Comcare v Chambers

1. Leave be granted to the Applicant to file an amended notice of appeal in the form handed up at the case management hearing on 6 September 2017.
2. Appeal allowed in part.
3. Set aside so much of the Tribunal's determination that Mr Chambers' aggravation of his epilepsy was contributed to, to a significant degree, by his employment with the Australian Securities and Investments Commission ('the Epilepsy Issue').
4. Appeal otherwise dismissed.
5. Direct that the Epilepsy Issue be remitted to the Tribunal to rehear and decide in such manner as the Tribunal may determine is in the interests of justice including, without limitation, a determination by the Tribunal of the issue of whether the Respondent should now be permitted to lead fresh evidence on that issue.
6. The Applicant pay 25% of the Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 Judgment in this matter was delivered last week on 31 August 2017: Comcare v Chambers [2017] FCA 1014. I forestalled making any substantive orders at that time so that Comcare could be given the opportunity to apply to amend its notice of appeal more closely to conform with the way in which the ground it succeeded on was argued. Yesterday morning I granted leave to file an amended notice of appeal by consent. 2 There remain now for determination two issues. The first is the extent of any further hearing before the Tribunal and the second is costs. Neither is agreed. 3 As to the nature of any further hearing before the Tribunal, both parties agreed that I should set aside the Tribunal's determination that Mr Chambers' employment with ASIC contributed to a significant degree to the aggravation of his epilepsy. Mr Grey of counsel, who appeared for Mr Chambers, submitted that having set aside that determination I should remit the issue to the Tribunal to be determined according to law and the Court's reasons. The Full Court of this Court has held that such an unqualified remitter has the effect of requiring the whole of the remitted matter to be heard and decided again: Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 ('Peacock') at 260 [17]. And, as Gleeson CJ explained in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 ('Wang') at 522 [7], an order remitting the matter to a merits review tribunal usually obliges that tribunal 'to determine in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to [the claim]'. As this Court observed in Peacock at [17], the crux of the High Court's reasoning in Wang was that 'findings of fact made in the first hearing do not carry over to the second hearing'. In practical terms, this would permit Mr Chambers to seek to plug the evidentiary hole identified by this Court in his case. 4 Mr Lehmann of Counsel, who appeared for Comcare, submitted that I should not permit Mr Chambers to have a second bite at the cherry but should instead affirm Comcare's underlying decision not to pay Mr Chambers compensation in relation to his epilepsy. This would effectively prevent any further hearing of the epilepsy issue and would secure for Comcare lasting victory on this issue. 5 The powers of the Court (in relation to an appeal from the Tribunal are set out in ss 44(4) and (5) of the Administrative Appeals Tribunal Act 1975 (Cth). Also relevant is s 44(6). They are as follows: '44 Appeals to Federal Court of Australia from decisions of the Tribunal … Powers of Federal Court (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. Constitution of Tribunal if Federal Court remits case etc. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal: (a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and (b) whether or not the Tribunal is reconstituted for the hearing - the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court. …' 6 It does not seem likely to me that the power in s 44(5) would extend to making an order about the underlying decision made by Comcare. It may be that the grant of power in s 44(4) is sufficiently broad to permit such a course although this seems to me to be contestable. The same result might also be achieved, at least in a practical sense, under subsection (5) by remitting the matter to the Tribunal with a direction that it be heard and decided again 'without the hearing of further evidence'. I have my doubts that I can operate directly upon Comcare's determination but I am prepared to proceed on the basis that I have the power to curtail any further evidence before the Tribunal. This is what s 44(5) appears to say. 7 There are three things which may be said against such a course. First, s 44(6)(a) in terms contemplates that the Tribunal may be differently constituted on remitter. Neither party suggested that they desired this but the fact remains that the President may exercise the power to arrange the business of the Tribunal by freshly assigning the matter. This may be particularly relevant where it appears that appointment of one of the senior members who heard the case expired on Monday, 4 September 2017. 8 Secondly, it is the obligation of the Tribunal to 'arrive at the correct or preferable decision… according to the material before it': Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425 per Brennan J. Mr Grey foreshadowed that Mr Chambers would now seek to gather further supplementary evidence on the relationship between his stress and his epilepsy. Mr Lehmann emphasised that reopening the case in that way would be contrary to the public interest in finality of litigation. I can certainly see some force in that submission. 9 Whilst accepting that I could prevent any further debate in the Tribunal in relation to epilepsy, I am not sure that I am instrumentally best located to make the decision to do so. For example, I do not presently know: (i) the full ambit of the material before the Tribunal given the absence of any need up until now to examine it; (ii) the way in which the epilepsy case played out before the Tribunal; or (iii) the relationship between the ground I have embraced (a no evidence ground) and the manner in which the case was actually run. 10 I see the force of Mr Lehmann's submission that the public interest in the finality of litigation speaks loudly against Mr Chambers simply being handed a second opportunity to prove his case when he failed at his first attempt. The point for present purposes is, however, that the Tribunal is best placed to assess that argument. In those circumstances, the issue will be remitted to the Tribunal to rehear and decide with the scope of that process to be determined by the Tribunal. 11 Turning then to the issue of costs, I indicated in the principal judgment that I was disposed to think that each party should bear their own costs but would hear the parties if they wished to contend otherwise. Mr Grey now seeks an order on behalf of Mr Chambers that Comcare pay 70% of his costs of the appeal on a party-party basis. 12 The submission was founded on three contentions: (i) Comcare had succeeded on an issue not raised in its notice of appeal; (ii) the outcome in the Federal Court was 'considerably more beneficial to Mr Chambers than to Comcare'; and (iii) Mr Chambers' position on the epilepsy issue did not add significantly to the cost of the appeal. 13 I do not think (i) goes very far. The argument raised now in the amended notice of appeal merely reflects the way the appeal was run by counsel at the hearing. In any event, although the earlier grounds of appeal did not perhaps put Comcare's argument with the clarity with which it was eventually pursued at the hearing, in a rough and ready way the underlying point was in there, although perhaps a little obscured. 14 By (ii), it was not really being suggested that Mr Chambers' claim based on his psychological condition was worth more, in pecuniary terms, than his claim based on epilepsy. It is, of course, too early to know the answer to that question. Rather, what I think was encompassed in (ii) was the idea that Mr Chambers' contention about reasonable administrative action (which I upheld) was a do-or-die point for him. If he had lost it he would have lost the entire appeal. That he won it does not mean that he should be treated as having won the entire appeal but, so the submission went, to treat it as if it were merely a stand-alone issue, is not entirely accurate either. I accept this submission. 15 I accept (iii) in the sense that I do not think that the epilepsy issue had much impact on the hearing's duration. That does not allow me to say much about the case's preparation, however. 16 Ultimately, it seems to me that some value should be attributed to (ii). Mr Grey endeavoured to persuade me that whatever that value was, it might be augmented by taking account of the fact that Mr Chambers will most likely now get his costs in the Tribunal. However, I think that says little about his success in this Court or the consequences of that success. A corresponding submission by Mr Lehmann fails for the same reason. 17 The question then is what value is to be given to (ii). There is no great science to this. Notionally, Comcare should pay all of Mr Chambers' costs on the reasonable administrative action point which it lost. Notionally, Mr Chambers should pay 75% of Comcare's costs on the epilepsy issue (which he lost), with the 25% reduction reflecting the fact that Comcare's defence of that claim was twofold: (i) there was no evidence of causation; but in any event (ii) ASIC's actions constituted reasonable administrative action reasonably taken. 18 In its defence of the epilepsy claim it failed on (ii) although it succeeded on the issue as a whole. I propose to set these two notional costs orders off against each other. This involves an assumption, not necessarily precise but upon which I am nevertheless prepared to act, that the parties' costs are the same. I will direct that Comcare pay 25% of Mr Chambers' costs of the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.