Hutchinson v Comcare

The Prospects of the Proposed Appeal 21 The submissions filed in support of the application run to some 12 pages and are almost entirely a review of the merits of the Tribunal decision and arguments as to why the Tribunal should have reached a decision other than it did. They do not point to an error of law underlying that outcome. The submissions very much take the form of an analysis of the evidence and why the evidence to which Ms Hutchinson points should be preferred rather than the evidence accepted by the Tribunal. 22 It is well established under s 44(1) of the AAT Act that a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. However, it is also established on the authorities that the question of law is to be stated with precision, as a pure question of law: Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321 (at [17]-[18]) where Branson and Stone JJ observed: 17 A number of well-known authorities has considered the distinction between a question of law and a question of fact: see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; 43 ALD 193, 141 ALR 59. However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the tribunal having regard to the requirements imposed by O 53 r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal. 18 In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated. 23 Importantly, this is a statutory requirement. The fact that Ms Hutchinson is self-represented does not detract from the fact that the jurisdiction of the Court can only be engaged when a question of law is raised for determination: Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 per Mansfield J (at [38]). 24 There are cases in which the Court has endeavoured to discern a question of law from the material advanced before it: see, for example, the approach in Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 of Sundberg and Kenny JJ (at [51]) and in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 (per Mortimer J at [77]-[78]) where her Honour said: 77 Recognising minds differ on such matters, in my opinion a requirement that a notice of appeal be read fairly, rather than generously or benevolently, is a preferable approach. It provides more consistency with the role of the Court. It involves neither overzealous scrutiny, nor technicality, nor the imposition of a standard which in the circumstances it would be unreasonable to expect a non-legally trained person to meet. Fairness allows for the reading of a notice of appeal in its context: that is, reading all of the notice rather than simply that nominated as the "question of law". Depending on the circumstances, context may also require regard to be had to other evidence. For example, if a denial of procedural fairness is alleged, reading the words of the notice in isolation from any admissible evidence about the process adopted by a tribunal may not be a fair reading of the notice. On the other hand, a fair reading does not involve the creation by the Court of a contention which is not present in the terms of a notice of appeal, read in its context. Nor does it involve the redrafting of a notice. Where the Court concludes the party has identified a question of law arising from the tribunal decision, but that question is not reflected in the terms of the notice fairly read, then consideration may need to be given to whether leave should be granted to the party to file an amended notice of appeal. 78 In the present appeal, the applicant has identified, in its questions of law as stated, and by reference at least in part to the Tribunal's reinstatement decision, that "procedural fairness was ignored". In one sense there is little difficulty in rephrasing this statement as a question: "In making its decision to refuse to reinstate the review application under s 42A of the AAT Act, did the Tribunal deny the applicant procedural fairness?" In my opinion, to rephrase the question in that way is within the concept of reading the notice of appeal fairly. That is because the applicant has, as the respondent conceded, identified a failure by the Tribunal which is capable of establishing an error of law - namely, denial of procedural fairness in the making of the reinstatement decision. 25 The difficulty in taking a liberal approach to the draft notice of appeal is that one searches in vain to identify any error of law. The 'grounds of appeal' (a) to (e), extracted above at [3], themselves do no more than identify generic responsibilities of the Tribunal in every case. They do not point to any specific error of law. The fact that they are framed as questions can be put to one side for present purposes. The actual 'questions of law' themselves (in this case being statements rather than questions and putting that to one side), again, are simply general in their nature. The first 'question of law' merely identifies the ultimate task for the Tribunal, namely, to correctly construe the relevant section of the SRC Act. The second 'question of law' merely identifies the consequence of failing to correctly construe the section. Nowhere in any of the material filed or the draft notice of appeal is there pinpointed any specific error. This is not just a nit-picking technicality. The generalised nature of the document points to the underlying problem, which is also reflected in the lengthy submissions. The underlying problem is that there is no error of law identified. Rather, Ms Hutchinson is dissatisfied with the conclusion reached by the Tribunal. 26 I accept the following submissions of Comcare on this point: 21 The Tribunal's reasons for decision demonstrate that it did identify the correct issues and ask itself the correct questions: a. at paragraph [37] the Tribunal extracted relevant provisions from the SRC Act, including s 7(4), and the definitions of "impairment" and "incapacity"; b. at [38] to [40] the Tribunal identified the sole issue for its consideration as the date upon which Ms Hutchinson sustained her compensable mental ailments (major depressive disorder and post traumatic stress disorder); c. at [41] to [43] the Tribunal addressed s 7(4)(a) of the SRC Act, and made a finding of fact that Ms Hutchinson first obtained medical treatment for a mental ailment on 31 January 2011; d. at [44] and [51] the Tribunal identified, correctly, the questions arising from s 7(4)(b) of the SRC Act; e. at [52] the Tribunal addressed the question of when Ms Hutchinson was first incapacitated for work as a result of her major depressive disorder. The Tribunal had regard to: 1. the date on the first medical certificate, certifying Ms Hutchinson unfit for work as a result of "depression and anxiety"; and 2. the evidence that Ms Hutchinson continued to work, including performing higher duties for three weeks, between 5 March 2010 (and 16 April 2010 when she proceeded on a period of planned leave[)] f. at [53] the Tribunal made a finding of fact that Ms Hutchinson had not been incapacitated for work (within the meaning of s 4(9) of the SRC Act) between 5 March 2010 and 31 January 2011. g. at [54] to [56] the Tribunal addressed the impairment aspect of s 7(4)(b) and found that Mr (sic) Hutchinson was suffering an impairment (as defined by the SRC Act) resulting from major depressive disorder on 31 January 2011 when she consulted Dr Dunne, general practitioner; h. at [57] the Tribunal found pursuant to s 7(4) Ms Hutchinson sustain an injury, being major depressive disorder, on 31 January 2011, and subsequently sustained posttraumatic stress disorder. 22. In relation to [54] to [56] of the Tribunal's reasons for decision, Ms Hutchinson has criticised the Tribunal's reliance upon the absence of contemporaneous evidence, and questioned why the Tribunal did not accept her evidence regarding her mental state (see paragraph 3.34 of her "affidavit"). 23. The SRC Act is silent as to the matters that the Tribunal can take into account in determining when an impairment resulted from a compensable injury being a disease. In those circumstances, it was open to the Tribunal to have regard to any matter it considered appropriate: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1985-86) 162 CLR 24 at 39-40. 24. The Tribunal had regard to: a. the absence of contemporaneous medical evidence; and b. Ms Hutchinson's evidence regarding her state of mental health in the period after 5 March 2010 (see [54] which includes an extract from Ms Hutchinson's Statement of Facts, Issues and Contentions filed on 27 June 2014). 27 The sole question that was before the Tribunal, as identified in its reasons (at [39]), was the date on which Ms Hutchinson first sustained either of her compensable injuries. This question is classically a question of fact. The Tribunal gave close attention to all the evidence on the topic and the conclusion it reached was entirely open to it. On the material before it, its approach in accepting the views of the several psychiatrists who had taken detailed histories was an entirely conventional fact finding process. No question of law has been identified, even if (which seems most improbable), the Tribunal reached the wrong factual conclusion. A finding by the Tribunal on a finding of fact cannot be reviewed on appeal unless the finding is vitiated by error of law: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J (at 77-78). 28 As is often the case in these types of applications, the submissions which Ms Hutchinson advances betray her concern, not with any question of law or process, but rather, with the conclusion reached by the Tribunal. This is a merits challenge. The Court has no jurisdiction in an appeal under s 44(1) of the AAT Act to review the merits of the Tribunal's decision: see the discussion in Rana v Repatriation Commission [2010] FCA 281 where Lander J said (at [45]): The grounds of appeal, although stated as questions of law when identified, are not in fact questions of law at all. What the applicant has sought on this appeal is a review of the merits of the decision which, of course, is not open to this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [39] per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650. 29 At the oral hearing of this application, Ms Hutchinson advanced an argument not reflected in her draft notice of appeal, although it was arguably adverted to in her written submissions. She explained that she had been persuaded by an officer of the Tribunal not to call various medical witnesses and she decided not to do so. She explained that had she known the outcome of the application, she would have run her case differently and would have called those witnesses. She also suggested that the Tribunal itself should have called the witnesses when Comcare failed to do so. (There was, however, no suggestion that anyone on the part of the Tribunal prevented her from calling any witnesses and there was no suggestion or evidence that she sought and was refused an adjournment of the application due to the absence of any material medical witnesses). 30 The first of these points (as to how Ms Hutchinson chose to run her 'case') cannot be sustained. It was entirely for her to decide how to run her appeal before the Tribunal. It is not open to her to try to rerun her case in any other way now she is dissatisfied with the outcome in the Tribunal. There is no evidence that the medical witnesses were only in Comcare's 'camp', no evidence that they would not have responded to her request for them to attend and no reason to conclude that the Tribunal should have either adjourned the hearing or decided that the uncalled witnesses would not have assisted Comcare's case. As the decision reveals, the Tribunal had a very considerable body of written material to consider in relation to the sole issue which was before it. The Tribunal was able to confidently reach its decision on the strength of that material. 31 Ms Hutchinson, formerly herself an experienced Comcare claims services officer, advanced her arguments most eloquently on the inadequacy of the approach of the treating doctors and the inadequacy of the questions that Comcare asked of such doctors. But these issues go to the factual question of the relevant injury date. Even if her arguments are correct, they do not reveal an error of law on the part of the Tribunal. Her submissions do not disclose that in reaching its conclusion on the relevant injury date, the Tribunal asked itself the wrong question for the purposes of s 7(4) of the SRC Act or otherwise. This is not of course to say that the alleged conduct of which she complains in March 2010 should be countenanced or left unaddressed by an employer, but that is an entirely different issue.

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (13)

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