Smith v Comcare

REASONS FOR JUDGMENT 1 By Notice of Appeal filed on 7 June 2012, the appellant appealed from the whole of the judgment of Perram J given on 18 May 2012 in Smith v Comcare [2012] FCA 502. Before his Honour, the appellant sought answers to three questions of law. His Honour concluded that it was not necessary to answer question 1. Questions 2 and 3 were ultimately abandoned. The learned primary judge also concluded that the Administrative Appeals Tribunal (the Tribunal) had not approached its consideration of the appellant's claims before it in the manner and upon the basis which the appellant submitted before his Honour had been the approach of the Tribunal. This conclusion was fatal to the appellant's case. 2 At [18]-[23] of his Honour's Reasons for Judgment, his Honour said: 18 Central to Mr Smith's case is the emphasised portion of [81] which, so it is submitted, suggests that the issue of aggravation was looked at only through the prism of 1997. But that reading of [81] is antithetical to the surrounding context and the balance of the Tribunal's reasons. Nothing in [79] suggests that the Tribunal limited its focus to 1997; more is this so when the Tribunal's consideration of the facts concerning the events at Wagga Wagga extended over the whole of the period 1987 to 2008. Precisely the same difficulty emerges from [80] and its reference to the work at remote abattoirs. As foreshadowed above, the Tribunal's treatment of the work at those abattoirs was not in any way limited to 1997. 19 Most problematic for Mr Smith's case is [81] itself which in terms discusses the work which took place at Wagga prior to 1993. If, as Mr Smith's submission necessarily entails, the Tribunal blinkered its approach by focussing solely on 1997 in considering the issue of aggravation then is difficult to discern why it might have been examining events prior to 1993. Mr Fernon submitted that this was as close as the Tribunal got to looking at the correct issue but that it nevertheless fell short. This was because, properly construed, the statement was suggesting that the Tribunal's real concern was the 1997 question. I do not, however, think that this is a plausible reading of [81]. 20 I do not accept therefore the submission that in [81] the Tribunal limited its consideration in the manner suggested. 21 Once that is accepted, no material error can arise from the Tribunal having considered the s 7(4) issue in advance of the material contribution question. It was not explored by either party why, in this case, the s 7(4) question needed to be asked (or answered). Without drawing a final conclusion on that matter, I would imagine that the time at which the injury was taken to have occurred may well have impacted upon which version of the Act was to apply. Whatever the answer to that question, however, the Tribunal correctly approached the issue of aggravation by looking at the whole period from 1977 to 2008. Even if it was incorrect to consider the issues posed by s 7(4) before the disease in question had been identified that error had no impact on the manner in which the Tribunal approached the issue of material aggravation. 22 Pointedly, it was not suggested in this Court that the Tribunal had erred in concluding that the injury should be taken to have occurred in 1997; that is, although it was argued that the question had been answered out of order it was not suggested it had been answered incorrectly. So viewed, the only relevance advanced for the notion that it had been answered prematurely was the argument, which I have rejected, that the Tribunal had thereby mishandled the issue of material aggravation. 23 What this means is that the issue which Mr Smith seeks to ventilate has no relevance to the outcome of the proceedings. This is not a criticism of the question of law posed; rather, it is the consequence of rejecting Mr Smith's interpretation of [81]. 3 It is not necessary to set out or discuss in detail the grounds of appeal relied upon by the appellant in his appeal. In essence, the appellant challenges the correctness of his Honour's reasoning and conclusions which I have extracted at [2] above and wishes to reagitate on appeal the arguments which he made to his Honour. 4 On 27 June 2012, the solicitors for the respondent (Comcare) wrote to the solicitors for the appellant in the following terms (omitting formal parts): Smith v Comcare Federal Court Application No. ACD 43/2012 Our Ref: PGW:CMK:67119 We refer to the above appeal from a judgment of the Federal Court (Perram J): Smith v Comcare [2012] FCA 502. Comcare notes that the Appellant has not responded to our letter, of 28 May 2012, in relation to the costs order made by Perram J. Comcare's position is that the Appellant's prospects before the Full Court are poor given the maters discussed in Perram J's reasons for judgment. On the basis of the above, Comcare is concerned as to a risk that the Appellant will be unable to satisfy a costs order against him in the event that his appeal to the Full Court fails. As such, Comcare has requested that we make enquiries as to the Appellant's ability to satisfy a costs order in the event that his appeal fails. We are therefore instructed to seek copies of the following: • copies of the Appellant's personal income tax returns lodged in respect of the 2008/2009, 2009/2010 and 2010/2011 financial years; • copies of any pay slips obtained during the 2011/2012 financial year; • a statement of assets and liabilities; and • any other relevant information which the Appellant may provide for the purposes of assuring Comcare that he can meet a potential costs order made against him (for example, any guarantees, statutory declarations, financial references or other evidence as to his financial capacity). If he is unable to satisfy Comcare that he would be in a position to satisfy a costs order against him in this matter, we are instructed to make an application for an order that the Appellant give security for costs of the appeal. We look forward to receiving the above information. Please respond to this letter on or before 4 July 2012. If you wish to discuss the matter, please do not hesitate to contact us. 5 The deadline sought to be imposed by the solicitors for Comcare upon the appellant's response to their demands was extended on two occasions. 6 By letter dated 30 July 2012, the solicitors for the appellant provided the following response to the letter of 27 June 2012 sent by the solicitors for Comcare to the solicitors for the appellant: RE: LAWRENCE SMITH V COMCARE We refer to your letter of 24 July 2012 and to previous correspondence. We note that the Respondent has foreshadowed a possible application for security for costs. In the ordinary course of personal injury and workers compensation proceedings this would be a most unusual application. We do not think that in respect of an injured worker's claim under the Safety Rehabilitation and Compensation Act against an entity which is effectively the Commonwealth's workers compensation insurer that an order for security for costs would be appropriate. 7 On 6 August 2012, Comcare filed an Interlocutory Application in which it sought an order requiring the appellant to provide security for Comcare's costs of the appeal in the amount of $25,000, an order that the appeal be stayed until such time as the said security was provided and, in the event that security was not provided by 28 September 2012, an order dismissing the appeal. Section 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 give to the Court ample power to make the orders sought by Comcare. The present rule of Court differs markedly from the previous rule (O 52 r 20). Previously, the rule reflected a slight bias in favour of no security being required for the costs of an appeal. It had been held that, under that rule, the impecuniosity of the appellant, considered on its own, was not a sufficient basis for ordering security for costs, at least where the appeal was arguable (Paton v Campbell Capital Ltd, unreported, Federal Court, Burchett J, 1 July 1993). The present rule may call for a different approach although I do not need to decide that question in the present case. 8 Comcare's application for security for costs had been foreshadowed at the Callover of the appeal held on 18 July 2012. In light of that circumstance, I abridged the time for service of Comcare's Interlocutory Application and listed it for hearing before me on 10 August 2012. 9 In addition to the exchange of correspondence to which I have referred at [4]-[6] above, the solicitor for Comcare affirmed an affidavit in which, at [10]-[11] thereof, she said: 10. Based on papers filed in his proceedings, I understand that the Appellant suffers from a number of physical conditions and has not worked since November 2008, and he was medically retired on or around 14 March 2012. 11. I anticipate that the Respondent's costs of appeal in this matter, based on the costs of the application before Perram J, are likely to be $25,000.00 (not taking into account fees for Queen's Counsel). 10 On 9 August 2012, the solicitor for the appellant (Mr Watson) filed an affidavit sworn on that day in which he said: 2. On 8 August 2012 I performed an online land title search on the Appellant's address which is listed in the Notice of Appeal. Annexed hereto and marked with the letter "A" is a true copy of the resulting search. 3. I am instructed by the Appellant and his wife Kerrie Lyn Smith that the property is likely valued at about $400,000. 4. I am instructed by the Appellant and his wife today that the current amount outstanding on the mortgage to Westpac Banking Corporation is $9,795.47. The property is not otherwise encumbered. 5. The online search cost $14.47 and took me less than 30 seconds to perform. 11 When the matter was called on for hearing before me on 10 August 2012, Counsel for Comcare informed me that, in light of the affidavit sworn by the solicitor for the appellant on 9 August 2012, he had been instructed not to proceed with Comcare's application for security for costs but to seek the costs of that application. Comcare's application for costs in respect of its Security for Costs Application was opposed by the appellant upon the basis that that application should never have been brought. Counsel for the appellant argued that Comcare should pay the appellant's costs of the Security for Costs Application or, alternatively, that the costs of that application should be costs in the appeal. 12 After hearing argument on 10 August 2012, I ordered that Comcare's Interlocutory Application filed on 6 August 2012 be dismissed and that the costs of and incidental to that Application be costs in the appeal. 13 Comcare then requested that I provide reasons for that decision. Accordingly, these Reasons for Judgment constitute the reasons for the Orders which I made on 10 August 2012.