FEDERAL COURT OF AUSTRALIA

Rosillo v Telstra Corporation Limited [2003] FCA 1628

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for work-related injury – whether Tribunal correctly applied the law as to future claims for compensation.

ANTHONY ROSILLO v TELSTRA CORPORATION LIMITED

N866 of 2003

MADGWICK J

8 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The decision of the Administrative Appeals Tribunal be set aside.

2.         The decisions purportedly made on behalf of the respondent concerning the appellant on 28 August 2001 and 26 October 2001 be set aside. 

3.         The respondent is to pay the applicant’s costs before the Tribunal which, if not agreed, are to be taxed by a relevant officer pursuant to s 67(13) of the Compensation Act.

4.         The respondent is to pay the applicant’s costs in this court to be assessed or taxed.

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

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is a proceeding brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Tribunal Act’).  That section permits a party to a proceeding before the Administrative Appeals Tribunal (‘the Tribunal’) to ‘appeal’ to this Court on a question of law from any decision of the Tribunal in that proceeding, in consequence of which this Court, pursuant to s 44(4), is obliged to hear and determine the appeal and empowered to make ‘such orders as it thinks appropriate by reason of its decision’.  Section 44(4) makes it clear that that general expression is not to be limited merely to affirming, or setting aside and remitting for re-hearing, a decision.

2                     The appellant was employed by the respondent for many years.  He suffered injury to his back in work-related incidents in 1991 and 1993.  On 2 June 1993, a delegate of the respondent determined in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Compensation Act’) that Telstra’s predecessor, Telecom Australia, was liable to pay the appellant compensation under the Compensation Act, in respect of a ‘strained lower lumbar region’ injury and subsequently the appellant was paid periodic amounts on account of his incapacity for work and was reimbursed for medical and hospital expenses in connection with operative treatment he underwent for his back. 

3                     In 1999 a reviewable decision (that is, by the Tribunal) denying liability for permanent impairment was made by a delegate of the respondent and the appellant contested that by way of an application for review made to the Tribunal.  In the end, a consent determination was made by the Tribunal on 8 October 1999 awarding permanent impairment compensation under ss 24 and 27 of the Compensation Act.  Such a determination necessarily presupposes, as counsel for the appellant points out, that the effects of the injury will ‘continue indefinitely’:  see the definition of ‘permanent’ in s 4 of the Compensation Act.

4                     In June 2001, a delegate of the respondent wrote to the appellant noting that he had received no medical expenses nor made any claim for incapacity for work over the previous three months and that ‘it would appear therefore that your claim should no longer remain open’.  An opportunity was given to the applicant to submit additional medical evidence.  A claims officer of GIO Australia (who stood in the shoes of the respondent for all relevant purposes) purported on 28 August 2001 to issue a ‘determination’ as follows:

‘In accordance with the provisions of [Compensation Act], I hereby determine that:

            “That on the basis that your condition has now resolved, [the respondent] is not liable to pay compensation in respect of your injury to ‘strain lower lumber region’ on and from 28 August, 2001.” ’

In response, the appellant’s solicitors requested a re-consideration of the determination.  Among other things, they said:

‘…we would respectfully suggest that your determination is manifestly incorrect.’

5                     In purported reliance on s 62(5) of the Compensation Act a ‘Reconsiderations Officer’ of GIO Australia affirmed the decision of 28 August 2001.  It was this decision, as affirmed, that the appellant then asked the Tribunal to set aside.

6                     Opening the case before the Tribunal, his counsel made clear what the appellant’s concerns were.  Counsel said:

‘Essentially the reviewable decision affirms that [the determination of 28 August 2001] to the effect that liabilities, that is all liabilities on the claim made by the applicant some years earlier should cease ... and the issue for determination by the Tribunal is whether that determination is correct and at the outset I should say that this is one of those cases where the applicant, as things stand at the present time, [does not] assert any particular entitlement to specific compensation in terms of money.  In other words, he is not saying at the present time that he has an [entitlement] under section 19.  He is not saying that he has some outstanding amounts for which he has submitted receipts for medical treatment under section 16 ...

... the medical evidence will be that [there] is some degree of likelihood that he will require treatment in the future and indeed if [he] requires surgical treatment is it likely to be associated for some period of time with loss of income and so on and possibly then an increase in permanent impairment, one doesn’t know.  So the reason why we are here is simply to protect, if you like, the applicant’s position against that day when he will require probably a degree of compensation to pay for medical treatment and extensive periods off work.

There is obviously a question about whether or not one could have left the issue to the day when that happened and come back then and the reason why we are here though is that one can - if one lets a reviewable decision, ceasing liabilities to get away from you and you want to come back five years later you may find yourself in a position where it is very difficult to argue because one then raises the obvious question of why didn’t you challenge it at the time it was made and that is what the applicant is doing and we would simply say what you need to do at the end of this hearing is simply set it aside and find that liability continues, no other [finding] would be necessary.’

7                     Some evidence, including medical evidence was then tendered.  The Tribunal reserved its decision and ultimately made a decision in the following terms:

‘The Administrative Appeals Tribunal affirms the decision of Telstra of 28 August 2001 which was affirmed by the decision of 26 October 2001 to deny liability for compensation pursuant to section 14 of the [Compensation Act] in respect of “strained lower lumbar region” on and from 28 August 2001.

Costs:  No costs may be awarded in this matter pursuant to section 67(8) of the [Compensation Act].’

8                     The Tribunal Members concluded as to the evidence that they were:

‘…satisfied he has not required medical care since 1993’

and, as to the future, the Tribunal noted the report of the appellant’s treating surgeon, Dr Grant, ‘whose report is given most weight, and who did not expect further surgery to become necessary’.  The Tribunal also noted the report of Professor Sambrook who suggested that there was a likelihood that surgery might become necessary in the future.  The Tribunal went on to express conclusions that Mr Rosillo was ‘no longer incapacitated for work’ and that there was ‘not available’ any ‘specific evidence to support a claim for future medical treatment’.  This was on the basis of an acceptance of Dr Grant’s view. 

9                     The Tribunal, after a consideration of various authorities, sought to explain its intention in making the decision in para 69 (which I have referred to above) in the following way:

‘The Tribunal noted ...further from Plumb v Comcare (1992) 39 FCR 236... that the respondent could not bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation from an injury under a particular section of the Act.  Accordingly, notwithstanding a finding of no liability under section 14 of the Act at the present time, should Mr Rosillo’s situation change, he would not be disentitled from making a claim under the relevant head of liability.

However based on the evidence before the Tribunal in this instance, the correct and preferable decision is to affirm the decision under review.’

The Statutory Framework

10                  Compensation is payable under the Compensation Act for employees of the Commonwealth by certain corporations of which, it is not in dispute, the respondent is one.  Part II of the Compensation Act deals with compensation and s 14(1) provides that:

‘Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’

11                  Section 16 imposes a liability in respect of the costs of reasonable treatment obtained in relation to an injury.  Section 19 provides for weekly compensation where an employee is incapacitated for work as a result of an injury.  Section 24 provides for limited lump sum compensation where an injury to an employee results in a ‘permanent impairment.’ 

12                  Part 6 of the Compensation Act, ss 60 to 67, provides for internal reconsideration of determinations by a determining authority and for review of reviewable decisions.

13                  Section 64 permits an application for a reviewable decision to be made to the Tribunal. 

14                  Pursuant to s 67(8), in a case such as this, if the Tribunal makes a decision varying a reviewable decision, in a manner favourable to the claimant or setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the original decision, the Tribunal may order that the costs of the proceedings incurred by the claimant be paid by the responsible authority. 

15                  There is an obligation to give notice of injury as soon as practicable after an employee becomes aware of injury (see s 53).  A determining authority has power of its own motion to reconsider a determination which has been made or to cause a delegate to reconsider such a determination pursuant to s 62. 

16                  The interrelationship of s 14 and the more specific provisions providing for particular kinds of compensation, was authoritatively explained by a Full Court of this Court in a way that binds single judges of this court and, it should go without saying, members of the Tribunal, in Lees v Comcare (1999) 56 ALD 84; (1999) 29 AAR 350 at paras 34 and 35 as follows:

‘The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein.  In particular, the definition reveals that the determination may be made under section 14 of the Act.  A determination under section 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect to a particular injury.  The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.

This is not to say that a determination under section 14 is without real significance.  Such a determination will involve findings on the following matters.  First, that an appropriate notice of injury has been given to the relevant authority as required by section 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act [that is to say in writing, etcetera]; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury, (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.’

17                  The position was also explained, if I may say so, with great clarity by Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 (‘Oudyn’) at 666-667:

‘The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury.  A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.

The content, duration means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including the s 24.  These determinations give substance to the liability ... provided for in s 14.  They do not require that determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act.  The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act.  Once discharged it is terminated.  

The power of [a determining authority] to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.’ [I interpolate that no such reconsideration was ever in issue before the delegate or the Tribunal in this case].

‘A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury.  The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14. 

Where [a determining authority] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.  It is a determination under that section.  It operates in respect of the claims then in existence for the payment of compensation under that section.  It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

[A determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act:  Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.  Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to [a determining authority] in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury.  The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.’   [emphasis added]

18                  I regret to say that, nevertheless, in this case the following submission of counsel for the applicant appears to be entirely made out.  Counsel submitted:

‘Although it described itself as “mindful also of the principles” contained in Oudyn … the Tribunal failed to apply those principles in any way whatsoever.  Rather the Tribunal went on to commit the very error that Cooper J had identified, and affirmed the reviewable decision ceasing liability under s 14, even though it recognised that the Respondent in that case could not bind itself to reject any future claim for compensation based on the same injury.’

19                  It might have been better to say, ‘…even though the Tribunal purported to recognise that the respondent could not bind itself to reject any future claim for compensation based on the same injury.’

20                  The legal effect of what the Tribunal has done is to affirm a nullity and then purport to say in its reasons that that affirmation has no practical effect for the future.  Such was not an option open to the Tribunal.  There was only one result that should have followed and it was that the decisions of 28 August 2001 and of 26 October 2001 should have been set aside. 

21                  The appropriate order for the Court is to make the orders that should have been made in the first place.  I will do that.  No reason has been suggested as to why I should not also order that the applicant’s costs before the Tribunal be paid by the determining authority.

22                  As to the costs of the ‘appeal’ to this Court, the applicant’s solicitors wrote to the respondent solicitors, before commencing proceedings in this Court, inviting them ‘to concede that the Tribunal’s decision is wrong and it should be set aside’.  The solicitors referred the respondent’s solicitors to Oudyn and to a case of the Tribunal, Abarca v Telstra Corporation Limited (2003) AATA 468 in which a differently constituted Tribunal handled a similar case entirely correctly, and indicated that if they had to commence proceedings, an application for indemnity costs would be made.

23                  Counsel for the respondent had the unenviable task of seeking to defend the Tribunal’s position, and did his best to say that the effect of everything that the Tribunal had done was not to prejudice the appellant for the future and, as the respondent had never held any different position, there was an argument to be presented that, even if the course taken by the Tribunal were erroneous, the Court ought not, in the circumstances, for the lack of a real controversy between the parties, make a costs order.

24                  There was, in the circumstances of this case, some argument to be presented despite the Calderbank letter and I do not think that in this case an order for indemnity costs would be warranted.  In what would be the unthinkable event that the Tribunal repeated what has been done in this case, any respondent who caused an applicant to contest a case in this Court to correct the Tribunal’s error would likely not be so fortunate. 

25                  The decision of the Tribunal is set aside.  The decisions purportedly made on behalf of the respondent concerning the appellant on 28 August 2001 and 26 October 2001 are set aside.  The respondent is to pay the applicant’s costs before the Tribunal which if not agreed are to be taxed by a relevant officer pursuant to s 67(13) of the Compensation Act.  The respondent is to pay the applicant’s costs in this Court to be assessed or taxed.

Associate:

Dated:              19 January 2004