Case: Comcare v Hart (2004) 139 AAR 396 Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
Tribunal then considered whether the claim made by the applicant for his current psychological condition was compensable under s 14 of the SRC Act. It concluded, by reason of the exclusion in the definition of 'injury' in subs 4(1) of the SRC Act that it 'does not include any such disease, injury or aggravation suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment' and by reason of the construction of that exclusion by a Full Court of this Court in Hart v Comcare [2005] FCAFC 16 ; (2005) 145 FCR 29, affirming the first instance judgment of Whitlam J in Comcare v Hart (2004) 139 AAR 396, in particular at [11], [21] and [22], that it was not: [33]. At the outset, counsel for Comcare submitted that none of these questions was a question of law; at best, each of the questions involved mixed questions of fact and law and this was not sufficient to support an appeal pursuant to s 44 of the AAT Act. In this regard, counsel for Comcare referred to what was said by Branson J sitting in a Full Court of this Court in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] [16], with whose reasons Spender J and Nicholson J agreed, namely: '[13] The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). [14] The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]-[47]). The subject matter of an appeal under s 44(1) of the AAT Act 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 made under s 45 of the AAT Act. [15] In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. [16] A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, 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.'