FEDERAL COURT OF AUSTRALIA

Goodricke v Comcare (No 2) [2015] FCA 1401

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is a notice of appeal from a decision of the Federal Circuit Court of Australia delivered on 5 March 2015 in Goodricke v Comcare [2015] FCCA 506. The background to this case is set out in the decision of the Federal Circuit Court, and I extrapolate that background for the purposes of this judgment.

BACKGROUND

2    Mr Goodricke commenced working for a government related entity in October 1999. In March 2000 he claimed compensation in respect of injury to his forearms described as an aggravation to bilateral regional pain syndrome. The date of injury for compensation purposes under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) was 14 February 2000.

3    On 8 November 2000 a delegate of the respondent determined that the appellant’s normal weekly earnings amount for the purposes of his compensation claim and within the meaning of the SRC Act was $1,150.16. The entitlement of the appellant to compensation at that time was not in dispute.

4    More recently however an issue in dispute has become whether the aggravation of the appellant’s bilateral regional pain syndrome had ceased, as if it had his entitlement to compensation and costs of medical treatment payable by the respondent would also cease. On 3 June 2013 a delegate of the respondent wrote to the appellant in the following terms:

I would like to update you about your claim for compensation. I have conducted a review of your claim file, and advise that the medical evidence suggests your current condition does not relate to your Commonwealth employment.

You recently participated in two medical reviews with Dr Nicholas Jetnikoff, consultant Psychiatrist, and Dr Phillip Vecchio, a consultant Rheumatologist. These specialists have provided comprehensive reports to Comcare regarding your condition, however neither is able to relate your current symptoms to the injury sustained with the Commonwealth, during the years 1999 to 2000.

I have also reviewed the information on your claim file, and provide a Statement of Reasons overleaf.

Therefore, compensation may not be payable in accordance with the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for the following entitlements:

•    Medical expenses under section 16 of the SRC Act; and

•    Incapacity under section 19 of the SRC act.

Please note that before I issue a determination, you have the opportunity to present further medical evidence supporting your claims(s) for compensation.

Please provide this information by Friday 5 July 2013

If no response is received by the Friday 5 July 2013, I will make a determination based on the medical evidence available at the time.

5    The appellant sought review of the decision in the letter of 3 June 2013 in the Federal Circuit Court of Australia. Relevantly in the primary decision the Judge observed:

[16]    Mr Goodricke apprehends that the respondent is about to embark upon a decision which will see some or all of the compensation that he presently receives pursuant to the SRC Act cease. This application is made pre-emptively in an effort to ensure that the respondent’s decision is not adverse to Mr Goodricke.

[17]    The respondent has not yet made any decision as proposed in its letter of 3 June, 2013.

6    Indeed as the primary Judge observed at [3], in the Court below the appellant sought to challenge two actions on the part of the respondent Comcare, namely:

(a)    A decision that a delegate of the respondent proposes to make to cease the payment of compensation that he presently receives from the respondent pursuant to the SRC Act; and

(b)    A decision made by a delegate of the respondent on 8 November 2000 that determined the amount at which Mr Goodricke’s normal weekly earnings should set for the purposes of calculating payments to him pursuant to the SRC Act.

7    Mr Goodricke also gave Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) arising from the withholding of payments to him whilst the determination and reconsideration of his entitlements has been underway.

FEDERAL CIRCUIT COURT DECISION

8    The primary Judge observed that although at the date of the application the respondent had not made a decision, the Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) was invoked because s 3 of the ADJR Act defines “decision to which this Act applies” to include a decision proposed to be made by a relevant person (at [18]). This clearly extended to the matter before the Court. Alternatively, the appellant’s application was grounded in s 6(1) of the ADJR Act (at [21]). His Honour considered however, that irrespective of the manner in which the appellant’s complaint was viewed, his challenge must fail because, in summary:

    The appellant relied only on s 5(1)(h) of the ADJR Act, namely that there was no evidence or other material to justify the making of the decision. The operation of s 5(1)(h) was supplemented by s 5(3). An identical ground of review existed in s 6(1)(h), supplemented by s 6(3) of the ADJR Act.

    Section 5(3) of the ADJR Act provides:

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

    The appellant bore the onus of proof in showing that the requirements of these provisions had been made out.

    The respondent relied on medical reports prepared by Dr Jetnikoff and Dr Vecchio, which were also before his Honour.

    Dr Vecchio expressed the opinion in his report that there was no link between the appellant’s current symptoms and the work performed by him in 1999 to 2000. Dr Jetnikoff concluded that there was nothing in his assessment that indicated that the appellant was suffering from anything other than Asperger’s disorder.

    In summary, the question before the Court was whether the decision-maker could reasonably be satisfied that the appellant was no longer suffering from an injury for which he should receive compensation. The primary Judge accepted that the evidence held by the respondent was that the appellant would not benefit from treatment and was capable of working full time in suitable employment. Accordingly, on the evidence the respondent could reasonably be satisfied that no medical treatment could reasonably be obtained in respect of the appellant’s accepted condition, and that he was not incapacitated from employment as a result of his accepted condition.

9    The primary Judge also observed that an agreement had been reached at an indeterminate time between the appellant and the respondent compromising an application for review by the appellant of the respondent’s determination of the appellant’s normal weekly earning. Before his Honour the appellant complained that that agreement was reached through the respondent’s fraud. However, in summary his Honour found:

    There was no evidence of fraud.

    In any event, his Honour would, as a matter of discretion, refuse any application for review of that determination because of the amount of time that had passed, because the appellant had utilised other avenues of review, and because the appellant sought to attack the merits of the relevant decision rather than raise any particular ground of judicial review.

10    In relation to the appellant’s claim of a Constitutional matter arising, his Honour found, in summary:

    The relief sought by the appellant was unclear.

    There was no acquisition of property by the Commonwealth. The appellant sought to characterise as “property” his right to receive weekly payments under the SRC Act, and claimed that for periods for which he is not paid, the Commonwealth has “acquired his property” without compensation. However, the SRC Act does not give a right to receive payments weekly, but rather sets out a mechanism for assessing entitlement to weekly and other compensation payments (at [43]).

11    His Honour continued:

[44]    Moreover, the respondent’s liability and Mr Goodricke’s entitlement to receive compensation under the Act is created by the Act itself. The obligation on the respondent is to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment: s.14(1) of the SRC Act. The case is unlike Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 and Commonwealth v Mewett (1997) 191 CLR 471. In those cases the High Court determined that s.44(1) of the SRC Act purported to extinguish a cause of action that arose by operation of the common law, on the ground that it operated to acquire property but did not provide just terms as required by s 51(xxi) of the Constitution. It was, to that extent, therefore invalid. But those cases say nothing about a statutory right established by the SRC Act itself.

[45]    The rights and entitlements that Mr Goodricke enjoys under the Act and the obligations imposed upon the respondent are entirely statutory in character. I accept the respondent’s argument that they have no pre-existing basis in general law and there is no entitlement based on any antecedent proprietary rights recognised by the general law. They are a statutory entitlement, the nature and extent of which depends entirely upon the terms of the legislation that grants them. The rights exist only when the employee satisfies the statutory tests in relation to that right which may from time to time means that the employee’s entitlements no longer exist: Bienke v Minister for Primary Industries and Energy (1994) 63 FCR 567 at 585-587.

12    His Honour dismissed the appellant’s application with costs.

APPEAL TO THE FEDERAL COURT

13    The appellant’s grounds of appeal from the decision below are as follows:

1.    Whether some or all of the provisions of the SRC Act would affect an acquisition of any, and if so what, property of the applicants or any of them otherwise than on just terms (within the meaning of s 51(xxxi) of the Constitution. for periods during which the respondent fails to make a timely determination to pay him, but in respect of which he is entitled to weekly compensation or other compensation, the Commonwealth has acquired his property without Just terms.

2.    Does the matter of discretion and refusal of the application for review of the determination of the applicants normal weekly earnings constitute and error of law.

3.    The decision maker is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established able to rely on a medical report that is in contrast to the medial evidence already accepted by the AAT and the Federal court. As the applicants condition is outside the area of expertise of the medical practitioners engaged should their opinions be accepted under section 79 of the evidence act and does the operation of 79 of the evidence act permit what would be otherwise an offence under schedule 136 of the commonwealth criminal code act 1995 Should the decision maker be entitled to disregard any and all medical evidence prior to 2012 that does not support the proposition to cease compensation;

(errors in original.)

14    At the hearing of the appeal the appellant appeared in person, and the respondent was represented by Counsel.

Submissions

15    The appellant filed several sets of written submissions, and addressed the Court orally.

16    With respect to the appellant, his submissions are somewhat obfuscating, and on occasion appear to be of little relevance to the proceedings before the Court.

17    In summary, the appellant submits (relevantly) as follows.

18    In relation to the first ground of appeal:

    Section 51(xxxi) of the Constitution is to be construed liberally as it provides a constitutional protection of property rights.

    The key question is: how is it that an administrative process can be used to withdraw an entitlement the person clearly has on a continual basis?

    The appellant has had entitlement to payments by the respondent for every week since February 2000.

    In substance, the respondent is using the determination and reconsideration process unjustly to withhold payments to the appellant when the respondent knows that those payments are due (transcript 10 August 2015 p 36 ll 39-46).

    The refusal of the respondent to pay the appellant his entitlements in the circumstances of this case is an acquisition of the appellant’s property on unjust terms.

19    In relation to the second ground of appeal:

    On 6 August 2004, the Administrative Appeals Tribunal made a decision ordering that the appellant is entitled to compensation in respect of incapacity for the period from 13 February 2002 until 16 February 2004, despite the appellant’s entitlement being from 14 February 2000 until 6 August 2004, with the time before 13 February 2002 being subject to an interim decision to avoid overpayment due to uncertainty concerning superannuation.

    There is no evidence to support the shorter dates ordered, and while the superannuation benefits have long since been resolved, the shortfall has not.

    There has been an abuse of discretion by the Court below, because it has acted in an arbitrary or capricious manner.

    The appellant worked overtime beyond the scope of the contract to which the employer agreed. Overtime should be included in normal weekly earnings for the purposes of s 8(1) and (2) of the SRC Act.

    In the three months the appellant worked, he worked 875 hours.

20    In relation to the third ground of appeal:

    Three medical reports – of Dr Vecchio, Dr Jetnikoff and Dr Kostus – have been relied on by the respondent in discontinuing the appellant’s entitlements.

    The opinions expressed by these doctors are diametrically opposed to the widely accepted professional opinion of a significant number of respected practitioners in the field as competent professional practice. The appellant refers to s 22 of the Civil Liability Act 2003 (Qld).

    While Dr Vecchio and Dr Jetnikoff are well qualified in certain respects, it cannot be said that their reports are based on specialised knowledge which is consistent with a majority of their peers.

    Dr Vecchio is a specialist rheumatologist and Dr Jetnikoff is a psychologist. The appellant’s accepted condition is neither a rheumatic nor a psychiatric condition. The expertise of the doctors is outside of what can be reasonably accepted as expert opinion.

    Another medical practitioner, Dr Tadros, has training, study or experience as a pain specialist, and is able to correctly diagnose the condition and causality of the appellant’s condition.

Consideration

21    In my view the decision of the primary Judge evinces no error.

First ground of appeal

22    Section 51(xxxi) of the Constitution empowers the Federal Parliament to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

23    In this case I understand the appellant’s case to be that the Federal government, through the respondent, has administratively deprived the appellant of his property by ceasing his compensation payments, is proposing to deprive him of future compensation payments, and thus has acquired his property (being – in the appellant’s submission – currently withheld payments and future payments of compensation) on unjust terms.

24    It is unclear to me which law of the Commonwealth is claimed by the appellant to contravene s 51(xxxi) of the Constitution. To the extent that I can understand his case, it is focused on the current and prospective administrative actions of the respondent rather than specific provisions of the SRC Act.

25    In any event however, a fundamental flaw with this argument, as recognised by the primary Judge, is that the appellant has no unequivocal entitlement to payment of compensation by the respondent, such that compensation under the SRC Act constitutes “property” within the meaning of s 51(xxxi) of the Constitution.

26    Relevantly s 14 of the SRC Act provides:

Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

27    The SRC Act provides a mechanism for assessing entitlement to compensation payments, and makes provision for payment of compensation on a weekly basis where appropriate.

28    This is clear from the terms of s 19(1), (2) and (3) of the SRC Act.

29    Section 19(1) provides that the section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom ss 20, 21, 21A or 22 applies.

30    Section 19(2) provides, in substance, that Comcare is liable to pay to such an employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation calculated using a specific formula. That formula is referable, inter alia, to the amount per week the employee is able to earn in suitable employment and the employee’s normal weekly earnings.

31    Section 19(3) provides, inter alia, that Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated (other than a week referred to in subs (2)) of an amount calculated using a formula referable to an adjustment percentage where the employee is not employed or partly employed during a particular week.

32    In circumstances where a period of time elapses between an application for compensation and a determination that compensation is payable, it follows that, practically, an applicant would receive a back-payment for compensation payable, being potentially multiples of weekly payments.

33    Section 62 of the SRC Act permits the respondent to reconsider a determination made by it either of its own accord or at the request of the claimant. In particular the section provides:

Reconsideration of determinations

(1)    A determining authority may, on its own motion:

(a)    reconsider a determination made by it; or

(b)    cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

(2)    A request to a determining authority to reconsider a determination made by it may be made by:

(a)    the claimant; or

(b)    if the determination affects the Commonwealth--the Commonwealth; or

(c)    if the determination affects a Commonwealth authority--that Commonwealth authority.

…

(3)    A request for reconsideration of a determination shall:

(a)    set out the reasons for the request; and

(b)    be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

34    Specifically, a person in respect of whom a determination has been made to discontinue compensation payments, can request reconsideration of that determination within 30 days after the day on which the determination first came to the person’s notice. Implicitly, in those circumstances that person would not receive compensation payments during that 30 day period, and potentially for a longer period of time depending on when the determination is reconsidered (and its outcome).

35    In circumstances where, for example, the determination decision is reversed, it follows that an employee would receive a back-dated payment for the period during which compensation has not been paid, being multiples of weekly payments for each week of incapacity.

36    The scheme of the SRC Act is clearly one where:

    rights to compensation are wholly the creation of the statute;

    such rights are inherently subject to modification or diminution by operation of the statute (including, for example, reconsideration of a determination).

37    The fact that a right is a creature of statute does not of itself mean that it cannot be property. For example, as was explained by the High Court in Attorney-General for the Northern Territory v Chaffey (2007) 231 CLR 561 at [24], a law reducing the content of subsisting statutory exclusive rights such as those of copyright and patent owners would attract the operation of s 51(xxxi) of the Constitution.

38    The position of the appellant in this case however can be summarised by reference to the following observation of Brennan J in Health Insurance Commission v Peverill (1994) 179 CLR 226:

The right so conferred on assignee practitioners is not property: not only because the right is not assignable (though that is indicative of the incapacity of a third party to assume the right) but, more fundamentally, because a right to receive a benefit to be paid by a statutory authority in discharge of a statutory duty is not susceptible of any form of repetitive or continuing enjoyment and cannot be exchanged for or converted into any kind of property. On analysis, such a right is susceptible of enjoyment only at the moment when the duty to pay is discharged. It does not have any degree of permanence or stability.

39    The entitlement of the appellant to compensation in this case is not a permanent or continuing entitlement as he appears to believe – it is subject to review, must be referable to an ongoing injury in accordance with the legislation, is not assignable, cannot be exchanged or converted, and can be terminated.

40    Of particular relevance in this context is the discussion of the High Court in Chaffey. In that case an employee sustained an injury within the meaning of the Work Health Act 1986 (NT) (Work health Act) and accrued statutory compensation rights under that legislation. Similarly to the terms of the SRC Act, the Work Health Act provided that compensation was payable, and calculated by reference to the “normal weekly earnings” of the employee. The Northern Territory Parliament amended the Work Health Act so as to retrospectively define “normal weekly earnings” to exclude superannuation contributions made by an employee after a particular date. A special case was stated concerning the validity of those amendments in light of s 50 of the Northern Territory (Self-Government) Act 1978 (Cth) which provided that the power of the Legislative Assembly of the Northern Territory to make laws did not extend to the making of laws with respect to the acquisition of property other than on just terms.

41    The High Court found that the amendments were valid. At 662 Gleeson CJ, Gummow, Hayne and Crennan JJ accepted the submission of the appellants, namely:

[18]    The appellants submit that the critical provisions in the Work Health Act are the stipulations in s 53 that the obligation imposed upon the employer to make payments to the worker or the dependants of the worker is imposed “subject to” and “in accordance with” Pt V and is an obligation to provide “such compensation as is prescribed”. These references to Pt V are naturally to be construed as identifying Pt V as amended from time to time. Further, the reference to “such compensation as is prescribed” is naturally construed as a reference to such compensation as is prescribed from time to time. It follows that on the proper construction of Pt V of the Work Health Act the method prescribed for quantification of the amount of compensation payable to a worker by an employer had not been fixed in permanent form at the date of the injury to Mr Chaffey and was always subject to variation.

(footnotes omitted.)

42    At 665 the plurality observed:

[30]    The appellants’ construction of s 53 of the Work Health Act as it stood at the time of the injury suffered by Mr Chaffey is correct. The consequence is that his rights to compensation under that statute were of a nature which rendered them liable to variation by a provision such as that made by the 2004 Act. Once this nature of the “property” involved is understood it is apparent that there was no “acquisition” spoken of in s 50 of the Self-Government Act.

43    Further, in discussing the impermanency of benefits accorded by the Work Health Act Kirby J also observed at 671:

[49]    … Each of the emphasised phrases indicates, from the text of the statute, the impermanency and variability of the entitlement in question, and the necessity to read the statutory compensation “right”, as it was provided by law from time to time. The right was, and is, therefore, a “right” inherently susceptible to variation. It follows that a law fulfilling the predicted variation was not a law with respect to the “acquisition” of property, nor was the “right” that was varied “property” that was susceptible to acquisition for “just terms” purposes.

44    The observations of the High Court in Chaffey are also supportive of another conclusion which I consider inevitable in the circumstances of this case (and which points to another flaw in the appellant’s argument) namely that the decision of the respondent the subject of the appellant’s complaint was not in the nature of an “acquisition” of property within the meaning of s 51(xxxi) of the Constitution. As the appellant’s right to receive compensation was, within the meaning of the SRC Act, susceptible to variation or even termination depending on the circumstances of his case, a decision to vary or terminate his compensation payments cannot be considered to be an “acquisition”. As Mason CJ , Deane and Gaudron JJ observed in Georgiades v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305-306:

Accordingly, “acquisition” in s. 51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under the general law. The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognized legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course. A law which effected the modification or extinguishment of a right of that kind would not have the character of a law with respect to the acquisition of property within s. 51(xxxi) of the Constitution.

(footnotes omitted, emphasis added.)

45    I note that the appellant raised additional constitutional contentions in his written submissions filed 13 July 2015. These arguments were not included in subsequent submissions filed by the appellant, and indeed can only be found at the conclusion of and within the “References” section of the particular submissions. The appellant contends:

(a)    First, Parliament has not defined the scope of operation of the SRC Act with sufficient clarity or certainty such that the Act qualifies as a “rule of conduct or a declaration as to power, right or duty” That is to say, whether or not a person is subject to the provisions of the SRC Act is not revealed sufficiently plainly by the combined operation of the Act, the Constitution, and the law expounding’s 51 (xxxi) so as to qualify as a “law” within the meaning of s 51.

(b)    Secondly, by making the operation of the SRC Act depend on the judicial determination of the scope of a Constitutional provision as to which there may be genuine interpretive choices, Parliament has conferred upon this Court the (legislative) task of creating criminal liability, rather than merely adjudicating its existence. That is to say, Parliament has abdicated its responsibility to mark out the limits of the operation of legislation, and instead has required the Court to undertake that role. In so doing, Parliament has impermissibly vested legislative power in a Chapter III court.

(Errors in original.)

46    In circumstances where these issues do not fall within the scope of the appellant’s s 78B notice, and were not put to the Court at the hearing or otherwise than in this fashion, I am not prepared to entertain them.

47    In conclusion, I am satisfied that the decision of his Honour so far as concerned the application of s 51(xxxi) of the Constitution in this case was without error. The first ground of appeal has no merit.

Second ground of appeal

48    It is somewhat difficult to identify exactly which determination is the subject of this ground of appeal. The learned primary Judge based his decision on a determination which was made in November 2000 by Comcare, which was capable of review according to the process set out in the information that was sent to Mr Goodricke when the determination was notified to him (at [38] of the primary decision). The respondent’s submissions before me refer to a decision of 2004 in respect of the calculation of the appellant’s normal weekly earnings under the SRC Act.

49    With respect, any confusion is attributable substantially to the submissions of the appellant.

50    In his written submissions filed 14 July 2015 the appellant writes, inter alia, as follows:

31.    The decision August 2004 the tribunal member capitulated with the agreement and set the amount normal weekly earnings by consent but not in accordance with the SRC ACT being the exclusion of overtime in section 8 and the reduced timeframe of 2½ years. “But where, because of the development of the obligation of reasoned decision-making, the judge, unlike the jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, [namely, fact finding, rule-stating and rule application], an error in point of law will be established…” The underlying hypothesis is that the jurisdictional tests have been devised to strike a balance between protecting the rights of individuals affected by government decisions while preserving efficient administration. An abuse of discretion occurs when the decision of the lower court has no basis in law or fact and is therefore arbitrary, illogical, or unconscionable. An abuse of discretion may be found in those circumstances where the lower courts decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the lower courts has acted in an arbitrary or capricious manner. A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.

32.    There is a limited scope for a decision-maker to commit an error of law when finding the primary facts. Finding ultimate facts for which there is literally no evidence, and making inferences from intermediate facts for which there is no evidence, have always been errors of law.

(footnotes omitted, otherwise as per original.)

51    In his written submissions filed 27 July 2015 the appellant writes, inter alia, as follows:

7.    The applicant by way of amendment included the reconsideration of November 2000 leading to the AAT decision of 6 August 2004 The amendment was permitted and the respondent is not taken by surprise and has made submissions about those matters. When something is said to be done within the discretion of the authorities then that something is done according to the rules of reason and justice, not according to private opinion. Such discretion is never unfretted and is to be exercised according to the Law. Once the application had been accepted by the court it is to be adjudicated according to the law as any discretion to allow the matter has been dealt with by allowing it to be heard discretion is contrasted with a duty by exercising discretion refusing the application once granted and not dealing with it according to law, he has erred in law.

8.    The tribunal ordered the applicant is entitled to compensation in respect of incapacity under sections 16 and 19 of the Act for the period from 13 February 2002 until 16 February 2004 despite the applicants entitlement being from the 14th February 2000 to the 6th of August 2004 the time before 13th of February being subject to an interim decision to avoid overpayment due to uncertainty around superannuation. The is no evidence to support the shorter dates ordered and whilst the superannuation benefits has long been resolved the shortfall has not. To set the amount normal weekly earnings by consent but not in accordance with the SRC Act being the exclusion of overtime in section 8 and the reduced timeframe of 2½ years. But where, because of the development of the obligation of reasoned decision-making, the judge, unlike the jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, [namely, fact finding, rule-stating and rule application], an error in point of law will be established…” The underlying hypothesis is that the jurisdictional tests have been devised to strike a balance between protecting the rights of individuals affected by government decisions while preserving efficient administration. An abuse of discretion occurs when the decision of the lower court has no basis in law or fact and is therefore arbitrary, illogical, or unconscionable. An abuse of discretion may be found in those circumstances where the lower courts decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the lower courts has acted in an arbitrary or capricious manner. A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.

9.    There is a limited scope for a decision-maker to commit an error of law when finding the primary facts. Finding ultimate facts for which there is literally no evidence, and making inferences from intermediate facts for which there is no evidence, have always been errors of law.

(errors in original.)

52    In further written submissions filed 27 July 2015 the appellant writes under the heading “Normal Weekly Earnings”, inter alia, as follows:

7.    The applicant by way of amendment included the reconsideration of a decision of an administrative character made. The ADJR Act encompasses all levels “administrative review” including the AAT the highest administrative review body, can exercise administrative review over a “decision” which is made “under an enactment”. The applicant is asking for a review of the decision-making process by judicial review where the inquisitorial administrative process was replaced with a “without prejudice” offer designed to compel the applicant on a matter of costs and gain financial advantage for ongoing entitlement by reducing both the applicants ability to earn and Normal weekly earnings where the calculation under section 8 and 19 was greater that if the actual hours and overtime and actual ability to earn were used in the calculations. The respondent maintains as the position under a fixed-term contract with no provision for overtime, his contract was considered to mean a 36.75 hour week.

8.    There is no doubt the applicant worked significantly more that the contracted hours and was paid accordingly and the administrative decision relied upon has no evidence to the contrary. The applicant is asking not by way of merits review but on the basis of no evidence and no inquisitorial review by way of administrative review into the claims upon which the decision was based. The applicant is asking that the decision be overturned and the matter be returned to the AAT for merits review. Court is able to consider the substantive dispute and resolve the matter without becoming enmeshed in technical questions of justiciability. A “decision” the activity must be “final or operative” and “determinative of the issue of fact” there is no limitation, implied or otherwise, which restricts the class of decisions which may be reviewed to decisions which finally determine rights or obligations or which may be said to have ultimate and operative effect. Such a conclusion in accordance with the plain legislative intention of the ADJR Act.

9.    Decision-making starts by identifying a problem and ends with action to resolve the problem. The process of reaching a decision encompasses the collection and marshalling of facts and information; the clarification of goals; the holding of inquiries; coming to conclusions about preliminary matters; forming an opinion; reaching an intellectual as opposed to a documented conclusion on the final issue; making reports and recommendations leading to a decision; overt acts based on the intellectual conclusion; and the ultimate or operative determination or decision. Clearly on the one side are thought processes, and expressions of opinion (including confirmatory opinions from superiors); while on the other are the actual manifestations of those processes or opinions in the form of action, or “some announced or published ruling or adjudication”. The use of “without prejudice” offers forestalls this process where the respondents arguments are taken as fact and any argument to the contrary by the applicant is mute.

8.    The decision of November 2000 leading to the AAT decision of 6th August 2004 where the NWE was set at $1150 the AE at $150. Prior to 4th of August the applicant’s entitlements about $890 per week and after as the determined AE was $1005 his entitlements were about $145. Is it proper that a “without prejudice” offer greater than what the applicant would have been awarded by the tribunal guarantying minimal future financial exposure for the respondent be used to circumvent the process of Administrative merits review. The applicant was not aware that the respondent had gained a financial advantage until 2010 after protracted attempts to have entitlements restored when it was apparent that the NEW was set in stone and the AE was fluid. The applicant believes he is the victim of deceit, trickery, sharp practice, or breach of confidence, by which the respondent who has gained financial advantage. This may or may not be fraud but certainly has the hallmarks of a slight of hand.

(footnotes omitted, otherwise as per original.)

53    At the hearing the appellant said, relevantly, as follows:

… The issue is that I’m only – I’m not getting the entitlement that Parliament intended for me, which was a replacement for the wage that I would lose as a result of the injury.

(transcript p 37 ll 21-23.)

…

I’m saying that the respondent is taking advantage of a system to balance their books in order to withhold people’s payments whilst they continually put people through the review process.

(transcript p 38 ll 5-7.)

54    Synthesising this material as best as I can, it appears that the appellant’s concerns are with both a determination of the respondent of November 2000, and a subsequent decision of the Administrative Appeals Tribunal of 6 August 2004 (which was apparently by consent). Both decisions concerned the normal weekly earnings to be attributed to the appellant for the purposes of ascertaining proper compensation payable to him under the SRC Act.

55    His Honour – not surprisingly in the circumstances, in my view – understood that the appellant sought review under the ADJR Act of the determination of the respondent of November 2000. Certainly there did not appear to be an appeal from the decision of the Administrative Appeals Tribunal of 6 August 2004 to the Federal Circuit Court, or more properly an extension of time in which to lodge such an appeal given the elapse of time. His Honour observed that, notwithstanding the complaints of the appellant, there was no evidence of fraud. In light of the period of time which had elapsed and the absence of persuasive reasons for extending time advanced by the appellant, the primary Judge refused to entertain any review of the November 2000 decision.

56    I can identify no error in the decision of his Honour below. As I have already observed, the submissions of the appellant are, with respect, confusing. They are frequently a series of disjointed legal propositions. The appellant also clearly seeks to reagitate the merits of decisions which were made 11 and 14 years ago. Although the appellant seems to submit that the exercise of his Honour’s discretion was not in accordance with legal principle, no sound basis for that submission has been made, and I am unable to identify any proper basis for such a submission.

57    The second ground of appeal is without merit.

Third ground of appeal

58    In substance, in his third ground of appeal the appellant claims that the respondent could not have been reasonably satisfied of material forming the basis of its decision to cease compensation payments to him (within the meaning of s 5(3) of the ADJR Act), because the applicant’s condition is outside the area of expertise of Dr Vecchio and Dr Jetnikoff.

59    His Honour dealt with this issue in the following manner:

29.    Much of Mr Goodricke ‘s written submissions and the oral submissions that he made were directed to showing that the respondent was quite wrong to consider acting upon the reports of Drs Jetnikoff and Vecchio. He contends that the doctors are biased, having given many similar opinions in other cases, are likely to be acting in concert with each other, were sourced by the respondent so as to secure opinions that justified the proposed decision and are not properly qualified to give the opinions that they have expressed.

30.    However, the evidence referred to in the respondent’s letter is reasonably capable of establishing that Mr Goodricke is not incapacitated as a result of a work related injury for the purposes of the SRC Act. Whilst Mr Goodricke points out that he has an accepted medical condition for the purposes of the Act, described as an “aggravated regional pain syndrome (bilateral)”, it remains that his accepted condition is an aggravation. The purport of the medical evidence relied upon by the respondent is that Mr Goodricke ‘s pain syndrome is not connected with his employment. That is to say, the aggravation has come to an end.

31.    Dr Vecchio expresses the opinion that there is no link between Mr Goodricke ‘s current symptoms and the work performed by him in 1999 to 2000. Dr Jetnikoff concluded that there was nothing in his assessment that indicated that Mr Goodricke suffered from anything other than Asperger’s disorder. His mental state examination of Mr Goodricke could elicit no evidence “at all” that Mr Goodricke had any pain or discomfort.

32.    As the respondent points out, the question which arises under s.5(3)(a) in this case is not whether the decision maker is, or should be satisfied that the relevant facts necessary to deny Mr Goodricke his entitlements under ss.19 or 16 of the SRC Act are established, but rather whether the decision maker could reasonably be satisfied that those matters are established.

33.    I accept that the evidence possessed by the respondent is that Mr Goodricke would not benefit from treatment and is capable of working full time in suitable employment. I accept that on that evidence the respondent could reasonably be satisfied that no medical treatment can reasonably be obtained in respect of his accepted condition and that he is not incapacitated from employment as a result of his accepted condition.

34.    In my view Mr Goodricke cannot, on the material before the Court, establish the matters necessary to be established to engage s.5(3)(a) of the ADJR Act.

35.    Moreover, Mr Goodricke cannot, on the material before the Court, establish that the respondent proposes to make the proposed decision on the basis of the existence of a particular fact which does not exist and thereby engage s.5(3)(b) of the ADJR Act. To the extent that the respondent proposes to make the foreshadowed decisions based upon a fact – the absence of any incapacity on Mr Goodricke ‘s part – the evidence before the Court does not permit of a finding that the relevant fact does not exist.

36.    In my view, Mr Goodricke cannot engage either limb of s.5(3) of the ADJR Act. In my view, his application for review must, for those reasons fail.

37.    Similarly, to the extent that his case relies upon s.6(1)(h) and s.6(3) of the ADJR Act, his claim cannot succeed for the same reasons.

60    In this appeal the argument of the appellant is, in substance, that the two medical practitioners upon whose opinions the respondents relies lack expertise in relation to his particular condition. The appellant also submits that the opinions of Dr Vecchio and Dr Jetnikoff are “diametrically opposed to the widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice”.

61    The appellant does not point to any errors in his Honour’s reasoning. Indeed, the appellant advances only his opinion that the two doctors lack expertise and that their opinions are contrary to those widely accepted in the medical profession.

62    In the circumstances it is perhaps surprising that the appellant did not put to the respondent further medical evidence supporting his own case, particularly if such further medical evidence would have been “widely accepted” as he now contends.

63    I can identify no errors in his Honour’s reasoning in respect of this point. There was clearly material before the respondent from which it could reasonably be satisfied that the appellant no longer suffered from an injury, and was therefore no longer entitled to compensation under the SRC Act. The third ground of appeal lacks merit.

CONCLUSION

64    In my view the appeal should be dismissed, with costs to follow the event.

Associate:

Dated:    7 December 2015