FEDERAL COURT OF AUSTRALIA

Comcare v Hill [2005] FCA 657

WORKERS COMPENSATION – Appeal against decision of Administrative Appeals Tribunal (‘AAT’) setting aside decision of independent review officer who affirmed Comcare’s determination denying liability for compensation claim made by respondent pursuant to Safety, Rehabilitation & Compensation Act 1988 (Cth) (‘the SRC Act’) – whether respondent’s injuries could be deemed to have arisen out of his employment – whether injury the result of reasonable medical treatment for an earlier compensable impairment and therefore a deemed injury pursuant to s 4(3) of the SRC Act – appeal dismissed

Administrative Appeals Tribunal Act (1975) (Cth) s 25(4), 43(1), 43(2), 44(1)

Safety, Rehabilitation & Compensation Act 1988 s 4, 4(3), 5, 5(9), 6A, 14, 14(1), 24, 60(1), 62(2), 62(4), 62(5), 63, 64(1), 69(a)

Federal Court Rules Order 53 rule 3(4)

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 cited

Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited

Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321 cited

Commonwealth of Australia v Holland (1991) 24 NSWLR 198 cited

Fletcher v Commissioner of Taxation (1988) 19 FCR 442 cited

Langley v Repatriation Commission (1993) 43 FCR 194 cited

Qantas Airways Ltd v Cameron (1996) 66 FCR 246 cited

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited

COMCARE v CHARLES HILL

NSD 1505 OF 2004

HELY J

24 MAY 2005

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     Mr Hill came to Australia in 1972 and was employed as an electrician in the Department of the Navy.  On 24 August 1976 Mr Hill was injured in the course of his employment.  On 10 June 1977 a delegate of the Commissioner for Employees’ Compensation determined that Mr Hill was entitled to compensation under s 39 of the Compensation (Commonwealth Government Employees) Act 1971 in the sum of $9,500.00 in relation to that injury, namely retinal detachment resulting in 95 per cent loss of sight in the left eye.

2                     Mr Hill returned to work approximately five months after his accident, and remained in the employ of the Department of Defence until his effective retirement on 15 April 1981, although for at least part of that time he appears to have been on compensation.

3                     On 4 July 1985 a delegate of the Commissioner for Employees’ Compensation determined that Mr Hill suffered from reactive depression which manifested itself in a perceived deterioration of sight in the right eye and melancholy.  Those conditions were determined to be sequelae to the loss of sight in the left eye.  Compensation was found to be payable in respect of an incapacity for work on 14 November 1980 and any periods subsequent to that date.

4                     Mr Hill reached retirement age in 1995 and he was paid weekly compensation by Comcare up until that time.

5                     On 12 June 1998 Mr Hill lodged a claim for compensation for permanent impairment in respect of ‘complete loss of sight of the left eye and continuing deterioration of the right eye’.  On 11 May 1999 Comcare made the following determinations in relation to that claim:

-                     Mr Hill was not technically entitled to the award of $9,500.00 made on 10 June 1977, but Comcare will not seek to recover this amount;

-                     there was no entitlement under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for permanent impairment compensation for the left eye injury;

-                     liability had never been accepted in relation to the reactive depression condition (note: this appears to be factually incorrect);

-                     the medical evidence supported the proposition that Mr Hill suffered from a psychiatric condition to which his employment contributed in a material way, but that assessment of the degree of impairment caused by the psychiatric condition was not then possible, as treatment was incomplete, and the condition could improve;

-                     any macular degeneration of the right eye was not caused, aggravated or accelerated by his employment; and

-                     Mr Hill was not entitled to permanent impairment compensation in respect of ‘complete loss of sight in the left eye, continuing deterioration of sight in the right eye and reactive depression’.

6                     This determination did not purport to revoke the determination made on 4 July 1985 – it appears to have been given in ignorance of that determination and any payments made to Mr Hill in respect of his right eye condition between 4 July 1985 and 11 May 1999 were not affected.  All that was determined was that Mr Hill was not entitled to compensation for permanent impairment under s 24 of the SRC Act in respect of the conditions claimed.

7                     On 19 August 1999 Comcare acceded to a request for an extension of time until 19 September 1999 within which to request reconsideration of the decision given on 11 May 1999, but no request for reconsideration was ultimately made.

8                     On 4 November 2002 Mr Hill was injured when he fell whilst walking down the stairs in his townhouse at Cannon Hill, Queensland.  He sustained bilateral colles fractures of the wrists and facial scarring.

9                     On 28 May 2003 Mr Hill signed a claim for rehabilitation and compensation under the SRC Act in relation to the injuries which he sustained on 4 November 2002.  On 1 August 2003 a delegate of Comcare denied liability in relation to the claim.

The reviewable decision

10                  On 26 August 2003 Mr Hill’s solicitors requested a review of that decision.  The letter included the following:

‘It is contended on behalf of Mr Hill that these injuries are sequelae of his original work injury at the Department of Navy on 24 August 1976 in which he lost 95% of the sight in his left eye and for which Comcare has accepted liability.’

On 14 October 2003 another delegate of Comcare made a reviewable decision in accordance with s 62(5) of the SRC Act affirming the determination of 1 August 2003.

11                  The delegate determined that Mr Hill has an accepted claim in respect of ‘retinal detachment left eye resulting in reactive depression’ on which compensation is payable.  Consideration therefore needed to be given as to whether there is any relationship between Mr Hill’s accepted condition and the fall in November 2002.  The delegate considered that there was no evidence whatsoever implicating any aspect of the claimant’s compensable condition in the fall in November 2002.

12                  Comcare’s functions include the determination of claims made to Comcare under the SRC Act: s 69(a).  In the present case, the original determination was made by Comcare on 1 August 2003.  Section 62(2) of the SRC Act enabled Mr Hill to request Comcare to reconsider that determination, which, pursuant to s 62(4) of the SRC Act is to be undertaken by a different delegate.  On reconsideration, the delegate is to make a decision affirming, revoking or varying the determination: s 62(5).  Section 63 requires the decision-maker to notify the claimant in writing of the decision made under s 62.  Here, that was done by the letter of 14 October 2003 referred to above.

13                  Section 64(1) of the SRC Act allows a claimant to apply to the Administrative Appeals Tribunal (‘the AAT’) for review of a ‘reviewable decision’.  Section 60(1) of the SRC Act defines ‘reviewable decision’ to mean (relevantly) the reconsideration decision made under s 62 of the SRC Act, ie, the decision notified in the letter of 14 October 2003.

14                  Section 25(4) of the Administrative Appeals Tribunal Act (1975) (Cth) (‘the AAT Act’) confers power on the AAT to review any decision in respect of which application is made to it under any enactment.  Section 43(1) of the AAT Act authorises the AAT, for the purpose of reviewing a decision, to exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.

The proceedings in the Administrative Appeals Tribunal

15                  On 15 December 2003 Mr Hill applied to the AAT for a review of the decision of 14 October 2003.  In the applicant’s statement of facts and contentions filed in support of that application it was asserted that Mr Hill’s fall on 4 November 2002, and the resultant permanent disability in both his wrists and facial scarring:

-                     were materially contributed to by his 95 per cent loss of vision in his left eye; or

-                     were the result of reasonable medical treatment for his compensable left eye impairment, and could therefore be deemed an injury pursuant to s 4(3) of the SRC Act.

Reliance was also placed on s 6A of the SRC Act, but this was later abandoned, and has not been pursued since.

16                  The issue before the AAT was whether Comcare was liable to pay compensation in accordance with s 14 of the SRC Act in respect of the injuries suffered by Mr Hill as a result of the fall on 4 November 2002. 

The AAT’s decision

17                  The AAT made the following findings of fact:

-                     on 7 October 2002 Mr Hill went to his optometrist seeking the repair or replacement of his glasses which were slipping down his nose.  The optometrist was too busy to do anything about them on that day, but made arrangements for replacements.  Comcare had paid for Mr Hill’s glasses on at least two occasions including the replacements which the optometrist arranged following Mr Hill’s October visit;

-                     glasses do not assist Mr Hill with vision in his left eye;

-                     as well as having no vision in the left eye Mr Hill has poor vision in the right eye.  The glasses were required for his right eye, and the circumstances of the fall on 4 November 2002 were as a result of not being able to see because the glasses had slipped;

-                     the depression and resultant loss of sight in the right eye from which Mr Hill suffers arose out of the loss of sight in the left eye and thus were materially contributed to by his employment;

-                     Mr Hill suffered facial injuries and bilateral colles fractures of the wrists in the fall of 4 November 2002; and

-                     the Review Officer discussed Mr Hill having suffered falls over a period of time, ‘documented from at least 1989’.

18                  The AAT’s conclusions were as expressed in the following paragraphs:

‘35. …notwithstanding the reviewable decision stating that liability had not been accepted for the right eye, T 40 [the determination made on 4 July 1985], clearly indicated that liability had been accepted for depression and deterioration of sight in the right eye arising out of the left eye injury.  Accordingly the glasses which were required to assist sight in the right eye were reasonable medical treatment within the terms of the Act.  There was no medical evidence in this case to indicate that Mr Hill’s depression and resultant right eyesight problems had diminished since he left work, or any other time.  Accordingly Mr Hill’s fall and injuries on 4 November 2002 arose out of that medical treatment, (the provision of glasses), as the fall and resultant injuries occurred during a time when his glasses required repair or replacement, which was under negotiation at the relevant time.

36.       On the basis of the medical evidence as detailed above, I found that that in relation to Mr Hill’s fall and subsequent injuries on 4 November 2002, there was material contribution of the workplace.  I was satisfied that the fall was as a result of reasonable medical treatment, the glasses Mr Hill requires for his right eye problems which arose out of his depression and right eye problems associated with the compensable injury to his left eye.  I was satisfied that Mr Hill fell because he could not see out of his blind left eye, and because his glasses which he requires for his right eye were in need of repair or replacement, rendering him at the time of the fall, unable to see properly out of his right eye.

37.       Accordingly I find that liability must be accepted for the fall of 4 November 2002 and its consequences, and the reviewable decision set aside.’

The legislation

19                  Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in (inter alia) impairment.  ‘Injury’ is defined in s 4 so as to mean, relevantly:

‘(b)      an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment.’

Section 4(3) of the SRC Act provides:

‘(3)      For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:

(a)               compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and

(b)               it was reasonable for the employee to have obtained that medical treatment in the circumstances.

Note:   However, members of the Defence Force with service after the MRCA commencement date might be taken not to have suffered a physical or mental injury or ailment (see section 4AA and subsection 6A(2A)).’

‘Impairment’ is defined in s 4 in wide terms, and the injuries sustained by Mr Hill on 4 November 2002 are within the definition of ‘impairment’.

20                  Mr Hill was not employed by the Commonwealth when the injuries to his wrists and face on 4 November 2002 were sustained, hence Comcare will only be liable to pay compensation in respect of those injuries if Mr Hill was then within one of the extended definitions of ‘employee’ contained in s 5 of the SRC Act, and if the injury arose ‘out of’ his employment or was suffered as a result of reasonable medical treatment of an injury for which compensation is payable, in accordance with s 4(3).

21                  Section 5(9) of the SRC Act provides:

‘(9)      A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.’

22                  As Samuels JA stated in Commonwealth of Australia v Holland (1991) 24 NSWLR 198 at 202, s 5(9) ‘does not impress … as a model of clarity’.  However, his Honour held that its meaning, in the context of s 5, which regards an ‘employee’ as a current employee of the Commonwealth, is that a person is not an employee for the purposes of the SRC Act if he or she at the material time (here the date of injury) has ceased to be employed by the Commonwealth, unless before he or she left the Commonwealth’s employment, the Commission incurred a liability to that person under the SRC Act.

23                  Both parties accepted that on 4 November 2002 Mr Hill was a deemed employee under s 5(9).  The hearing in this Court (and apparently also in the AAT), was conducted on the basis that if the AAT found that Mr Hill’s loss of sight in the left eye for which Comcare had accepted liability was a cause of the injuries which he sustained on 4 November 2002 then Comcare was liable to pay compensation under the SRC Act in respect of those injuries.

The grounds of appeal

Excess of jurisdiction – Grounds (a), (b) and (c)

24                  The grounds specified in pars 4(a), (b) and (c) of the Notice of Appeal are conveniently considered together.  Those grounds are:

‘(a)      [T]he Tribunal exceeded its jurisdiction in finding that there was an accepted right eye condition, of which the Respondent’s wrist and facial injuries in question were sequelae.

…

(b)       [T]he Tribunal erred in relying on the determination dated 4 July 1985 in support of its finding that Comcare had accepted liability for the right eye condition, and was therefore liable to pay compensation to the Respondent, this not being a matter before the Tribunal.

(c)               [T]he Tribunal erred in making the findings and determinations beyond the reviewable decision that was before it.’

25                  Whether the AAT exceeded its jurisdiction in the manner contended for by Comcare requires a determination of the boundaries of the administrative controversy which the AAT was called upon to resolve.  The AAT was only entitled to review a ‘reviewable decision’.  It is clear that the AAT appreciated that the reviewable decision before it was one which denied any relationship between the accepted condition (the left eye injury in 1976) and the fall in November 2002.  The present claim was not a claim for permanent impairment of the right eye, and the AAT correctly recognised (at par 26 of its reasons) that the decision of 11 May 1999 was not before it for review.

26                  The case before the AAT appears to have been conducted on both sides as being essentially one of causation: was there a causal link between the accepted condition in the left eye and the fall in November 2002?  That was the matter which the AAT had to determine on the materials before it, it being implicit in the respective contentions of the parties that if there was such a causal link which was not insignificant, then liability under s 14 of the SRC Act would exist in relation to the November 2002 injuries.

27                  The AAT found that Mr Hill fell in November 2002 because he could not see properly.  He could not see properly because he had practically no vision in his left eye as a result of the 1976 injury, and because the glasses which were necessary to achieve effective right eye vision were in a state of disrepair and slipped.  The medical evidence established to the AAT’s satisfaction that the loss of vision in the left eye and consequential depression were a not insignificant cause of the right eye condition, hence the need for glasses was referable to the left eye injury.

28                  In coming to these conclusions the AAT was not acting in excess of jurisdiction.  The AAT remained within the boundaries of the administrative controversy which it was required to resolve, and was endeavouring to decide the causation question thrown up by the competing contentions of the parties as being the substantial issue for determination.  The AAT was both entitled and bound to make up its own mind upon the causation question, and the determination of 11 May 1999 did not preclude the AAT from finding that the injuries sustained on 4 November 2002 were sequelae of Mr Hill’s work injury in 1976: see Langley v Repatriation Commission (1993) 43 FCR 194 at 201. 

29                  The AAT was plainly aware of the divergence between the determinations of 4 July 1985 and that of 11 May 1999 because at par 24 of its reasons for decision it noted that the former was contradicted by the latter.  The AAT was entitled to use the determination of 4 July 1985 (which was apparently supported by the medical evidence before the AAT) as part of the process by which the requisite link between the 1976 accepted condition and the November 2002 injuries was established.

30                  These grounds of appeal are not made out.

Denial of procedural fairness – Ground (d)

31                  The fourth ground of appeal, given at par 4(d) of the Notice of Appeal, is as follows:

‘[T]he Tribunal denied Comcare procedural fairness in not allowing it the opportunity to obtain medical evidence and address it in respect of the nature and cause of any right eye injury the Respondent may have been suffering.’

32                  Comcare contends that Mr Hill’s statement of facts and contentions did not suggest that treatment for Mr Hill’s right eye condition played any part in this case, nor was the case opened on the basis that Mr Hill’s right eye condition could be significant as an employment-related cause of Mr Hill’s fall and injuries.  In Comcare’s submission, if the AAT intended to decide the case on a basis not foreshadowed by Mr Hill, the AAT was under a duty of fairness to allow Comcare an opportunity to respond by calling additional evidence in relation to the right eye condition: see Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 454-456.  The AAT’s failure to afford that opportunity is an error of law: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488.

33                  Comcare accepts in its submissions to this Court that it was Mr Hill’s case before the AAT that the fall in which he suffered his injuries was caused when his spectacles (which improved his sight in the right eye) slipped down his face as he was descending a flight of stairs, so that he could not see the base of the stair railing and tripped.  The AAT records at par 13 of its reasons for decision that counsel for Mr Hill had put his case partly upon the determination of 4 July 1985 and upon the basis that the glasses for which Comcare paid in November 2002 were medical treatment essentially to assist the right eye.  The transcript of the proceedings before the AAT records submissions being put by counsel for Mr Hill in relation to ‘the issue of the right eye’, the determination of 4 July 1985 and the role of the glasses in relation to the injuries, the need for the glasses having arisen due to the right eye condition.

34                  The AAT is not a court of pleading.  The AAT did not decide the case on a basis outside the way in which the case had been put by counsel for Mr Hill.  This ground of appeal has not been made out.

Failure to give reasons – Ground (e)

35                  The fifth ground of appeal, given at par 4(e) of the Notice of Appeal, is as follows:

‘[T]he Tribunal failed to give any or any adequate reasons as to how it found that the Respondent’s injuries suffered in the fall were “the result of medical treatment” pursuant to subsection 4(3) of the Safety, Rehabilitation & Compensation Act 1988 (Cth).’

36                  Section 43(2) of the AAT Act obliges the AAT to give reasons for its decision.  The AAT explains in pars 35 and 36 of its reasons for decision, quoted above, how the accepted condition led to the right eye problems which the glasses were intended to redress, and the role played by the slipping glasses in causing the injuries in question.  It was on this basis that the AAT decided that ‘the fall was as a result of reasonable medical treatment’.

37                  However, Comcare complains that the AAT failed to explain how the delay in repairing or replacing the spectacles could itself amount to ‘medical treatment of an injury’.  The short answer to this complaint is that the AAT did not rely on delay in coming to its decision.

Ground (f)

38                  The sixth ground of appeal, given at par 4(f) of the Notice of Appeal, is as follows:

‘[T]he Tribunal erred in finding that the Respondent’s injuries suffered in the fall were “the result of medical treatment” pursuant to subsection 4(3) of the Safety, Rehabilitation & Compensation Act 1988 (Cth).’

39                  Counsel for Comcare accepted that the provision of glasses is medical treatment (see par (f) of the definition of ‘medical treatment’ in s 4(1) of the SRC Act).  However, he submitted that the provision of glasses was not in respect of the injury to the left eye, hence the deficient condition of those glasses could not provide a causal connection between the injuries suffered in the fall on 4 November 2002 and Mr Hill’s former employment.  Second, on the AAT’s own findings and even assuming the relevance of the right eye condition, it was the delay in repairing or replacing the glasses which was of causal significance, and on no sensible basis could that delay be described as ‘medical treatment’.

40                  The AAT proceeded upon the basis that the glasses were required to assist sight in the right eye, and that the deterioration of sight in that eye was referable to the original injury and thus arose out of Mr Hill’s employment.  Compensation was payable in respect of the right eye condition pursuant to the determination of 4 July 1985, even though a claim for permanent impairment was rejected on 11 May 1999.  Accordingly, the operation of s 4(3) of the SRC Act was potentially enlivened.  For that reason, the first of the submissions of counsel for Comcare should be rejected.

41                  The expression ‘medical treatment’ could include both acts and omissions on the part of the person providing that treatment.  If the provision of glasses is medical treatment, so too would be the repair of those glasses, including defective repair, or a decision by the optometrist that repair was not required immediately.  Whether the fall of November 2002 was a result of medical treatment (ie the provision and maintenance of glasses to redress the deterioration in Mr Hill’s eyesight in his right eye) is essentially a factual question in which questions of characterisation may be involved.  In my view, it was open to the AAT to conclude, as a matter of fact, that the November 2002 injuries were suffered by Mr Hill as a result of the relevant medical treatment, even though other decision-makers might have come to a different conclusion upon the primary facts.  For that reason, the second of the submissions of counsel for Comcare should also be rejected.

Ground (g)

42                  Paragraph 2 of the Notice of Appeal identifies one of the ‘questions of law’ said to be raised on the appeal as:

‘[W]hether the Tribunal erred in finding that the Respondent’s injuries sustained in the fall on 4 November 2002 arose out of, or in the course of, the Respondent’s employment, or could be deemed to have so arisen.’

At par 4(g) of the Notice of Appeal it is asserted that the AAT erred in so finding.

43                  In Comcare’s written submissions, the only matters put in support of this ground were the same matters as had been put in support of ground (f).  However, in oral submissions, counsel for Comcare submitted that there was no evidence before the AAT that the loss of sight in the left eye was a cause of the fall in November 2002, and sought to rely on ground (g) as entitling him to take that point.

44                  Counsel for Mr Hill objected, on the basis that there is ‘not a word about the left eye’ in the Notice of Appeal, and there is an unchallenged finding by the AAT that a cause of the fall in November 2002 was Mr Hill’s inability to see out of his blind left eye. An application to amend the Notice of Appeal was foreshadowed, but then withdrawn in the face of indications from counsel for Mr Hill that amendment of the Notice of Appeal might lead to an application on his part for an adjournment of the hearing.

45                  As matters stood at the end of oral submissions, the first remaining issue was whether Comcare was entitled to raise the ‘no evidence’ point within the framework of the existing Notice of Appeal considered against the requirement of Order 53 rules 3(2), (3) and (4) as explained in cases such as Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 and as illustrated by Birdseye v Australian Securities & Investments Commission (2003) 76 ALD 321.  Counsel for Mr Hill lodged written submissions on that question contending that pars 2(c) and 4(g) of the Notice of Appeal do not identify a question of law at all, and that the ‘no evidence’ point is not raised by the Notice of Appeal.  Counsel also gave references to material which was before the AAT which was capable of supporting a finding of causation in relation to the left eye, bearing in mind that commonsense in relation to the sequence of events may also be relevant: see Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 at 563; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 254-255 (Davies J) and 292 (Lindgren J).  It is unnecessary to go into the detail of these submissions, because in his written submissions in response, counsel for Comcare withdrew the submission which provoked this whole enquiry, namely, that there was no evidence to support a finding that the respondent’s loss of sight in his left eye was a cause of the fall.

46                  The second remaining issue was raised by Comcare’s submission, first put orally in reply, that the AAT had found that the fall was as a result of the right eye condition and not as a result of the left eye condition.  Nor, in Comcare’s submission, could the AAT have made a finding that the left eye condition was causally significant as its conclusion was only that there was a ‘material contribution’ between the loss of vision in the left eye and the fall, and that is not the test of causation in relation to an injury.  In his written submissions, counsel for Mr Hill contended that if Comcare’s submissions as to ‘material contribution’ is intended to be a ground of appeal, it should be disregarded for the reason that it is also not raised in the Notice of Appeal.

47                  The AAT accepted that Mr Hill fell because he could not see out of his left eye and because his glasses which were required for the achievement of effective vision in the right eye were in need of repair.  A fair reading of the AAT’s reasons for decision as a whole confirms that there were at least two contributing factors to the fall, neither of which was insignificant, and either of which would be sufficient to establish liability in Comcare.  The proposition that Comcare applied the wrong test of causation is not one which is raised in the Notice of Appeal, nor was it advanced in Comcare’s original written submissions.  If anything, it is contrary to concessions made by counsel for Comcare in the course of presenting his submissions-in-chief.  Leave to rely upon this ground under Order 53 rule 3(4) was neither sought nor given.

48                  Paragraphs 2(c) and 4(g) of the Notice of Appeal simply assert that the AAT made unidentified error(s) of fact or law in coming to the conclusion which it did.  As formulated these paragraphs do not identify a question of law, the resolution of which could sustain the relief which Comcare seeks.  The relief which Comcare seeks thus cannot be sustained by these paragraphs of the Notice of Appeal.

49                  Accordingly, Comcare’s appeal under s 44(1) of the AAT Act must be dismissed with costs.

Associate:

Dated:              24 May 2005