Marelic, Marija v Comcare [1996] FCA 9

CATCHWORDS ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - decision to cease payment of compensation to applicant for injury alleged - decision affirmed by Administrative Appeals Tribunal - whether injury work related. Administrative Appeals Tribunal Act 1975, s44 Minister for Immigration and Ethnic Affairs v Daphne Teo, not yet reported, Full Court, 13 April 1995 No. NG60 of 1995 MARIJA MARELIC v COMCARE

MOORE J SYDNEY 17 January 1996

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG60 of 1995 ) GENERAL DIVISION ) BETWEEN: MARIJA MARELIC Applicant AND: COMCARE Respondent JUDGE: Moore J PLACE: Sydney DATE: 17 January 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. 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) No. NG60 of 1995 ) GENERAL DIVISION ) BETWEEN: MARIJA MARELIC Applicant AND: COMCARE Respondent JUDGE: Moore J PLACE: Sydney DATE: 17 January 1996 REASONS FOR JUDGMENT This is an appeal brought under s44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), from a decision of the Administrative Appeals Tribunal ("the Tribunal") of 6 January 1995. The ultimate effect of the decision of the Tribunal was to affirm a decision made by the respondent on 26 July 1989 namely, to cease the payment of compensation from 20 July 1989 for the condition described as "painful left wrist, arm and neck" which was said to have arisen from a work related injury that occurred on 26 November 1985. The respondent's decision had been reviewed on an earlier occasion by the Tribunal though a re-hearing was ordered by Beazley J on 9 December 1993.

The applicant is a litigant in person. She is dissatisfied with the decision that has been made by the Tribunal and has set out in lengthy written submissions the reasons why the decision she challenges should be set aside. She has been told, and I believe appreciates, that the grounds upon which this Court can review a decision of the type the applicant challenges are limited. I will endeavour to deal with the matters she raises. The case of the applicant is to be gleaned from four documents and supplementary remarks made orally at the hearing. The first document is the notice of appeal filed on 3 February 1995 by Messrs Plowman and Thom, solicitors. The questions of law are identified in terms that casts no real light on the issues raised. They are identified in the following terms: "THE QUESTION OF LAW raised on the appeal are: 1. The Tribunal failed to provide sufficient reasons. 2. The decision of the Tribunal was contrary to the evidence. 3. The Tribunal wrongly failed to allow further medical evidence to be tendered on behalf of the Applicant. 4. Such other questions as may become apparent once the Transcript is available." On 3 May 1995 a notice of ceasing to act was filed by the solicitor from that firm. While there is some suggestion from the Court file that other solicitors might have been retained, the matter was from that point prosecuted by the applicant herself. The second document was a document filed in Court on 21 June 1995 which contained handwritten submissions in support of the appeal. The headings the applicant used are the grounds in the notice of appeal. The third document, filed on 21 July 1995, contains lengthy handwritten submissions which in large measure are a critical analysis of the transcript of the proceedings before the Tribunal though it also contains what could fairly be described as submissions on what emerges from that critical analysis. However it also contains statements of fact by the applicant advanced to demonstrate that evidence led before the Tribunal was wrong or should be viewed differently or findings of the Tribunal were wrong or should be viewed differently. The fourth document was a handwritten reply, filed on 18 September 1995, to written submissions earlier filed by the respondent. I have carefully read each of these documents. Taken together the applicant's case alleges error in five areas. They are: 1. The comments made by the Tribunal on a diagnostic procedure adopted Dr Hodgkinson who was an orthopaedic surgeon to whom the applicant was referred by her treating orthopaedic surgeon, Dr Strokon. The Tribunal noted that two other orthopaedic surgeons Dr Bornstein and Dr Gill had questioned the usefulness of this procedure.

2. The preference expressed by the Tribunal for the opinion of one psychiatrist, Dr Maguire, over that of another, Dr Cavaris as to whether the applicant was suffering from a psychiatric disorder. 3. The preference expressed by the Tribunal for the opinion or observations of Dr Clarke, Occupational Physician, Concord Repatriation General Hospital, over that of Dr Strokon concerning whether, in late 1991, the applicant was fit for work. The applicant points out, in this context, that a Medical Board that examined her on 4 October 1991 were unable to agree on a diagnosis for her condition but did agree that she should return to work to undertake restricted, light selected duties. 4. The understanding, or misunderstanding, of the Tribunal of evidence given by the applicant that at the time of the accident in 1985: "I never had so much a strong pain all at once coming to me. It just hit me so strong. Perhaps when I was having my kids, I had a pain that - sharp pain happened to me but in other ways." The Tribunal understood this to be a reference to child birth. The applicant says it was a reference to contractions preceding childbirth. 5. The rejection by the Tribunal of the tender of a medical report by counsel for the applicant. The report was by Dr N Griffith, neurologist, which, I infer, was viewed by the applicant's counsel as assisting her case. The first four of these matters concerns the evaluation by the Tribunal of the evidence and, in particular, the medical evidence. It may be difficult for a person in the position of the applicant to understand how the opinions of reputable medical practitioners which support her case are not accepted by the Tribunal. However the task of determining which one of two conflicting medical opinions should be accepted, is a task that courts and tribunals are regularly required to perform. It must be done to enable cases to be determined. In the present case the applicant must establish that the matters she refers to disclose an error of law on the Tribunal's part. She has not done so. Each of the matters involve the evaluation by the Tribunal of the evidence before it. The manner in which the Tribunal did so was unexceptional. There is nothing about the way the Tribunal went about the task and the reasons it gave that suggests to me they fell into error. An appeal brought under s44 of the AAT Act is on a question of law only. Generally it is not this Court's function to review findings of fact, though there are situations where the process of fact finding by a decision maker raises a question of law. There are many decisions of this Court dealing with the issue of what might constitute such a question in relation to fact finding and one comparatively recent decision is that of a Full Court in Minister for Immigration and Ethnic Affairs v Daphne Teo, not yet reported, 13 April 1995. It helpfully sets out the relevant principles which I need not repeat. Applying those principles to this case, no error is apparent. A further submission was made concerning the rejection by the Tribunal of the tender of a report of Dr N Griffith. The Tribunal rejected the tender having regard to the provisions of s66 of the Safety Rehabilitation and Compensation Act 1988. Nothing was raised by the applicant or is apparent from the transcript of the hearing before the Tribunal when counsel for the applicant sought to tender the report, that suggests the Tribunal erred in rejecting the tender. For the preceding reasons this application should be dismissed. I do not, in the circumstances, propose to make any order as to costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate: ...................... Dated: ..../..../....

APPEARANCES

Counsel for the Applicant: Ms Marelic Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 5 September 1995 Written Submissions Complete: 18 September 1995 Date of Judgment: 17 January 1996