CATCHWORDS
ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Compensation under Compensation (Commonwealth Government Employees) Act - distinction between 'injury' compensation and 'disease' compensation regimes - wilful and false misrepresentation - disentitlement under 'disease' regime only.
ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Reasons - wilful and false misrepresentation - disentitlement under 'disease' regime only - applicant relies on 'injury' regime - primary submission not considered in reasons - error of law.
ADMINISTRATIVE LAW - Administrative Appeals Tribunal - examining doctor not called to give evidence - explanation - Jones v Dunkel considered - cross examination of applicant - applicant on notice of issues - Browne v Dunn considered.
Compensation (Commonwealth Government Employees) Act 1971
Brackenreg v Comcare Australia (unreported) Sheppard J, Federal Court, 15 March 1995, applied
Hoskins v Repatriation Commission (1991) 32 FCR 443, applied
JEANETTE MARGARET VAN REESCH (Applicant) v HEALTH INSURANCE COMMISSION (First Respondent) and COMCARE AUSTRALIA (Second Respondent)
ACT G 30 of 1995
FINN J
CANBERRA
1 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 30 of 1995 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: JEANETTE MARGARET VAN REESCH
Applicant
AND:HEALTH INSURANCE COMMISSION
First Respondent
AND:COMCARE AUSTRALIA
Second Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 1 MARCH 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
(1) the appeal be allowed;
(2) the decision of the Administrative Appeals Tribunal dated 27 March 1995 be set aside; and
(3) the matter be remitted to the Administrative Appeals Tribunal to be heard and determined again by a differently constituted Tribunal.
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 )
) No. ACT G 30 of 1995 DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: JEANETTE MARGARET VAN REESCH
Applicant
AND:HEALTH INSURANCE COMMISSION
First Respondent
AND:COMCARE AUSTRALIA
Second Respondent
COURT: FINN J.
PLACE: CANBERRA
DATE: 1 MARCH 1996
REASONS FOR JUDGMENT
An anomaly in the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") - which, I note, is not repeated in the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act") - accounts for this appeal.
The appeal itself is brought under the Administrative Appeals Tribunal Act
1975, s44(1). The principal ground of
appeal is, in substance, that the Administrative Appeals
Tribunal ("the Tribunal"), in allowing an appeal by the Health
Insurance Commission ("the HIC") against a reviewable decision, did
not consider and determine adequately the actual issues raised by Mrs Van
Reesch ("the applicant") in reaching its conclusion that she would
not have been entitled to payment of compensation under the Act, and hence was
not so entitled under the transitional provisions of the SRC Act.
The applicant's compensation claim, as presented to the Tribunal in written submissions, was based first and foremost on the submission that in the course of her employment she suffered an injury to her back, that injury being a disc prolapse. This was her primary submission. An alternative claim that she had suffered an aggravation of a pre-existing back disease was advanced as secondary to the claim that an injury was sustained. The reason for this particular priority being given the claims relates to the legislative anomaly that I have foreshadowed.
The Legislative Anomaly
For present purposes it can be said that the Act provides two different regimes for compensation claims - the one (s.27), the "injury regime"; the other (s.29), the "disease regime".
The Act, s27(1) provides:
If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
I should note that later subsections of no present relevance specify events which exempt the Commonwealth from liability notwithstanding that an injury has been sustained.
The term "injury" is defined in the Act, s5(1) to mean:
... any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease.
Turning to the disease regime, the Act, s29 provides:
29. (1) Where -
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If -
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in section 39 or 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -
(f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
(3) Subsection (2) does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.
Finally "disease" is defined in the Act, s5(1) to include:
... any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
The matter I would note immediately is
this. Section 29(3) disentitles an
employee to compensation notwithstanding the aggravation of a disease if a
wilful and false
representation of the specified kind has been made. In contrast, no like disentitling event is
prescribed by s27 for injury claims.
This is the anomaly I have foreshadowed.
It accounts for the applicant's claim being advanced first as an injury
one. Needless to say, at the forefront
of the HIC's submission to the Tribunal was the allegation that the applicant
had made such a wilful and false statement as s29(3) specifies.
The Tribunal's Decision
At no point in its twenty-four pages of Reasons for Decision ("the Reasons") did the Tribunal address directly the applicant's primary submission. After providing a factual narrative the Tribunal turned directly to the credibility of the applicant. Of this it concluded that it should not accept any of her evidence unless it was otherwise corroborated: Reasons paras 34, 37.
On the apparent assumption that her claim was in respect of the aggravation of a disease - the applicant's secondary submission - the Tribunal then considered whether she was disentitled to compensation for s29(3) reasons. She was found to have made an operative wilful and false representation when, on 27 August 1986, she completed a questionnaire for the purposes of a medical examination for permanent employment in the Commonwealth Public Service. I would note in passing that this finding related to answers she gave in the questionnaire to the questions:
Are you now suffering from, or have you ever suffered from or received treatment for any of the following conditions, diseases, injuries or disabilities?
Q:37. Lumbago, sciatica, aches or pains in back
A: No
Q:39. Back or neck injury, slipped disc or back or neck pain
A: No
Q:59 Any complaint, injury, ache or pain not mentioned above
A: No
Q:67 Have you ever suffered any complications in pregnancy?
A: No
Having made a s29(3) finding, the Tribunal considered this to be "enough to dispose of this matter": Reasons, para 55. It nonetheless went on to consider, "albeit briefly" (Reasons, para 55), the medical evidence as to causation. Of this it concluded that "her work conditions did contribute to her disc prolapse and has continued to contribute to the pain she suffers in her back": Reasons, para 79.
When the Tribunal came to the issue of a possible costs award to the HIC - an award not in fact made - it gave this summary of its determination:
86. In this matter the [applicant] has succeeded in so far as the Tribunal recognising that the disease from which she now suffers was contributed to by her employment. Liability has been denied because of wilful and false representations made by her at the time of her medical examination for permanent employment in the Commonwealth Public Service.
The conclusion, in my view, is irresistible that the Tribunal's consideration of this matter was premised upon the assumption that it was a disease regime only case - a s29 case - and it made its findings accordingly.
Injury or Disease: the Submissions
The applicant's case on this matter can be put briefly.
(1) Notwithstanding that an employee has made a s29(3) statement, if he or she later suffers an injury in the course of employment, then that statement does not disentitle him or her to compensation in respect of that injury.
(2) The primary submission to the Tribunal was that the applicant suffered an injury and that there was evidence on which an injury finding could and should have been made.
(3) The disc prolapse suffered by the applicant
could, consistent with the Act's s5 definition, properly be characterised as an
injury and for s27 purposes it was
unnecessary for her to show that her employment caused the disc prolapse. Reliance for these propositions was placed,
respectively, on observations of Fullagar J in The Commonwealth v Hornsby
(1960) 103 CLR 588 at 596-597 and Kavanagh
v The Commonwealth (1960) 103 CLR 547
at 558-559.
(4) Irrespective of the final conclusion that one might arrive at on the injury-disease question on a full consideration of this matter, the Tribunal simply did not pass on the case presented to it; it did not address the evidence relied upon; and it did not provide reasons why the applicant's case ought not to have been accepted. Reference here was made to the judgment of Sheppard J in Brackenreg v Comcare Australia (unreported), 15 March 1995 and Waldron v Comcare Australia (1995) 37 ALD 471.
The HIC in contrast has submitted that:
(i) the Tribunal's finding was of contribution to an underlying disease condition and not of injury and in so finding it acted correctly on the evidence and in law;
(ii) the applicability of the s29(3) defence ought not depend on the capricious consideration as to which of the two compensation regimes is selected; and
(iii) given that it was on the medical evidence a disease only case, the need to address the applicant's injury submission was a matter merely of courtesy not of legal requirement.
This appeal, in my view, must be allowed. The reason for this is that the Tribunal's Reasons disclose a failure to consider a "material issue" - see Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446 per Brennan J - and that material issue was in fact the primary contention advanced by the applicant: cf Hoskins v Repatriation Commission (1991) 32 FCR 443 at 448-449. Far from amounting merely to a lack of courtesy, as the HIC contends, there was here an error of law and one which has given rise to a clear miscarriage of justice: the claim principally relied upon by the applicant has not been addressed, though pressed upon the Tribunal, and she has received no explanation at all as to why it was lacking in merit. At the very least in such circumstances, justice has not been seen to be done.
It is not to the point that the Tribunal may, after evaluating the evidence, have been justified in rejecting an injury-based claim in favour of a disease-based one. The Reasons do not disclose that the Tribunal even adverted to the question let alone resolved it adversely to the applicant. She was entitled to have her principal claim considered and passed upon. She has been denied this.
The HIC's submission is that when properly evaluated the medical evidence could only support a disease regime claim. I have, in effect, been invited to make that evaluation for the purpose of reaching that conclusion. I decline to embark on that undertaking. The applicant was - and still remains - entitled to a proper consideration of the injury claim by the Tribunal. The matter must be remitted to it for rehearing.
The HIC has equally submitted that it would be capricious in a case such as this, given the language of s29(3), to make the outcome turn upon the mere selection of s27 rather than s29 as the relevant compensation regime. I did not understand this submission, which was little enlarged upon in oral argument, as suggesting that an "injury" fell in some fashion within the "equity" of s29(3) - cf Nelson v Nelson (1995) 132 ALR 133 at 144 - so as to extend the disentitling effect of the sub-section to s27 claims. Rather, the burden of the submission seemed to be that, in this setting, the suggestion that such an alternative possibly existed served only to reinforce the proper characterisation of the claim as a disease-based one. So viewed, the submission seems only to raise, albeit from a different perspective, the issue that the Tribunal has not addressed, i.e. whether the claim can properly be regarded as injury-based. I have already indicated why, in my view, the Tribunal should be required to address that question notwithstanding that in the end it may come to a conclusion adverse to the applicant.
What I have said is sufficient to dispose of this appeal. There are, though, several other matters on which comment should be made.
Other Matters
Despite the conclusive character given its s29(3) finding, the Tribunal went on to find that the applicant is not incapacitated for work. The HIC has not sought positively to support this finding in its submissions before me. The applicant in contrast has submitted that the Tribunal clearly has acknowledged that there are limitations upon the applicant's capacity for work: see Reasons paras 80, 81. The apparent ambiguity here between the Tribunal's findings and its conclusion is not something that need be resolved. The entire matter is being remitted for rehearing.
Finally, the applicant has challenged the finding that a wilful and false representation was made, both on Jones v Dunkel (1959) 101 CLR 298 and Browne v Dunn (1893) 6 The Reports (HL) 67 grounds. Because I am remitting this matter generally to the Tribunal, I need only make brief comment on each of these challenges.
The Jones
v Dunkel challenge arises in this
way. The doctor who conducted the
examination of the applicant at the time she filled out the questionnaire
containing the negative
answers said to be wilfully false, was not called to give evidence. A letter written by the doctor in which she
indicated she did not recall examining the applicant but in which she outlined
her practice in the conduct of examinations, was referred to by the Tribunal in
its Reasons (para 42). That practice was
relied upon in the Reasons to discount other possible explanations of the
negative answers given by the applicant.
Having quoted from the letter the Tribunal observed (Reasons, para 43):
Dr Rajasingham was not called for cross-examination by [the applicant].
There was discussion at the hearing before the Tribunal as to the calling or failure to call the doctor and as to the attitude of the applicant on this matter: Appeal Book pp 332-333. Given that discussion, and given that the doctor disclaimed any recollection of examining the applicant, I am unable to accept that the HIC's failure to call the doctor would justify my inferring that her evidence would not have helped the HIC's case.
However, what is of concern is the
impression the Tribunal's reasons are capable of conveying that an inference
adverse to the applicant may have been drawn from her failure to "call"
the doctor for cross-examination. I was
invited by the HIC in its submission to treat the observation I have quoted
above as being purely factual and narrative in character. If it had a purpose beyond this, and a
purpose
adverse to the applicant, the observation would in my view be
inappropriate. The applicant, no less
than the HIC is entitled to say as was in fact said on her behalf, "[the
doctor] has no recollection of the examination ... so why would I want to
cross-examine her".
The Browne v Dunn challenge for its part was directed at the failure of the HIC to cross-examine the applicant, first, on the conversation she gave evidence of having with the doctor at her examination concerning her medical condition and, secondly, on a statutory declaration she made relating (inter alia) to the answers given in the questionnaire.
It cannot, in my view, be said that the applicant was exposed to any unfairness in this given that the s29(3) issue had been joined between the parties and that her credibility and her medical history were in question. She and her advisers were aware that her statements in the questionnaire were being challenged and they were, or should have been, aware of how they were being challenged. In these circumstances, and considered against the background of the medical evidence, the failure to cross-examine was innocuous.
Of more concern, though, is the manner in
which the Tribunal itself has dealt with her evidence concerning the
questionnaire. A finding that a person
has been guilty, in effect, of fraud is not one lightly to be made. Here I would merely say that one would have
expected a somewhat more
detailed treatment of her evidence on the circumstances attending the execution
of the questionnaire than has in fact found its way into the Reasons (see
Reasons, para 48) - and this even if that evidence is in the event rejected in
its entirety. The execution of the
questionnaire was, after all, at the core of the HIC's defence to the
applicant's claim for compensation. In
registering this concern I should not be taken as inviting prolixity in
Tribunal Reasons. Rather my comments are
directed merely at the manner in which Reasons should sustain a finding of the
seriousness of a s29(3) finding.
As this matter is to be remitted, there is a question whether I should direct that it be reheard by a differently constituted Tribunal. The applicant has submitted that I should follow this course. The HIC has opposed it as being both inappropriate and costly.
Given the s29(3) finding that has been made
against the applicant and given the concerns I have registered about the
Reasons themselves, it would in my view be desirable for the rehearing to be by
a differently constituted Tribunal. In
saying this I express precisely the same sentiment expressed by Sheppard J in Brackenreg v Comcare Australia, above: I
am not suggesting for a moment that the Tribunal which heard this appeal did
not act in good faith nor that if it reheard the matter it would not act in
good faith.Nonetheless it is distinctly
possible that on the rehearing the result finally
achieved will remain adverse to the applicant.
In these circumstances it is important to ensure the appearance that
justice is being done.
Accordingly, my orders are that:
(1) the appeal be allowed;
(2) the decision of the Administrative Appeals Tribunal dated 27 March 1995 be set aside; and
(3) the matter be remitted to the Administrative Appeals Tribunal to be heard and determined again by a differently constituted Tribunal.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 29 February 1996
Counsel for the applicant : D A Wheelahan QC
D Campbell
Solicitors for the applicant: Scott Sheils & Glover
Counsel for the respondent : B J Gross QC
Solicitors for the respondent : Minter Ellison
Date of hearing : 5 February 1996
Date of judgment : 1 March 1996
