Federal Court of Australia

Romano v Comcare [2025] FCA 446

ORDERS

THE COURT ORDERS THAT:

1.    The hearing of the appeal on 4 June 2025 is vacated.

2.    The appeal is allowed.

3.    The decision of the Administrative Review Tribunal dated 5 November 2024 is set aside.

4.    The matter is remitted to a differently constituted Tribunal to make a decision according to law.

5.    The respondent is to pay the applicant's costs of this appeal, as between party and party, as agreed or assessed as per orders 6 and 7.

6.    In default of the parties reaching agreement as to the costs payable pursuant to order 5 by 30 May 2025, pursuant to r 40.02 of the Federal Court Rules 2011 (Cth), the costs payable pursuant to order 5 are to be determined 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.

7.    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    Pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the appellant appeals from a decision of a senior member of the Administrative Review Tribunal (ART) made on 5 November 2024. In that decision, the ART affirmed an earlier decision made by the respondent in which it affirmed a previous determination made on 23 February 2022, declining present liability for medical expenses and incapacity payments under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), respectively (reviewable decision). Relevantly, in affirming the reviewable decision, the ART concluded that the appellant did not, as at 23 February 2022, continue to experience the effect of a lumbar sprain he sustained on 21 December 2005 while employed by the Bureau of Meteorology (lumbar sprain injury).

2    The hearing of the appeal was listed to take place before me on 4 June 2025. However, on 3 April 2025, the parties, by their legal representatives, filed 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.

3    Subsequently, after a case management hearing was convened to discuss the terms of the Minute of Consent Orders, on 29 April 2025 the parties then filed a revised Minute of Consent Orders.

4    As the ART identified in its reasons for decision, there were two issues that it was required to determine:

(1)    whether liability should have been accepted by the respondent on 11 February 2006 in respect of the lumbar sprain injury (first issue); and

(2)    whether, as at 23 February 2022, the applicant still suffered from the effects of the lumbar sprain injury (second issue).

5    The ART resolved the first issue in favour of the applicant, and the parties take no issue with that aspect of the decision. This appeal is concerned with the second issue, which the ART resolved in favour of the respondent.

6    The applicant gave evidence at the hearing before the ART. The applicant also relied on evidence from two medical practitioners: Dr Neroni, who was the applicant's general practitioner, and Dr Suyapto, an occupational physician. Relevantly, Dr Neroni opined in a report dated 17 February 2020 that the applicant's current condition was a result of L4/5 and L5/S1 disc protrusions which were a result of the lumbar sprain injury. Dr Suyapto said in a report dated 11 October 2022 that the applicant's presentation was solely related to the lumbar sprain injury.

7    The respondent relied on evidence from an orthopaedic surgeon, Dr Ghan, and from an occupational physician, Dr Sabetghadam. Dr Ghan expressed an opinion in reports dated 19 September 2018 and 10 July 2023 that that the applicant's employment with the Bureau of Meteorology on 21 December 2005 did not contribute to non-specific musculoligamentous back pain or a worsening of non-specific musculoligamentous back pain to a significant degree, and that it did not continue to contribute to the applicant's ongoing back pain since 2005. In a report dated 25 March 2023, Dr Sabetghadam said that the applicant suffered from an underlying degenerative condition of the lumbosacral spine which would be symptomatic regardless of his occupational duties and social activities.

8    The ART concluded that it would be unsafe to rely on the applicant's 'uncorroborated evidence', particularly in relation to his recollections of 'past injury, aggravations, subjective pain, or incapacity'. Accordingly, to resolve the second issue, the ART was required to determine whether it preferred the opinions of Dr Neroni and/or Dr Suyapto, or whether it preferred the opinions given by Dr Ghan and/or Dr Sabetghadam.

9    After undertaking an extensive summary of the evidence, including the evidence of Dr Neroni, Dr Suyapto, Dr Ghan and Dr Sabetghadam, the senior member of the ART ultimately concluded:

I have considered all of the evidence. To the extent that there is disagreement in the expert evidence, I generally prefer the evidence of Dr Ghan and Dr Sabatghadam [sic].

10    Although the ART expressed this conclusion in the context of its consideration of the first issue, the ART did not give any further reasons for preferring the evidence of Dr Ghan and Dr Sabetghadam at any other place in its reasons for decision. When dealing with the second issue, the senior member of the ART said only:

Having regard to all of the evidence, I am satisfied that at an indeterminate point, but certainly by 23 February 2022, [the applicant] ceased to be suffering from any effects of the original December 2005 injury.

11    While the ART did summarise the evidence of Dr Neroni, Dr Suyapto, Dr Ghan and Dr Sabetghadam, and in so doing it highlighted certain evidence by bolding portions of text, there is nothing in the reasons for decision that indicates why that evidence was highlighted. It is certainly not clear whether the highlighting was intended to indicate that the ART preferred some evidence over other evidence or, if it did, the highlighting did not give any indication as to why certain evidence may have been preferred.

12    In his notice of appeal, the applicant sought to rely on seven grounds of appeal which were said to give rise to five questions of law. Subsequently, the appellant sought to rely on four grounds of appeal and four questions of law. The first question of law concerned whether the ART erred in law by failing to give adequate reasons for its decision. Having regard to the first ground of appeal, that question of law is concerned with the specific issue of whether the senior member erred by failing to give adequate reasons for preferring the evidence of Dr Ghan and Dr Sabetghadam over the evidence of Dr Neroni and Dr Suyapto.

13    The parties now jointly propose orders allowing the appeal because of the agreed error described in the applicant's first question of law and requiring the respondent to pay the applicant's costs of this appeal.

14    This court must be satisfied that the ART made the alleged error and that it is otherwise appropriate to exercise its jurisdiction to grant the relief sought. That is so notwithstanding the proper contradictor to the application for judicial review has conceded that the ART has fallen into error and the parties have proposed orders providing for relief: 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].

15    In Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 at [42] (Katzmann, Anastassiou and Abraham JJ), the Full Court concluded that a failure to meet the standard of reasons required by a statute is an error of law. That case concerned a decision made by the Administrative Appeals Tribunal (AAT) under the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In that regard, s 43(2) and s 43(2B) of the AAT Act then provided as follows:

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

…

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

16    In that statutory context, the Full Court in Wonson said (at [90]-[91]):

The Tribunal's duty to give reasons, however, is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved 'an unwarranted finding of fact, or an error of law, which is worth challenging': Ansett Transport Industries (Operations) Pty Limited v Wraith [1983] FCA 179; (1983) 48 ALR 500 at 507 (Woodward J). Woodward J said in Wraith that the decision-maker must set out his or her understanding of the relevant law, the findings of fact on which his or her conclusions depend, especially if the facts were disputed, and the reasoning processes which led to those conclusions…The Tribunal, no less than a decision-maker whose decisions are covered by the ADJR Act, is required to set out its findings on material questions of fact, the evidence or other material on which those findings are based, and the reasons it had for reaching its decision: Comcare Australia v Mathieson [2004] FCA 212; 39 AAR 450; 79 ALD 518 at [63] (Weinberg J).

As French J explained in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD 103 at [40]:

'The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. There will always be some legal rule or principle or discretion to apply. It may be that a rule or principle, like the major premise of a syllogism, will embody the factual circumstance necessary to give rise to a right or liability. Then it may be sufficient to state that rule or principle in the reasons, the facts found as the minor premise, the evidence on which they are based and, the result which follows. Not all, and perhaps not many results are so easily explained. Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.'

17    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). The AAT was then replaced by the ART.

18    Section 111 of the ART Act applied in the circumstances of this case. That is because the ART made a decision under s 105 of the ART Act in a proceeding for review of a reviewable decision: s 12 and s 111(1) of the ART Act and Part VI of the Safety Rehabilitation and Compensation Act.

19    Pursuant to s 111(2) of the ART Act, the ART was required to give its decision and a 'statement of reasons' for its decision. The phrase 'statement of reasons' is defined in s 4 of the ART Act in the following terms:

'statement of reasons', for a decision, means a written statement in relation to the decision that:

(a)    sets out the findings on material questions of fact; and

(b)    refers to the evidence or other material on which the findings are based; and

(c)    explains the reasons for the decision.

20    Accordingly, it is unambiguously clear that not only was the ART required to provide a written statement in relation to its decision, which contained its findings on material questions of fact as well as references to the evidence or other material on which those findings were based, the ART was also required by s 111(2) of the ART Act to explain the reasons for its decision.

21    I am satisfied that the ART made the error of law identified in the first question of law relied on by the applicant and that it is appropriate to grant the relief sought. The ART failed to explain the reasons for its decision, as required by s 111(2). Specifically, the ART failed to expose the reasoning process that led to it preferring the expert opinions of Dr Ghan and Dr Sabetghadam over the expert opinions of Dr Neroni and Dr Suyapto, concerning a material issue the ART was required to determine, namely, whether the applicant still suffered from the effects of the lumbar sprain injury as at 23 February 2022.

22    Accordingly, effect should be given to the parties' agreed position and orders should be made generally reflecting the Minute of Consent Orders filed on 29 April 2025.

Associate:

Dated:    5 May 2025