Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: applied
appeal "on a question of law" is narrower than an appeal that merely "involves" a question of law. Where an appeal lies "on a question of law", the subject matter of the appeal is the question of law stated as required by Order 53 r 3(2)(b): Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11] and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] . Section 44(1) of the AAT Act limits the capacity of the Court to review factual findings of the Tribunal. The subject matter of the appeal is, (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law), of the same character as the subject matter of a reference of a question of law to the Court under s 45 of the AAT Act: Etheridge 149 FCR at [14]. A mixed question of fact and law is not a question of law within s 44(1). Order 53 r 3(2) requires a question of law to be stated with precision as a pure question of law. It is in the specification of the grounds relied on in support of the orders sought that one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Etheridge 149 FCR at [16]. The questions of law said to be raised by the appeal are stated in the notice of appeal as follows: (a) Whether the Tribunal properly applied the provisions of the relevant Statement of Principles concerning Depressive Disorder being instrument number 58 of 1998 ("the SoP"); (b) whether the Tribunal has given any or any adequate reasons for its conclusions in relation to depressive disorder; (c) whether the Tribunal failed to consider all of the material and evidence before it when identifying the factual foundation upon which the Tribunal relied in reaching its decision in relation to depressive disorder; (d) whether it was open to the Tribunal to be satisfied beyond reasonable doubt on the evidence before it that there was no causal connection between the seasickness experienced by the Applicant on operational service and his war service and resultant depression; (e) whether the Tribunal failed to take into account relevant matters when reaching its decision in relation to depressive disorder; (f) whether it was open to the Tribunal to find that the Applicant's seasickness was not war caused; (g) whether the Tribunal correctly applied the definition of disease and/or injury in s 5D of the Act; (h) whether the depressive disorder as diagnosed could be accepted as war caused under the relevant SoP. The appellant contended that the Tribunal's reasons reveal two questions of law: (1) whether, having identified a stressor fitting within the definition of "severe psychosocial stressor" in clause 8 of the SoP the Tribunal was required to determine whether the stressor was related to service by applying s 196B of the Act, and (2) whether the Tribunal was correct to hold that a pre-existing condition can never give rise to a stressor that is related to service within the meaning of s 196B. It was said that these questions "are capable of falling within" questions (a) and (d) in the notice of appeal. Order 53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).