Kara v Comcare

Procedural history 12 On 1 February 2011 Dr Kara applied for an extension of time to file and serve a Notice of Appeal from the AAT. The application was supported by an affidavit. The application was not opposed and on 22 February 2011 Dr Kara was granted an extension of time to file a Notice of Appeal to 21 days from that date. 13 On 16 March 2011 the time within which Dr Kara had to file his Notice of Appeal was extended by a further 14 days. 14 On 28 March 2011 Dr Kara filed his Notice of Appeal. However, the Notice of Appeal filed by Dr Kara did not identify any questions of law upon which the appeal was said to be based. 15 On 18 April 2011 Dr Kara was directed to file an amended Notice of Appeal limited to questions of law. On 9 May 2011 he filed a further Notice of Appeal. 16 On 31 May 2011 Comcare filed a notice of motion seeking an order that the Notice of Appeal filed by Dr Kara on 9 May 2011 be struck out on the ground that the notice did not identify any questions of law. 17 On 6 June 2011 Dr Kara was given leave to file a further amended Notice of Appeal within 14 days. Comcare was directed, if it sought to strike out any further amended Notice of Appeal, to file written submissions in support of its application within 14 days of receipt of the further amended Notice of Appeal. 18 Dr Kara was directed to file his written submissions in response to Comcare's written submissions within 14 days of those written submissions. Any application to strike out the further amended Notice of Appeal was listed for hearing on 27 July 2011. 19 Comcare filed its outline of submissions in support of its application to strike out the Notice of Appeal within the time prescribed. 20 Dr Kara did not file his written submissions as directed, but nevertheless he was allowed to be heard in relation to Comcare's application to strike out the Notice of Appeal.

Jurisdiction 21 Although s 44(1) of the AAT Act speaks of an appeal to this Court, the Court on hearing such an appeal is not exercising its appellate jurisdiction, but is instead hearing the appeal in its original jurisdiction. The Court confines the exercise of its appellate jurisdiction to appeals from this Court or from other courts from which appeals lie to this Court. 22 The original jurisdiction of this Court is only enlivened if an applicant can precisely identify a question of law for determination by this Court. 23 In TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, after speaking of previous legislation, Gummow J said: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967. 24 An appeal "on a question of law" is narrower than an appeal that involves a question of law: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [10]-[18] per Branson and Stone JJ; Comcare v Etheridge (2006) 149 FCR 522 at [13] per Branson J with whom Spender and Nicholson JJ agreed. 25 An appeal as to a question of fact is, of course, not a question of law. Nor is a mixed question of fact and law a question of law within the meaning of s 44(1) of the AAT Act: Birdseye v Australian Securities and Investments Commission at [18]; Comcare v Etheridge at [16]. Nor can a party make a question of fact or a mixed question of fact and law a question of law by calling it so: Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J; Comcare v Etheridge at [15]. 26 If a party wants to appeal from a decision of the AAT, the party must identify precisely the question of law which is said to arise for decision by this Court. In Birdseye v Australian Securities and Investments Commission, Branson and Stone JJ said at [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 a particular case and the orders sought on the appeal. … 27 A question of law will usually include the grounds mentioned in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), but they are not limited by that section. 28 A question of law will include a matter of statutory construction: Repatriation Commission v Hayes (1982) 64 FLR 423. Further, a question of law will be raised where it is contended that the AAT failed to comply with s 39(1) of the AAT Act and did not allow the party seeking to appeal a reasonable opportunity to present the party's case; or did not allow the party to inspect any documents to which the AAT proposed to have regard in reaching a decision in the proceeding, or to make any submissions in relation to those documents. 29 A question of law is not raised by the AAT simply making a wrong finding of fact. In Waterford v The Commonwealth of Australia (1987) 163 CLR 54, Brennan J said at 77-78: A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. 30 However a question of law will arise where it is contended that there is no evidence of a particular fact found by the AAT. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 355-356: The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd; Australian Gas Light Co v Valuer-General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden. (Footnotes omitted) 31 There is no error of law if the AAT comes to the wrong conclusion. The merits of a review are for the AAT, not for this Court. As Brennan J said in Attorney-General for The State of New South Wales v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The present application 32 This is an application by Comcare to strike out Dr Kara's Notice of Appeal on the basis that it discloses no question of law or error of law. Comcare argues that in those circumstances the jurisdiction of this Court has not been enlivened. 33 The Notice of Appeal is 21 pages long. It is structured around Dr Kara's separate medical complaints, which are: (1) myocardial infarction; (2) unspecified hearing loss and tinnitus; (3) vertigo; (4) lipomas; (5) gynecomastia; (6) various injuries. 34 Each of these medical conditions is a heading in the Notice of Appeal. Under each heading Dr Kara has set out some of the findings of the AAT. He has referred to a number of sections of the SRC Act and to previous authority, and identified in each case what he says are errors of law. It is difficult to summarize the material contained in the Notice of Appeal. The Notice is difficult to follow, and contains lengthy extracts from the AAT's reasons for judgment and certain pieces of legislation. Often it is hard to relate the alleged error of law to the decision of the AAT. 35 In any event, I have come to the conclusion that the Notice of Appeal does not contain any alleged errors that could properly be described as errors of law. Rather, Dr Kara has sought to challenge factual findings made by the AAT on the basis of the evidence before it which were adverse to Dr Kara's case. 36 For the purpose of demonstrating that proposition, I shall briefly address as best as I can each of the medical complaints in the Notice of Appeal, and identify the relevant passages in the AAT's reasons.

Myocardial infarction 37 On 6 November 2006 Dr Kara suffered an acute myocardial infarction or heart attack. An angiograph showed an occlusion of both his major left-sided coronary arteries. On 15 November 2006 he underwent bypass surgery. 38 He claimed compensation for the injury in December 2008. 39 The AAT accepted the opinion of Dr Ardill, a cardiologist who treated Dr Kara, that Dr Kara's heart attack related to a build up of plaque disease within his coronary arteries, and did not result from a sudden physiological change. Dr Ardill said that Dr Kara's ischaemic heart disease related to a build-up in fatty tissue within the blood vessel supplying the heart muscle. 40 The AAT concluded that a myocardial infarction constituted a disturbance of the normal physiological state or a dramatic physiological change, and was accordingly "an injury simpliciter". In reaching this conclusion, it followed a decision of this Court in Australian Postal Corporation v Burch (1998) 85 FCR 264. 41 Thus, the AAT concluded that the myocardial infarction would be compensable if it was an injury "arising out of or in the course of" Dr Kara's employment: s 5A of the SRC Act. 42 Comcare sought a report from Dr Ardill in relation to whether there was any causal connection between Dr Kara's heart attack and any condition from which he was suffering prior to that attack, or any medication that he was taking prior to that attack. The AAT appears to have accepted Dr Ardill's opinion, which did not include a statement that the applicant's myocardial infarction was caused by factors relied upon by Dr Kara as having resulted from the accident. The AAT pointed out that Dr Kara did not call any evidence to the contrary. Accordingly, the AAT was not satisfied, based on the evidence before it, that Dr Kara's myocardial infarction arose out of his employment: at [133]. See also s 5A of the SRC Act. 43 The AAT then considered whether, if the myocardial infarction was not an injury simpliciter but a disease, his employment contributed to the myocardial infarction. A "disease" is defined in s 5B of the SRC Act. It found that there was no evidence to support such a finding. 44 The Notice of Appeal recites Dr Kara's family history in relation to coronary heart disease and the medication that he was taking in respect of his other injuries. Dr Kara states that he had not made Dr Ardill aware of the anti-inflammatory medication that he was taking for his physical injuries, and that Dr Ardill had not been made aware of the period of time over which Dr Kara had been suffering depression prior to his coronary occlusion. 45 Thus the principal complaint made by Dr Kara is that Dr Ardill, who was his treating cardiologist, was not aware of what he says are relevant parts of his medical history. That may or may not be so, but even if it were so that would not give rise to a question of law for consideration by this Court. Comcare put to Dr Ardill the relevant question and obtained a relevant answer, and the AAT acted upon that evidence. It was entitled to do so. As such, the Notice of Appeal does not raise a question of law in relation to the AAT's finding that the myocardial infarction was not compensable. 46 Dr Kara also makes a number of complaints under the subheading "Various" that relate to a variety of matters including his medication, and whether the medication he was taking prior to November 2006 caused his heart attack; his rehabilitation program, and what his rehabilitation program should involve; his depressive disorder; and whether he is "totally and permanently incapacitated", and thus unable to return to work. 47 Some of the alleged errors under this subheading are expressed in general terms, albeit in terms that are difficult to follow. For example, page 6 of the Notice of Appeal contains an allegation that "the Tribunal erred in law to consider the applicants [sic] is totally and permanently incapacity [sic] and rehabilitation program consistent with s 19 and s 37." 48 However, these matters were either not before the AAT, or relate to factual findings made by the AAT on the basis of the evidence before it. Accordingly, the Notice of Appeal does not raise a question of law in respect of any of the matters under this subheading.

Unspecified hearing loss and tinnitus 49 Dr Kara claimed compensation for hearing loss and tinnitus. In relation to that claim the AAT said at [102]-[103]: [102] Comcare called Dr David Matison, an ear, nose and throat specialist to whom Dr Kara had been referred by his general practitioner. Dr Matison gave evidence referring to the three reports that he has provided. He considered that the hearing loss and tinnitus were the result of the closed head injury which had been suffered in the motor vehicle accident. However, he said that the increase in Dr Kara's hearing loss since his first report in 1998 that he recorded in his second report, which was dated 21 June 2006, could not be blamed on the accident, but was related to Dr Kara's increased age over that period. [103] We accept Dr Matison's opinion, and note that Dr Kara did not produce any evidence to contest it. We find that Dr Kara has no present entitlement to compensation in respect of hearing loss or tinnitus. 50 Dr Kara alleges a range of errors under this heading in the Notice of Appeal. Some do not appear to go anywhere, such as point 6 on page 9 of the Notice of Appeal, where it is asserted that "[t]he AAT wrongly stated that the applicant suffers from hearing loss rather unspecified heating [sic] loss as quoted in all documents listed in the table given below." Other errors alleged are that the AAT failed to consider parts of Dr Matison's reports, or parts of the materials upon which those reports were based. Still others seek to attack the credibility and reliability of the evidence, in particular the reliability of the report of Dr Matison. Point 16 on page 9 of the Notice of Appeal is an example of Dr Kara alleging that the AAT failed to refer to certain parts of the expert reports, while point 12 on page 9 is an example of his attack on the reliability of Dr Matison. There are also a number of allegations to the effect that the AAT failed to consider whether the deterioration in Dr Kara's hearing was the result of a "mid ear leakage", which he asserts was caused by the head injury he sustained in the accident. These allegations are linked to his criticism of the AAT's treatment of the evidence. 51 None of the errors alleged by Dr Kara under this heading can properly be described as errors of law. The AAT accepted Dr Matison's opinion, and on the basis of that opinion it concluded that Dr Kara was not entitled to compensation for hearing loss and tinnitus. It was perfectly entitled to do so. Dr Kara's allegations in this part of the Notice of Appeal, as in other parts, amount to no more than an attempt to challenge factual findings made by the AAT on the basis of the evidence before it.

Vertigo 52 Dr Kara has made a number of allegations in relation to his claim for compensation for vertigo. Essentially, these allegations amount to a criticism that "[t]he AAT failed to accept that Comcare is liable for compensation under s 24 of the SRC Act 1988 for permanent impairment in respect of vertigo, and the degree of permanent impairment for those injuries": see point 5 on page 12. 53 It is true that in re-assessing Dr Kara in May 2006 Dr Matison assessed Dr Kara as having a permanent disability of 10% due to vertigo, and that he thought that the vertigo was due to the closed head injury sustained in the motor vehicle accident in 1997. However, the AAT dealt with this issue at [120]-[122]: [120] …Dr Matison provided a third report dated 7 August 2006, after viewing the video. He also commented on the direct contrast with Dr Kara's demeanour in his office, and said, referring to the video, that there was no sign [of] disequilibrium, giddiness or ataxia. He added that with the disability that Dr Kara had described, he would not have expected him to be able to drive a vehicle with the skill he displayed in the video. [121] We note that in Dr Wright's first report, which is dated 17 June 1999, he made no reference to vertigo. The material before us prior to Dr Matison's second report in June 2006 does not indicate that vertigo had been of any significant concern to Dr Kara, and as mentioned above, the claim for permanent impairment was not made until 2007. We also note that in Dr Wright's report of 5 February 2008, he agrees that the video observations are not consistent with a persistent vertigo, although later in the report he says that the vertigo is "now described as occasional, but to the extent it occurs, it is likely caused by the motor vehicle accident" (Ex R 2, T46, p 97). [122] After he returned to work following the accident, Dr Kara drove about 50 kilometres to and from work each day for a period of about four years. This of itself indicates that dizziness or blurred vision did not interfere with his driving a vehicle. Further, he was driving a vehicle on a number of the occasions depicted in the video. Dr Kara claimed that if he was driving and was affected by dizziness, he would stop, but this did not appear to have occurred on any of the occasions when film was taken, and there is no contemporaneous reference to this in the period when he was still working at DSTO. 54 The video footage referred to was taken by investigators engaged by the Department of Defence between 24 November and 6 December 2005, and, according to the AAT, show Dr Kara engaging in a number of activities including gardening, driving a car, shopping in a supermarket, refuelling a car and checking its tyres: at [20]. 55 The AAT went on to state at [123] that it found Dr Kara's evidence in relation to the condition of vertigo unsatisfactory. It was not satisfied on the evidence that Dr Kara was suffering from vertigo, and therefore it rejected his claim in that respect: at [123]. It went on to conclude that, in the alternative, if Dr Kara was suffering from vertigo the condition did not produce a degree of impairment greater than or equal to 10%, which would make it compensable (see s 24(7) of the SRC Act). 56 The AAT was entitled to form that view. It is clear from its reasons that it considered all of the evidence, and that it reached its conclusion after considering that evidence. It is not for this Court to interfere with those findings. It was for the AAT and, subject to any error of law, the AAT alone to determine the merits of Dr Kara's vertigo claim.

Lipomas 57 In relation to the lipomas, the AAT accepted that the lipomas had arisen out of the soft tissue injury that Dr Kara had sustained in the motor vehicle accident and that Comcare was liable for those lipomas, which it observed Comcare had accepted in a determination dated 18 October 2005. However, the AAT found that, notwithstanding Comcare's obligations in respect of those lipomas, there was no evidence before the AAT that any treatment was required or that Dr Kara had any entitlement to compensation for the lipomas, whether under s 16 or s 24 of the SRC Act: at [107]. 58 Dr Kara alleges in the Notice of Appeal under the heading of "Lipomas" that the AAT "failed to give adequate reasons for its decision." At the hearing of Comcare's application to strike out the Notice of Appeal it emerged that Dr Kara's main complaint was that the AAT had found that there "is no evidence that treatment is required", and that accordingly he had no present entitlement to compensation for the lipomas. Dr Kara disputed this finding and asserted that he required treatment. However, when pressed at the hearing he was unable to point to any evidence before the AAT that supported his claim that he needed treatment for the lipomas. For this reason alone his allegations are unfounded, notwithstanding the obvious deficiencies in the form of the grounds contained in the Notice of Appeal.

Gynecomastia 59 Under the heading "Gynecomastia" Dr Kara alleges that the AAT "failed to comply with ss 4(1), ss 14(1), ss 16(1), ss 19(1) and ss 24(1) for the unilateral gynecomastia that may be related to antidepressant medication taken for the applicant's depression." Dr Kara refers to two reports tendered before the AAT. 60 Mr Cole, counsel for Comcare, said that at no stage in the proceedings has Dr Kara made a claim in respect of a gynecomastia. In any event, there was no such claim before the AAT. Rather, this appears to be a new claim that Dr Kara wishes to agitate. This Court is not the appropriate forum for him to do so.

Various Injuries 61 The final heading in the Notice of Appeal is "Various Injuries". Under this heading Dr Kara has made a series of complaints in relation to his right shoulder, lower back, and depressive disorder. 62 In relation to Dr Kara's right shoulder and lower back injuries, the AAT considered the evidence of the various medical experts and then observed at [60]-[61] that: [60] Dr Kara also admitted that he had travelled to Sydney by car for his daughter's wedding in 2004. The evidence of Dr Kara, his wife and son Ervin as to whether the journey to Sydney and the return journey entailed any or how many stops was unsatisfactory, but the fact that Dr Kara was able to travel to Sydney and return by car raises questions as to the reliability of Dr Kara's evidence as to the effect of his shoulder and lower back conditions and left buttock pain. Because of this matter, and also because of the surveillance video, we are not satisfied that the low back pain, left buttock pain, or chest or shoulder pain have persisted at the very severe and incapacitating levels described by Dr Kara. [61] The medical witnesses who commented on the video all observed in effect that there was a very marked contrast between what they observed on the video and Dr Kara's presentation in their rooms and the history he provided. Dr Awerbuch, in particular, referred to the apparently normal movements shown in the video, and the apparent lack of pain or difficulty or discomfort in the movements filmed. He said that the film and his clinical findings were inconsistent with the marked and bizarre pain behaviour which Dr Kara had exhibited at the time of his examination. It reached the conclusion that Dr Kara was not entitled to compensation in respect of either injury at paragraph [62] of its reasons: [62] We accept Dr Awerbuch's evidence, including in particular his re-assessment of the extent of Dr Kara's permanent impairment. We find that Dr Kara has no entitlement to compensation for permanent impairment in respect of his lower back condition. We further find that he has no present entitlement to compensation in respect of his right shoulder condition, and that the degree of permanent impairment in respect of that condition is 5%. He is therefore not entitled to compensation for permanent impairment in respect to that condition by virtue of s 24(7) of the SRC Act. Further, we find that the degree of permanent impairment that he suffers in respect of left buttock pain is less than 10%, and so he is not entitled to compensation under s 24 in respect of that condition. 63 Dr Kara attacks these findings, although the grounds on which he does so are far from clear. He refers on page 15 of the Notice of Appeal to the AAT failing "to state reasons for its conclusion, to expose its reasoning process", and asserts that "[t]he Tribunal took into account the unreasoned opinion of an expert without the necessary findings of fact." However, he does not identify his criticisms with any specificity. 64 In any event, the criticisms fail to raise a question of law. The AAT considered the evidence carefully in reaching its conclusion in relation to each injury. As I have already said, in the absence of a question of legality it is not for this Court to disturb factual findings made by the AAT. 65 Dr Kara also sought to criticise the AAT's treatment of his depressive disorder. The AAT found that Dr Kara suffered from a "significant psychological disorder", and that the accident was "the precipitating factor" that led to this disorder: at [78] and [81]. It concluded that as a result of this disorder Dr Kara was "totally incapacitated from work": at [81]. It assessed the permanent impairment in respect of this condition at 10%: at [82]. Dr Kara's complaint appears to be, in essence, that this assessment is too low, and that he is in fact suffering three separate psychological disorders. 66 While the AAT refers to "chronic pain syndrome", "reactive depressive disorder", and "physical and psychological disorders" at various points in its reasons, it remains the case that the AAT accepted that Dr Kara suffered from a "significant psychological disorder." Furthermore, it stated at [81] that: [81] …We think this [psychological disorder] can be most appropriately described as chronic pain syndrome and a chronic adjustment disorder, having regard to Dr Davis's diagnosis of chronic pain syndrome and the many references in the material before us to Dr Kara suffering from depression… Accordingly, this complaint does not raise a question of law. When the terminology is peeled away the purported grounds of appeal do no more than express dissatisfaction with factual findings made by the AAT. 67 I should add that during the hearing Dr Kara asked if he could hand up a bundle of documents that he said supported his grounds of appeal. Mr Cole did not object to me receiving these documents. I have done my best to comb through them. With one or two exceptions, they appear to be no more than a collection of documents prepared by Dr Kara which purport to identify inconsistencies in the evidence, and errors in the decision of the AAT. Many of these alleged errors are already identified in the Notice of Appeal. Those that are not are either irrelevant or relate to factual findings made by the AAT.

Conclusion 68 When properly analysed, Dr Kara's Notice of Appeal is no more than an application for this Court to undertake a review of the merits of his claims. For this reason, and for the reasons given, there will be an order that the further amended Notice of Appeal filed by Dr Kara on 20 June 2011 be struck out on the basis that the Notice does not identify any questions of law. The Court was advised that the respondent does not seek an order for costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.