Schmid v Comcare

Case [2003] FCA 1057


FEDERAL COURT OF AUSTRALIA

Schmid v Comcare [2003] FCA 1057

ADMINISTRATIVE LAW – appeal on questions of law from decision by Administrative Appeals Tribunal – applicant claimed compensation for physical and psychological injuries arising from his army service – Tribunal found respondent not liable for compensation – whether Tribunal gave adequate reasons – whether erroneous findings of fact by Tribunal constituted errors of law – whether conduct by applicant’s superior officer amounted to “reasonable disciplinary action” – whether injury sustained arose out of or in course of employment – no error of law made out

WORKERS’ COMPENSATION – Commonwealth employees – compensable injury – injuries resulting in permanent impairment – exclusion for reasonable disciplinary action – conduct of superior officer – whether within exclusion – armed forces – applicant claimed trauma arising from series of incidents – applicant also claimed victimisation – claim of physical and psychological injuries resulting – whether entitled to compensation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 6, 24 and 27
Administrative Appeals Tribunal Act 1975 (Cth) ss 43 and 44

Browne v Dunn (1893) 6 R 67 referred to
Roads Corporation v Dacakis [1995] 2 VR 508 at 520 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, per Mason CJ at 355-356 referred to
O’Brien v Repatriation Commission (1984) 1 FCR 472 at 486 referred to
Repatriation Commission v O’Brien (1985) 155 CLR 422 referred to
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 referred to
Dornan v Riordan (1990) 24 FCR 564 referred to
Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 at 370 referred to
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 referred to
Marelic v Comcare (1993) 47 FCR 437 referred to
Waterford v The Commonwealth (1987) 163 CLR 54 at 77 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 referred to
Fitz-Gibbon v Inspector General in Bankruptcy (2001) 180 ALR 475 at 484 referred to
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 referred to
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396 referred to
Comcare v Chenhall (1992) 37 FCR 75 applied
Caldwell v Smith (1983) 51 ALR 386 at 388-389 referred to
Hart v Jacobs (1981) 39 ALR 209 at 210 referred to
Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at 175 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 referred to
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 distinguished
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 distinguished
Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83 referred to

DAVID SCHMID v COMCARE
V345 of 2002

WEINBERG J
3 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V345 OF 2002

BETWEEN:

DAVID SCHMID
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

3…

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AGLC
Schmid v Comcare [2003] FCA 1057
Case
[2003] FCA 1057
Decision Date

CaseChat Overview and Summary

Schmid v Comcare was a case before a court where the applicant, Schmid, was challenging decisions made by a tribunal. The core dispute was whether the tribunal had provided sufficient reasons for its decisions, particularly in rejecting Schmid's claims regarding his involvement in two suicides and an incident in Malaysia. The court was also asked to consider whether the tribunal adequately preferred the evidence of one expert over another.

The court examined whether the tribunal's reasons were adequate and whether they met the standards of procedural fairness. The court found that the tribunal had provided sufficient reasons to reject Schmid's accounts of his involvement in the suicides and the Malaysian incident. The tribunal had the opportunity to observe and assess Schmid's credibility during cross-examination, which allowed it to reasonably conclude that Schmid had exaggerated aspects of his claims. Furthermore, the tribunal was justified in preferring the evidence of Dr Murphy over that of Schmid's doctors due to Dr Murphy's impressive testimony and the lack of scientific support for Schmid's proposed link between bagpipe playing and his health issues.

Based on its findings, the court dismissed the appeal and made no order regarding costs. This decision underscored the tribunal's authority to weigh the evidence presented before it and to provide reasons that sufficiently justify its conclusions.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J
I propose to proceed upon the basis, most favourable to the applicant, that a failure to provide adequate reasons can, in some circumstances, amount to error of law. In approaching the matter in this way, I am conscious of the fact that there is considerable debate about the correctness of this proposition. CONCLUSIONSGround 1 In my opinion, the Tribunal gave adequate reasons for rejecting the applicant’s account of his involvement in the two suicides. As noted earlier, in relation to the first suicide, the Tribunal refused to accept that he had discovered the body, as he claimed. In relation to the second suicide, it rejected his claim to have seen the body. It is clear from a reading of the transcript of the applicant’s cross-examination before the Tribunal that the account which he gave regarding his involvement in relation to the suicides was strongly challenged. It was put to him that what he said was untrue. Counsel attacked his credit, drawing upon inconsistencies in his evidence. For example, he said at one point that he took longer to “get over” the second suicide than he had the first. However, he soon adjusted that answer by claiming that he “never” really got over the second suicide. The Tribunal had the advantage of seeing and hearing the applicant give his evidence. It was plainly open to it to conclude, as it did, that he had exaggerated various aspects of his claim in an effort to strengthen it. The same is true of the Tribunal’s reasons for rejecting the applicant’s account of the incident in Malaysia. Both the applicant and Mr Dyson were extensively cross-examined regarding their recollections of this incident. It was put to each of them that they had discussed the matter at length before giving their evidence. Mr Dyson initially denied having had any contact at all with the applicant. However, he ultimately conceded that there had been some discussions between them. The Tribunal was entitled to reject his evidence, in whole or in part, having regard to this equivocation. For those reasons, I need not consider the extent to which, if at all, the rule in Browne v Dunn is applicable to hearings before the Tribunal. I note, however, for the sake of completeness, that in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, and in Marelic v Comcare (1993) 47 FCR 437 failure to comply with the rule was said to be capable of vitiating a decision of the Tribunal, not because the rule was seen as a rule of evidence, but rather as a requirement of procedural fairness. I am also satisfied that the Tribunal gave adequate reasons for preferring the evidence of Dr Murphy to that of the applicant’s doctors. It found Dr Murphy to be an impressive witness, and noted the firmness with which he expressed his views. Moreover, the Tribunal was entitled to take into account the absence of any scientific support for the theory that there was a link between bagpipe playing and the onset of the applicant’s hernia and gastric difficulties.

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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