Holt v Comcare [2004] HCATrans 290 (11 August 2004)

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Holt v Comcare [2004] HCATrans 290 (11 August 2004)

Last Updated: 23 August 2004

[2004] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A267 of 2003

B e t w e e n -

VIVIENNE HOLT

Applicant

and

COMCARE

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 2.42 PM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH, QC: If the Court pleases, I appear for the applicant. (instructed by Randle & Taylor)

MR P.J. HANKS, QC: Your Honours, I appear with my learned friend, MR S.C. COLE, for the respondent. (instructed by Sparke Helmore)

GLEESON CJ: Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH: If the Court please, this is an application appertaining to an Administrative Appeals Tribunal matter and it raises the issue of the responsibility of the decision-maker, in this case Comcare, when making a decision as to the reviewing of payments that are in place. It is appropriate that I very briefly spend a moment on the facts. I think that the Court has been provided with a chronology in the materials that have been filed by my instructing solicitor.

From that chronology the Court will note that the applicant joined the Australian Public Service in 1973 in Adelaide, moved to Canberra in 1974 with the Australian Public Service. In the year following her moving to Canberra she had significant health problems associated with a respiratory condition. She overcame those and about approximately 10 years later, having moved to a fairly higher position in the public service, she sustained significant health problems which led to her being retired from the Australian Public Service on medical grounds, the diagnosed condition being aggravation of severe chronic asthma.

A claim was made and accepted by Comcare at that time and, indeed, Ms Holt was superannuated out of the public service within 12 months. Nothing then happened for some 15 years and in October 2000 Comcare determined to cease liability on the grounds that it was not satisfied the applicant’s previous employment was still contributing to her underlying asthmatic condition. The matter was taken to the Tribunal, unsuccessfully, and from there to the Federal Court.

The applicant says that there are deficiencies on the part of the original decision-maker, the Tribunal, and of their Honours in the Federal Court as to the way the matter was approached. The basis for the determination was that the previous employment was no longer contributing to the asthmatic condition and critical in arriving at this conclusion were certain pieces of evidence. Firstly, that the applicant had suffered no major asthma attack for 15 years. That state of affairs, the applicant says, is quite consistent with her asthma being satisfactorily managed, as was the evidence, in a non-work environment. Further, a Dr Goldney gave evidence that the stressors that were the aggravating factors back in 1985 would have resolved within a matter of months and a Dr Stevenson gave evidence to a similar effect that he had no difficulty in accepting that those stressors would have had a temporary and short effect.

Now, what is curious about all of that is that it does not explain why Comcare waited 15 years to act under section 19 of the Act to bring payments to an end.

HAYNE J: But does not this method of approach that you have adopted reveal an underlying difficulty about the application, namely, that it is fact specific and the outcomes of which you complain turn more upon the facts than they do upon any point of general principle?

MR HEYWOOD-SMITH: With respect, your Honour, what we say is this – and we accept some responsibility for this – that all of the evidence was adduced before the Tribunal. At that stage the applicant herself had not focused on this concept of enhanced susceptibility. None of the medical witnesses that gave evidence were questioned at all about that issue and on the appeal on a question of law to the Federal Court, the question of law was said to be the failure of the Tribunal to identify the correct question.

Now, the applicant’s submission to this Court is that the only conceivable basis upon which Comcare could have justified the continuing payments from 1985 to 2000 on their evidence, that is, the evidence of Dr Goldney and Dr Stevenson, would have been this concept of enhanced susceptibility.

GLEESON CJ: What about what appears on page 50 of the application book at line 50?

MR HEYWOOD-SMITH: Your Honour, with respect, we say again that any evidence relied upon by the Tribunal necessarily did not address what we say was the correct question, because it was not identified, it was not raised with any of the witnesses. So that whatever factual findings were made by the Tribunal, they were made in a vacuum so far as the only issue which we say could have justified the continuing payments was. What we say to this Court is that in these circumstances the original decision-maker, Comcare, seeking to change the status quo, was in a position where it was obliged to satisfy the Tribunal that there had been a change.

If, in fact, Comcare had proceeded to make payments for 15 years on the basis of enhanced susceptibility, it was not advancing a case to the Tribunal that there had been a change. It did not raise the issue or deal with it at all.

HAYNE J: That seems tantamount to a submission – correct me if I am wrong – that both sides have passed at 1,000 metres separation and they have passed at 1,000 metres separation because each could and should have addressed a case different from the one they did advance in the Tribunal. Now, that is a very unpromising foundation for us to take the case. I mean, in the end, what are we going to say?

MR HEYWOOD-SMITH: If this Court was with the principle submission, it would only remit the matter back to the Federal Court with a view to it remitting the matter back to the Tribunal for the proper case to be addressed. Now, as we have indicated, the applicant was not alive to what she says was the correct issue at the Tribunal stage.

Once it got to the Federal Court, of course, there was no question of any further evidence and the Federal Court was not attracted to the proposition. Rather, the Federal Court was intent on placing the blame for the lack of evidence or the non-identification of the true question upon the applicant. Justice O’Loughlin concentrates on the case which the applicant did run before the Tribunal and not the case which the applicant did not run and which the applicant was saying should have been run. This was also Comcare’s position before the Federal Court. Can I take the Court to page 46 of the application book at paragraph 32:

The respondent [Comcare] also submitted that the contention that, on all the evidence, the Tribunal was bound to find that, as a result of the workplace injury, the appellant had been left with an enhanced susceptibility to the development of serious asthmatic symptoms, was not raised either before the Tribunal or the learned primary judge and should not now be entertained.

That was the approach which the Full Court took at page 50, lines 1 to 3. The Full Court is dealing with the Asioty principle of enhanced susceptibility and says at line 1:

Not only is there no finding of fact that the appellant’s underlying asthma has worsened as a result of the conditions to which she was exposed between 1982 and 1985, that was not even the case that she put to the Tribunal.

And it is still the case which is put by Comcare today. Could I ask the Court to go to page 66 of the application book and to the respondent’s submissions. At line 24 the respondent says:

The Applicant’s case based on “enhanced susceptibility” was not put by her in the Administrative Appeals Tribunal.

Over the page at page 67, line 1:

The review by the Applicant in paragraphs 13 to 16 inclusive of her Summary of Argument confirms that the Applicant did not put a case of ‘enhanced susceptibility’ to the Tribunal nor adduce evidence to support such a case.

Now, what the applicant says is that there is no scope here for asserting against the applicant, “Well, that’s not the case that you put before the Tribunal”. If the applicant erred in the formulation of her case before the Tribunal, it was because the Tribunal itself, we say, and the determining authority, have erred in the formulation of the question and that, we say, should not be held against her because the obligation of properly identifying the material question was on the Tribunal and/or Comcare.

Now, so far as the legal authorities are concerned, there is a dearth of them, but the principles can be quite simply stated. In The Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296 which is a decision of this Court but before the Administrative Appeals Tribunal Act, addressing the position under the old Compensation (Commonwealth Government Employees) Act the Court held that where the employing authority was attempting to remove payments from an employee, at page 302, the onus lay:

upon the party alleging the change of circumstances to prove it.

That position was altered slightly when the Administrative Appeals Tribunal Act came into operation and in the Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 we have then Justice Brennan at page 424, at the bottom of the page, asserting:

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.

The reconciling, so to speak, of those two authorities subsequently has not featured prominently but the text, Ballard and Sutherland, refers to a decision of Justice Heerey of Comcare v Nichols [1999] FCA 209, page 7 of 8, paragraph [21] where his Honour refers to The Commonwealth v Muratore and the principle that I have referred the Court to and then in paragraph [22] goes on to simply assert:

In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied.

Now, what the applicant says to this Court is that a clear statement by this Court to the lower courts and tribunals – to the decision-maker, the Tribunal and the Federal Court is likely to have resulted in this case in one of them asking Comcare, “Why are you now removing these payments in circumstances where in 1985 this woman was superannuated out of the Australian Public Service on the basis of a permanent injury and yet the evidence that you bring to us now is that, within a matter of months, she would have ceased to have suffered the effects of stress? Surely it has not taken 15 years for you to come to this realisation.” If those questions had been asked, in our submission, it is probable that the Asioty principle would have been identified at the proper stage.

We would ask this Court to bear in mind that Comcare is the specialist entity dealing with injuries to Commonwealth public servants and would necessarily be aware of the Asioty principle. The applicant, as was apparently the case, was not. So what we say here is that the Tribunal, a senior member, and four judges of the Full Court have proceeded to deal with this matter as if these were court proceedings, adversarial proceedings, have visited the failure of the identification of the correct question upon the one party which we say it should not have been on. Those are our submissions.

GLEESON CJ: Thank you, Mr Heywood-Smith. We do not need to hear you, Mr Hanks.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case and the application is dismissed with costs.

AT 2.59 PM THE MATTER WAS CONCLUDED