Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
The principle was applied in the context of s 44(1) by Branson J, with whom Spender and Nicholson JJ agreed, in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522. The issue was whether an employee had suffered an "injury" within the meaning of s 4(1) of the Safety, Rehabilitation and Compensation Act. Her Honour at [26], having pointed out that it was not suggested that the word "injury" was used in other than its ordinary or common meaning, concluded that the question was one of fact. In the present case it was accepted that the term "mental injury" was used in the same way. 64 Branson J went on to point out that a finding of the Tribunal that a particular condition of an employee's body was not an "injury" may be unlawful, and therefore subject to judicial review, because of a failure by the Tribunal to comply with the law, as for example by failing to take into account a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1985) 162 CLR 24 at 39; Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5. 65 But such a situation does not mean, or at any rate necessarily mean, that an appeal under the Administrative Appeals Tribunal Act from such a decision of the Tribunal is " on a question of law" so as to satisfy the requirement of s 44(1). In such a case there is no question of law. The law is clear. The Tribunal must take relevant considerations into account. 66 Returning to the present case, the alleged questions in Mr Farnaby's amended notice of appeal do not show that the appeal is on questions of law. There is no doubt that, as a matter of law, the relevant time for assessing whether Mr Farnaby suffered "mental injury" was as at the lodging of his claim and that it is sufficient that his employment in the Navy was a cause of his injury (if any) even if it was not the only cause. The Tribunal's decision did not suggest the law was otherwise. 67 Strictly speaking these jurisdictional points should have been resolved at the outset of these reasons, with the result that the appeal would be dismissed without further consideration of its merits. However, given the Tribunal's factual findings, there can be no doubt that Mr Farnaby as a vulnerable young lad was badly treated by the Navy. It seemed only fair to him to affirm that, in the light of the arguments before me, the Tribunal's further finding that he did not suffer mental injury as a result, was a proper one made after a careful review of the evidence. 68 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 December 2008 Counsel for the Applicant: K Read Solicitor for the Applicant: FitzGerald and Browne Lawyers Counsel for the Respondent: S P Estcourt QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 December 2008 Date of Judgment: 17 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1911.html