FEDERAL COURT OF AUSTRALIA

Hannaford v Telstra Corporation Limited [2005] FCA 1298

ADMINISTRATIVE LAW – reviewable decisions – power to disturb findings underpinning a s 14 determination

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16, 19, 24, 27, 62, 64

Australian Postal Corporation v Oudyn (2003) 73 ALD 659referred to

Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 referred to

Power v Comcare (1998) 89 FCR 514 considered

Comcare v Hill (1999) 56 ALD 487 considered

Lees v Comcare (1999) 56 ALD 84 applied

RONALD HANNAFORD v TELSTRA CORPORATION LIMITED

NSD 1934 OF 2004

MOORE J

16 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The respondent pay the applicant's costs.

3.      The decision of the Administrative Appeals Tribunal in N2003/2003 and N2004/379 be set aside.

4.      The matter be remitted to the Administrative Appeals Tribunal for consideration according to law.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an appeal under s 44 of the Administrative Appeals Tribunal Act ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") of 26 November 2004.  The Tribunal affirmed two decisions made by the respondent concerning a claim by Mr Ronald Hannaford ("the applicant") for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). 

2                     Before setting out the factual background it may be instructive to describe, in overview, the types of decisions which can be made under the Act and the procedures under the Act for reconsideration and review of those decisions both internally and by the Tribunal.  In Comcare v Burton (1998) 157 ALR 522 at 525, Finn J described the decision making, reconsideration and review procedure as "three-tiered".  First, there is a "determination" as defined in s 60 of the Act.  There can then be a reconsideration of a s 60 determination under s 62 of the Act. This results in a "reviewable decision".  Finally, s 64 of the Act provides for reviews by the Tribunal of reviewable decisions. 

3                     Determinations, as defined in s 60, can be made under a number of sections of the Act concerning, amongst other things:

(i)         liability to pay compensation in accordance with the Act in respect of an injury resulting in death, incapacity for work, or impairment (s 14),

(ii)        compensation in respect of medical expenses (s 16),

(iii)       compensation for injuries resulting in incapacity for work (s 19),

(iv)       compensation for injuries resulting in permanent impairment (s 24); and

(v)        compensation for non-economic loss (s 27). 

4                     Under s 62 of the Act a determining authority may, on its own motion or at the request of a claimant (amongst others), reconsider a determination made by it.  Reviewable decisions made under s 62 may affirm, revoke or vary the determination in such a manner as the reconsideration decision-maker thinks fit.

Factual Background

The first reviewable decision

5                      While the applicant had been an employee of Telstra Corporation Limited ("the respondent") he became ill and incapacitated for work.  In fact, it appears the applicant was employed by a subsidiary of the respondent but it has not been suggested this is of legal significance.  From January 2002 he had been laying cables in a tidal swamp.  He became ill in mid-February 2002. By 18 March 2002, he had stopped work.  On 18 March 2002 he sought treatment and was diagnosed with Ross River Fever ("RRF").  On 3 May 2002 he made a claim for compensation under the Act.  It is common ground in these proceedings that the claim was one in which the applicant was seeking compensation under both s 16 and s 19.

6                     On 8 May 2002, a determination allowing the claim was made (relevantly) in the following terms:

I refer to your claim relating to specified infectious & parasitic diseases (Ross River Fever) sustained on 18/03/02.

Please note that QWL has classified your claimed condition in accordance with the International Classification of Diseases and Injuries (IC-9-CM 2^nd Edition).  Therefore, the wording of your determined condition may differ from the wording provided on your claim for compensation.

Having regard to the evidence presented and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I have decided to allow your claim in accordance with s14 of this Act.  In reaching my decision I considered evidence including your claim application, employer statements and associated medical evidence.  My findings are:

Medical Relationship

There is sufficient evidence available to establish that your specified infectious & parasitic diseases (Ross River Fever) occurred as claimed.

The evidence available satisfies that the cause of your specified infectious & parasitic diseases (Ross River Fever) is reasonable.

Employment Relationship

There is sufficient evidence to establish that your specified infectious & parasitic diseases (Ross River Fever) is work related.

Whether there is an employment contribution under Section 7 – specified infectious & parasitic diseases (Ross River Fever)

You satisfy the requirements of section 7 relating to whether there is an employment contribution to your medical condition:

-         The contribution to your specified infectious & parasitic diseases (Ross River Fever) is employment related.

-         The employment contribution influenced the contraction or aggravation of your specified infectious & parasitic diseases (Ross River Fever).

It should be noted that while it is accepted that your employment contributed to you contracting this condition, NDC is not "at fault" as such, as a result of you being bitten by a mosquito.

In light of the employment contribution, I therefore determine that Network Design & Construction is liable to pay compensation under Safety, Rehabilitation and Compensation Act 1988.

Medical treatment claims resulting from this injury will be accepted up to and including 3 July 2002.  Time off work claims resulting from this injury will be accepted up to and including 2 May 2002.  If you wish to claim compensation for medical treatment or time off work, beyond these dates, it will be necessary for you to provide further supporting medical evidence from your treating doctor or specialist as outlined in the attached 'Additional Advice to Claimants' and 'Medical Review Certificate'.  

7                     Who the decision maker was is not readily apparent from the material before me.  However, the matter proceeded on the basis that the decision maker was acting as the respondent and the determination can be treated as a determination of the respondent.  Because of s 4(10) of the Act, references in the Act to Comcare can be treated as references to the respondent.  In addition, the person who made the determination is, for the purposes of Part VI of the Act, the determining authority.

8                     The letter of 8 May 2002 contained a determination under s 14, a determination under s 16 for medical expenses up to and including 3 July 2002 and a determination under s 19 for compensation for a period (ending 2 May 2002) during which the applicant was incapacitated for work.  It appears that determinations to similar effect (under s 16 and s 19) were made for periods covering the latter part of 2002 and the first half of 2003.

9                     On 31 October 2003, the following decision was made:

I refer to your claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of "specified infections and parasitic diseases (ross river fever)" and acknowledge Dr David Mathers report, dated 17 October 2003.

Terms of the Decision (Claim No: U0375281)

In accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, I have determined that:

1.      On the basis of medical information, Telstra Corporation Limited is no longer liable to pay you compensation in respect of "specified infections and parasitic diseases (ross river fever)".

Statement of Reasons

Ronald Hannaford, the claimant, employed by Telstra Corporation Ltd, lodged a claim for compensation for an injury sustained on 18/03/2002 under the Safety Rehabilitation and Compensation Act 1988 (as amended) (SRC Act).

Based upon the evidence on file I am satisfied that liability in respect of Ronald Hannaford  can now cease.

In pursuance of the provisions of the Act the Telstra Corporation Limited is no longer liable to pay compensation in respect of incapacity or medical expenses on and from 31/10/2003.

The claimant was afforded 14 days (and a further extension) to supply medical evidence to support his ongoing claim.  I have previously acknowledged receipt of Dr David Mathers' report, dated 17 October 2003.

10                  It is not entirely clear from the material what the relationship was between the respondent and the decision maker (an employee of an insurance company) but again the matter proceeded on the basis that this decision was made by the respondent.  It was common ground that this decision involved determinations under s 16 and s 19.  Counsel for the respondent eschewed any suggestion that this decision also involved a determination under s 14.  The applicant requested a reconsideration of that determination under s 62 of the Act.  On 10 December 2003, a decision was made (again by an employee of an insurance company acting as the respondent) affirming the determinations of 31 October 2003, though the decision was expressed as affirming "the determination".  On 22 December 2003 the applicant applied for review of the decision by the Tribunal.  On 14 July 2004 the Tribunal directed that the reviewable decision of 10 December 2003 be remitted for reconsideration pursuant to s 42D of the AAT Act.  On reconsideration, in light of the Federal Court judgments in Australian Postal Corporation v Oudyn (2003) 73 ALD 659and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396,the reconsideration decision-maker varied, on 26 July 2004, both the decision dated 10 December 2003 and the determinations dated 31 October 2003 as follows:

Decision

In accordance with Senior Member Allen's direction I have now completed my review of that decision.  I have decided that the reasons for the reviewable decision dated 10 December 2003 are correct.  However, in light of the Federal Court's decisionin Australian Postal Corporation v Oudyn and Rosillo v Telstra Corporation Limited, I have decided to vary the decision dated 10 December 2003 and the Determination dated 31 October 2003 to find:

1.      As at 31 October 2003 the Claimant's "specified infections and parasitic diseases (ross river fever)" has resolved and has ceased to result in incapacity for work and/or the requirement for medical treatment or impairment.

2.      As at 31 October 2003, the Claimant is not entitled to compensation for medical treatment, or incapacity for work pursuant to section 16 and Part II Division 3 of the SRC Act in respect of "specified infections and parasitic diseases (ross river fever)" (emphasis added)

This decision was again made by an employee of an insurance company acting as the respondent.  I will refer to it as "the first reviewable decision".

The second reviewable decision

11                  On 29 July 2003 the applicant also made a claim for compensation for permanent injury and non-economic loss under s 24 and s 27 of the Act.  On 17 February 2004 determinations were made that he was not entitled to the compensation claimed.  The decision maker was an employee of an insurance company acting on behalf of the respondent.  The determinations were in the following terms:

The Claimant is not entitled to compensation pursuant to sections 24 and 27 of the SRC in respect of "specified infections and parasitic diseases (Ross River Fever)" sustained on 18 March 2002.

12                  On 20 February 2004, the applicant requested these determinations to be reconsidered. On 9 March 2004 the reconsideration decision-maker made the following reviewable decision:

The determination of 17 February 2004 is affirmed.

13                  Again, the decision maker was an employee of the insurance company acting on behalf of the respondent.  This was the "second reviewable decision".  On 25 March 2004 the applicant applied to the Tribunal for review of the decision of 9 March 2004. 

The legislative framework

14                  It is convenient to set out, at this point, provisions of the Act central to this appeal.  Section 14 provides:

             (1)  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.

             (2)  Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

             (3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.

15                  Sections 16 and 19 provide, relevantly:

16  Compensation in respect of medical expenses etc.

             (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

              … 

         …

19  Compensation for injuries resulting in incapacity

             (1)  This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

              …

16                  Section 24 provides, relevantly:

24  Compensation for injuries resulting in permanent impairment

             (1)  Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

             …

17                  Section 27 provides, relevantly:

27  Compensation for non‑economic loss

             (1)  Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.

…

18                  Part VI concerns reconsideration and review of determinations.  Sections 60 to 64 provide:

60  Interpretation

             (1)  In this Part:

claimant means a person in respect of whom a determination is made.

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

determining authority, in relation to a determination, means the person who made the determination.

reviewable decision means a decision made under subsection 38(4) or section 62.

             (2)  For the purposes of this Part, the parties to proceedings instituted under this Part are:

                     (a)  the applicant; and

                     (b)  if the applicant is not the claimant—the claimant; and

                     (c)  the body responsible for the reviewable decision.

             (3)  For the purposes of subsection (2), the body responsible for the reviewable decision is:

                     (a)  if Comcare made the reviewable decision—Comcare; and

                     (b)  if the reviewable decision has been made by or on behalf of a licensee—the licensee.

             (4)  Subsection (2) has effect subject to Part VIII.

61  Determinations to be notified in writing

             (1)  As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:

                     (a)  the terms of the determination;

                     (b)  the reasons for the determination; and

                     (c)  a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).

             (2)  This section does not apply in relation to a determination under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.

62  Reconsideration of determinations

             (1)  A determining authority may, on its own motion:

                     (a)  reconsider a determination made by it; or

                     (b)  cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

             (2)  A request to a determining authority to reconsider a determination made by it may be made by:

                     (a)  the claimant; or

                     (b)  if the determination affects the Commonwealth—the Commonwealth; or

                     (c)  if the determination affects a Commonwealth authority—that Commonwealth authority.

          (2A)  If a determining authority holds a licence under Part VIII that is subject to conditions requiring the determining authority to arrange for the reconsideration by another person of any determination made by the determining authority, nothing in subsection (1) or (2) is to be taken to derogate from that requirement.

             (3)  A request for reconsideration of a determination shall:

                     (a)  set out the reasons for the request; and

                     (b)  be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

             (4)  On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

             (5)  Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

63  Reviewable decision to be notified in writing

                   As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:

                     (a)  the terms of the decision;

                     (b)  the reasons for the decision; and

                     (c)  a statement to the effect that, subject to theAdministrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.

64  Applications to the Administrative Appeals Tribunal

             (1)  Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

                     (a)  the claimant; or

                     (b)  if the decision affects the Commonwealth—the Commonwealth; or

                     (c)  if the decision affects a Commonwealth authority—the Commonwealth authority; or

                     (d)  if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.

             (3)  Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.

19                  It is now necessary to refer to the decision of the Tribunal to which this appeal relates.

The decision of the Tribunal

20                  The Tribunal dealt with the two reviewable decisions together.  The Tribunal characterised the respondent's case as being that the applicant had never suffered from RRF.  It explained that the respondent did not seek to have the determination of liability (under s 14) set aside or to recover monies paid to the applicant as a result.  The respondent sought only to maintain its determinations of 26 July 2004 and 9 March 2004.  Relying on the decisions of this Court in Power v Comcare (1998) 89 FCR 514, Comcare v Hill (1999) 56 ALD 487 and Plumb v Comcare (1992) 39 FCR 236 the Tribunal said:

…all make it clear that no estoppel exists in proceedings before the Administrative Appeals Tribunal and that it is open for a Respondent to defend a claim or determination that liability does not presently exist on the ground that the original decision accepting liability was wrong.

The Tribunal noted the applicant had submitted the respondent was liable having regard to s 7(1) of the Act.  The Tribunal rejected this argument.

21                  The Tribunal then considered the applicant's medical history and various medical reports.  The Tribunal indicated it was not satisfied that the evidence supported a diagnosis of RRF for the following reasons.  The Tribunal explained that in order to make a diagnosis of RRF:

the Applicant's serology must show that both IgG and IgM antibodies as being positive.  As the condition resolves the IgM reverts to negative but IgG will remain positive for the rest of the patient's life.

Both the rheumatologists called by the parties agreed that there was no positive IgM antibody in the blood tests dated 18 March 2002.  Both expressed the opinion that whilst his serology results showed he had had past exposure to RRF they did not confirm a diagnosis of current RRF.

22                  The rheumatologist giving evidence for the applicant conceded that the applicant's serology did not support a diagnosis of RRF but stated it was equally possible that the applicant had been infected before February/March 2002 but that the symptoms at that time were "classical" RRF.  His opinion was that the RRF had aggravated the applicant's pre-existing osteoarthritis. 

23                  Ultimately, the Tribunal concluded that the diagnosis of the applicant's general practitioner (upon which the original claims had been founded) was a working diagnosis on clinical grounds which had been subsequently "refuted" by blood tests.  The Tribunal said:

It may well be that the Applicant suffered from some other parasitic infection but no evidence was led as to what that might be and it is not the task of this Tribunal to seek for itself alternative diagnosis.  Whatever ailed the Applicant in February/March 2002 I am satisfied that on the basis of the blood tests performed it was not Ross River Fever.  The decisions under review are therefore affirmed.

The formal decision of the Tribunal was that "[t]he decisions under review are affirmed".

Grounds of appeal

24                  These proceedings were commenced by a notice of appeal filed on 22 December 2004.  While proceedings of this type are described in the AAT Act as an appeal, it is an application in the Court's original jurisdiction: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 per Bowen CJ and Deane J, cited with approval in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1] per Branson and Stone JJ.  Such an appeal is limited to questions of law.  In the notice of appeal filed on 22 December 2004 the question of law identified by the applicant was:

Whether the tribunal erred in law in determining that it had jurisdiction to consider liability pursuant to section 14 of the Act when it reviewed the decisions before it.

25                  The applicant's primary contention raised by this notice of appeal was that the Tribunal had no jurisdiction to consider liability under of s 14 of the Act though, more accurately, the issue is one of power not jurisdiction.  Neither reviewable decision before the Tribunal raised for consideration any determination under s 14. 

26                  The appeal was initially heard on 28 April 2005.  On that occasion an issue arose about the nature of the case sought to be argued by the applicant.  In the result, the appeal was adjourned and a further hearing took place on 31 May 2005.  At that time the applicant formally sought to amend the notice of appeal to raise an additional question of law, namely:

Whether, if the Tribunal had jurisdiction to make findings of fact inconsistent with one more of the elements necessary to establish liability under section 14 of the Act, the Tribunal failed to lawfully exercise the jurisdiction given by the Act.

The respondent opposed the amendment. 

Consideration

27                  The application by the applicant to the Tribunal, raised for review determinations made under s 16 and s 19 (as affirmed and varied by the decision of 26 July 2004 being the reviewable decision for the purposes of s 62) and determinations made under s 24 and s 27 as affirmed by the decision of 9 March 2004 (being the reviewable decision for the purposes of s 62).  As noted earlier in these reasons, counsel for the respondent eschewed any suggestion that the Tribunal had before it any determination made under s 14.  In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist.  Counsel for the respondent submitted it was open to the Tribunal to do so.  Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.

28                  The judgment of Sackville J in Power v Comcare provides clear support for the position of the respondent. The applicant in that matter had claimed to have suffered a work-related stress disorder and the acceleration of coronary heart disease.  In 1990 Comcare accepted liability under s 14.  In 1993 Comcare determined that compensation was payable under s 24 and s 27 for permanent impairment as a result of these compensable injuries.  In 1995, however, Comcare received a medical opinion that there was no causal relationship between the applicant's employment and the coronary artery disease.  On 27 March 1995 Comcare, on its own initiative, made a determination that there was no further liability to pay compensation in respect of the acceleration of this disease.  A similar decision was made on reconsideration under s 62(5) and that decision was affirmed by the Tribunal on review.  In the review, the Tribunal considered whether the applicant had ever suffered from a heart condition causally connected to his employment.  It concluded he had not and, in so doing, reached a conclusion (about a matter of fact) contrary to a conclusion founding the determination under s 14 made in 1990 and underpinning the determinations made in 1993. Sackville J concluded that the Tribunal had not erred in adopting this approach.  His Honour said (at 525-526):

Only Comcare addressed in submissions the character of the 22 March 1995 decision.  In supplementary written submissions, Mr Johnson argued that Comcare’s powers under ss 69(a) and 70 of the SRC Actauthorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995.  Mr Johnson did not identify explicitly the sections “under” which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of “determination” in s 60(1) of the SRC Act).  However, it was implicit in his submissions that the decision to terminate Comcare’s liability to compensate the applicant as from 9 March 1995 was made “under” ss 14 and 19 of the SRC Act.  If this is correct, it would follow that Comcare had power to reconsider the decision under s 62.  On this analysis,  s 43(1) of the AAT Actconferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate’s decision that Comcare’s liability had ceased from 9 March 1995.

I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations.  In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act,to reconsider the earlier determinations on its own motion.  I must confess to thinking that, although the delegate who decided to terminate the applicant’s compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J.  Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act.

In these circumstances, I accept Mr Johnson’s analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act.  This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Actto make “determinations…in relation to claims”: Australian Postal Corporation v Nguyen (1996) 71 FCR 516  at 521-522 per Jenkinson J.  Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made “under” ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT.  Parliament cannot have intended this result.  Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise.

The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act.  As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5).  For the purpose of reviewing the reconsideration decision (the “reviewable decision”), the AAT could exercise all the powers and discretions conferred by the SRC Acton the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453.  The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant’s coronary disease had never been causally related to his employment.  If so, the AAT was also entitled to approach the matter on this basis.

I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work.  The question of Comcare’s liability arose because Comcare was empowered under s 69(a) of the SRC Actto make a determination “in relation to” the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease.  It was required to make that determination accurately (s 69(a)) and in accordance with the “substantial merits of the case” (s 72(a)).

(Emphasis added)

29                  In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62.  In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination.  As the Tribunal pointed out in its reasons in this matter, Sackville J's reasoning supports the approach it took.

30                  Also supporting the approach of the Tribunal in this matter, is the judgment of Spender J in Comcare v Hill.  Spender J was dealing with an appeal by Comcare against a ruling by the Tribunal that Comcare could not put in issue the connection between the applicant's myocardial infarction and his employment.  Comcare had initially determined that it was liable to pay compensation to the applicant for incapacity and medical expenses in relation to a coronary infarction suffered by the applicant under s 19 and s 16 respectively.  While his Honour did not say so expressly, this must have involved a determination under s 14 as well.  The applicant later sought lump-sum compensation in respect of permanent impairment arising from the myocardial infarction.  This claim was disallowed and that determination was affirmed on reconsideration (the reviewable decision).  The applicant sought review of the reviewable decision by the Tribunal.  Before the Tribunal, Comcare sought to raise the question of whether there was a connection between the applicant's myocardial infarction and his employment.  The Tribunal ruled that Comcare could not raise that question and Spender J concluded it was wrong in adopting that approach.

31                  In determining that the Tribunal had erred, his Honour said (at [9]):

Section 24 of the Act, and the definition of “injury” in s 4 of the Act, govern liability in respect of permanent impairment.  The earlier determination was not a claim for permanent impairment.  The Tribunal has to determine for itself whether the requirements for liability to pay compensation for injury resulting in permanent impairment are established: see Comcare v Miles (1995) 129 ALR 427 at 430 et seq.  Similar questions were considered by Sackville J in Power v Comcare (1998) 56 ALD 141.  Although the circumstances were a little different, his Honour reviewed the statutory scheme and relevant cases and held that both Comcare, under s 62 of the Safety, Rehabilitation and Compensation Act, and the AAT, pursuant to ss 62 and 43(1) of the Administrative Appeals Tribunal Act, could analyse all the necessary facts, including the question of whether the subject injury was work related, in order to resolve the question of liability.  His Honour's conclusion was that no issue estoppel arose from the earlier determination or its affirmation by the AAT.

It can be seen that Spender J endorsed the approach of Sackville J.  However, Spender J was wrong in suggesting (in the fifth sentence) that the reconsideration power (under s 62) can be exercised by the Tribunal in relation to a determination other than the determination which had been reconsidered and which had given rise to the reviewable decision.  That he was wrong, is only apparent from the Full Court judgment to which I now turn.

32                  The reasons for judgment of Sackville and Spender JJ have to be considered having regard to what was later said by the Full Court in Lees v Comcare (1999) 56 ALD 84; 29 AAR 350.  That matter concerned two cases before the Tribunal.  In the first case, a Ms Lees had successfully sought compensation (it seems under s 19) and the payment of future medical expenses (it seems under s 16) in relation to a work-related injury.  She later sought payment under s 16 for taxi fares to attend medical treatment.  A decision was made to refuse to make those payments (for taxi fares) and that decision was confirmed in the reconsideration undertaken under s 62 giving rise to a reviewable decision.  Ms Lees sought review of that reviewable decision by the Tribunal.  Before the Tribunal, Ms Lees sought to raise the question of whether she was entitled to compensation for permanent impairment under s 24.  The Tribunal concluded it could consider this latter question in the hearing in which it would be considering the reviewable decision concerning taxi fares.  Both the primary judge (Finn J) and the Full Court concluded that the Tribunal's approach was wrong.

33                  In the second case, a Mr O'Donohue had claimed he suffered from major depression arising out of his employment.  Comcare rejected his claim for compensation and did so, in effect, on the basis that he had not suffered any injury as defined by s 4(1) of the Act.  This was treated by the Full Court as a determination under s 14 (though unfavourable to Mr O'Donohue).   That decision was affirmed in the reconsideration undertaken under s 62 giving rise to a reviewable decision.  Mr O'Donohue sought review of that reviewable decision by the Tribunal.  At a preliminary hearing Mr O'Donohue indicated he proposed to raise his entitlement to compensation for permanent impairment (it seems under s 24) and non-economic loss (it seems under s 27).  In a preliminary ruling, the Tribunal ruled that it could entertain those claims in the event that liability was established (effectively under s 14).  The Full Court concluded that the Tribunal had erred in deciding that it could consider the claims for compensation for permanent impairment and non-economic loss in the review of the reviewable decision concerning liability under s 14.

34                  The Full Court (Wilcox, Branson and Tamberlin JJ) said (at [33] - [37]):

[33]    Section 60 contains definitions, among others, of ‘determination’, ‘determining authority’ and ‘reviewable decision’.  These definitions are in the following terms:

            “determination” means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X;

            “determining authority”, in relation to a determination, means the person who made the determination;

            “reviewable decision” means a decision made under subsection 38(4) or section 62.

[34]    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 a determination may be made under s 14 of the Act.  A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of 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.

[35]    This is not to say that a determination under s 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 s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; 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.

[36]    Section 61 requires a determining authority, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it.

[37]    Section 62 is concerned with the reconsideration of determinations (ie, with the second tier decision-making process).  Section 62(1) provides for a determining authority to reconsider a determination made by it on its own motion, or to cause such a determination to be reconsidered by an authorised person, not being a person involved in the making of the determination.  Section 62(2) authorises certain persons, authorities or corporations affected by a determination to request a determining authority to reconsider a determination made by it.  Where such a request is made the reconsideration is undertaken by an authorised person who was not involved in the making of the determination.  Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.

35                  In relation to the liability to pay compensation as provided for in s 14 of the Act, the Full Court had earlier said (at [27]):

[27]    As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.  Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment.  However, the liability in Comcare created by s 14 is qualified in two ways.  First, such liability is a liability ‘[s]ubject to’ Part II of the Act.  That is, it is a liability limited in its extent by other provisions of Part II of the Act: see, for example, s 17(2).  Secondly, the liability is a liability to pay compensation ‘in accordance with’ the Act.  That is, it is a liability to pay the compensation for which the statute provides, as required by the Act :see, for example, ss 17(3),(4),(5), 19, 20, 24 and 25.

36                  The jurisdiction of the Tribunal is to review a reviewable decision:  s 64 of the Act.  In relation to the powers of the Tribunal in a review, the Full Court said (at [39]):

[39]    In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.  Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1).  Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers ‘[f]or the purpose of reviewing’ the reviewable decision, not powers that may be exercised at large.  Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act.  The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

37                  This general issue of the scope of the review by the Tribunal arose again in Australian Postal Corporation v Oudyn. The facts are a little complicated and need not be repeated in full.  It is sufficient to note that the Australian Postal Commission ("the Commission") (which has a status under the Act analogous to that of the respondent in this matter as discussed earlier) initially determined the employee (Mr Oudyn) was entitled to medical expenses (it seems under s 16) and compensation (it seems under s 19) for a work-related injury.  On 18 May 2000, a determination was made that "the effects of the injury which you [earlier] sustained [at work] have resolved and consequently you will not have further entitlement to compensation under terms (sic) of section 14(1) [of the Act]".  Later, a claim was made by the employee for lump-sum compensation for permanent impairment (it seems under s 24).  Before Cooper J (at [11]), the Commission made the following submissions:

(a)       the decision of the claims manager made on 18 May 2000 that there was no further entitlement to compensation under s 14(1) of the Act necessarily included a determination that the injury did not result in permanent impairment;

(b)       while there existed a determination that no permanent impairment arose in consequence of a compensable injury under s 14(1) of the Act, no occasion arose to assess a claim for lump sum compensation in accordance with s 24 of the Act;

(c)        the Act did not contemplate or provide for a lawful claim under s 24 of the Act, in the absence of a determination of liability to pay compensation under s 14(1) of the Act;

(d)       not being under any statutory duty to determine the claim made under cover of the letter dated 12 February 2001, the failure to process the claim does not amount to a reviewable decision; and

(d)       the contentions relied upon followed from the decision of a Full Court of this Court in Lees v Comcare (1999) 56 ALD 84.

38                  In dealing with those submissions, Cooper J said (at [29]-[33]):

APC purported to determine on 18 May 2000 that it had no further liability to pay compensation and Mr Oudyn had no further entitlement to claim compensation under any section of the Act, including s 24.  It contended that he did not then have permanent impairment as a result of the injury sustained on 2 August 1999, and could not thereafter bring a claim for compensation for permanent impairment to be assessed under s 24 of the Act while the determination remained in existence.  Since 18 May 2000, the whole of the conduct of APC in its dealings with Mr Oudyn have been based on that contention.

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 92, [35] of its reasons.

The content, duration and 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 s 24.  These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14.  They do not require that the 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 APC 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.  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 APC 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 claim 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.

39                  In Rosillo v Telstra Corporation Limited Madgwick J dealt with a similar situation, namely a decision of the Tribunal affirming a reviewable decision affirming a determination under s 14 ceasing liability under the Act "on and from" the date of the determination.  His Honour set aside the decision of the Tribunal.  A more recent case to similar effect is the judgment of Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991.

40                  The circumstances considered by the Full Court in Lees v Comcare do not directly parallel those which arose in Power v Comcare and Comcare v Hill nor those which arise in the present case.  However, the Full Court appears, in my opinion, to have placed materially greater emphasis on the structure embodied in the Act creating the three-tiered process of decision making and review than is evident in the judgments of Sackville and Spender JJ.  I think it can be said that Sackville J recognised the conclusion he reached was not the only one reasonably open when his Honour used the words "I think the better view is that…" in the last paragraph of the quotation set out at [28] above.

41                  The three-tiered structure involves determinations being made of the type referred to in [3] above which continue to have legal effect until and unless they are reconsidered under s 62 and varied or revoked in the exercise of the powers conferred by s 62(5).  It may be thought that a determination under s 14 does not have any particular significance because its operation, in practical terms, is conditional upon another determination being made.  Its legal effect is, in a sense, inchoate.  However, the Act confers on a decision under that section the status of determination (having regard to the definition in s 60) and, as such, it is no less amenable to reconsideration than a determination made under another section with, potentially, an operative practical effect involving payment to a claimant.

42                  As the Full Court pointed out in Lees v Comcare at [35] of its judgment set out at [34] above, a determination under s 14 involves findings about five matters.  The fourth is whether the employee suffered an injury and the fifth is whether the injury has resulted in death, incapacity for work or impairment.  A finding on the fourth matter will involve a consideration of whether the injury (or, relevantly, a disease) arose out of or in the course of the claimant's employment (or, in relation to a disease, was contributed to in a material degree by the employment).  So much is apparent from the definitions in s 4 and, in particular, the definitions of "disease" and "injury".  Thus, a necessary step in making a determination is making findings about those matters.  If the determination is in the claimant's favour, then it will include a finding that the claimant has suffered from an injury or disease with the requisite connection to the employment.  Fairly clearly the power to make a determination under s 14 includes the power to make a finding about the fourth matter as well as the other four matters.

43                  The Full Court indicated at [39] of its judgment set out at [36] above, that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision.  It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise.  If that is correct then the Tribunal only has power to make a finding that a claimant  did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14.  In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.

44                  This approach does not appear to me to render the scheme of the Act unworkable.  If a determination is made under s 14 in favour of a claimant and later medical opinions or other evidence raises doubts about whether it should have been made, then Comcare (or a body in a similar position such as the respondent) can act of its own motion and reconsider the determination under s 62.  That way, clear and unambiguous rights of review arise and the subject matter of the review will be clear as will the powers of the Tribunal when undertaking the review.  In its submissions, the respondent raises the spectre of the revocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or number of determinations made under other sections.  This was not the subject of any detailed submissions.  Accordingly, the views I express in the following paragraph are necessarily provisional.

45                  Comcare or a licensed Commonwealth authority or corporation (such as the respondent) may, as a "relevant authority", recover an amount of compensation that has been paid to a person under the Act if the amount should not have been paid: s 114(1)(b).  The expression "should not have been paid" could mean a number of things.  It may mean that the payment was made on a mistaken view of the facts: as to which see the Secretary, Department of Social Security v Migotto (1991) 103 ALR 36, or on a mistaken view of the law.  This case illustrates a class of case where facts were found by the Tribunal which might enable the revocation under s 62 of an earlier s 14 determination and earlier determinations under s 16 and s 19.  However, in this matter, the revocation of earlier determinations is not a course the respondent has taken or has indicated it proposes to take.  This position may have been adopted because, for some discretionary or policy reason, the respondent does not wish to disturb payments earlier made under a mistaken belief about the entitlements of the applicant.  However, that result may well be capable of being achieved by revoking the s 14 determination but not the determinations under s 16 and s 19.  In any event, Comcare can, under s 114D of the Act, waive its right to recover from a person a debt due (assuming, for present purposes, any payment made under a revoked determination is, without more, a "debt due").  While that power to waive is subject to Ministerial directions, it nonetheless reveals the statutory scheme which could easily be moulded to ensure that, in a case such as the present, monies would not be recovered even if the s 14 determination was revoked.

46                  In my opinion, it was not open to the Tribunal to review findings on the question of whether the applicant had suffered RRF and thereby make findings contrary to those underpinning the earlier determinations under s 14.  Its decision should be set aside and the matter remitted to the Tribunal. 

47                  The proposed amendment to the notice of appeal was advanced on the basis that the applicant might not succeed on the appeal as originally framed.  Probably the better course is to refuse leave to amend the notice of appeal.  The respondent should pay the applicant's costs.  Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under 62 for the reasons which prompted the Tribunal to determine the matter as it did.  However, these are matters for the parties.

Associate:

Dated:              16 September 2005