probable that Mr Perry’s employment, and in particular the fall in the truck in 1976 did not contribute to the aggravation, acceleration or recurrence of his schizophrenia.’I regret the necessity to undertake this action, however once I am satisfied that the evidence does not show a connection between your condition and your military service, I am obliged by the relevant provisions of the Safety Rehabilitation and Compensation Act 1988 to make this decision.” Thus, no entitlement to compensation pursuant to section 124(1A) of the SRC Act arose, in the view of the Respondent. The Applicant sought review before the Tribunal pursuant to section 64 of the SRC Act, of that decision. The hearing of the review took place before the Tribunal on 3 and 4 March 2003. The central contention of the Applicant at the hearing was that for the purposes of section 27 of the 1971 Act, the Applicant had suffered personal injury arising out of or in the course of his employment by the Commonwealth on 3 April 1976 in the fall from the jeep. That injury was said to give rise to a total incapacity for work from the date of the injury. Secondly, in the alternative, for the purposes of section 29 of the 1971 Act, the injury had caused an acceleration of the disease of schizophrenia which gave rise to a total incapacity for work from the date of the accident. Total incapacity was said to be a continuing state at the date of the hearing.