Spaul v Comcare

Case [2012] FCA 741

FEDERAL COURT OF AUSTRALIA

Spaul v Comcare [2012] FCA 741

Citation: Spaul v Comcare [2012] FCA 741
Appeal from: Spaul v Comcare [2011] AATA 435
Parties: FRANK SPAUL v COMCARE
File number: VID 789 of 2011
Judge: GRAY J
Date of judgment: 11 July 2012
Catchwords:

ADMINISTRATIVE LAW – whether Tribunal failed to deal with an argument put on behalf of the applicant – whether such failure raises question of law

ADMINISTRATIVE LAW – appeal on question of law – issue not determined by Tribunal – issue dependent on finding of fact by Tribunal that was not made – whether Court should deal with issue – whether exercise of judicial power to determine question of law – whether advisory opinion

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 8(6)(a), 8(6)(b), 8(6)(c), 8(9B), 8(9C), 8(10), 19, 19(2)
Cases cited: Dunstan v Comcare [2011] FCAFC 108 followed
Date of hearing: 27 February 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 26
Counsel for the Applicant: Mr LT Grey
Solicitor for the Applicant: C & M Lawyers
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 789 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

FRANK SPAUL
Applicant
AND:

COMCARE
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

11 JULY 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal, made on 23 June 2011 in proceeding number 2010/4952 be set aside.

3.The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.

4.The respondent pay the applicant’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 789 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

FRANK SPAUL
Applicant
AND:

COMCARE
Respondent

JUDGE:

GRAY J

DATE:

11 JULY 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

  1. This appeal is from a decision of the Administrative Appeals Tribunal (“the Tribunal”), given on 23 June 2011.  It concerns the calculation of the amount to which the applicant is entitled pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). The applicant’s complaint is that the Tribunal failed to deal with an argument put on his behalf as to a matter that might have affected the rate of compensation. Instead of dealing with that argument, the Tribunal treated the applicant as having put an argument that he had in fact abandoned, which it determined against him. The applicant’s contention is that, if the Tribunal had dealt with the argument he put, it would have upheld that argument.

  2. The applicant was employed by Medicare Australia (formerly the Health Insurance Commission and referred to from time to time as “the HIC”)…

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Details
AGLC
Spaul v Comcare [2012] FCA 741
Case
[2012] FCA 741
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Spaul pursued an appeal against a decision of the Administrative Appeals Tribunal (AAT) that had dismissed his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The crux of the dispute revolved around whether the AAT had erred in its handling of the applicant's salary increase argument in October 2004. Specifically, Spaul contended that the AAT had misconstrued his primary argument concerning the salary increase, which was based on the third pay point of the Principal Executive Officer Class B (PEO-B) classification, rather than the fourth pay point as the AAT had perceived. This misapprehension, according to Spaul, led the AAT to overlook the fact that the salary increase in question was an increment applicable to his office, position, or appointment within the meaning of the SRC Act.

The primary legal issue before the court was whether the AAT's failure to correctly identify and address the applicant's argument constituted an error of law. Spaul argued that the AAT's oversight in understanding his primary contention about the salary increase constituted an error of law, as it had not properly dealt with an issue raised before it. The court examined the written and oral submissions made by Spaul's counsel, which explicitly withdrew any claim to progression to the fourth pay point, clarifying that the case was to be determined based on the applicant's remuneration at the third pay point of PEO-B. Given that the AAT had not proceeded to determine this correctly identified contention, the court found that the AAT's failure to address the proper contention indeed amounted to an error of law.

The court, while acknowledging the concession by the respondent that the AAT's failure to address the correct contention was an error of law, proceeded to allow the appeal. It set aside the AAT's decision, remitted the case back to the AAT for reconsideration, and ordered the respondent to pay the applicant's costs of the appeal. The court's decision emphasised the importance of the AAT accurately identifying and addressing the contentions put before it to ensure a fair and proper determination of the issues in dispute.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal, made on 23 June 2011 in proceeding number 2010/4952 be set aside.

3. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.

4. The respondent pay the applicant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The grounds specified in para 4 of the notice of appeal are:4.1The Tribunal misconceived the central contention put on behalf of the Applicant concerning the Applicant’s salary increase in October 2004, in that −(a)the Tribunal considered that the Applicant was contending that his entitlement to a salary increase in October 2004 was based on a claimed progression to the fourth pay point of the Principal Executive Officer Class B (“PEO-B”) classification: Reasons for Decision at [17]-[20]; and(b)the true position was the Applicant had expressly abandoned in his written submissions any claimed progression to the fourth pay point of the PEO-B classification and based his primary submission on the salary increase in October 2004 affecting the third pay point of the PEO-B classification, being the pay point which already applied to the Applicant prior to September 2004.4.2Having misconceived the central contention being put on behalf of the Applicant concerning the Applicant’s salary increase in October 2004, the Tribunal erred in failing to find that the salary increase in October 2004 affecting the third pay point of the PEO-B classification was properly described as “an increment in a range of salary … applicable to the [Applicant] or to his ... office, position or appointment” within the meaning of that phrase in paragraph 8(6)(c) of the SRC Act.The first question As it is expressed in para 2.1 of the notice of appeal, the first question is not a question of law. It invites a comparison of what is described as the central contention put on behalf of the applicant with the Tribunal’s reasons, for the purpose of determining whether the Tribunal misconceived that contention. A misconception as to a contention is an error of fact. As explained in para 4.1 of the notice of appeal, and in written and oral submissions in the appeal, the first question can be seen to involve a concealed question of law. That question is whether the Tribunal failed to deal with an issue raised in the proceeding before it. In Dunstan v Comcare [2011] FCAFC 108 at [67]-[68], the Full Court held that the failure by the Tribunal to deal with an issue raised in the proceeding was an error of law. In that case, as in this, the Tribunal had mentioned the issue as one that needed to be determined, but had failed to proceed to determine it. On the basis of what the Full Court said in Dunstan, the respondent in the present appeal conceded that the Tribunal had made an error of law. In the course of the proceeding before the Tribunal, counsel for the applicant handed up a lengthy document entitled “APPLICANT’S OUTLINE OF SUBMISSIONS”. In para 2.3 of that document, after referring to the absence of any dispute about the applicant’s rate of annual salary at the starting point on 8 September 2004, the applicant’s counsel said:The complication that arises in this matter is that the 2003 Agreement, and its successor, the Medicare Australia Certified Agreement 2005-2008 (“the 2005 Agreement”) provided for salary increases for persons in the position of the Applicant. There is also the question of whether the Applicant would have progressed to the fourth pay point, as he has consistently maintained, based on his previous exemplary performance. For the purposes of these proceedings, that argument is not pressed, and the matter is to be determined on the basis that at all times the Applicant was to be remunerated at the third pay point of PEO-B (later included in the broad banded HIC 8 classification).That paragraph involved a complete withdrawal of the contention that the applicant would have progressed to the fourth point in the pay scale under the 2003 Agreement. The withdrawal of the contention was repeated by counsel for the applicant in the course of oral argument. The transcript records the applicant’s counsel as saying:Now, as I say in paragraph 2.3, Mr Spaul − if you look at the history of this matter − Mr Spaul has consistently argued that he would have progressed to the fourth pay point, which would have taken him above the figures that I’ve just taken you to, to the − in effect − to the figures on the next line down, which are separated by a dotted line across these tables. Now, whether that is or is not correct, and Mr Spaul has good reasons for saying it would have been correct, the argument being put by the other side is that you could never consider that increase to be an increment because it requires a qualitative judgment to be made by the head of Medicare Australia or someone with the appropriate delegation, that the person should advance.For these proceedings, we are not going to press the argument that Mr Spaul would have advanced to the fourth pay point, so you don’t have to concern yourself with that. We are saying that he would have been entitled to the − if he had remained an employee − he would have been entitled to the increases that I’ve taken you to, that is the October ’04 increaseAs this submission demonstrates, the applicant was putting the contention that, if he had remained in his employment after 7 September 2004, he would have received an automatic increase in his annual salary on 1 October 2004, as a consequence of general increases that were part of the operation of the 2003 Agreement.

Ratio Decidendi

Legal Principle Established

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