In Spaul v Comcare [2012] FCA 741, the Federal Court confirmed that the failure to consider an argument raised by the Applicant in a proceeding is an error of law, not fact, and is therefore reviewable by the Court.


On 23 June 2011, the Administrative Appeals Tribunal (Tribunal) made a decision concerning the calculation of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal reached its determination on the basis of an argument that the Applicant abandoned, rather than the argument put forward on his behalf. The Applicant appealed the decision.

The Applicant, who was an employee of Medicare Australia, suffered an injury on 7 September 2004, characterised as aggravation of adjustment disorder with mixed anxiety and depressed mood, which resulted in incapacity to work. It was not in dispute that his employment materially contributed to his injury or that he was entitled to compensation under s 19(2) of the SRC Act. What was in dispute was the method of calculating his compensation.

The Applicant’s annual salary as at 8 September 2004 was $85,327 as Principal Executive Officer Class B at the third pay point in the pay scale. The Health Insurance Commission (Managing Change) Certified Agreement 2003-2005 and the Medicare Australia Certified Agreement 2005-2008 both provided for salary increases for employees in the Applicant’s position. This was an increase as of right. Under the earlier agreement, an employee in the Applicant’s position could advance to the fourth pay point. In order to do this, the employee had to satisfy certain criteria.

The Applicant initially sought compensation based on the increase of annual salary to the fourth pay point of the scale. He later abandoned this argument, instead claiming salary increases based on the increases within the third pay point which the Applicant was entitled to before the injury. The Tribunal accurately described the Applicant’s main contention, then proceeded to make its determination based on the abandoned argument.

A fundamental question for the Federal Court was whether it could review this error.


The Applicant submitted that the Federal Court should review the Tribunal’s determination by comparing the central contention of the Applicant with the reasons of the Tribunal and reach a conclusion that the Tribunal misconceived that contention. This misconception would be an error of fact. The Federal Court can only review a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). However, the Federal Court stated that the proper construction of the issue was whether the Tribunal failed to deal with an issue raised in the proceeding before it. This is a question of law and therefore reviewable. In reaching this conclusion, the Federal Court followed the decision of the Full Federal Court in Dunstan v Comcare [2011] FCAFC 108.

In Dunstan, the Tribunal raised an issue presented by the Applicant but failed to proceed to determine it. The Applicant suffered depression as the result of his involvement in a sexual relationship with a fellow employee which gave rise to stress in the periods 11 to 16 July 1991 and 3 to 10 April 1992. He experienced an exacerbation of his recurrent depressive disorder during the periods 16 May to 1 June 1994 as well as 1 January 1996 and continuing. On this basis, he claimed compensation under s 19 of the SRC Act.

The Applicant claimed compensation for his ongoing incapacity to work after 1 January 1996. The Tribunal varied the initial decision determining that the Applicant was entitled to compensation for the period 2 January 1996 to December 1996, the date he returned to work. This effectively rejected the Applicant’s claim after December 1996. However, the Tribunal did not give reasons for rejecting the claim after this time. The Full Federal Court therefore inferred that the Tribunal did not consider this issue raised in the proceeding and held this to be an error of law.