Federal Court of Australia

Abley v Comcare [2025] FCA 194

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision made by the Administrative Appeals Tribunal on 23 May 2024 is set aside and the matter be remitted to the Administrative Review Tribunal, differently constituted, to be decided again according to law.

3.    The Administrative Review Tribunal must consider whether the applicant's employment by the Commonwealth, including up to October 2016, contributed, to a significant degree, to either her alleged fibromyalgia and/or to an aggravation of her alleged fibromyalgia.

4.    The respondent pay the applicant's costs as between party and party of this appeal, as agreed or assessed as per orders 5 and 6 below.

5.    In default of the parties reaching agreement as to the costs payable pursuant to order 4 by 24 April 2025, the costs payable pursuant to order 4 be assessed on a lump sum basis by a registrar acting as a referee after receiving written submissions of no more than three pages and any affidavit from each of the parties in accordance with a timetable to be set by the registrar.

6.    Subject to further order, the question whether the registrar's report as referee should be adopted will be considered by the case managing judge on the papers that were before the registrar acting as referee.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    On 19 June 2024 the applicant appealed from a decision of a member of the Administrative Appeals Tribunal (AAT) made on 23 May 2024, pursuant to s 44(1) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In that decision the AAT affirmed a decision of a delegate of the respondent made on 30 June 2020, which denied liability to pay compensation to the applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), in respect of fibromyalgia claimed to have been sustained by the applicant in January 2016 (Reviewable Decision).

2    The AAT Act was repealed on 14 October 2024: Schedule 17 (item 1) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Provisions). The AAT was then replaced by the Administrative Review Tribunal (ART): Administrative Review Tribunal Act 2024 (Cth). However, pursuant to Schedule 16 (item 25) of the Transitional Provisions, which applies to a proceeding in a court that relates to a decision made, or other thing done, by the AAT that has not been finalised before 14 October 2024, as is the case here, anything the Court could have done in relation to the AAT before that date may now be done in relation to the ART.

3    The hearing of this appeal was listed to take place before me on 9 and 10 April 2025. However, on 6 March 2025 the parties, by their legal representatives, provided the Court with a Minute of Consent Orders, which reflected the parties' agreement that the appeal should be allowed. In accordance with the Court's Practice Note, Consent Orders Involving a Federal Tribunal (GPN-TRIB), the Minute also contained, within a 'notes' section at the foot of the document, a statement of the matters said to justify the making of the proposed orders, giving references to the authorities and the statutory provisions relied upon.

4    Having regard to the notes in the Minute of Consent Orders, and to the decision of the AAT, it was not in dispute before the AAT that the applicant did suffer from fibromyalgia. The sole question before the AAT was whether the applicant's fibromyalgia was an 'injury' for the purposes of s 14 of the SRC Act. For the applicant's fibromyalgia to have amounted to an 'injury' it must have constituted a 'disease': s 5A(1)(a) of the SRC Act. A 'disease' is an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee: s 5B(1) of the SRC Act.

5    There was no dispute before the AAT that the applicant's fibromyalgia was an 'ailment': s 4 of the SRC Act. Accordingly, the issue the AAT was required to determine was whether it was satisfied the applicant's fibromyalgia 'was contributed to, to a significant degree, by the [applicant's] employment by the Commonwealth', for the purposes of s 5B(1) of the SRC Act.

6    The parties agree that the AAT decided to affirm the Reviewable Decision because it was not satisfied that the applicant's fibromyalgia, or an aggravation of that ailment, was contributed to, to a significant degree, by the applicant's employment by the Commonwealth. The parties also agree that this decision was based on a finding of fact that the applicant suffered symptoms of fibromyalgia prior to suffering a right shoulder condition in 2015 in respect of which the respondent had previously accepted liability to pay compensation to her pursuant to s 14 of the SRC Act. The parties further agree that in approaching the matter on that basis, the AAT limited its consideration of the applicant's case to the question of whether her right shoulder condition led to her alleged fibromyalgia condition.

7    However, the scope of the Reviewable Decision was broader than the way in which it was described and then reviewed by the AAT. The parties agree that the Reviewable Decision encompassed the question of whether the applicant's work and/or her treatment in the workplace, up to October 2016, contributed to the triggering, contraction and/or aggravation of her alleged fibromyalgia to a significant degree. On that basis the parties agree that the AAT misconstrued the applicant's claim, which led the AAT to fail to decide the correct issues by not evaluating the entirety of the case that was before it on review. Further or in the alternative, the AAT failed to properly construe the applicant's claim on the review with the consequence that the AAT failed to decide the correct issues and failed to give adequate reasons for decision. The parties therefore agree that the error made by the AAT amounts to jurisdictional error or other error of law which materially affected the AAT's decision, warranting the decision being set aside and the making of orders that there be a further merits review.

8    This Court must be satisfied that the AAT made the alleged jurisdictional error and that it is otherwise appropriate to exercise its jurisdiction to grant the relief sought. That is so notwithstanding the fact that the proper contradictor to the application for judicial review has conceded that the AAT fell into jurisdictional error and the parties have proposed orders providing for relief: see HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 (Stewart, McElwaine and McEvoy JJ), and the cases referred to by the Full Court at [7].

9    I am satisfied that the AAT fell into jurisdictional error. In my view, the AAT misconstrued the scope of the review it was required to undertake and, as a consequence, it failed to decide all of the issues it was required to determine. The AAT carried out its review of the Reviewable Decision on the basis that the sole question for it to determine was whether the applicant's right shoulder condition led to her fibromyalgia condition. However, as the AAT's reasons themselves reveal (at [33]), the decision the applicant sought be reviewed was a decision made by a delegate of the respondent that the applicant's fibromyalgia was not a direct result of her right shoulder condition or of her employment in general. In those circumstances, the AAT was also required to consider whether the applicant's employment by the Commonwealth, including up to October 2016, contributed, to a significant degree, to either her fibromyalgia and/or an aggravation of her fibromyalgia, but it failed to do so.

10    For these reasons, I am of the view that effect should be given to the parties' agreed position and that orders should be made in terms of the consent orders proposed by the parties.

11    Pursuant to s 44(5) of the AAT Act, the Court was empowered to make such orders as it thought appropriate by reason of its decision, including an order affirming or setting aside the decision of the AAT and an order remitting the case to be heard and decided again. As the AAT has now been replaced by the ART, any remittal must now be to the ART: Schedule 16 (item 25) of the Transitional Provisions.

Associate:

Dated:    13 March 2025