Peters v Comcare

REASONS FOR JUDGMENT 1 There is before the Court what purports to be an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). I use the word "purports" because appeals may only be brought from the Administrative Appeals Tribunal ("the Tribunal") "on a question of law". 2 In her notice of appeal Ms Peters identifies seven questions which she says are questions of law. They are: "1. Whether the Tribunal erred in law in affirming [Comcare's] decision to refuse [her] claim for compensation pursuant to section 54 of the [Safety Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act")]; … 8. Whether the Tribunal failed to give a proper construction to s 5A(1) of the SRC Act; 9. Whether the Tribunal based its decision on the existence of facts that did not exist; 10. Whether the Tribunal took into account irrelevant considerations; 11. Whether the Tribunal failed to take into account relevant considerations; 12. Whether the Tribunal failed to give procedural fairness to [her]; and 13. Whether the decision of the Tribunal was reasonable." 3 None of the so called "questions of law" propounded by the applicant is properly so described. 4 This is no mere pedantic point which counsel for the applicant suggested could be dismissed as being overly technical in a benign appellate regime. Nor can the objection be overlooked on the ground of infelicitous drafting. The jurisdiction of the Court depends on the existence of a relevant question of law. 5 In its written submissions, Comcare drew attention to the absence of any pleaded question of law and referred to the relevant authorities. Despite this the applicant maintained, in her written submissions in reply, that the questions of law which she had pleaded in her notice of appeal satisfied the statutory requirements. Despite having the opportunity to do so both before the trial and during oral argument, she made no application to amend her notice of appeal. 6 Section 44(1) of the AAT Act provides that: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." 7 In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070, Gummow J, when a member of this Court, said that: "Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which 'involved' a question of law. The result was that if some question of law was involved, the whole of the decision of the board was open to review, not merely the question of law … This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. 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." (Emphasis added). Subsequently a Full Court of this Court in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 held that the question of law contemplated by s 44(1) of the AAT Act must be what was described as a "pure question of law" in order to found the jurisdiction of the Court under s 44. 8 The scope of review contemplated by s 44(1) of the AAT Act is necessarily of narrow compass. It is confined to questions of law pursuant to s 44 of the AAT Act: see Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 254 (per Weinberg, Bennett and Edmonds JJ). It is for the Tribunal to pass on the merits of any claim. That is forbidden territory for this Court. This reflects a "distribution of functions [which] is critical to the correct operation of the administrative law process": see Repatriation Commission v Owens (1996) 70 ALJR 904. 9 The first of Ms Peters' questions of law suffers from the vice identified by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 where his Honour said that: "… it simply begs the question of law to commence it with the words 'Whether the Tribunal erred in law'. If the question, properly analysed, is not a question of law no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law." In any event, there is some ambiguity in the way in which the question is framed. On one reading of it it appears to suggest that the decision which Ms Peters wishes to challenge was made under s 54 of the SRC Act. It was not and could not have been. Section 54 provides for the making of claims which it falls to Comcare to consider and determine under other provisions of the SRC Act. An affirmative answer to the question could not, therefore, found an order setting aside the decision of the Tribunal. 10 Question 8 relates to the construction of s 5A(1) of the SRC Act. That sub-section contains a definition of the term "injury". It is an extensive definition with multiple elements. It is qualified by the provisions of s 5A(2). As framed this question provides no particularity as to how it is said that s 5A(1) was misconstrued by the Tribunal. In substance it amounts to no more than a question about whether the Tribunal erred in law in some aspect of its construction of some part of the provision. It, therefore, suffers from the same vices as question 1. 11 Question 9 bears some similarities to one of the questions which was considered in Birdseye which asked whether certain findings made by the Tribunal "lacked any supporting evidence." Although the Court held that, at a general level, this question had been stated as a question of law, it could not found an appeal under s 44 in the absence of the identification of a particular fact on which the Tribunal had based its decision and for which there was no evidentiary support. Question 9 is framed somewhat differently but suffers from the same shortcomings. 12 Questions 10 and 11 deal with the possibility that the Tribunal may have had regard to irrelevant considerations and failed to take into account some relevant considerations. These considerations are not identified. More importantly, as the High Court held in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40, neither the taking account of irrelevant considerations or the failure to take into account relevant considerations necessarily gives rise to reviewable error. An affirmative answer to either of these questions could not, as a result, assist Ms Peters. 13 Questions 12 and 13 are, in substance, no more than allegations of error which, whilst they might, if reframed, constitute grounds of appeal, do not constitute questions of law. 14 The grounds related to question 12 allege that the Tribunal failed to give Ms Peters procedural fairness because it failed to give "genuine consideration" or "proper consideration" to her complaints. Those complaints related to alleged gender discrimination, the conduct of a meeting with her supervisor and the allocation to her of additional duties. Each of these matters was considered in some detail by the Tribunal. 15 Even if it be assumed in Ms Peters' favour that Wedensbury unreasonableness was available to her as a ground of appeal (cf Baranski v Comcare (2013) 296 ALR 438 at [19]) the purported question does not, even if it is answered affirmatively, support the granting of relief on the ground of such unreasonableness. 16 In the absence of any relevant question of law the Court lacks jurisdiction to entertain the appeal and it must be dismissed. 17 I would add that, even had it been possible for the applicant to frame one or more questions of law, I do not consider that any of the grounds on which she relied supported her claims that the Tribunal had made appealable errors. The grounds were fully developed in argument and, in fairness to the applicant, I propose to explain why I do not accept the submissions made on her behalf. 18 The applicant placed the grounds associated with question 8 at the forefront of her argument. This question asked whether the Tribunal had failed to give "proper construction" to s 5A(1) of the SRC Act. The two related grounds read: "7. The Tribunal erred in finding that the date of injury was not a significant issue when section 5A(1) requires a temporal relationship between the date of injury and the "reasonable administrative action" whereby the relevant administrative action must precede the injury. 8. The Tribunal erred in finding that three of the four administrative actions, upon which it relied to apply the exclusionary provisions in section 5A, contributed to the injury in circumstances where the Tribunal found that the injury had occurred on a date which was prior to the dates on which it found the three administrative actions had occurred." 19 When read together these two grounds suggest that the Tribunal had determined a date on which the injury about which she had complained had occurred but had not treated it as being a significant consideration in determining her appeal. 20 During the hearing before the Tribunal the applicant contended that the date of her injury, for the purposes of s 7(4) of the SRC Act, was 27 July 2009. Comcare contended that 24 August 2009 was the relevant date. The Tribunal took the view that little turned on the issue. The applicant, in her written submissions and, at the early stages of oral argument, was disposed to maintain that the Tribunal, notwithstanding its opinion that little turned on the point, had, nonetheless, held that the date on which she sustained her injury was 27 July 2009. Although no express finding to this effect had been made, she contended that it should be implied that such a finding had been made because the Tribunal had affirmed the decision under review and, in the reasons for that decision, it was said that the injury had been sustained on that date. In the course of argument counsel accepted that a distinction was to be drawn between a decision under review and the reasons for that decision and that the Tribunal had not, in fact, fixed on any date for the purposes of s 7(4) of the SRC Act. 21 This failure, it was said, gave rise to error. This was because Ms Peters had attributed the onset of her mental illness to four events and three of those events had taken place after 27 July 2009. The Tribunal had considered each of these events and made findings about them in its reasons. If the date on which she had sustained her injury was, as she asserted, 27 July 2009, the Tribunal had erred by paying regard to the three later events. 22 In the light of these arguments Comcare suggested that the applicant might have been able to identify a relevant question of law along the lines of "whether, when determining if the exclusionary provisions of s 5A of the SRC Act apply, the Tribunal is required to determine, as a preliminary issue, the 'date of injury' in accordance with s 7(4) of the SRC Act." The applicant did not respond to this suggestion. 23 Had the question been posed the answer must have been: No. 24 Section 7(4) of the SRC is a provision which deems an employee to have sustained "an injury" on a particular day. It has no work to do unless an "injury" has been suffered by an employee. Section 5A defines the term "injury" subject to the exclusionary rider that the term "does not include a disease, injury or aggravation suffered as result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment." The antecedent question must, therefore, be whether or not the exclusionary rider has been engaged. If it has been there will be no injury for the purposes of s 7(4). 25 After the Tribunal had handed down its decision the Full Court of this Court delivered judgment in Smith v Comcare [2013] FCAFC 65. In that case the Court was called on to deal with the related question of whether it was appropriate for the Tribunal to make a determination under s 7(4) before Comcare became liable under s 14(1), to pay compensation to an applicant in respect of "an injury". Buchanan J (with whom Greenwood J agreed) held that the Tribunal "should have said nothing about the potential operation of s 7(4) before addressing and concluding (at least in its own mind) the question of liability under s 14": see at [34]. 26 A second issue which was emphasised in argument by counsel for Ms Peters was the distinction between "administrative" action and "operational" decisions which was recognised by the Full Court in Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181. 27 In Reeve, the Full Court dealt with the scope of s 5A of the SRC Act. Mr Reeve developed a depressive illness while working as a manager of a Perth branch of the Commonwealth Bank of Australia. The circumstances which contributed to Mr Reeve's condition included organisational and staff changes, the humiliation of frequent telephone conferences with colleagues in which he was required to report poor branch results, an unsupportive visit from his manager and the anxiety of reporting poor customer satisfaction survey results. The Full Court held that the exclusion under s 5A of the SRC Act applied to specific action taken in respect of an individual's employment, such as disciplinary action, as opposed to action forming part of the everyday tasks and duties of that employment. Thus, the ordinary work routine, changes to routine and directions to perform work were not "reasonable administrative action taken in respect of the employee's employment". The Full Court concluded that the events which contributed to Mr Reeve's condition were part of his ordinary work duties as an employee and he was, therefore, not disentitled to compensation by operation of the qualification in s 5A(1) of the SRC Act. 28 The Court drew a distinction between "administrative action" and "operational action". Gray J concluded (at [33]) that: "In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer … As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of "injury", unless the action taken was not reasonable, or was not unreasonably taken (followed also in National Australia Bank Ltd v KRDV (2012) 292 ALR 639 at [35] and Buck v Comcare (2012) 130 ALD 154 at ([45])." (Emphasis in original). At [60] Rares J and I said that: "The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken 'in respect of the employee's employment'. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee's employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job." (Emphasis in original). 29 Counsel for Ms Peters contended that the Tribunal erred in concluding that the events which gave rise to her injury fell within the exclusionary provision in s 5A of the SRC Act. These events included the management of Ms Peters' return to work following her injury at home; a decision not to place her on the on-call roster and a refusal by her employer temporarily to transfer her to the World Trade Centre. Ms Peters conceded before the Tribunal that a discussion with management on or about 10 August 2009 had not contributed to her injury. 30 The Tribunal was alert to the distinction which had been drawn by the Court in Reeve. It quoted the passage from the judgment of Gray J which is quoted above at [28]. It found that the conduct about which Ms Peters complained took place in respect of her employment and fell within the concept of "administrative action" of the kind identified in Reeve. 31 The relevant events related to the administration of Ms Peters' employment as an employee and her relationship with her employer. For this reason I am satisfied that, even if the Court had jurisdiction to entertain the appeal, Ms Peters' could not have succeeded on this ground. 32 The other grounds, apart from that relating to procedural fairness, depend on the acceptance of Ms Peters' unsuccessful arguments on her two main points. The procedural fairness ground would fail for the reasons identified above at [14]. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.