Case: Comcare v Etheridge [2006] FCAFC 27
Outcome: cited
The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 8 At the first directions hearing I drew the attention of Mrs Brown's counsel to the fact that there were recent Full Court authorities touching on appeals under s 44(1) of the AAT Act and referred him to the Etheridge judgment in particular. There was an exchange between us concerning the proper formulation of a question of law, the requirements of O 53 r 3(2) of the Federal Court Rules and the alternative source of jurisdiction provided by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). Counsel disavowed any wish to rely on the ADJR Act but sought, and was granted, leave to file and serve an amended notice of appeal pursuant to s 44(1) of the AAT Act. 9 The amended notice of appeal purports to identify the following questions of law: '2.1 Whether the Tribunal, in determining that the death of the veteran within the meaning of "death" in sections 8 and 120 of the Act, and the only kind of death within the meaning of "kind of death" in section 120A of the Act, was from non-Hodgkins lymphoma, mistook the evidence given by Dr Edwards. 2.2 Further or in the alternative to paragraph 2.1, whether, on the proper construction of "death" as that term appears in sections 8 and 120 of the Act and "kind of death" as that term appears in section 120A of the Act, and given purported reliance by the Tribunal upon the evidence given by Dr Edwards, the meaning of those terms necessitated the Tribunal finding that the "death" and/or "kind of death" of the veteran was or included death from pneumonia-related infection. 2.3 Whether the Tribunal afforded procedural fairness to the parties when it decided that the veteran had suffered a "kind of death" different from the "kind of death" put to it by the parties.' 10 As counsel for the applicant conceded at hearing, question 2.1 is not a question of law. What was the understanding of the Tribunal on any issue is a question of fact. It is not appropriate for the Court on an appeal under s 44(1) to undertake a comparison of the Tribunal's understanding of a particular issue with the evidence adduced before it for the purpose of determining whether the Tribunal misunderstood the evidence. Question 2.1 is therefore incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 11 Question 2.2 is not easy to understand. It appears to involve some questions of law; ie the proper construction of statutory expressions. However, it also appears to call for an evaluation of the evidence given by Dr Edwards. It is thus a mixed question of fact and law and, for this reason, not a question of law within the meaning of s 44(1) of the AAT Act (see Etheridge at [16]). Therefore, it is also incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 12 Question 2.3 is intended to raise for consideration whether the decision of the Tribunal should be set aside because the Tribunal: (a) was obliged to afford Mrs Brown procedural fairness; and (b) failed to do so in that it reached the conclusion that the kind of death suffered by Mr Brown was non-Hodgkin's lymphoma when that conclusion was not urged on the Tribunal by either Mrs Brown or the Repatriation Commission. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].