Federal Court of Australia

Onassys v Comcare [2022] FCA 90

ORDERS

THE COURT ORDERS THAT:

1.    The Notice of Objection to Competency dated 18 May 2021 be upheld.

2.    The applicant is to pay the costs of the respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 4 May 2021, the applicant instituted an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 April 2021. In its decision, the Tribunal determined, inter alia, that Ms Onassys’ application for review of an earlier determination by the respondent (Comcare) that it is not liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) constituted an abuse of process: Onassys v Comcare (Compensation) [2021] AATA 829. In summary, the Tribunal found, inter alia, that the applicant was seeking to re-litigate claims that had been previously determined and treated as finalised by Comcare.

2    The respondent filed an interlocutory application seeking orders dismissing and/or striking out the applicant’s notice of appeal on the basis that it does not raise a seriously arguable question of law within the meaning of s 44(1) of the AAT Act and fails to comply with r 33.12(2)(b) and (e) of the Federal Court Rules 2011 (Cth) (Rules). Comcare also filed a notice objecting to the competency of this Court on similar grounds.

3    For the reasons below, the notice of appeal is dismissed.

Background

4    The relevant background is set out in the Tribunal’s decision at [1]-[32]. It is not necessary to repeat that background, however, for present purposes it suffices to note that:

(1)    The applicant was employed as a Quarantine Inspector by the former Australian Quarantine and Inspection Service, which was administered by the Department of Agriculture, Forestry and Fisheries (as the department was then known).

(2)    On 1 October 2003, the applicant lodged an application for compensation for a condition described as “depression” which she claimed to have first noticed on 1 October 2003. The applicant indicated that she had not previously suffered from a similar injury or illness.

(3)    On 25 February 2004, the respondent denied liability to compensate the applicant pursuant to s 14 of the SRC Act for post-traumatic stress disorder (PTSD) and anxiety state, on the basis that the exclusionary provisions applied. The applicant never sought a review of that decision.

(4)    On 20 May 2015, the applicant ceased employment with the Commonwealth when she was invalidity retired.

(5)    On 5 March 2020, the applicant made an application for compensation for PTSD, adjustment disorder and major depressive disorder (MDD). In her application, the applicant stated that she first noticed symptoms on 21 January 2003 and first sought treatment on 8 October 2003.

(6)    On 15 May 2020, the respondent determined that it was not liable to compensate the applicant, pursuant to s 14 of the SRC Act, because the respondent had previously denied liability to compensate the applicant for PTSD and psychological injuries.

(7)    On 15 May 2020, the applicant sought a reconsideration of that decision.

(8)    On 17 June 2020, the respondent affirmed the decision on the basis that, inter alia, the applicant was, in effect, attempting to re-litigate issues which had been the subject of previous determinations (the reviewable decision).

(9)    On 23 June 2020, the applicant made an application to the Tribunal for review of the reviewable decision.

5    As the Tribunal noted, the applicant has also made a number of other related worker’s compensation claims in respect of her employment with the Commonwealth which have had varied outcomes.

6    The Tribunal identified at [41] three issues for its consideration:

(a)    whether the Applicant should be permitted to re-litigate her claim for workers compensation which the Respondent denied on 25 February 2004, and which the Respondent has since treated as finalised;

(b)    if the Applicant is so permitted, whether the Applicant gave notice in writing of her claimed injuries as soon as practicable after she became aware of them, as required by section 53 of the SRC Act, and, if not, whether the Respondent is prejudiced as a result; and

(c)    whether the Tribunal has jurisdiction to deal with the Applicant’s claim that she suffered multiple aggravations of the mental ailments she sustained or first noticed in January 2003.

7    In respect to the abuse of process issue, the Tribunal found:

[48]    On examination of the documentation, the Applicant’s claim made in March 2020 is in relation to precisely the same conditions for which she sought compensation in 2003. There is a very clear explanation at [20]-[32] of the decision as to why compensation was denied at that time. Accordingly, as of February 2004, the Applicant was not entitled to compensation.

[49]    It is significant in my opinion that the Applicant did not seek a review of the decision at that time. Accordingly, the Respondent was entitled to act on the basis that the matter had been dealt with and the question was settled. The Applicant cannot agitate the same matters in 2020 in the hope of a more favourable decision being made. To do so would in my opinion clearly amount to an abuse of process within the terms of section 42B(1) of the AAT Act.

[50]    There is no issue estoppel in this matter (Commonwealth v Snell [2019] FCAFC 57). If the Applicant has new information, or is suffering from a different set of ailments, she is at liberty to make a further application. The report of psychiatrist Dr Michael Hong dated 25 September 2015 would suggest that this is not the case. At page 6 of the report, Dr Hong notes:

Ms Onassys reported having suffered physical injury and chronic pain. However it was the way she perceives she has been treated in the workplace, that has been particularly distressing for her, leading to the onset of significant psychological symptoms by 2004. Ms Onassys has not fully recovered since that time. Over time, there has been a diagnosis of Post Traumatic Stress Disorder; however, I did not identify the type of trigger or psychological response that would fulfil the DSM-IV or DSM-5 criteria of the PTSD condition.

[51]    In addressing the issue of the Commonwealth and unfairness, and of it being entitled to rely on a decision, it is not difficult to see how the respondent may face significant prejudice if the Applicant were allowed to relitigate claims dealt with in 2004.

[52]    It may be difficult to relocate the relevant witnesses, and in any event, it is likely that the recollection of those witness may have faded with the effluxion of time. This is illustrated by the evidence of Ms Beverley Smith, who says at [7] in her Statement of 17 February 2021 that her recollection of the events in question is poor:

…I believe that Mr Sinclair would have advised me of this allegation and that would have commenced the formal investigation, but I do not have any recollection of this

[53]    Documents may have been destroyed, or simply no longer be available. Many former employees may simply be uncontactable.

[54]    These issues were set out clearly by the then President of the Tribunal, O’Connor J in the decision in Quinn and Australian Postal Corporation [1992] AATA 668.

[55]    With regard to the matter at hand, the critical issue in the legislation is the causal link between the injury occasioned and the employee’s employment. The Comcare delegate’s decision dated 25 February 2005 explicitly dealt with this issue at page 9, finding that an exclusionary provision of the Act precluded Comcare from liability on the basis that the stress symptoms of the Applicant were a result of the reasonable disciplinary action taken against her in relation to a breach of the employee Code of Conduct.

[56]    The Applicant cannot for reasons of fairness and public policy in not allowing open-ended litigation, re-litigate exactly the same issue that has been previously fully canvassed and decided.

[57]    On the basis of the evidence available to the Tribunal, I find that the applicant is seeking to re-litigate an issue that was previously determined in 2004 and that this would constitute an abuse of process in the terms of section 42B(1)(c).

8    In respect to the jurisdiction issue, the Tribunal concluded:

[60]    The second issue raised in this matter related to jurisdiction of the Tribunal, and although it is unnecessary for me to deal with that issue, I note that there is clear authority in the matter of Mununggurr v Comcare [2020] FCA 1786.

[61]    It is clear from this decision that the powers of the Tribunal are powers to review decisions that have already been made.

[62]    The starting point for the Tribunal therefore, is the decision in 2020 in response to a claim by the applicant in respect of injuries suffered in 2003. This was the claim before the Comcare officer. It did not refer to aggravation and the decision maker concluded that what was to be decided was in fact an attempt to re-litigate claims which had been settled in 2004. Some of the claims the Applicant now seeks to make, were not made in the claims before the decision-maker in 2020 and accordingly, were never considered.

[63]    The proper course for the Applicant is to lodge a new application, but she cannot make a request to the Tribunal to determine issues that were never raised with the original decision-maker. Such a course is entirely outside the remit of the Tribunal. Accordingly, even if the decision in relation to abuse of process were not to be upheld, the Applicant’s claim must fail for want of jurisdiction.

9    On 4 May 2021, the applicant filed a notice of appeal in this Court, together with an annotated copy of the Tribunal decision.

10    On 18 May 2021, the respondent filed an interlocutory application seeking orders that the notice of appeal be dismissed on the basis that it fails to comply with r 33.12(2)(b) and (e) of the Rules. In that application, the respondent contended that the notice fails to state: (i) the precise question or questions of law to be raised on the appeal; and (ii) briefly, but specifically, the grounds relied on in support of the relief sought. The respondent also filed a notice of objection to competency, of the same date, which alleges, inter alia, that the notice of appeal does not raise a “seriously arguable question of law” for the purposes of s 44 of the AAT Act.

11    The applicant was unrepresented in these proceedings.

Legal principles

12    A party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding: s 44(1) of the AAT Act.

13    Rules 33.12(1) and (2) of the Rules relevantly provide that:

33.12 Starting an appeal—filing and service of notice of appeal

(1)    A person who wants to appeal to the Court under the AAT Act must file a notice of appeal, in accordance with Form 75.

Note:    The notice of appeal must be filed within the time mentioned in section 44(2A) of the AAT Act, being not later than the 28th day after the day that a document setting out the terms of the decision is given to the person.

   (2)    The notice of appeal must state:

(a)    the part of the decision the applicant appeals from or contends should be varied; and

(b)    the precise question or questions of law to be raised on the appeal; and

(c)    any findings of fact that the Court is asked to make; and

(d)    the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and

(e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.

Note:    The Court can only make findings of fact in limited circumstances—see section 44(7) of the AAT Act.

14    The end to be sought by r 33.12(2)(b) is to have the question of law stated with sufficient precision: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [91]. The provision, together with s 44 of the AAT Act, is intended to inject a sense of discipline and precision into the applicant’s formulation of the question of law to be determined by the Court: Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 at [29]. The reason that the notice of appeal must specify the question of law with precision is that an appeal under s 44 of the AAT Act must be on a question of law and the scope of the appeal is confined to the question of law raised: Haritos at [62]. The function of the requirement in r 33.12(2)(e) is different to r 33.12(2)(b), and is namely to “indicate how the appellant relies on the stated questions of law to support the orders sought on appeal”: Delis v Tax Practitioners Board [2016] FCA 570 at [25], citing Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 133 FCR 290 at [47]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 (Osland (No 2)) at [21]. I note that non-compliance with r 33.12(2) is not determinative of whether the appeal is competent: Berry v Commissioner of Taxation [2015] FCA 1244 at [29].

15    The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to strike out a notice of appeal under s 44 where the notice fails to state a question of law: Haritos at [96], citing Bittmann v Australian Securities and Investments Commission (No 2) [2006] FCA 1786 (Bittmann) at [12].

16    In Bittmann, Kenny J at [12] observed that:

In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17], Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou, Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.

17    In cases such as the present, the question is relevantly, whether or not the grounds of appeal cannot even arguably be said to raise a question of law for the purposes of s 44: see Palassis v Commissioner of Taxation [2011] FCA 1305 (Palassis) at [28].

18    In Haritos at [62], the Full Court summarised the position in respect to s 44 as follows:

(1)    The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe (1986) 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Etheridge; HBF Health Funds and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

19    Whether a notice of appeal contains a question of law is an issue of substance and not form. In cases of doubt, the Court will consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, the Tribunal’s reasons for its decision and, having considered all those matters, satisfy itself that there is in fact a question of law: Haritos at [94]. If the question, properly analysed, is not a question of law, no amount of formulary can make it into a question of law: Haritos at [92].

20    An appeal “on a question of law” has been held to include: (1) whether the Tribunal has identified the relevant legal test; (2) whether the Tribunal has applied the correct legal test; (3) whether there is any evidence to support a finding of a particular fact; and (4) whether facts found fall within a statute properly construed: Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 at [13].

21    The fact that an appellant is unrepresented is a relevant matter to be taken into account: see for example, Chen v Secretary, Department of Social Services [2019] FCA 1155 at [35]; Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058 at [13]. The notice of appeal should be read fairly and as a whole, particularly in cases involving unrepresented parties: Haritos at [104], citing Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77]. Where as a matter of substance a question of law exists, the Court has a procedural discretion to grant leave for an amended notice of appeal to be filed: Haritos at [107]. In appropriate cases, the Court may reframe the questions relied upon so as to give precision to an inelegantly specified question of law, however care must be taken, especially in the face of an objection to competency, not to “visit on a respondent party a judicially attractive question of law which the notice does not fairly raise”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11]; Rana v Repatriation Commission [2011] FCAFC 124 at [14].

22    The role of the Court is not to conduct a merits review: Kara v Comcare [2011] FCA 951 at [31], citing Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. The Court is not at liberty to find the facts on which a question of law might emerge, nor is it sufficient to merely assert that the Tribunal erred in law in making a particular finding: Palassis at [30]. Even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law: Australian Postal Corporation v Edwards [2014] FCA 1348 at [39]. The decision as to what evidence is to be accepted is a matter for the Tribunal and it is not the function of this Court to review the Tribunal’s factual findings and to substitute its view of the facts for those of the Tribunal: Comcare v Moon [2003] FCA 569 at [33].

Questions of law

23    There are three purported questions of law specifically identified by the applicant in the notice of appeal. These questions are:

1.    AAT Tribunal acted in bad faith and denied procedural fairness to the applicant, which is a breach of Administrative Appeals Tribunal’s Act 1975, S(44)

2.    AAT failed to comply with Administrative Appeals Tribunal Act 1975, S43(1) by not dealing in full with Comcare’s Decision and only considered a small part of it, and

3.    AAT failed to comply with section 43(2) of Administrative Appeals Act 1975 by providing wrong and inaccurate reasons for its findings.

24    Six grounds are relied upon in support of the appeal. In summary, the applicant contends that the Tribunal made several errors of law and that this contributed to the Tribunal making the “wrong” decision. The six grounds are drafted as follows:

A)    The Judge has inserted a false information, which is a representation of a an untrue fact, and the statement was made intentionally without The Judge taking reasonable steps to ascertain or not if the information that came out of nowhere is true or not. More, the information is highly prejudicial to the Applicant. "Falsification of facts" at summary judgment is judicial misconduct.

B)    The Judge has not read the file and taken a correct chronology of events and in this has denied procedural fairness to The Applicant.

C)    The Judge has incorrectly interpreted the statute relevant to the proceedings.

D)    The Judge has not read all the documents attached.

E)    In becoming an advocate for The Respondent, instead of having the moral courage to adjudicate fairly and justly the file, the judge has breached the trust in confidence place in him.

F)    The Judge has the job of dealing with Comcare’s Decision 867503/5 and AAT file 2020/4044 in full, as all documents have been sent to Comcare.

25    The purported questions of law and grounds referred to above are recited without the considerable commentary in the document.

26    In support of the grounds, the applicant annexed an annotated copy of the Tribunal decision. This document consists of the applicant inserting her comments (sometimes lengthy) in the decision after various paragraphs contained therein. In this document, the applicant raises a number of purported factual inaccuracies in the Tribunal’s findings and was critical of the conduct of the respondent and of the Tribunal. These criticisms arguably generally relate to some of the grounds relied upon in the application. In that annotated decision, the applicant also raises a separate contention that the Tribunal’s findings were unsupported by evidence, citing, for example, Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 (Kostas). I will address that aspect further below.

27    At the hearing, the applicant also submitted that the most important error of law committed by the Tribunal concerned the issue of jurisdiction. That submission is addressed briefly below.

28    The respondent, being the model litigant and doing the best it could, submitted that the applicant’s notice of appeal suggested the following questions of law:

(1)    that the Deputy President of the Tribunal acted in bad faith (Grounds A and E appear to relate to this contention);

(2)    a denial of procedural fairness by the Tribunal (Grounds B and D may relate to this contention, and Question 1);

(3)    (arguably) that the Tribunal failed to ask itself the right questions or make findings necessary to dispose of the matter (Question 2 may relate to this); and

(4)    (arguably) that the Tribunal provided inadequate reasons for its decision (Question 3).

29    That said, the respondent submitted that while each of the questions summarised above could, theoretically, amount to a question of law for the purposes of s 44(1), the notice of appeal does not raise a seriously arguable basis upon which such questions of law could arise, and at the very least, fails to do so with sufficient precision as required by the Rules.

30    The questions as framed by the respondent are a useful amalgam of the questions of law posed and grounds relied upon by the applicant. They take the content of the notice at its highest, or most favourable to the applicant. Although, generally speaking, questions of law are not to be distilled from the grounds of appeal: Osland (No 2) at [21], issues of form should not prevail over matters of substance: Haritos at [105]. That is particularly so in the case of an unrepresented litigant.

Consideration

31    This is a matter that goes to the competency of this Court to determine an appeal from the Tribunal on a question of law under s 44(1) of the AAT Act and to the clarity with which those questions of law are expressed in compliance with the Rules.

32    The respondent submits that the notice of appeal should be dismissed and/or struck out because it does not: first, raise a seriously arguable question of law for the purposes of s 44 of the AAT Act; second, precisely state the question or questions of law to be raised on the appeal and therefore fails to comply with r 33.12(2)(b); and third, state briefly, but specifically, the grounds of appeal relied on and therefore fails to comply with r 33.12(2)(e).

33    I am mindful of the difficulties faced by an unrepresented party in this Court when attempting to file appropriate documents and make submissions. I have taken that into account when considering the manner in which the applicant made her submissions and the respondent’s application to dismiss the appeal: see AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at 44-47; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37].

34    Nonetheless, the respondent’s submissions are to be accepted.

35    Many of the submissions quarrelled with findings of fact made by the Tribunal. Properly read, the applicant’s submissions do not elucidate the purported questions of law nor do they grapple with the issue of whether or not there is a seriously arguable basis for those questions. The applicant’s submission does not meaningfully engage with the respondent’s contentions. Needless to say, I have considered the applicant’s submissions in my decision to the extent that they are relevant.

36    At the outset, I note that at least on its face the notice of appeal arguably does raise some issues that are capable, in theory, of constituting questions of law for the purposes of s 44(1) of the AAT Act. The respondent accepted that this was the case. The issue however is whether, as a matter of substance, the notice of appeal discloses an arguable basis on which these alleged questions of law arise. If not, then the notice of appeal is liable to be struck out.

37    There is considerable overlap between the grounds of appeal. However, at its heart, the thrust of the applicant’s case is that the Tribunal made a number of so-called errors of law and, therefore, the decision is “wrong”. As a result, the applicant says that the Tribunal’s decision should be quashed and her compensation claim should be reconsidered by a judge of this Court. The errors of law that are said to arise on the appeal are primarily underpinned by supposed factual inaccuracies contained in the Tribunal’s reasons. These are identified in the annotated Tribunal decision and elaborated on in the applicant’s submissions. This was the focus of the applicant’s complaints. Properly read, many of these criticisms are, as a matter of substance, essentially directed at the merits of the applicant’s compensation claim. It is not a sufficient basis on which a question of law arises for the purposes of an appeal under s 44(1) of the AAT Act.

38    I am satisfied that the notice of appeal does not raise a question of law and nor are the questions and grounds relied upon stated with sufficient precision as required by the Rules. The connection between the grounds of appeal and the purported questions of law, recited above, is not apparent or explained in any detail. The relationship between the myriad of complaints made in the annotated Tribunal decision and the grounds of appeal is also unclear. Even leaving aside that the annotated Tribunal decision is not a proper manner in which to articulate questions of law or grounds of appeal, it does not do so. Rather, it reflects that the focus of the complaints is the applicant’s disagreement with the Tribunal about factual matters.

39    For completeness, I will address the basis for each of the purported questions of law raised by the applicant in her notice of appeal.

Bad faith

40    As to the allegation of bad faith, the respondent submitted that this is a very serious allegation that must be clearly alleged and proved, citing a number of authorities, including SBBS v Minister for Immigration and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 (SBBS) at [43]-[48]. It was submitted that the applicant’s assertions were vague, unspecified and unsupported.

41    The applicant alleges that the Tribunal acted in bad faith and/or engaged in judicial misconduct. Grounds A and E in the notice of appeal seem relevant to this contention, although the relationship between these grounds and the purported question of law is not articulated. In summary, the applicant appears to contend that the Tribunal acted in bad faith because it made inaccurate findings of fact and did not properly read the file or consider all of the evidence. It is also alleged that the Tribunal member intentionally falsified and fabricated evidence or did not take steps to verify the accuracy of evidence.

42    It is apparent that the submission of bad faith is based on the applicant’s disagreement with the Tribunal’s conclusions.

43    As the respondent correctly submitted, an allegation of bad faith is an extremely serious allegation involving personal fault by the decision-maker: SBBS at [43]. It should not be lightly made and must be clearly alleged and proved: SBBS at [44]. The applicant has not provided anything that would suggest that it would even be arguable that the Tribunal member acted dishonestly, recklessly, capriciously or for an improper purpose. It is plainly evident that these are bare assertions. No plausible justification for the allegation of bad faith emerges from the notice of appeal. Moreover, it does not follow that, even if the Tribunal had made an error of fact or law, that this would constitute misconduct or bad faith in the circumstances of this case: SBBS at [46]. As the Full Court noted in SBBS at [45]:

…mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.

44    I am satisfied that there is no seriously arguable basis upon which it is said by the applicant that such a question of law could arise and that the question and grounds as framed are not compliant with the Rules.

Procedural fairness

45    In respect to the alleged denial of procedural fairness, the respondent submitted that the obligation to afford procedural fairness requires that a person know the substance of the case against them and be given an opportunity to respond to any information that is credible, relevant and significant: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 629. Whether procedural fairness has been afforded is a matter of “practical injustice” Kioa at 584-585, 612-613; Lidono Pty Ltd v Federal Commissioner of Taxation [2002] FCA 174; (2002) 191 ALR 328 at [17]; Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [90]. Contrary to the applicant’s assertion, a mere failure to consider all material before the Tribunal does not of itself demonstrate a denial of procedural fairness or any other legal error. The Tribunal is not obliged to take into account all evidence before it in making its decision nor must it specifically deal with evidence that is not material, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) at 39-42 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [35] and [69]. That a matter is not specifically referred to in the Tribunal’s reasons does not necessarily mean that the Tribunal did not consider it: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [31].     

46    The applicant alleges that the Tribunal denied her procedural fairness, it appears on the basis that the Tribunal did not read all of the material and failed to take an accurate chronology of events. The argument is very closely related to the issues previously discussed. Grounds B and D appear to be relevant to this issue. This submission also overlaps with Ground A and possibly Ground E, which are discussed above. Those grounds are recited above at [25].

47    In connection with Question 1, recited above at [23], and Ground D, the applicant refers to Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530 and Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 (Wonson) at [34], seemingly to argue that the Tribunal’s treatment of the evidence lacked a logical basis and/or rational probative force. The relevance of those cases to the circumstances of this case is not explained. Nor is any clear explanation proffered as to how this ground could be made out. I note that the characterisation of a decision as being legally unreasonable because of illogicality or irrationality is not easily made: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [29]-[35].

48    As explained above, the applicant, particularly through the annotated decision identifies what she says are inaccurate factual findings. Some at least are asserted by the applicant to have come about because the Tribunal did not consider relevant matters or material. It appears that the purported inaccuracies and the failure to refer to other material which the applicant asserts is relevant, is the basis of this claim.

49    However, as the respondent correctly submitted, a mere failure to consider all documents that were put before the Tribunal or to take a correct chronology of events does not in and of itself amount to a denial of procedural fairness (or any other error of law, such as a failure to consider a submission of substance). The Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146] per Kenny J, cited with approval in Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 at [68]; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (ABT v Bond) at 356 per Mason CJ. There is nothing in the AAT Act, SRC Act or any other relevant legislation that makes all evidence before the Tribunal something it is bound to take into account: see Peko-Wallsend at 39-42. The Tribunal is not required to specifically deal with evidence it does not consider material to the reasons for its decision: see Yusuf at [35] and [69], and the fact that a document is not specifically referred to does not mean that it was not considered: see SZGUR at [31]. It follows that the notice of appeal does not disclose an arguable basis on which the question of law arises.

50    Moreover, and as the respondent submitted, the duty to afford procedural fairness requires, inter alia, that the Tribunal provide the applicant with an opportunity to be heard and to respond to information that is credible, relevant and significant. The applicant has not clearly articulated any arguable basis on which it is alleged that this duty may have been breached or that any practical injustice was occasioned.

51    I am satisfied that there is no arguable basis on which this question of law arises.

Misapplication of statute

52    The respondent accepted in theory that the misinterpretation of a statute could constitute a question of law. However, the applicant has not articulated what statute the Tribunal has allegedly misconstrued.

53    The applicant contends that the Tribunal has misapplied the relevant statute (see Ground C recited above at [24]).

54    In connection with Ground C, the applicant argues:

Comcare's decision was in front of the Tribunal to be reviewed and based on the review, The Judge had the power to take a decision that was informed and based on the letter of the law. If The Respondent wanted something, it should have been done by the Delegate, not after the decision is sent to The Applicant and filed in Court. By the way it looks, we start to modify decisions to fit the strongest and more influential party.

Comcare’s Delegate has received the file Ref no 867503/5, containing documents starting from the incident in 2003 till 2004 and has rejected it. The file then became AAT 2020/4044 and the Tribunal’s role was to review the Decision.

55    Here, the applicant refers to the decision of the New South Wales Civil and Administrative Appeals Tribunal in Edgely Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAP 37. Some general information about the role of the Tribunal in conducting merits review is also recited. Again, these references are not explained nor is their relevance to the circumstances of this case readily apparent.

56    No statute is specifically identified. No explanation is provided (either in the notice of appeal or elsewhere) as to how the Tribunal is alleged to have misapplied any applicable legislation. This contention is no more than a bare assertion.

57    I accept the respondent’s submission that the notice of appeal does not disclose a seriously arguable basis on which the question of law is said to arise nor is it framed with sufficient precision in compliance with the Rules.

Section 43 - AAT Act

58    The two questions posed by the applicant that are related to s 43 of the AAT Act are recited above at [23].

59    The respondent submitted that allegedly “wrong and inaccurate” reasons cannot be equated with a failure to comply with the duty contained s 43(2B) of the AAT Act, citing Yusuf at [67]-[68] and Yao v Minister for Immigration and Border Protection [2014] FCAFC 17 at [42]-[44]. The respondent did not directly address the contention concerning s 43(1).

60    Turning first to s 43(1). It is not clear how it is said the Tribunal has breached this section. The applicant seems to be making a general assertion that the Tribunal failed to exercise its powers in considering Comcare’s decision under review. However, notwithstanding the obvious issues that arise from such an unspecified contention, that was not the ultimate issue before the Tribunal, which was relevantly whether or not the application for review should be dismissed pursuant s 42B(1)(c) as an abuse of process. The Tribunal did not decide on the merits of the applicant’s claim for compensation. The notice of appeal, properly read, does not disclose any question of law arising under s 43(1).

61    The second aspect of this challenge is made under s 43(2). A failure to comply with the duty in s 43(2) and the standard in s 43(2B) can be a question of law: see Wonson at [42], however, as the respondent submitted, there is no arguable basis disclosed in the notice of appeal on which it can be said the Tribunal has failed to comply with this duty. The possibility that the Tribunal may have made an error of fact or decided “wrongly” on a particular issue, without further explanation, does not make that so. Regardless, the basis on which it is said by the applicant that the Tribunal’s reasons are inadequate such that this gives rise to an error of law is not clearly apparent. I note also that the Tribunal’s reasons are detailed and considered.

62    I am satisfied that the notice of appeal does not state, with sufficient precision, a seriously arguable basis on which these questions of law are said to arise.

No evidence

63    As foreshadowed above, this issue was not specifically stated as a question of law or separate ground in the notice of appeal. Rather, the contention was described on the second last page of the annotated Tribunal decision. It is closely related to the other grounds relied upon by the applicant. Nevertheless, for completeness I will separately address this contention, owing to the fact that the applicant is unrepresented and the contention could, at least in theory if properly pleaded, raise a question of law for the purposes of s 44(1).

64    Whether a fact is supported by evidence is a question of law: see ABT v Bond at 355; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [83] per Jagot J, citing Kostas at [91]. However, a factual finding based on no evidence must usually be of a “critical” fact in order to constitute a jurisdictional error: ABT v Bond at 355-357. “No evidence” has “traditionally meant not a skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at [17]. Precision is therefore important to identifying the nature of the factual finding under challenge: Darin v Olzomer [2012] NSWCA 60 at [23] per Basten JA.

65    As previously discussed, the applicant identified numerous purported factual errors throughout the Tribunal’s reasons, some of which would presumably be relied upon to support this ground. It is difficult to discern from this submission which, if any, of the Tribunal’s findings are said by the applicant to be unsupported by evidence as opposed to those which are merely purported factual inaccuracies. There is no error of law in simply making a wrong finding of fact. Further, the applicant has not articulated with any precision which findings said to be unsupported by evidence (if any) are material.

66    I also note that the applicant’s criticism that the Tribunal’s failed to apply Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 is, in the circumstances of this case, misguided, given that the Tribunal is not bound by the rules of evidence: AAT Act, s 33(1)(c); see Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [115] per Flick and Perry JJ. The notice of appeal and submissions contain other similarly misguided criticisms regarding the Tribunal’s treatment of the evidence and the sufficiency of proof that is required for the Tribunal to be satisfied of certain matters.

67    For these reasons, I consider that there is no seriously arguable basis on which this contention could give rise to a question of law, nor has such an allegation been articulated with sufficient precision as required by the Rules.

Jurisdiction

68    As noted above, the applicant took issue at the hearing with the Tribunal’s decision with respect to jurisdiction. She submitted that [revised from transcript]:

…the most important question that the judge had to ask in his decision was concerning the jurisdiction. If you look at the three questions that the judge answers, all question 3, he says that AAT has jurisdiction.

…

The error of the law being the most important the jurisdiction. Question 3 clearly stipulates the AAT had jurisdiction, and its misconduct and denying procedural fairness in the moment when this has not been given, as in [Wonson v] Comcare. All the effect that this happened [was it is a] jurisdictional error. And I would appreciate if your Honour would let me present my case in front of the judge and let the file go for its merits.

69    Question 3 is referred to above at [6]. The Tribunal’s findings on this issue are summarised above at [8].

70    The applicant’s submission is based on a misunderstanding of the Tribunal’s reasons. The Tribunal at [41] is framing the issues that arise for its consideration. It is not a recognition that it has jurisdiction to deal with the merits of Ms Onassys’ claims. The Tribunal ultimately considered, at [60]-[63], in answering this question, that it lacked jurisdiction to deal with certain aspects of the applicant’s claims.

71    In reply, the respondent, inter alia, submitted that the notice of appeal does not raise an arguable basis on which this question of law is said to arise. That is correct. Indeed, the notice of appeal does not clearly raise any challenge that the Tribunal’s findings on jurisdiction involved an error of law. In any event, even if the Tribunal had considered that the claim fell within its jurisdiction, the respondent correctly submitted that is not inconsistent with the Tribunal determining that the claim was an abuse of process.

Leave to file an amended notice of appeal

72    I recently summarised the general principles in respect to granting an applicant leave to replead (in the context of a strike out application) in Webb v Commonwealth of Australia [2021] FCA 1215 at [40].

73    The respondent submitted that in the circumstances, leave to replead should be refused. I am satisfied, as the respondent submitted, that the defects in the notice of appeal go beyond mere issues of form. They are issues of substance. There is no seriously arguable basis for the grounds of appeal and so-called questions of law relied upon. The notice of appeal would need to be substantially re-written in order to be made compliant with the Rules and s 44(1). In effect, an entirely new notice of appeal would need to be prepared. Notwithstanding that the applicant is unrepresented, I do not consider it appropriate in those circumstances and having regard to the principles in s 37M of the FCA Act to grant leave to the applicant to replead this notice of appeal.

Conclusion

74    For the reasons stated above, the notice of appeal does not disclose a seriously arguable basis on which a question of law arises, nor are any such questions of law articulated with sufficient clarity, as required by s 44(1) of the AAT Act and the Rules respectively. Accordingly, the Notice of Objection is upheld, and the notice of appeal is struck out, without leave to re-plead.

75    In respect to a costs order, the applicant submitted the Court should take into account some financial circumstances which she detailed. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: Northern Territory v Sangare [2019] HCA 25, (2019) 265 CLR 164 (Sangare) at [24]-[25]. A litigant’s impecuniosity is not a basis for some other order being made: Sangare at [36]. The applicant is to pay the respondent’s costs to be agreed or assessed.

Associate:

Dated:    15 February 2022