Portors v Comcare

Case [2018] FCA 914

FEDERAL COURT OF AUSTRALIA

Portors v Comcare [2018] FCA 914

File number: ACD 92 of 2017
Judge: ROBERTSON  J
Date of judgment: 19 June 2018
Catchwords: WORKERS’ COMPENSATION – judicial review of decision of the Administrative Appeals Tribunal affirming reviewable decision that the applicant had no present entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for his accepted condition of inguinal hernia and umbilical hernia related to the applicant’s alleged injury at his workplace in July 2002 – where Tribunal, following Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253, while not disturbing Comcare’s liability under s 14 of the Act, was satisfied applicant did not suffer a workplace injury in July 2002 – Tribunal also concluded that it followed that any condition arising out of hernia repair surgery could not be an injury for the purposes of the Act – Tribunal stated that one qualification to its conclusion was that a claim for the hernia repair condition may have been successful, pursuant to s 4(3) of the Act, had the applicant made a separate claim under s 14 for that condition – whether Tribunal misconstrued s 4(3) of the Act – whether Tribunal erred in its conclusion that there was no claim before it in respect of the applicant’s hernia repair condition – on Comcare’s notice of contention, whether the Tribunal erred in concluding that the Tribunal’s reassessment of the findings of fact on which the s 14 decision was made nevertheless preserved Comcare’s liability to the applicant under s 14 – Held: application dismissed, with costs
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(3), 14, 16, 19, 54, 61, 62

Cases cited:

Canute v Comcare [2006] HCA 47; 226 CLR 535

East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457

Federal Commissioner of Taxation v Comber (1986) 10 FCR 88

Lang v Comcare [2007] FCA 427; 94 ALD 141

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

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

Woodlock v Commissioner of Land Tax (NSW) [1974] 2 NSWLR 411

Woodlock v Commissioner of Land Tax [1975] 2 NSWLR 97
Date of hearing: 8 June 2018
Date of last submissions: 15 June 2018
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: Mr LT Grey
Solicitor for the Applicant: Gabbedy Milson Lee
Counsel for the Respondent: Mr PG Woulfe
Solicitor for the Respondent: McInnes Wilson Lawyers

ORDERS

ACD 92 of 2017
BETWEEN:

IVAN PORTORS

Applicant
AND:

COMCARE

Respondent

JUDGE:

ROBERTSON  J

DATE OF ORDER:

19 JUNE 2018

THE COURT ORDERS THAT:

1.The applicant have leave to amend his notice of appeal.

2.The appeal, as amended, be dismissed.

3.Subject to order 4, the applicant pay the…

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AGLC
Portors v Comcare [2018] FCA 914
Case
[2018] FCA 914
Decision Date

CaseChat Overview and Summary

The case of Portors v Comcare involved a judicial review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the applicant's entitlement to compensation for injuries sustained at his workplace in July 2002. The applicant, Mr Portors, claimed compensation for an inguinal hernia and umbilical hernia, which he alleged were related to the workplace injury. The AAT affirmed a reviewable decision that Mr Portors had no present entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant sought to challenge the AAT's interpretation of the Act, particularly sections 4(3) and 14, and whether the AAT misconstrued the law in concluding that there was no claim before it for the hernia repair condition.

The primary legal issues before the court were whether the AAT misconstrued section 4(3) of the Act and whether the AAT erred in concluding that there was no claim before it concerning the hernia repair condition. Additionally, the court needed to determine if the AAT was correct in its reassessment of the findings of fact on which the section 14 decision was made, which would preserve Comcare's liability under section 14. The court considered the interaction between the decision of the Full Court in Telstra Corporation Ltd v Hannaford and section 4(3) of the Act, as well as the requirements for a deeming provision under section 4(3).

In its reasoning, the court held that the AAT did not err in its understanding of the decision in Hannaford and that the AAT correctly interpreted section 4(3) of the Act. The court clarified that section 4(3) is a deeming provision and must be construed strictly. For the provision to apply, there must be an initial, compensable injury, treatment for that injury, and further injury caused by that treatment. The court found that the AAT correctly concluded that there was no claim before it for the hernia repair condition as it required a separate claim under section 54 of the Act. Consequently, the appeal was dismissed with costs, and the court noted that Comcare could apply for a different costs order if it wished to do so.

The final orders of the court included dismissing the applicant's leave to amend his notice of appeal, dismissing the appeal as amended, and ordering that the applicant pay the respondent's costs. If Comcare wished to contend for a different costs order, it was to notify the court and the applicant within seven days of the date of the order. Directions would then be made for the determination of the question of costs on the papers.

Orders

Orders of the court

1. The applicant have leave to amend his notice of appeal.

2. The appeal, as amended, be dismissed.

3. Subject to order 4, the applicant pay the respondent’s costs, as agreed or taxed.

4. If the respondent wishes to apply for some other costs order, it is to notify the Court and the applicant within seven days of the date of this order and, in that event, directions will be made for the filing of short written submissions and for the determination of the question of costs on the papers.

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

As to Comcare’s notice of objection to competency, I have accepted the submission that the Tribunal did not have before it a claim of injury as a result of medical treatment but a question of law was involved in reaching that conclusion and consequently the Court had jurisdiction to determine that and the other questions of law I have considered.Conclusion and orders The appeal is dismissed, with costs. I note that Comcare submitted that it wished to be heard on the question of costs once judgment had been given. I therefore propose to order, provisionally, that the applicant pay the respondent’s costs, but to allow the respondent to notify the Court and the applicant if it wishes to contend for some other costs order. In that event I will make consequential procedural orders.

Ratio Decidendi

Legal Principle Established

In reply, the applicant submitted that the effect of the Tribunal’s decision was not such as to remove any entitlement to compensation for the diagnosed hernia condition before 8 May 2015, having regard to Hannaford. He also repeated his submission that the effect of s 4(3) meant that he was entitled to compensation for the chronic pain syndrome arising from the treatment he had for the diagnosed hernia condition, including compensation under ss 16 and 19, without the necessity for the filing of a separate claim for compensation under s 54.Consideration Counsel for Mr Portors said that no case had considered the intersection between the decision of the Full Court in Hannaford and s 4(3) of the Act. Neither party submitted that I should not follow Hannaford, although the parties differed as to what it meant. In my opinion, the Tribunal did not err in its understanding of Hannaford. The decision stands as authority for the proposition that in relation to its decision-making under, in particular, ss 16 and 19 of the Act, the Tribunal has power to make a finding of fact contrary to a finding of fact made in an original decision under s 14 even where the s 14 decision remains in force. There is little judicial authority on the meaning of s 4(3) of the Act. In Lang v Comcare [2007] FCA 47; 94 ALD 141, Stone J said, at [22]:For the expanded definition of ‘injury’ contained in s 4(3) of the Act to apply, there must be three elements: the first is an initial, compensable, injury; the second is treatment for that injury; the third is further injury caused by that treatment. Comcare v Hill [2005] FCA 657; 87 ALD 501 and Zdziarski v Telstra Corporation Limited [2015] FCA 207; 146 ALD 354 dealt with aspects of the provision which are not presently relevant. It is however relevant to note that s 4(3) is a deeming provision and is therefore required to be construed strictly and only for the purpose for which it is resorted to: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96, followed in East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 at 478. Equally, as pointed out by Samuels J in Woodlock v Commissioner of Land Tax (NSW) [1974] 2 NSWLR 411 at 414, any facts, or, I would add, conditions as in Lang v Comcare at [22], above, on which a deeming provision is to operate have to exist before the provision takes effect. The judgment of the Court of Appeal in Woodlock v Commissioner of Land Tax [1975] 2 NSWLR 97, reversing the decision of Samuels J, did not affect this reasoning. In my opinion, the purpose of the provision is to make it clear that an injury as a result of medical treatment shall, in the specified circumstances, be itself taken to be an injury without further resort to the definition of that word in s 5A of the Act. The effect of s 4(3) is that consideration of the relationship of the medical treatment itself, as opposed to the original injury, to the employee’s employment is made unnecessary. I therefore see no error of law in the Tribunal’s conclusions that where an applicant claims to have suffered an injury as a result of medical treatment of an injury, an application under s 54 the Act is necessary, that in the present case there was no such application and the reviewable decision did not encompass that issue. However for the reasons which I give in [31] below, this part of the Tribunal’s reasons and the conclusions I have reached in relation to those reasons are not essential to the outcome of the appeal.