Ascic v Comcare

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent, either as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The Appellant in the present proceeding, Mr Marko Ascic, is a former member of the Australian Federal Police. The Respondent to the proceeding is Comcare. 2 Mr Ascic suffered an "injury" in December 1987. He retired in September 1988, being totally incapable of engaging in any work. Initially, compensation payments were made pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the "Compensation Act 1971"). That Act, however, was repealed by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the "Compensation Act 1988"). The provisions of the Compensation Act 1988 the subject of dispute commenced on 1 December 1988, and that Act establishes Comcare as a body corporate pursuant to s 74. 3 There were necessarily transitional provisions to facilitate the continuation of compensation entitlements upon the repeal of the former Act and the commencement of the latter Act. 4 Mr Ascic has at all material times contended that his compensation payments should have been determined pursuant to s 131(2) of the Compensation Act 1988. He requested Comcare to undertake a review. On 23 December 2015, a Senior Review Officer wrote to Mr Ascic stating (in part) as follows: I refer to your request for Comcare to conduct an independent review of every determination ever made concerning your entitlement to compensation for incapacity. I have now completed my reconsideration and, after evaluating the evidence, I have decided that the determinations were correct and I have affirmed them. The Review Officer concluded that the "total benefits" Mr Ascic was receiving "were less than 95% of [his Normal Weekly Earnings]" and hence that s 131(3) applied and not s 131(2). 5 Mr Ascic sought review of the December 2015 decision by the Administrative Appeals Tribunal. He was unsuccessful, with the Tribunal affirming the decision under review in September 2017: Re Ascic and Comcare [2017] AATA 1436. An appeal from the Tribunal's decision was dismissed in June 2019: Ascic v Comcare [2019] FCA 819. 6 Mr Ascic now appeals to this Court. He appeared unrepresented. Comcare appeared by Counsel. 7 A Notice of Appeal was first filed in June 2019. Pursuant to leave being granted, an Amended Notice of Appeal was filed in December 2019. The Amended Grounds of Appeal are voluminous, comprising some 23 purported Grounds. What characterises many of these Grounds is the fact that they pay scant regard to the arguments sought to be advanced before the primary Judge and many seek what appear to be a review of the factual merits of the Tribunal decision. Some of the purported Grounds, however, do seek to direct attention to errors said to have been made by the primary Judge. The Amended Notice of Appeal clearly does not conform with r 36.01(2)(c) of the Federal Court Rules 2011 (Cth). 8 At the outset of the hearing of the appeal, Mr Ascic sought to further amend the Amended Notice of Appeal. Leave had previously been refused by a single member of the Court as now constituted at a Case Management Hearing. Mr Ascic was advised that the Court would reconsider the earlier refusal of leave. Even as sought to be amended, the issues Mr Ascic wished to pursue on appeal were not clearly articulated. In such circumstances, the course pursued on appeal has been for the Court itself to review the decision of both the Tribunal and the reasons for decision of the primary Judge. Following the hearing of the appeal, Mr Ascic contacted the Court and indicated that he wished to make further submissions to those he had presented at the hearing. The Court allowed him an opportunity to provide further submissions, and the Respondent a right of reply. The Court has had regard to those additional submissions. 9 The fate of the appeal depends primarily upon the manner in which the Tribunal resolved such facts as were put in issue in the proceeding before it. Those facts were either relevantly agreed or resolved adversely to Mr Ascic by the Tribunal. In particular, an agreed fact was that Mr Ascic's "Normal Weekly Earnings … was $734.46". 10 Although Mr Ascic was unrepresented, he was very much alive to the importance of impugning that figure. Even though he may not have formally sought leave to withdraw that concession, either before the Tribunal or the primary Judge, consideration has been given to whether leave should now be granted and whether leave should further be granted to advance a case on appeal which is different to that relied upon before both the Tribunal and the primary Judge. 11 In very summary form, it has been concluded that: given the agreement as to the normal weekly earnings, the correct or preferable decision was that in fact reached by the Tribunal, namely that Mr Ascic's claim fell within s 131(3) of the Compensation Act 1988 and not s 131(2); the Tribunal committed no error in its interpretation or application of ss 123 and 131 of the Compensation Act 1988, nor any error in its interpretation and application of ss 25 and 45 of the Compensation Act 1971; and the Tribunal did not deny Mr Ascic a reasonable opportunity to present his application for review. The primary Judge was correct in rejecting similar arguments which were advanced before him. No appellable error is discernible in the reasons of the primary Judge. It has further been separately concluded that: even if the Tribunal had committed any legal error in the interpretation of the provisions of either the 1971 or 1988 Compensation Act, any error would have been non-prejudicial by reason of the agreement reached as to the normal weekly earnings. It has also been concluded that: leave should not be given to Mr Ascic to withdraw his admission as to his normal weekly earnings. Given these difficulties, the proposed further Amended Notice of Appeal would not have canvassed any different factual or legal issue. Leave to further amend was thus properly refused. 12 The appeal should be dismissed with costs.