Clement v Comcare

The decision of the primary judge 8 The primary judge first observed that the notice of appeal did not identify any question of law, contrary to the requirements of s 44 of the AAT Act and r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) ("Federal Court Rules" or "Rules"). It was open to his Honour to dismiss the appeal on this account because, unless such a question could be identified, the Court had no jurisdiction to entertain the appeal. The need to identify with precision the question or questions of law to be raised on appeal has been emphasised in case after case in this Court. The primary judge referred to two of them in his reasons: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290. 9 Nevertheless, in view of Ms Clement's psychological condition and the fact that she was unrepresented, his Honour proceeded to carefully examine the material before the Court to decide for himself whether the appeal could be said to have raised a question of law. 10 After considering the notice of appeal and a document entitled "Statement of Real Issues in Dispute", the AAT's reasons for decision and Ms Clement's written submissions, his Honour concluded that there was no error of law.

Grounds of appeal 11 The notice of appeal was prolix, encompassing 18 grounds spread over eight pages of single spaced typing. There was also a supplementary notice of appeal. Neither accorded with the Federal Court Rules, which stipulate that a notice of appeal must state briefly and specifically the grounds relied on in support of the appeal (r 36.01) and Ms Clement was ordered to file an amended notice of appeal. The amended notice of appeal contains only seven grounds which summarise the grounds in the original and supplementary notices of appeal. None of them engages with the primary judge's reasons. 12 Ms Clement alleges that: The Court complied with s 44 of the AAT and thereby disregarded the constitutional law as to separation of powers. Further, the AAT Act is made "without power" and is invalid. By complying with s 44, the Court failed to reconsider the evidence for itself, including evidence not before the AAT, evidence from other proceedings, and evidence which had emerged since the first tribunal decision, and to make its own findings of fact as to the matter before it and as to matters which had been decided in previous cases. The Court applied authorities, including those to which Ms Clement was a party, which themselves applied s 44 of the AAT Act and have not been overturned "due to the illegal prohibition on appeals to the High Court" and applied the Federal Court Rules, which are "invalid". The Court erred in failing to consider, or rejecting, certain evidence, including evidence purportedly supporting Ms Clement's assertions of alleged illegal and fraudulent conduct by various people in her employment with the ABS. The Court misapplied the Australian Constitution. The Court made an error of law on the face of the record by ordering that the appeal be dismissed instead of dismissing the application, the case having been brought in the original jurisdiction of the Court. 13 Although they are not easy to follow, in essence, the grounds of appeal are all variations on the one theme: that the primary judge erred because the legislation that he was applying took away from Ms Clement rights she insisted she had and, to that extent, all the legislation was unconstitutional: s 44 of the AAT Act, the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act"), the Federal Court Rules and s 59 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"), which provides for the Court's rule-making power.

Issues on appeal 14 The written submissions canvass a series of matters from Ms Clement's past, not all of which were the subject of the primary judge's decision. 15 Many of the submissions come under the asserted rubric of an asserted acquisition of her property rights on unjust terms, said to include many factual matters, for example: (e) Requirement that the Appellant submit to assault, through attendances upon (i) a person practising in ACT as a forensic psychiatrist without legal qualifications, but with the sanction of the then ACT health minister (ST38); (ii) provision of false and misleading information, to the person in respect of the Appellant's diagnosed injury consistent with acquisition of false reports and intention to deny liability; (iii) a forensic psychologist who had been struck off in his home State, after having been convicted of multiple counts of malpractice and incompetence in Western Australia during the "WA Inc" period (T32f, ST27, and AD24); (iv) a forensic psychiatrist whose ethics were criticised by a judge of the Supreme Court of New South Wales (ST39, T31f) and who provided advice to Comcare on acquisition of false reports; (v) the advice was later implemented in the Mental Health (Treatment and Care) Act 1994 (ACT) and thereby established an ongoing threat to the health and safety of the Appellant and others. … (k) Actions taken by the ACT administration to remove one of the Appellant's medical witnesses from practice, by an unlawful organisation established by the ACT administration, to control access to the health professions. … (o) Exacerbation of the Appellant's injury via her employer's application, to her, of the Fitness for Continued Duty Instructions then held to be in force under section 76X of the Public Service Act 1922 (Cth) (T31s, para 58), which provided, inter alia, for the demotion or sacking of public servants who had been absent from work due to illness, for at least 14 weeks… 16 Ms Clement also asserts that her property rights were acquired by application of the SRC Act, the AAT Act, the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and the Federal Court Act. The argument in relation to the SRC Act was put on a number of bases. These include the assertion that the heads of compensation "read down section 51(xxxi) of the Constitution" and, basically, that the SRC Act provides for reduced compensation. They also include the assertions that the SRC Act: was invalidly proclaimed as the Queen cannot be compelled to issue a proclamation fixing the date of effect of the Act; "undermines the Constitutional guarantee pursuant to section 51(xxxi) of the Constitution"; "is inconsistent with the legislative purpose of peace order and good government of Australia and was, therefore, although customarily accepted as law, … incapable of assent pursuant to section 58 of the Constitution"; and is therefore "not a valid law". 17 The importance of royal assent figured prominently in Ms Clement's oral submissions. Although she appeared to concede that the AAT Act had received royal assent, she contended, amongst other things, that the Governor-General could not have been aware of the contents of the AAT Act when he gave his assent because the wording of the Act was "so … crazy, most people would say" and its purpose unclear. 18 Similarly, arguments were put concerning the invalidity of s 44 of the AAT Act based on various provisions of the Constitution to found error by the primary judge in failing, despite s 44 and other allegedly invalid legislative provisions, to "utilise (scil.) the opportunity presented, to exercise its Constitutional role under the Separation of Powers, to address the excesses of power, including relegation of the legal repository of the Executive powers of the Commonwealth to a ceremonial role and consequent systemic non-compliance with section 58 of the Constitution". 19 The issues arising from the grounds of appeal and the submissions appear to be as follows: (a) whether Comcare's conduct was unconstitutional because its refusal to pay Ms Clement compensation amounted to an acquisition of property otherwise than on just terms (grounds 1 and 3); (b) whether the Court failed to exercise its jurisdiction (ground 2); (c) whether the limits placed on the exercise of the judicial power of the Commonwealth by s 44 of the AAT Act are unconstitutional so that the primary judge ought to have made findings of fact (ground 6); (d) whether the rule-making power contained in s 59 of the Federal Court Act is not authorised by ss 58 or 128 of the Constitution so that the Rules (in particular r 33.12(2)(b), which requires an applicant in an appeal from the AAT to identify the precise question or questions of law to be raised on appeal) are beyond power (grounds 4 and 7). 20 Ground 5 is unintelligible and nothing put in the submissions casts any light on its meaning. Comcare suggests that it raises the same issue as ground 4. 21 We have given careful consideration to Ms Clement's written and oral submissions. The answer to all these questions, however, is "no".

Were the decisions made by Comcare and the AAT an acquisition of property otherwise than on just terms, contrary to s 51(xxxi) of the Constitution? 22 Ms Clement contends that her property rights were acquired by reason of the application of the SRC Act, the AAT Act, the ADJR Act and the Federal Court Act. 23 This issue was not raised in the Court below. In H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 Branson and Katz JJ said at [6]: An appeal to this court from a decision of a judge of the court is an appeal in the strict sense and not an appeal by way of rehearing: Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 129; 136 ALR 64 at 71; 13 ACLC 1290; White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511; 60 ALD 647. The appeal power is thus to be exercised for the correction of errors: Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission (2000) 174 ALR 565; 74 ALJR 1348 per Gleeson CJ, Gaudron and Hayne JJ at [21]. This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal: Coulton v Holcombe (1986) 162 CLR 1; 65 ALR 656; 60 ALJR 470 per Gibbs CJ, Wilson, Brennan and Dawson JJ at CLR 7-8; ALR 660-1; ALJR 473. In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided: O'Brien v Komesaroff (1982) 150 CLR 310 ; 41 ALR 255; 56 ALJR 681 per Mason J, with whose judgment the other members of the court concurred, at CLR 319; ALR 260; ALJR 681; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-6; Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32; 40 ALD 201 particularly per R D Nicholson J at 47. 24 In the present case, the issue sought to be raised is not one upon which evidence could have been given. Nevertheless, it is not expedient in the interests of justice for the issue to be argued and decided. The issue has no merit. As Comcare submitted, the allegation is misconceived. 25 Section 51(xxxi) of the Constitution provides that "[t]he Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". 26 The term "property" in s 51(xxxi) includes choses in action. Extinguishment or modification by the Commonwealth of a chose in action with a corresponding benefit of a proprietary character to the Commonwealth may, in some circumstances, amount to an acquisition of property: see JT International SA v Commonwealth (2012) 250 CLR 1 at [174] (Hayne and Bell JJ) and the cases referred to there. But s 51(xxxi) only applies to extinguishment or modification of vested or accrued choses in action: Victoria v Commonwealth (1996) 187 CLR 416 at 559. 27 Contrary to Ms Clement's assumption, any rights Ms Clement had derived from the SRC Act, not from the common law. There are no vested or accrued rights which were modified or extinguished by the enactment of the SRC Act that are relevant to her case. 28 Furthermore, the rights conferred by the SRC Act were not granted in perpetuity. As Comcare put it, "[i]t is in the nature of rights under the Act that they do not continue forever, but for so long as the Act provides". Neither the decision to cease payments of compensation (which was upheld by the AAT in the first tribunal decision) nor the decisions the subject of the second AAT decision amounted to an acquisition of property within the meaning of the Constitution. 29 Grounds 1 and 3 must therefore be rejected.

Did the Court fail to exercise its jurisdiction? 30 The nub of Ms Clement's case on this question is that the primary judge erred in failing to review the facts of her case, to find factual error and to make factual findings in her favour. 31 As Comcare submitted, despite Ms Clement's wide-ranging concerns, the appeal before the primary judge was brought under s 44 of the AAT Act. It was that provision which gave the Court the jurisdiction to hear and determine the appeal. The statutory task was to decide first, whether there was a question of law, and, if so, whether the AAT erred in law in reaching its decision. The primary judge performed this task. Ground 2 is therefore without substance.

Are the limits placed on the exercise of the judicial power of the Commonwealth by s 44 of the AAT Act unconstitutional? 32 Ms Clement submitted that s 44 of the AAT Act prescribes the manner of exercise of the judicial power of the Commonwealth by "generally render[ing] otherwise justiciable matters substantially injusticiable". She contended that for this reason it is "unauthorised by sections 51, 58, 77(i) or 128 of the Constitution". 33 Section 51 sets out the legislative powers of the Parliament. Section 77(i) provides that with respect to any of the matters mentioned in ss 75 and 76 (both of which deal with the original jurisdiction of the High Court) the Parliament may make laws defining the jurisdiction of any other federal court. Section 128 deals with the mode of altering the Constitution (by referendum). 34 For the reasons given by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 ("TNT Skypak") this submission must be rejected. 35 In TNT Skypak Gummow J considered whether s 44 would be invalid or valid only where the sole remaining controversy between the parties turned on a question of law. In that case, as in the present case, no claim arose under a non-federal law so as to invoke the Court's accrued jurisdiction. The dispute between the parties arose from dissatisfaction about the application of a federal law, in that case, the Income Tax Assessment Act 1936 (Cth), in this case the SRC Act. At least in such a case, Gummow J said (at 181) that s 44 of the AAT Act is concerned with matters that arise under laws made by the Parliament. His Honour suggested that with respect to such matters, it is for the Parliament to create the rights or obligations in question and in so doing to determine the content of matters arising under that law. In other words, the rights and obligations, which supply the foundation for the controversy which is the "matter", would be provided by the statute. The statute itself would govern the content of that matter: R v Quinn; Ex parte Consolidated Foods Corp (1977) 138 CLR 1 at 5, 10; 16 ALR 569 at 570, 574. In this way, factual disputes might never be brought within the ambit of matters arising under the law in question. The only matter for the purposes of s 44 of the AAT Act which arose under laws made by the Parliament would be questions of law; questions of fact effectively would be excluded from the matter in respect of which this court was invested with jurisdiction. That would provide, in respect of the present case, a further answer to any doubts concerning s 44 of the AAT Act, in addition to that answer already suggested (viz that the only controversy in this case concerns questions of law). It would, indeed, provide an answer generally in respect of s 44, even where the parties' controversy as to factual questions still remained outstanding. 36 That disposes of ground 6.

Is the rule-making power contained in s 59 of the Federal Court Act unconstitutional? 37 This question need not be answered. The primary judge's reasons were based, as Ms Clement apparently understood, on s 44 of the AAT Act, not on any rule of court.

Conclusion 38 None of the grounds of appeal has any substance. It follows that the appeal must be dismissed. Ms Clement should pay Comcare's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Katzmann & Wigney.