Australian Capital Territory v Ross

1. The Applicant is given leave to amend its notice of appeal.
2. The appeal is allowed.
3. The decision of the Administrative Appeals Tribunal made on 3 November 2023 is set aside.
4. The reviewable decision made on 17 February 2023 is affirmed.
5. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEEDHAM J: 1 Before me is an appeal from a decision from the Administrative Appeals Tribunal (AAT): Re Ross and Australian Capital Territory (Compensation) [2023] AATA 3569. 2 The appeal was listed for hearing on 29 October 2024, but the hearing was vacated in light of the parties reaching an agreement that the appeal should be allowed by consent. 3 In accordance with the Court's Consent Orders Involving a Federal Tribunal Practice Note (GPN-TRIB), the parties submitted short notes with the consent orders sought. The notes relevantly stated: 2. This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal made on 3 November 2023. 3. The Tribunal decided to set aside a reviewable decision made by the present Applicant (the Australian Capital Territory, or the ACT) and the matter was remitted to the ACT for determination on a basis consistent with the reasons of the Tribunal. 4. In its reasons, the Tribunal relevantly found that the present Respondent (Gerard Ross, or Mr Ross) suffered an incapacity for work within the meaning of s 4(9)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). That finding was significant because Part II Division 3 of the SRC Act provides for certain liabilities of Comcare (or, in this case, a licensee) to pay compensation to certain employees who suffer incapacity for work as a result of a work-related injury. Conversely, there is no liability to pay such compensation where an employee does not suffer incapacity for work. 5. On 30 November 2023, the ACT instituted an appeal on a question of law from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal was subsequently abolished and replaced with the Administrative Review Tribunal on and from 14 October 2024; despite that change, this proceeding continues and anything the Court could have "done in relation to the AAT before the transition time may be done in relation to the ART". 6. By its appeal, the ACT challenges the lawfulness of the Tribunal's decision. The reasons for that challenge are outlined in the ACT's notice of appeal and the ACT's outline of submissions dated 23 September 2024, the accompanying chronology, and the ACT's submissions in reply dated 15 October 2024. Having read those submissions, Mr Ross now acknowledges that the Tribunal erred in law and fact in finding that as a result of an injury he suffered an incapacity for work within the meaning of s 4(9)(b) of the SRC Act. 7. Accordingly, the parties agree that the proper relief in this proceeding is for orders to be made as set out in the consent orders herein. However, the ACT needs leave to amend its notice of appeal in accordance with the draft annexed to these orders to facilitate that outcome. Mr Ross consents to the Court granting that leave. … 9. Further or in the alternative, the Court may make the requested orders if it is persuaded that arguable appellable error is established by all or some of the following matters. a. It is an available construction of the Tribunal's reasons at [36] that the Tribunal equated the specific job in which Mr Ross was engaged immediately before his injury with the level at which he had a capacity to engage in work for the ACT or with the level at which he had a capacity to engage in any other work. b. However, that is not what s 4(9)(b) of the SRC Act requires. c. On the contrary, the focus of the inquiry to be undertaken under s 4(9)(b) of the SRC Act is an employee's capacity to work, or to work at a level, such that, properly construed, s 4(9)(b) required the Tribunal to address: i. When did the "injury" happen? (the first question) ii. What was the work in which Mr Ross was engaged by the ACT immediately before the injury happened? (the second question) iii. What was the "level" at which Mr Ross was engaged to work immediately before the injury? (the third question) iv. Is Mr Ross incapacitated from engaging in work at the "same level" at which he was engaged to work by the ACT? (the fourth question) d. In its reasons at [36], the Tribunal failed to address the "level" at which Mr Ross was engaged to work immediately before the injury (the third question). e. As a result of the above failure, the Tribunal failed to address whether Mr Ross was incapacitated from engaging in work at the "same level" at which he was engaged to work by the ACT or whether he was incapacitated from engaging in any other work (the fourth question). f. In so doing, the Tribunal: i. misapplied, or failed to apply, s 4(9)(b) of the SRC Act; ii. failed to undertake the comparison required by s 4(9)(b) as contemplated by the terms of that provision and the authorities mentioned by the ACT; iii. failed to provide reasons to the standard required by law, including by its failure to make findings of sufficient particularity as to the "level" at which Mr Ross was engaged to work immediately before the injury (the third question) with the consequence that the Tribunal failed to make findings of sufficient particularity as to whether Mr Ross was incapacitated from engaging in work at the "same level" after the injury (the fourth question). g. However, there was ample material before the Tribunal that would have enabled it to undertake the comparison required by s 4(9)(b) of the SRC Act. The parties agree that such material establishes, and Mr Ross now accepts, that there is no incapacity for work within the meaning of s 4(9) of the SRC Act (and that has been the case from the date on which Mr Ross resigned from his employment by the ACT on or about 24 August 2022). In that regard and in the interests of completeness, it was and remains common ground between the parties that s 4(9)(a) is not engaged in this case. 10. Accordingly, the appropriate relief is to set aside the decision of the Tribunal and restore the ACT's reviewable decision. 4 I am empowered under s 20(5)(b) of the Federal Court of Australia Act 1976 (Cth) (FC Act) to make an order by consent disposing of the matter in the exercise of the Court's original jurisdiction to hear and determine appeals from tribunals. 5 The exercise of the power to allow an appeal by consent has been considered in the context of s 25(2B)(b) of the FC Act (in the exercise of the Court's appellate jurisdiction) and has been held to be dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below: Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2021] FCA 1467 at [17] (McKerracher J); PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 at [14] (Rangiah, SC Derrington and Banks-Smith JJ); CQX18 v Minister for Home Affairs [2019] FCAFC 142 at [9] (Allsop CJ, Perry and Gleeson JJ)). What is sufficient to satisfy the Court of arguable appellable error depends upon the nature and complexity of the proceeding and the nature of the error that is identified: Bradken Limited v Norcast S.ár.L (2013) 219 FCR 101; [2013] FCAFC 123 at [2] (Allsop CJ, Mansfield and Jacobson JJ). 6 I am satisfied that it is an available construction of the Tribunal's reasons at [36] that the Tribunal equated the specific job in which the respondent was engaged immediately before his injury with the level at which he had a capacity to engage in work for the ACT or with the level at which he had a capacity to engage in any other work. 7 In doing so, the Tribunal misapplied or failed to apply s 4(9)(b) of the SRC Act, failed to undertake the comparison required by s 4(9)(b) as contemplated by the terms of that provision and the authorities mentioned by the applicant, and failed to provide reasons to the standard required by law. 8 I consider it arguable that the decision of the AAT is attended by appellable error. 9 For these reasons, effect should be given to the parties' agreed position. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.