Smith v Comcare

Case [2014] FCA 811

FEDERAL COURT OF AUSTRALIA

Smith v Comcare [2014] FCA 811

Citation: Smith v Comcare [2014] FCA 811
Appeal from: Smith and Comcare [2014] AATA 28
Parties: LAWRENCE SMITH v COMCARE
File number: ACD 9 of 2014
Judge: ROBERTSON J
Date of judgment: 5 August 2014
Catchwords: WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – earlier decision of the Tribunal subject of judicial review by a Full Court of the Federal Court of Australia – effect of the orders of the Full Court allowing appeal and remitting matter to the Tribunal for further consideration and determination according to law – whether Tribunal failed to carry out its second review in accordance with the orders of the Full Court – whether those orders required the second Tribunal to consider afresh whether the applicant’s Commonwealth employment contributed in a material degree to the aggravation of the applicant’s osteoarthritis of the right hip – whether no evidence to support the Tribunal’s finding that there was no material contribution – whether the Tribunal failed to take into account relevant evidence – whether Tribunal failed to comply with its duty to give reasons
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Cases cited: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256
Smith v Comcare [2012] FCA 502
Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335
SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 303 ALR 64
Date of hearing: 30 July 2014
Date of last submissions: 1 August 2014
Place: Sydney (via video link to Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 92
Counsel for the Applicant: Mr J Fernon SC with Mr J Mrsic
Solicitor for the Applicant: T D Kelly & Co
Counsel for the Respondent: Mr D Richards
Solicitor for the Respondent: DibbsBarker

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 9 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

LAWRENCE SMITH
Applicant
AND:

COMCARE
Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

5 AUGUST 2014

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The application be dismissed, with costs.

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 9 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

LAWRENCE SMITH
Applicant
AND:

COMCARE
Respondent

JUDGE:

ROBERTSON J

DATE:

5 AUGUST 2014

PLACE:

SYDNEY (VIA VIDEO…

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AGLC
Smith v Comcare [2014] FCA 811
Case
[2014] FCA 811
Decision Date

CaseChat Overview and Summary

The case of Smith v Comcare involved the appellant, Mr Smith, appealing against the decision of the Administrative Appeals Tribunal (AAT) which had dismissed his claim for workers’ compensation for the aggravation of his osteoarthritis of the right hip. The dispute centred around whether Mr Smith’s employment with the Commonwealth contributed materially to the aggravation of his condition. The case was heard by the Federal Court of Australia, with the decision being reviewed by a Full Court which subsequently remitted the matter back to the AAT for reconsideration.

The key legal issues before the court were whether the AAT had correctly followed the orders of the Full Court in its reconsideration of the case, particularly whether the AAT had failed to consider whether Mr Smith's employment contributed materially to his condition. The court also had to determine if the AAT failed to take into account relevant evidence and if it complied with its duty to provide reasons for its decisions. Additionally, the court examined whether the evidence supported the AAT's finding that there was no material contribution from Mr Smith’s employment to his condition.

In its reasoning, the court highlighted that the Full Court's orders required the AAT to first determine if it had considered the entire period of Mr Smith’s employment in its 2011 decision. Only if the AAT had not done so was it required to further assess the evidence. The court found that the AAT had indeed considered the entire employment period in its 2011 decision and thus did not need to reconsider the evidence afresh. The Full Court's orders were interpreted as requiring the AAT to reassess its consideration of the employment period and not to rehear the entire case. The court also noted that the AAT's findings were supported by the evidence and that it had adequately provided reasons for its decisions.

As a result, the court dismissed Mr Smith's application, finding that the AAT had correctly followed the Full Court's orders and had appropriately considered the evidence in its decision. The court ordered that the application be dismissed, with costs.

Orders

Orders of the court

1. The application be dismissed, with costs.

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

That decision followed an earlier decision by the Tribunal, also affirming the decision under review, given on 28 September 2011 (Re Lawrence Smith and Comcare [2011] AATA 662) (the 2011 decision). The 2011 decision of the Tribunal was the subject of orders by a Full Court of this Court on 28 June 2013 following an appeal from orders of a single judge of the Court made on 18 May 2012 (Smith v Comcare [2012] FCA 502) dismissing, with costs, the application (appeal) from the Tribunal’s earlier decision. The orders of the Full Court (Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335) made on 28 June 2013, as varied on 5 July 2013 to add order 3, were in the following terms:1.The appeal is allowed with costs.2.The matter is remitted to the Administrative Appeals Tribunal for further consideration and determination according to law.3.The respondent pay the appellant’s costs of the proceedings below. I note that, at least in terms, the 2011 decision of the Tribunal was not set aside.The legislation Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) provided at the relevant time:14 Compensation for injuries(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.…Relevant definitions in s 4(1) were:aggravation includes acceleration or recurrence.ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).…disease means:(a)any ailment suffered by an employee; or(b)the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.…injury means:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;…The 2011 decision of the Tribunal As will later appear, I do not accept the submission on the part of the applicant that the facts found by the Tribunal in its 2011 decision have ceased to be relevant to, or available for the purposes of, the 2014 decision. I therefore next set out the facts found by the Tribunal in its 2011 decision. The Tribunal found at [3] that the only matter before it was whether Comcare was liable to pay compensation for aggravation of Mr Smith’s hip osteoarthritis under s 14 of the SRC Act. At [8], the Tribunal stated the issue under s 14 as whether Comcare was liable to provide rehabilitation and to pay compensation to the applicant for aggravation of the disease which has resulted in the incapacity for work or in impairment.

Ratio Decidendi

Legal Principle Established

In reply, the applicant submitted that purporting to refer to or adopt reasons tainted by error of law in a prior decision did not satisfy the requirements of ss 43(2) and 43(2B) of the AAT Act.Consideration Fundamental to the disposition of this appeal is the effect of the orders of the Full Court which I have set out at [4] above. In construing orders it is generally permissible to have regard to context and, in particular, the reasons for judgment when determining the meaning and effect of a court order: see Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 at [60]–[65] per Basten JA and at [248] per Barrett JA, Beazley P agreeing, citing Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58. The applicant accepted, before me, that it was permissible to have regard to the reasons for judgment of the Full Court for this purpose. In my opinion, this case is one of the rare cases, referred to in Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [18], in which a limitation in the remittal is to be inferred from the reasons for judgment given by the remitting court. In my opinion, the orders made by the Full Court did not require the Tribunal to rehear the application, in the sense that the Tribunal was not required to reconsider the entirety of the material before it. What had been identified was an error of law in deciding the s 7(4) question, the time of sustaining the injury, before deciding the s 14 question, the existence of the injury. The Full Court was not persuaded that the error was immaterial because the error may have had the consequence that the Tribunal had not given attention to the applicant’s case about his working conditions over the whole of the period from 1983: it was not sufficiently clear that the Tribunal had in fact assessed the whole period from 1983 onwards. This was evident particularly in [81] of the 2011 reasons and the reference in that paragraph to 1997. In so concluding, the Full Court was not persuaded by the submission put on behalf of the present applicant that the Tribunal had made it clear that it did not take into account the period of the applicant’s Commonwealth employment other than the years immediately preceding 1997 in assessing the contribution of Commonwealth employment to aggravation of the applicant’s ailment. Nor was the Full Court persuaded that, for the purposes of making its assessment, the Tribunal did not take into account the more onerous mutton duties or other duties performed by the applicant prior to 1993 in Wagga Wagga. In my opinion, the orders of the Full Court required the Tribunal first to consider whether or not it had, in its 2011 decision, considered the whole of the period of the applicant’s employment. Only if the Tribunal had not there considered the whole of the period was it required to go further. As will have been seen, the Tribunal in its 2014 decision said that it had considered the whole of the period of the applicant’s employment in its 2011 decision.