Case: Lang v Comcare [2007] FCA 47 , 94 ALD 141
Outcome: cited
was also no dispute that the requirement to provide " findings on material questions of fact " does not impose a requirement to make findings on all questions of fact; it is a requirement to set out those findings of fact which a tribunal does make and a requirement to refer to the evidence on which those findings were made. When construing a comparable provision to s 43(2B) as found in s 430 of the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323 considered the requirement to set out " the findings on any material question of fact " and concluded (citations omitted, emphasis in original): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh , significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution . For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. See also: Lang v Comcare [2007] FCA 47 at [53] , 94 ALD 141 at 152. Given a statutory requirement to set out " findings on material questions of fact ", the absence of any reference in the reasons for decision of the Tribunal to those findings of fact material to the decision to be reached may preclude a conclusion that the Tribunal impliedly took various considerations into account: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [27] , [2001] FCA 568 ; 107 FCR 133 at 140. Section 14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ".