FEDERAL COURT OF AUSTRALIA
Tsiamis v Comcare [2013] FCA 684
Citation: Tsiamis v Comcare [2013] FCA 684 Appeal from: Tsiamis and Comcare [2013] AATA 319 Parties: MARINA TINA TSIAMIS v COMCARE File number: NSD 941 of 2013 Judge: FLICK J Date of judgment: 10 July 2013 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – no denial of reasonable opportunity to be heard – no question of law – appeal dismissed
EVIDENCE – privilege against self-incrimination – power of Tribunal to issue a certificate
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 39, 44, 62
Evidence Act 1995 (Cth) s 128
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4Cases cited: Brown v Repatriation Commission (1985) 7 FCR 302
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
Elbayeh v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 832
Griffin v Pantzer [2004] FCAFC 113, 137 FCR 209
Re Hourani v Tax Practitioners Board [2012] AATA 518, 58 AAR 104
Re Tsiamis and Comcare [2013] AATA 319
Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108, 168 FCR 272Date of hearing: 10 July 2013 Date of last submissions: 10 July 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 941 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MARINA TINA TSIAMIS
ApplicantAND: COMCARE
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
10 JULY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Applicant is to pay the costs of the Respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 941 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MARINA TINA TSIAMIS
ApplicantAND: COMCARE
Respondent
JUDGE:
FLICK J
DATE:
10 JULY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Applicant, Ms Marina Tsiamis, was employed as a clerical assistant by a Commonwealth Government Office between 1977 and 1983.
In June 2011 she lodged an application with the Respondent, Comcare, for compensation for bipolar disorder, paranoid schizophrenia and post-traumatic stress disorder. Her psychiatric illnesses were said to have been suffered as a result of witnessing the accidental death of one of two workers who were carrying out work on a lift in a government building in Woden in the Australian Capital Territory on 14 December 1981. Ms Tsiamis was then aged 21 years.
In October 2011, a delegate sent a letter to Ms Tsiamis stating that her claim had been “disallowed”. The attached Statement of Reasons concluded that the delegate was satisfied that…
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- Tsiamis v Comcare [2013] FCA 684
- Case
- [2013] FCA 684
- Decision Date
CaseChat Overview and Summary
In the case of Tsiamis v Comcare, the applicant, Ms Tsiamis, appealed a decision of the Administrative Appeals Tribunal (AAT) which dismissed her claim for compensation. The dispute arose from a serious illness Ms Tsiamis developed following an accident many years earlier, and the crux of her argument was that she was present at the accident scene but was not given a fair opportunity to present her case due to the non-cooperation of Mr O’Shea, who was reluctant to testify about the incident. The Federal Court was tasked with determining whether the AAT erred in its handling of the case, specifically whether Ms Tsiamis was denied a reasonable opportunity to be heard and whether there was an error in the AAT's interpretation of the law regarding self-incrimination evidence.
The court found that Ms Tsiamis was not denied a reasonable opportunity to present her case as no relevant questions were asked during the Coronial inquiry regarding her presence at the accident. Additionally, the court affirmed that the AAT correctly interpreted the law by stating that it lacks the power to issue a certificate protecting a witness from self-incrimination, a power only held by a "court." The court rejected Ms Tsiamis's arguments that the absence of Mr O’Shea's testimony prejudiced her case and dismissed the appeal on the grounds that no legal error was found in the AAT's decision-making process.
Given the findings, the court dismissed the appeal and ordered Ms Tsiamis to pay the costs of the respondent. This outcome underscores the importance of adhering to procedural fairness and the correct application of legal principles in administrative law proceedings.
The court found that Ms Tsiamis was not denied a reasonable opportunity to present her case as no relevant questions were asked during the Coronial inquiry regarding her presence at the accident. Additionally, the court affirmed that the AAT correctly interpreted the law by stating that it lacks the power to issue a certificate protecting a witness from self-incrimination, a power only held by a "court." The court rejected Ms Tsiamis's arguments that the absence of Mr O’Shea's testimony prejudiced her case and dismissed the appeal on the grounds that no legal error was found in the AAT's decision-making process.
Given the findings, the court dismissed the appeal and ordered Ms Tsiamis to pay the costs of the respondent. This outcome underscores the importance of adhering to procedural fairness and the correct application of legal principles in administrative law proceedings.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Applicant is to pay the costs of the Respondent.
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
Nor does any “question of law” emerge from the manner in which the Tribunal arrived at those conclusions. The evidence of Mr O’Shea – the missing link ? Before the Tribunal, Ms Tsiamis was entitled to a “reasonable opportunity to present … her case”: Administrative Appeals Tribunal Act s 39(1). It is understood that an argument sought to be advanced by Ms Tsiamis is that she was denied a “reasonable opportunity” by reason of Mr O’Shea:(i)having not disclosed to the Coroner her presence on the roof of the lift when the accident occurred; and (ii)being unwilling to answer questions when he appeared before the Tribunal. As to the former argument, it was common ground that Mr O’Shea had not been asked, when appearing before the Coroner, whether anyone else (and presumably Ms Tsiamis) was also riding on the roof of the lift when the accident occurred. The transcript of the proceeding before the Coroner was before the Tribunal and discloses no such question having been put. Whether any such question should have been put to Mr O’Shea is, with respect, of no immediate relevance. It was the evidence that was before the Tribunal that is presently under scrutiny. In the absence of any question having been put to Mr O’Shea during the Coronial inquiry as to Ms Tsiamis’ presence at the scene of the accident, no question of Mr O’Shea having “lied” to the Coroner could arise for consideration by the Tribunal. But such was the submission of Ms Tsiamis on the occasion of the first directions hearing before this Court. That submission is rejected. As to the latter argument, Ms Tsiamis had forwarded to the legal representatives of Mr O’Shea a series of questions she proposed to ask Mr O’Shea when her claim was being heard by the Tribunal. She was advised that Mr O’Shea would either “not comment” or would “not respond” to the proposed questions. Before the Tribunal the issue again emerged when the Tribunal member addressed the legal representative then appearing for Mr O’Shea and referred to the indication previously given that Mr O’Shea “will not respond to questions about the incident on 14 December 1981”. The legal representative responded by stating that the Tribunal “could have heard more” but for the fact that no certificate could be given by the Tribunal pursuant to s 128 of the Evidence Act1995 (Cth). The power to give a certificate protecting a witness from self-incrimination pursuant to that section is confined to a “court”. That term is not defined. The Tribunal member then presumably acceded to that view and indicated that no question would be permitted as to “whether any other person was or was not present on that occasion”. No question arose in the present proceeding as to whether the Tribunal was correct in its conclusion that a Tribunal was not a “court” and, accordingly, not empowered to give a certificate under s 128. That certainly has been the position adopted on at least one other occasion by the Tribunal: e.g., Re Hourani and Tax Practitioners Board [2012] AATA 518 at [8]-[11], 58 AAR 104 at 107.
Decision
Reasons for decision
It is concluded that no such opportunity should be now extended to Ms Tsiamis because: ·there is no reason to question the findings of fact made by the Tribunal and no “question of law” has emerged. It is not open to the Court, so it has been said, to make findings of fact pursuant to s 44(7) of the Administrative Appeals Tribunal Act where no error of law has been exposed: Elbayeh v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 832 at [58] per Murphy J; or·even if a “question of law” had emerged, the limited power conferred upon this Court by s 44(7)(a) is confined to those circumstances where the finding proposed to be made is “not inconsistent with findings of fact made by the Tribunal” – other than findings made as the result of an error of law: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 at [115], 168 FCR 272 at 299 per Greenwood J (Weinberg J agreeing). The finding of fact being urged upon the Court by Ms Tsiamis was that she was in fact present at the scene of the accident – that fact being contrary to the finding made by the Tribunal; or ·even if it were open to conclude that the Tribunal’s state of satisfaction as to who was present at the time of the accident was in some way “infected” by some error or not “inconsistent” with the finding sought to be made by this Court, the power conferred by s 44(7) is discretionary and the discretion would not have been exercised in favour of making a finding of fact of such central importance to the decision-making process in the present case. Moreover, as submitted by Counsel on behalf of Comcare, the ultimate conclusion of the Tribunal was expressed as follows: CONCLUSION[91] For the reasons set out, we cannot be satisfied, on the evidence before us, that Ms Tsiamis was present on top of the lift at the time of the accident. Even if we were satisfied that she was, we are not satisfied that there was a causal connection between her employment and the serious illness that she developed many years later.[92] We affirm the decision under review.These conclusions supplement the conclusions previously expressed: [2013] AATA 319 at [29]. The entire focus on the part of Ms Tsiamis upon seeking to compel Mr O’Shea by one means or another to tell the Tribunal that she was present at the scene of the accident was thus largely misplaced – even had she been present, it was the conclusion of the Tribunal that there was no “causal connection between her employment and the serious illness that she developed many years later”. But that further conclusion of the Tribunal does not completely address Ms Tsiamis’ proposition that the medical evidence upon which the conclusion was founded was itself founded upon the medical practitioners not themselves having the benefit of Mr O’Shea’s evidence as to who was in fact present. The further conclusion, however, goes some considerable way to placing a final obstacle in her pathway to success. CONCLUSIONS
Ratio Decidendi
Legal Principle Established
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