Appeal Dismissed: Facts Not Within Jurisdiction

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [RESPONDENT[COMPANY] [2004] FCA 48

ADMINISTRATIVE LAW - Appeal from the Administrative Appeals Tribunal. Question of competency - whether appealable question of law or question of fact. Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Collector of [NAME] v [COMPANY] (1993) 115 ALR 1, followed [APPELLANT] V [RESPONDENT[COMPANY] N 791 of 2003 HILL J 3 FEBRUARY 2004 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 791 OF 2003

BETWEEN: [APPELLANT]

APPLICANT

[RESPONDENT]

RESPONDENT

[APPELLANT] OF ORDER: 3 FEBRUARY 2004

[APPELLANT]

THE COURT ORDERS THAT: 1. the appeal be dismissed 2. no order as to costs Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 791 OF 2003

[APPELLANT]

APPLICANT

[RESPONDENT]

RESPONDENT

JUDGE: HILL J

DATE: 3 FEBRUARY 2004

PLACE: [APPELLANT] FOR

JUDGMENT 1 Mr [APPELLANT] is the applicant in the present proceedings in which he seeks to appeal against a decision of the Administrative Appeals Tribunal constituted by a senior member and given on 6 June 2003. In its decision the Tribunal affirmed decisions of the respondent, [RESPONDENT[COMPANY] ("[RESPONDENT]"), refusing Mr [APPELLANT]'s claim for payment of the cost of therapeutic appliances, refusing his claim for payment of compensation for permanent impairment, and setting aside two previous decisions, one of 18 November 2002 and the other of 2 July 2001, being decisions relating to compensation for neck, back and arm injuries. 2 In his notice of appeal Mr [APPELLANT] stated the questions of law raised on the appeal to be as follows: "1. In denying compensation for the neck and back, the tribunal was incorrect on the facts given for their decision eg, neck, para 43 'was reported as playing competition squash until his bus injury in 1981.' I only played one season of competition squash in my life and that was 'D Grade' in the Autumn pennant in 1984. I have not played since." 3 The document continues with other examples which I do not need to set out here. As I indicated in the course of discussion with Mr [APPELLANT] this court has jurisdiction only to hear an appeal from the Administrative Appeals Tribunal which is on, that is to say, limited to, a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975. The court has no jurisdiction to decide matters of fact which may arise in the course of a review conducted by the Tribunal. 4 Mr [APPELLANT] is not represented in the motion which is brought by the respondent, [RESPONDENT], that his appeal be dismissed on the basis that the Court lacks jurisdiction to determine it. It is the submission of [RESPONDENT] that Mr [APPELLANT]'s appeal involves no question of law. The distinction between a question of law and a question of fact is often very difficult. There is a useful analysis to be found in the decision of the [ADDRESS] of this Court in Collector of [NAME] v [COMPANY] (1993) 115 ALR 1. 5 As is clear from the decision in that case, a question of law would arise if all facts being accepted, only one conclusion is available to be reached and the Tribunal reaches another and different conclusion. A question of law arises in such a case because if no other conclusion is available, it must follow that the Tribunal has made a mistake of law, even if that mistake is not clearly enunciated in the Tribunal's reasons. It is not a question of law that the Tribunal, faced with competing evidence, accepts the evidence of one witness as against another or other witnesses. 6 The three examples which Mr [APPELLANT] gives in his notice of appeal, one of which I have set out, do not of themselves involve any issue of law. The first example which I have set out refers to paragraph 43 of the Tribunal's reasons. In that paragraph the Tribunal says: "We note however, that the symptoms had not persisted since 1975, as the applicant in other reports was reported as playing competition squash until his bus injury in 1981. Evidence adduced to the Tribunal in 1986 was that in 1978 the applicant purchased a 65 foot sloop which he sailed from time to time until 1986. These activities are not consistent with ongoing neck pain." 7 Mr [APPELLANT]'s complaint as to the reference to squash is that he only played one season of squash in his life and that was in 1984. That may very well be true. However, the Tribunal in the paragraph complained of says no more than that there were reports before it that the applicant was playing competition squash until 1981. 8 Counsel for [RESPONDENT] referred me to various pages in reports before the Tribunal that state, as Mr [APPELLANT] would say erroneously, a continuous involvement in squash until some date. It does not seem in fact that the Tribunal was making any finding on the question when Mr [APPELLANT] did or did not play competition squash. Even if the Tribunal however did make a wrong factual finding, but did so on material before it, no issue of law would be involved. The same can be said of the other two matters which are dealt with in the notice of appeal. 9 I asked Mr [APPELLANT] to identify for me what it was that he wished to have argued in the appeal. I did so because I was conscious of his difficulty, particularly because he was unrepresented, in clarifying precisely what the question of law was that arose in the appeal. Mr [APPELLANT] referred to a number of matters. 10 His first complaint was that a tribunal differently constituted had, on a previous time and, as I understand it, on evidence that was not necessarily the same as that before the Tribunal now, found that he was entitled to compensation in respect of the injuries which he claimed to have suffered to his neck, back and elbow. The problem, I explained to Mr [APPELLANT], is that one tribunal is not bound to come to the same conclusion as another, particularly when the evidence before each tribunal may be different. Each tribunal is obliged to come to its own decision on the evidence which is before it. 11 The second matter which Mr [APPELLANT] wished to argue on the appeal was that there was no definite evidence before the Tribunal that he suffered from Scheuermann's disease. In its reasons the Tribunal referred to a report of Dr [APPELLANT], a consultant neurosurgeon, who had examined Mr [APPELLANT] on behalf of [RESPONDENT]. In that report [NAME] said that Mr [APPELLANT], "carries a bit of [APPELLANT] disease at T-9 ...". The report also refers (it may be the same thing or it may be different), to some thoracic Scheuermann's disease. Mr [APPELLANT] tells me that there was a radiography report before the Tribunal which makes it clear, he says, that there was no definite evidence of [NAME] disease. However matters of fact are matters for the Tribunal. There was clearly some evidence before the Tribunal, which it was entitled to accept if it wished to, that Mr [APPELLANT] did have some indication of [APPELLANT] disease. If the Tribunal decided not to accept other evidence to the contrary that was a matter for the Tribunal and involves no issue of law. 12 The next matter raised by Mr [APPELLANT] was that in the course of the conduct of the hearing the Tribunal had, in questions it raised, discounted the fact that he had systemic lupus. In the result, some witnesses gave evidence of Mr [APPELLANT]'s ability to perform certain functions without reference to his systemic lupus. Again, that question does not raise a question of law. That is not suggesting that the Tribunal acted in any way in bad faith in conducting the review, and it was no doubt open to Mr [APPELLANT], had he wished to, to ask other questions of witnesses. In saying this I am conscious of the fact that Mr [APPELLANT] was not represented in the Tribunal either. No question of law, however arises in respect of this matter. 13 The next matter raised by Mr [APPELLANT] was that the Tribunal had not accepted the evidence of Dr [NAME], regarding it as less reliable than the evidence of other witnesses, apparently because of a mistake in a date in the evidence that Dr [NAME] gave. Whether that is an accurate description of what the Tribunal did does not matter for present purposes. It is clear that the Tribunal is entitled to accept or reject the evidence of one medical practitioner and prefer the evidence of another, and its doing so involves no question of law. 14 Finally, Mr [APPELLANT] referred me to the fact that Dr [APPELLANT], in his evidence, had referred to Mr [APPELLANT] having specific neurogenic pain, but the Tribunal had treated this as unbelievable. Again, I'm not sure that it's quite accurate to say that the Tribunal treated the evidence as unbelievable but even if it were, again it is for the Tribunal ultimately to decide matters of fact, not for this court. So long as it was open to the Tribunal to reach the finding it did then no question of law arises. 15 Mr [APPELLANT] has made it clear to me that he could not pursue an appeal on the basis that if the evidence was accepted in its entirety before the Tribunal only one conclusion favourable to him was available. As I've already indicated that would involve an issue of law. However, none of the matters which Mr [APPELLANT] has raised with me do involve questions of law and it follows that no question of law being raised in the appeal the Court lacks jurisdiction to hear the appeal. Accordingly I must uphold the objection to competency and dismiss Mr [APPELLANT]'s application to the Court. 16 [APPELLANT] respondent did not ask for costs and therefore I make no order as to costs of the application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [ADDRESS] .

Associate: Dated: 16 March 2004

[APPELLANT] Applicant: [redacted]

Solicitor for the Applicant: [redacted] Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Judgment: 3 February 2004