Willcocks v Comcare [2001] FCA 1315

FEDERAL COURT OF AUSTRALIA

Willcocks v Comcare [2001] FCA 1315

GRAHAM K WILLCOCKS v COMCARE A63 of 2000 FINN J CANBERRA 13 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A63 OF 2000

BETWEEN: GRAHAM K WILLCOCKS

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 13 SEPTEMER 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A63 OF 2000

BETWEEN: GRAHAM K WILLCOCKS

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: FINN J

DATE: 13 SEPTEMBER 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") challenging decisions of the Administrative Appeals Tribunal ("the Tribunal") that were adverse to the applicant, Graham K Willcocks, who was a claimant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in respect of an injury to his lower back sustained in the course of his employment on 29 January 1996 when lifting a printer. The respondent, Comcare, admitted liability for that injury. 2 The principal claims made by Mr Willcocks were that (i) the incident of 29 January caused, or materially contributed to, his degenerative lumbar spine condition; and (ii) as a result of back pain and stress at work, he suffered a severe anxiety condition. 3 Put in short form the Tribunal's decision was that (i) the 29 January incident resulted in only a temporary aggravation of his then degenerative lumbar spine condition; (ii) Mr Willcocks' current lower back condition was not materially contributed to by the 29 January incident; (iii) his current condition resulted from an incident in Perth in March 1996; (iv) the condition arising from that Perth incident was not materially contributed to by his employment generally or by the 29 January incident; and (v) his current psychiatric condition, likewise, was referable to the pain suffered since the Perth episode. In consequence the Tribunal concluded that, as Mr Willcocks current condition was no longer attributable to his employment, it was not compensable under the SRC Act. 4 The Tribunal's decision was one made on the facts as found by it. That fact finding was made the more difficult a task not only because the applicant had both a degenerative back condition and a history of psychiatric illness which pre-dated both the 29 January and the Perth incidents, but also because of adverse findings concerning Mr Willcocks' credibility and the reliability of the medical evidence he adduced. In particular the Tribunal found that he consciously omitted to provide examining specialists with a full and complete history of his back condition. 5 The challenges now made to the Tribunal's decision proceed on a broad front. They relate essentially to an attack on the Tribunal's fact finding not, so it is said, for the purpose of securing (colourably) a merits review of the decision but so as to reveal errors in findings that evidence errors of law, Wednesbury unreasonableness, failure to take relevant considerations into account and lack of evidence for findings. Distinctly it is alleged that there was a failure to give adequate reasons for decision. Both the original and amended notices of appeal run over some number of pages listing a variety of factual errors and omissions. This case is not one in which it would be profitable to consider these seriatim. It does not rise above what the applicant contends to be inappropriate fact finding. 6 As is now well understood any court reviewing a decision of the Tribunal cannot turn "a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Those "proper principles" do not allow for doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 "[a] tribunal … does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning". Likewise those "proper principles" do not require it to be shown that all matters raised in the proceeding before the Tribunal are dealt with in the reasons. For the purposes of s 43(2B) of the AAT Act, the Tribunal is not obliged to give a "line-by-line refutation" of an applicant's evidence either generally or in those respects where there is evidence contrary to findings of material fact made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex part Durairajasingham (2000) 168 ALR 407; see generally Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.