Rand v Comcare

Case [2014] FCA 584

FEDERAL COURT OF AUSTRALIA

Rand v Comcare [2014] FCA 584

Citation: Rand v Comcare [2014] FCA 584
Appeal from: Re Rand and Comcare [2013] AATA 580
Parties: TRACEY RAND v COMCARE
File number: ACD 94 of 2013
Judge: FLICK J
Date of judgment: 5 June 2014
Catchwords: ADMINISTRATIVE LAW – identification of issues before the Administrative Appeals Tribunal – analogy to common law pleadings inappropriate – a submission not resolved – a submission which should have been resolved  
Legislation: Administrative Appeals Tribunal Act1975 (Cth) ss 33, 39, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98
Cases cited:

Aitken v Victoria [2013] VSCA 28
Australian Guarantee Corporation Ltd v Levine (1989) ASC 55-934
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Leduca Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
Local Government Board v Arlidge [1915] AC 120
Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442
Kennedy v Comcare [2014] FCA 82
Minister for Immigration and Citizenship v Shea [2011] FCA 37
R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Rand and Comcare [2013] AATA 580
Saunders v Federal Commissioner of Taxation (Cth) (1985) 15 ALD 353

Secretary, Department of Prime Minister and Cabinet v Haneet [2010] FCA 928
Sent v Commissioner of Taxation [2012] FCA 382, (2012) 128 ALD 34
State of Victoria v Turner [2009] VSC 66, (2009) 23 VR 110
Watson v Federal Commissioner of Taxation [1999] FCA 1796, (1999) 96 FCR 48

Date of hearing: 9 April 2014
Place: Sydney (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 42
Counsel for the Appellant: Mr L T Grey
Solicitor for the Appellant: pappas, j. - attorney
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 94 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

TRACEY RAND
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

5 JUNE 2014

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The matter is remitted to the Administrative Appeals Tribunal to be reconsidered in accordance with these reasons.

3.The Respondent is to pay the costs of the Appellant.  

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 94 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

TRACEY RAND
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE:

5 JUNE 2014

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. Between December 1998 and February 2004 the Applicant, Ms Tracey Rand, was employed by the Department of Health and Ageing.  She developed symptoms of a psychological illness…

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Details
AGLC
Rand v Comcare [2014] FCA 584
Case
[2014] FCA 584
Decision Date

CaseChat Overview and Summary

In the case of Rand v Comcare, the Federal Court was called upon to review a decision of the Administrative Appeals Tribunal (AAT) concerning a claim for compensation by Ms Rand, who alleged that her employment at the National Blood Authority had aggravated or caused a recurrence of a condition initially suffered during her employment at the Department of Health and Ageing. The AAT had identified several issues for determination, including whether Ms Rand's condition had been aggravated or recurred due to her employment, and these were resolved in her favour. However, the court found that the AAT had failed to address a critical alternative claim advanced by Ms Rand, which concerned the continued impact of her earlier employment on her condition from a certain date onwards. This unresolved claim was deemed significant enough to warrant a reconsideration by the AAT.

The primary legal issue before the Federal Court was whether the AAT had adequately addressed all claims and submissions made by Ms Rand. The court had to determine if the AAT's failure to resolve this particular claim constituted a substantial error that warranted the setting aside of the AAT's decision. The court also examined whether the AAT's approach to identifying and resolving issues was appropriate and whether it had considered all relevant submissions as required by administrative law principles.

The Federal Court held that the AAT had indeed failed to resolve a critical claim made by Ms Rand, which was adequately identified and submitted for consideration. The court noted that the AAT had acknowledged the alternative claim but did not address it in its reasons for decision. This omission was considered a substantial procedural error, as it deprived Ms Rand of a fair opportunity to have her claim fully considered and decided. Consequently, the court allowed the appeal, remitted the matter back to the AAT for reconsideration in light of these findings, and ordered the respondent to pay the costs of the appellant.

The court's decision underscored the importance of ensuring that all issues and claims properly submitted to the AAT are adequately addressed and resolved. The court emphasised that while the AAT has broad discretion in determining how to proceed with the issues before it, it must ensure that all relevant submissions are considered and decided upon. This case highlights the necessity for tribunals to meticulously follow procedural requirements to uphold the principles of fairness and due process in administrative law proceedings.

Orders

Orders of the court

1. The appeal is allowed.

2. The matter is remitted to the Administrative Appeals Tribunal to be reconsidered in accordance with these reasons.

3. The Respondent is to pay the costs of the Appellant.

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

It remains a matter for the Tribunal to resolve the outstanding “central contention” relied upon by Ms Rand. The manner in which it resolves that outstanding submission is a matter for the Tribunal itself to determine.CONCLUSIONS In the hearing before the Tribunal the case advanced on behalf of Ms Rand included a claim that whilst employed at the National Blood Authority she had either:·suffered an aggravation of her condition which had been initially suffered whilst employed at the Department of Health and Ageing; or ·there had been a recurrence of her condition which had been contributed to by that employment. These were included in the “issues” identified by the Tribunal: [2013] AATA 580 at [23]. These issues were resolved by the Tribunal. In addition to these “issues”, a further claim advanced on behalf of Ms Rand was that her employment with the Department of Health and Ageing “for which liability had been accepted in 2002 … remained an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards”. This was the “alternative” claim, also identified by the Tribunal: [2013] AATA 580 at [25]. But this claim, it is concluded, was never resolved. It was a submission which ought to have been resolved. This conclusion has been reached with considerable reservation – especially bearing in mind the careful manner in which the Tribunal has expressed its reasons for decision and its express statement that it “has considered these three alternatives in its reasons”: [2013] AATA 580 at [26]. The appeal is to be allowed with costs. THE ORDERS OF THE COURT ARE:1.The appeal is allowed.2.The matter is remitted to the Administrative Appeals Tribunal to be reconsidered in accordance with these reasons.3.The Respondent is to pay the costs of the Appellant.

Ratio Decidendi

Legal Principle Established

So expressed, these “issues” did not identify what Counsel on behalf of Ms Rand now identified as her “central contention”. But this alternative manner in which the claim was being advanced was identified by the Tribunal immediately thereafter in its reasons for decision when it said: Consideration[24] The Tribunal notes that the history of this claim has changed substantially during its history. Ms Rand initially made a claim for aggravation of PTSD. That was a new claim against the Authority for acceptance of liability for that condition. However, during the course of this matter it was accepted that the diagnosis of PTSD was not made out and both parties agreed at the hearing that a claim for PTSD was no longer being pursued. A consequence was that some of the evidence produced for the purpose of the original claim became of limited relevance.[25] A difficulty created by this change was to identify what was the substance of the claim. As counsel for Comcare contended if the claim was a claim for section 14 liability against the Authority, whatever the nature of the condition, if Ms Rand was to be successful, the Tribunal would need to find that there was an aggravation of Ms Rand’s accepted condition of an adjustment disorder with anxious mood. However, as an alternative, he contended she was “entitled to compensation on the strength of the fact that … employment with the [agency] produced a worsening or produced a psychiatric condition, which remained an effective and operative cause of her need for treatment, her impairment, her incapacity”. In other words, her claim had either to be a continuation of her previous claim or a fresh one.[26] Counsel acknowledged that if the Tribunal found that Ms Rand’s conditions during her time at the Authority were in fact a continuation of her accepted condition there may have been no need to bring the application for review to the Tribunal. In effect, the most the claim could achieve would be that the claim be returned to Comcare to decide what level, if any, of compensation was attracted. If that was the case, the claim became a claim for compensation for medical treatment and for incapacity payments. Counsel for Comcare agreed with these alternatives except that he suggested there could also be a finding that the ongoing injury may not be related to employment by either agency. The Tribunal has considered these three alternatives in its reasons.The “alternative manner” in which the claim was being advanced was expressly adverted to at paragraph [25] of these reasons. The reference in those reasons to the “agency” is a reference to the Department of Health and Ageing. And the passage extracted in italicised type in those reasons is in recognition of the fact that that extract is the quotation of the submission made on behalf of Ms Rand in closing submissions. Notwithstanding the recognition on the part of the Tribunal as to the “alternative” manner in which the claim for compensation was being advanced for resolution and its statement that it “considered” the “three alternatives” ([2013] AATA 580 at [26]), the reasons for decision thereafter provided by the Tribunal are confined to the four “issues” identified in paragraph [23].