FEDERAL COURT OF AUSTRALIA

Lowth v Comcare [1999] FCA 1692

ADMINISTRATIVE LAW – appeal from AAT – whether appealable decision – whether decision is final or conclusive

Administrative Appeals Tribunal Act 1975 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Director General of Social Services v Chaney (1980) 31 ALR 571

Australian Broadcasting Tribunal v Bond (1990)170 CLR 321

BRUCE E. LOWTH v COMCARE

Q 236 OF 1999

DOWSETT J

29 NOVEMBER 1999

BRISBANE

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

DOWSETT J

1                     This is an appeal pursuant to section 44 of the Administrative Appeals Tribunal Act (1975) (Cth) (the “AAT Act”) from a decision of a Deputy President.  Pursuant to section 64 of the Safety Rehabilitation and Compensation Act (1988) (Cth) (the “Compensation Act”), the Tribunal was asked to review a decision made by a delegate of the respondent pursuant to s 69 of the Compensation Act.  The decision in question concerned the entitlement of the appellant to compensation pursuant to s 14 of the Compensation Act.  That section provides that compensation is payable in respect of an injury suffered by an employee.  “Injury” is defined by section 4 of the Compensation Act to include an injury suffered by an employee arising out of, or in the course of his or her employment. The decision involved a finding that the appellant had not suffered injury in the course of his employment.

2                     The appellant was a serviceman and was injured whilst participating in a sporting activity as directed by his commanding officer.  It is his case that he was effectively on duty at the time of suffering the injury, that he therefore suffered it in the course of his employment within the meaning of s 4, and is entitled to compensation pursuant to s 14.  The Deputy President, in the course of reviewing the decision, was invited to consider as a preliminary question the significance of the commanding officer’s determination that the appellant should participate in the sport in question.  The appellant submitted that such decision was finally determinative of the question of whether he was on duty, from which it is said to follow that he was acting in the course of his employment for the purposes of ss 4 and 14. Alternatively, it was submitted that the respondent is estopped, from denying the appellant’s entitlement to compensation by virtue of the commanding officer’s conduct and other conduct on the part of the armed forces, which conduct encouraged the appellant to believe that he would be entitled to compensation in the event that he was injured in the course of authorised involvement in the sporting activity.

3                     The Deputy President decided both questions adversely to the appellant, and so this appeal was brought.  When the matter came before me for directions, I pointed that it was necessary that the matter be referred to the Chief Justice for a direction as to whether it should be determined by the Full Court or a single Justice.  Both parties made submissions to me on this question.  The Chief Justice directed that the matter should be heard by a Judge.  Having considered the parties’ submissions, it struck me that the decision appeared not to be an appealable decision as defined for present purposes by the majority in Director General of Social Services v Chaney (1980) 31 ALR 571.  In that case at 593, Deane J said, (Fisher J concurring):

The conclusion which I have reached is that subject to the qualifications mentioned below, an appeal under s 44 (1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.  Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.  The qualifications referred to are an appeal pursuant to s 44 (2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceedings before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.

4                     As I understand it, the appellant concedes that the decision in Chaney offers no support for the present appeal.  I am bound by that decision. The only contrary argument advanced on behalf of the appellant is by reference to a passage which appears in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, where his Honour said:

A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

5                     I cannot see how that can assist the appellant.  He points only to s 4 and 14, and although those sections undoubtedly raise factual questions which must be considered in the course of a determination pursuant to s 69, they do not provide for findings or rulings.  The appeal is premature and must be dismissed. 

6                     There will be no order as to costs.

Associate:

Date:                3 December 1999