Federal Court of Australia

Ascic v Comcare [2021] FCA 1498

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend his notice of appeal so that it is to be read as if it contains the following questions of law:

(a)    whether the Tribunal erred in construing s 27 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) by not concluding that it, in isolation, can be relied upon to establish an entitlement to permanent impairment compensation; and

(b)    whether there was any evidence to support the Tribunal's finding that the impairment became permanent before 1 December 1988.

2.    The application for leave to amend the notice of appeal is otherwise dismissed.

3.    The appeal is dismissed.

4.    The applications to adduce further evidence are dismissed.

5.    Any party who wishes to make submissions as to costs is to file submissions that do not exceed five pages addressing the costs order they seek and why they contend it should be made.

6.    Subject to any further order, such submissions are to be filed within 14 days and the question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Background

1    The applicant, Mr Ascic, is a former member of the Australian Federal Police, which was known as the Commonwealth Police when he was first employed on 25 December 1973.

2    Since 1988, the respondent, Comcare, has recognised that Mr Ascic suffers from 'depression and acute paranoid reaction to perceived stress in employment' stemming from 11 December 1987 whilst employed with the Commonwealth Police. He ceased work on that date and never returned.

3    Comcare's recognition of the injury was recorded in its acceptance of a claim made by Mr Ascic on 26 April 1988. Mr Ascic lodged a compensation claim form in relation to 'depressive reaction with anxiety and some paranoia??? (emotional instability)'. By letter dated 25 May 1988 Mr Ascic's compensation claim for incapacity for work from 11 December 1987 was accepted.

4    Mr Ascic retired, being totally incapable of engaging in work, on 1 September 1988. Since 1 September 1988 Mr Ascic has been in receipt of a pension from ComSuper.

5    During the time that has since elapsed, Comcare has made various determinations of Mr Ascic's entitlements pursuant to relevant statutory provisions.

6    Initially, compensation payments were made pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). That Act, however, was repealed by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act). The provisions of the 1988 Act commenced on 1 December 1988, and that Act established Comcare as a body corporate pursuant to s 74.

7    Part X of the 1988 Act includes transitional provisions to facilitate the continuation of compensation entitlements upon the repeal of the 1971 Act and the commencement of the 1988 Act.

8    Mr Ascic has previously unsuccessfully challenged Comcare's assessment of the quantum of his compensation entitlements under the 1988 Act: Ascic v Comcare [2019] FCA 819, upheld in Ascic v Comcare [2020] FCAFC 105 (Ascic Weekly Earnings Judgment).

9    On 12 December 2016 Mr Ascic submitted an additional claim for compensation for permanent impairment. It is this claim that led to the reviewable decision the subject of the Tribunal decision and is the subject of this proceeding. The claim was commenced by submission of a standard claim form bearing that date (Claim Form).

10    In the Claim Form, Mr Ascic made a claim for permanent impairment in relation to his 'accepted condition', described in the form as 'depression and acute paranoid reaction to perceived stress in employment', and stated that the date of injury was 11 December 1987.

11    In response to the question 'What permanent injury/impairment(s) of the body do you want to claim for?' Mr Ascic wrote:

Inability to sleep, regular bouts of stress/anxiety, unwelcome memory flashbacks, frequent inability to maintain concentration, often incapable of attending to daily chores/needs, unable to tolerate social contacts/prefer isolation or family contact only, desires for revenge towards AFP and often desires for self harm. Following 14 years of mental abuse by AFP, I am still fucked in the head and neither I nor anyone else has been able to help.

12    The treating doctor also indicated in the form that the diagnosis of the condition for which Mr Ascic claimed permanent impairment is 'depression and acute paranoid reaction', and affirmed that it was related to the accepted condition.

13    In response to the question 'Have you received a lump sum award for permanent impairment or non-economic loss for this injury/injuries/disease and/or this claim or any other claim with other insurers', Mr Ascic selected 'No'.

14    The Claim Form also contained a 'non-economic loss questionnaire' which was completed by Mr Ascic and his treating practitioner.

15    On 2 February 2017 Comcare by a delegate wrote to Mr Ascic informing him that Comcare had decided to decline his permanent impairment compensation claim for the accepted condition of 'depression and acute paranoid reaction to perceived stress in employment' under the 1988 Act. The letter provided information as to requesting a reconsideration within 30 days. It is apparent that a reconsideration was undertaken.

16    On 16 March 2017 a different delegate of Comcare, being a senior review officer, made a reviewable decision to affirm the determination of Comcare to decline Mr Ascic's claim and notified Mr Ascic of the decision and reasons by letter of that date. The delegate considered the claim was properly declined because Mr Ascic's condition became permanent prior to 1 December 1988 and the 1971 Act did not provide for a lump sum payment of compensation for psychological conditions. Therefore, applying s 124(3) of the transitional provisions of the 1988 Act, the delegate determined that Mr Ascic was not entitled to compensation for permanent impairment under the 1988 Act. These legislative provisions are set out and discussed further below.

17    On 18 May 2017 Mr Ascic lodged an application with the Administrative Appeals Tribunal to review the delegate's reviewable decision of 16 March 2017.

18    On 9 August 2019 the Tribunal published its decision to affirm the reviewable decision of 16 March 2017. The Tribunal determined that:

(a)    Mr Ascic has a permanent impairment within the meaning of s 4 of the 1988 Act;

(b)    Mr Ascic's impairment became permanent prior to 1 December 1988;

(c)    the evidence does not support a finding that there has been any qualitative and quantitative change in the impairment post 1 December 1988, which would give rise to a new impairment; and

(d)    no permanent impairment compensation is payable to Mr Ascic by virtue of s 24, s 25 or s 124 of the 1988 Act.

This appeal

19    By notice of appeal filed 21 August 2019 and pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), Mr Ascic appeals to this Court from the decision of the Tribunal.

20    The nature of an appeal under s 44 is well recognised and was described by the Full Court in the Ascic Weekly Earnings Judgment at [23]-[24] and the authorities cited therein. Although characterised as an 'appeal', the proceeding is an application in the Court's original jurisdiction. It is confined to questions of law and the subject matter and scope of the proceeding is limited to those questions of law. It does not extend to a re-hearing of the whole matter. Importantly, it is not for the Court to remake findings of fact as made by the Tribunal.

21    Since the commencement of the appeal, the hearing was delayed for a number of reasons, including issues relating to COVID19 in its early days, some uncertainty on Mr Ascic's part as to whether he would pursue the appeal, a period of ill-health on Mr Ascic's part and some initial difficulties with a video link. In the end the hearing proceeded successfully by video link.

22    Mr Ascic has also filed various interlocutory applications, seeking to amend his notice of appeal and seeking to rely on certain documents that were not before the Tribunal. The applications were opposed by Comcare.

23    I took the view that it was appropriate that the hearing of those applications be dealt with at the hearing of the appeal. I formed this view because it was apparent from the notice of appeal and proposed amended notice of appeal that questions might arise as to whether the appeals identified and articulated questions of law within the meaning of s 44 of the AAT Act, and that as a matter of practice and procedure it was preferable in the circumstances to determine such issues at the hearing of the appeal. The parties were invited to provide further written submissions on that basis and did so. In particular, Mr Ascic has filed three sets of written submissions and I have had regard to those submissions in addition to his oral submissions.

The statutory provisions and their transitional operation

24    To resolve the various contentions, it is necessary to set out certain provisions of both the 1988 Act and the 1971 Act.

1988 Act

25    Expressed at a general level, the 1988 Act applies to injuries suffered before or after its commencement date (1 December 1988), but subject to transitional provisions that disentitle claims for certain impairments that occurred before the commencement date. A detailed history of the introduction and effect of the 1988 Act can be found in Brennan v Comcare (1994) 50 FCR 555 at 557 (Burchett J), 563-565 (Gummow J).

26    The starting point for a claim brought after 1 December 1988 is s 14 of the 1988 Act. It provides:

14    Compensation for injuries

(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.

…

27    'Injury' is defined in s 5A and includes a disease or an injury that is a physical or mental injury arising out of or in the course of the employee's employment.

28    'Impairment' is defined in s 4 and means 'the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function'.

29    'Permanent' is defined in s 4 and means 'likely to continue indefinitely'.

30    Section 24 of the 1988 Act provides for entitlements to compensation for permanent impairment. It provides:

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.

(2)    For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)    the duration of the impairment;

(b)    the likelihood of improvement in the employee's condition;

(c)    whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)    any other relevant matters.

…

(7)    Subject to section 25, if:

(a)    the employee has a permanent impairment other than a hearing loss; and

(b)    Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

31    As a matter of construction it is apparent that s 24(2) is a non-exhaustive list of the matters that Comcare is to take into account in considering the definition of those terms and in deciding whether an impairment is permanent.

32    Section 25(1) of the 1988 Act provides for interim payments of compensation where it has determined that an employee is suffering from a permanent impairment as a result of an injury.

33    Section 27 relevantly provides:

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.

(2)    …

(3)    This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

34    Part X of the 1988 Act (headed 'Transitional Provisions, Consequential Amendments and Repeals'), and comprising s 123 to s 137, sets out certain transitional provisions.

35    Section 124 is key. It provides that the Act may apply to injuries suffered by an employee, whether suffered before or after the commencement date (1 December 1988). It provides:

124    Application of Act to pre-existing injuries

(1)    Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)    Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)    A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a)    where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act;

(b)    where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c)    in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered.

(3)    A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)    the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)    the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)    where the impairment or death occurred before the commencement of the 1930 Act - under the 1912 Act;

(ii)    where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment or death occurred; or

(iii)    in any other case - under the 1971 Act as in force when the impairment or death occurred.

(4)    The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(a)    where the impairment or death occurred before the commencement of the 1930 Act - the 1912 Act;

(b)    where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force when the impairment or death occurred; or

(c)    in any other case - the 1971 Act as in force when the impairment or death occurred.

36    It is fair to say that some difficult issues arose after the introduction of the 1988 Act in relation to compensation for permanent impairment where the original injury occurred before 1 December 1988. For example certain impairments (such as mental injuries) were not included in the Table of Maims in the 1971 Act but are within the definition of 'injury' under the 1988 Act. Further, s 27 provided for a lump sum payment for non-economic loss where there is a permanent impairment: issues as to its application to injuries suffered under the 1971 Act were addressed in a number of cases culminating in Telstra Corporation Limited v Treloar [2000] FCA 1170; (2000) 102 FCR 595, but the introduction of s 27(3) by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth) clarified that s 27 applied only to a permanent impairment commencing after 1 December 1988, unless an application for non-economic loss had been made before an effective date of 7 December 2000.

37    A line of cases has now established the principles to be applied with respect to pre-1988 injuries and permanent impairment, and in particular as to determining when an impairment becomes permanent, the effect of fluctuating impairments, the deterioration of an impairment and when a fresh permanent impairment may be said to arise.

38    In summary, and relevant to Mr Ascic's claim, it is clear that s 124(3) has the effect that if a person's impairment became permanent before 1 December 1988, the person is not entitled to receive compensation for that impairment under the 1988 Act if they were not entitled to receive lump sum compensation for it under the 1971 Act.

39    So much has been affirmed by the authorities. The Full Court of the Federal Court considered the operation of s 124 of the 1988 Act in Brennan. The appellant had suffered a back injury prior to the commencement of the 1988 Act. He had ceased employment prior to that date. He made a claim for compensation for permanent impairment under s 24 of the 1988 Act. The Tribunal initially upheld his claim for compensation under s 24, but the decision was overturned on appeal, having regard to whether or not the Tribunal had properly assessed the question of when the appellant's impairment became permanent. An appeal from the primary judge's decision was dismissed.

40    Relevantly, Burchett J in Brennan explained the manner in which s 124 operates as follows, first explaining the operation of s 24 and stating (at 557):

It is into this statutory scheme that the legislature had to fit cases of injuries sustained by employees in the past. The primary provision, made by s 124(1), reads as follows:

'Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.'

So, subject to any qualification imposed by any other provision of Pt X, the date of the injury to which an impairment is attributable is irrelevant to the operation of s24. However, s 124(3) provides:

'A person is not entitled to compensation under s24 … in respect of a permanent impairment … being an impairment … that occurred before the commencing date, if;

(a)    the person received compensation of a lump sum in respect of that impairment … under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)    the person was not entitled to receive compensation of a lump sum in respect of that impairment or death;

(i)    where the impairment or death occurred before the commencement of the 1930 Act under the 1912 Act;

(ii)    where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment or death occurred; or

(iii)    in any other case - under the 1971 Act as in force when the impairment or death occurred.' (Emphases added.)

It will be observed that subs (3) talks about 'a permanent impairment' and 'that impairment'. This language is consistent with the analysis I have made of s 24, and with the notion that there may be a number of impairments arising at different times out of the same injury. Had Parliament intended to exclude the operation of the 1988 Act wherever an injury had resulted in any permanent impairment arising before the commencing date, it could easily have said so. Instead, what Parliament did provide was carefully linked to a particular impairment. Only where that impairment occurred before the commencing date do the exclusionary provisions of subs (3) operate. Unless they do, subs (1) holds sway, and an impairment is compensable under the 1988 Act.

41    Similarly, Gummow J in Brennan explained the operation of Part X as follows (at 562, 564, 565):

Part X of the 1988 Act, which includes s 124, provides comprehensive 'transitional' provisions. The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation in respect of rights and liabilities accrued thereunder. Rather, they deal with the creation and substitution from their commencement of new rights in respect of past events. Thus the provisions may be described only in a particular sense as being retrospective.

…

The fundamental consideration is that the 1988 Act thus applies to an injury, loss or damage suffered by an employee before 1 December 1988 and that rights of recovery are conferred by these subsections. Each is expressed to be 'subject to this Part'. Whilst succeeding subsections of s 124 itself and other provisions of Pt X (ss 123-139) limit or exclude what otherwise would be the rights of employees to compensation, they do not confer them.

…

The question then arises, in a case such as the present, whether, within the meaning of s 124(1A), Mr Brennan is entitled to compensation under the 1988 Act on the ground that compensation would have been payable to him in respect of the injury, loss or damage in question under the 1971 Act. Does s 124(1A) deny an entitlement to compensation under the 1988 Act where the compensation that would have been payable under the 1971 Act was different in nature and quality? Is the consequence that absence of entitlement under the earlier legislation to a lump sum is fatal to a claim under s 24 of the 1988 Act, even though there was a right to weekly payments under the earlier statute?

Any obscurity in the application of s 124(1A), in the generality of the conferral of rights by s 124(1) freed from temporal limitation, and in the interrelation between these subsections, is limited by the opening phrase in each provision. This is 'Subject to this Part', an expression which includes the other subsections of s 124. Of those provisions, subss (2), (3), (5), (6), (8) and (10) state circumstances in which, in terms, 'a person is not entitled to compensation' under one or other of the substantive provisions of the 1988 Act. In this way what would otherwise be the rights conferred by the earlier provisions of s 124 are qualified or excluded.

Of particular importance for the present case are s 124(2), (3) and (4) …

42    From this analysis it can be seen, as Gummow J observed (at 566), that an entitlement to compensation for permanent impairment under s 24 or s 25 where the injury was suffered prior to the 1988 Act arises by virtue of s 124, but such entitlement may also be excluded by s 124.

43    In Comcare v Levett (1995) 60 FCR 14 the Full Court was also concerned with the construction of s 124(3) of the 1988 Act, holding at 18 that s 124(3) of the Act disentitles an employee to compensation in two situations:

… first is when, as a matter of fact, the employee has received compensation of a lump sum. That has no relevance in the present case. The second is when the person was not entitled to receive compensation of a lump sum for an impairment which occurred while the 1971 Act was in force. Thus, the question becomes whether any impairment suffered by the respondent entitled him to a lump sum under the 1971 Act.

44    This directs attention to whether Mr Ascic was entitled to receive compensation by way of a lump sum in respect of his accepted condition of 'depression and acute paranoid reaction to perceived stress in employment' under the 1971 Act.

1971 Act

45    Mr Ascic relied upon s 27 of the 1971 Act, which relevantly provides:

27    Compensation for personal injuries

(1)    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.

…

(4)    An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury.

46    Section 39 of the 1971 Act provides for compensation payable for injuries, and being payments by way of lump sum:

39    Compensation payable in respect of certain losses

(1)    Subject to this section, where an injury to an employee results in a loss specified in the next succeeding sub-section, the compensation payable in respect of that injury is $28,000 or such higher amount as is prescribed, and that compensation is payable to the employee.

(2)    The losses referred to in the last preceding sub-section are as follows:

(a)    loss of, or total loss of sight of, both eyes; and

(b)    loss of, or total loss of sight of, a useful eye, the other being blind or absent.

(3)    Subject to this section, where an injury to an employee, not being an injury resulting in a loss in relation to which sub-section (l) applies, results in a loss specified in the next succeeding sub-section, the compensation payable in respect of that injury is an amount equal to such percentage of $28,000 or, if an amount is prescribed for the purposes of sub-section (1), of that amount as is specified in the next succeeding sub-section in relation to that loss, and that compensation is payable to the employee.

…

(15)    In this section, 'loss' means a permanent loss.

47    Section 39(4) then sets out a long list of percentages of compensation payable for the loss of various parts and functions of the body. However, there is no reference to psychological injuries, and so, it follows, no reference to the type of injury that Comcare accepted Mr Ascic has suffered.

48    There is provision for compensation for other impairments in s 40 of the 1971 Act, but again none extend to the injury suffered by Mr Ascic.

49    Therefore, on its face there was no entitlement under the 1971 Act for a lump sum compensation payment for psychological injuries.

The Tribunal's reasons

50    The Tribunal set out the applicable provisions of the 1988 Act and the 1971 Act, concluding that the 1971 Act did not provide for a lump sum compensation payment for psychological injury.

51    It referred to the decision in Comcare Australia (Department of Defence) v Maida [2002] FCA 1284 (Mansfield J). The Court in Maida was concerned with an appeal under s 44 of the AAT Act concerning the interaction of the permanent impairment payment or lump sum disability payment provisions of the 1988 Act and the 1971 Act in respect of a compensable injury (schizophrenia) which first occurred before the commencement of the 1988 Act. Mansfield J observed:

[5]    … The 1971 Act provided for the payment of workers compensation in respect of injury suffered by a Commonwealth employee during the period it was in force: see generally s5, s27 and s29 of the 1971 Act. S39 of the 1971 Act provided for lump sum payment of compensation in respect of the loss of particular functions or limbs or part of functions or limbs. The amount of eligible benefits for impairments are those specified in the lump sum compensation table in s39(4) of the 1971 Act. They did not include psychological impairment such as schizophrenia. It is common ground that, under the 1971 Act, there was no entitlement by way of a lump sum payment for a psychological impairment such as schizophrenia.

52    The case in Maida turned upon whether the applicant's claim for compensation under s 24 of the 1988 Act was in respect of an impairment that had occurred prior to 1 December 1988 because it was accepted that the 1971 Act did not provide lump sum compensation for psychological impairment.

53    The Tribunal then turned to other provisions upon which Mr Ascic sought to rely, addressing each as follows (reasons at paras 21-30):

(1)    Section 26 of the 1971 Act - this provision was not relevant, as it operated to deem an employee to be totally incapacitated if employment for which they were fit was not available. Furthermore, the section had been replaced in 1985 by different wording that was irrelevant to Mr Ascic's circumstances.

(2)    Section 27(1) of the 1971 Act - this provision is a 'gateway provision' under which liability is accepted but payment is made only in accordance with other provisions of the Act. So, the Tribunal observed:

… although the definition of an 'injury' in section 5(1) of the 1971 Act means 'any physical or mental injury …, it is subject to other specific provisions in the 1971 Act that deal with lump sum payments, namely s 39, s 40, s 41 and s 42. Relevantly, none of these provisions provide for lump sum payments with respect to psychological conditions.

The Tribunal noted that s 27(1) is analogous to s 14 of the 1988 Act, the operation of which was explained in Lees v Comcare [1999] FCA 753 as follows:

[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' Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt 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.

…

[34]    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 provision of the Act.

(3)    Section 27(4) of the 1971 Act - this provision did not assist Mr Ascic because it refers only to circumstances where 'an amount of compensation [must be] payable under a provision of this Act', and the 1971 Act does not contain any provisions which provide for a lump sum payment of compensation for psychological conditions.

(4)    Section 39(14) of the 1971 Act - this provision provides that lump sum compensation is not payable in circumstances including where a person is totally incapacitated, and so does not assist Mr Ascic.

(5)    Section 124(4) of the 1988 Act - this provision does not assist Mr Ascic because it provides that where a person (such as Mr Ascic) was not entitled to any compensation under the 1971 Act, they will not be entitled to compensation under the 1988 Act.

(6)    Section 128 of the 1988 Act - this provision simply transfers liability to make payments for the Commonwealth authority to Comcare after the commencement of the 1988 Act if liability has not already been discharged. It is not applicable to Mr Ascic's circumstances.

54    The Tribunal, having acknowledged that Comcare conceded that Mr Ascic suffers from an impairment as a result of the accepted condition, then turned to consider the expert evidence as to whether Mr Ascic had suffered a permanent impairment as a result of the accepted psychological condition.

55    In particular, having considered the medical reports of a psychiatrist, a general practitioner and Mr Ascic's treating general practitioner, the Tribunal concluded (reasons at paras 38-39) that:

On balance, the Applicant's medical records show that as a result of his accepted conditions the Applicant's daily ability to function is impaired, including his ability to socialise, interact with others, and to work; that the consensus of medical opinion is that his 'prognosis is poor' (T8); that there is unlikely to be any change in his condition (T12); and that since 1988 the Applicant has continuously been certified as being unfit for work (see T26, pages 78-86).

The Tribunal therefore finds that, on the balance of probabilities, the Applicant has a permanent impairment within the meaning of s 4 of the [1988 Act].

56    The Tribunal then considered the date by which the injury became permanent. Mr Ascic contended that his impairment did not become permanent prior to 1 December 1988. He submitted it became permanent in 1996 when he stopped taking his medication and his condition 'did not vary much since that time'. However, the Tribunal determined (reasons at para 59) that having regard to the date of injury, the date Mr Ascic went on leave, the date of his compensation claim, the date of his retirement, and the dates of diagnosis and injury referred to in the medical reports, the evidence all tended to suggest that Mr Ascic's impairment became permanent prior to 1 December 1988, and was satisfied on the balance of probabilities that that was the case.

57    The Tribunal next considered whether there had been a new impairment suffered on or after 1 December 1988, referring to guidance as those principles are found in the decision of the Full Court in Department of Defence v West (1998) 85 FCR 491 (Merkel J, O'Connor J agreeing) and the principles summarised in Maida at [28]. The summary from Maida is useful:

In effect, in this matter, the applicant puts the following propositions which, in my view, correctly summarise the state of the law:

20.1    The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.

20.2    If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.

20.3    A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment.

58    However, the Tribunal determined in Mr Ascic's case (reasons at para 65) that:

… the Tribunal has found that, on the balance of probabilities, the Applicant continues to suffer from the same impairment that he suffered from in 1987. The evidence before the Tribunal does not suggest any significant change, deterioration or worsening of his impairment which could be considered to be a qualitative and quantitative change and therefore a new or distinct impairment.

59    The Tribunal therefore concluded that no permanent impairment compensation was payable to Mr Ascic by virtue of s 24, s 25 or s 124 of the 1988 Act, although noting that it would be open to Mr Ascic to bring a new claim should he obtain evidence of any qualitative or quantitative change in his impairment that gave rise to a new impairment.

Questions of law that arise

60    By the original notice of appeal Mr Ascic asks some nine questions said to be questions of law arising out of the Tribunal's decision and 10 grounds that he seeks to rely upon. By the amended notice of appeal (for which leave is required) Mr Ascic seeks to rely on some 10 questions of law and 14 grounds.

61    Acknowledging that Mr Ascic is self-represented, it is perhaps not surprising that the purported questions of law and the grounds are relatively broad-ranging and in a narrative style. However, it is appropriate to start by addressing two valid questions of law that may be distilled from the original notice of appeal and that Comcare properly suggested and accepts comprise questions of law for the purpose of s 44 of the AAT Act. Comcare indicated it did not object to leave being granted to Mr Ascic to amend his application to reflect those two questions of law. The same questions may be distilled from the amended notice of appeal. Although Mr Ascic did not move to formally amend his proposed amended notice of appeal to refer expressly to those two questions of law, his written submissions appeared to address them.

62    Those questions are:

(1)    whether the Tribunal erred in construing s 27 of the 1971 Act by not concluding that it, in isolation, can be relied upon to establish an entitlement to permanent impairment compensation (First Question); and

(2)    whether there was any evidence to support the Tribunal's finding that the impairment became permanent before 1 December 1988 (Second Question).

63    I will address the First Question and the Second Question, and then turn to some particular contentions made by Mr Ascic that were referred to in a number of the submissions and purported grounds of appeal, before turning to the interlocutory applications, and formally considering the question of leave.

First Question - s 27 of the 1971 Act

64    It is clear, in my view, that s 27 is a general provision of the 1971 Act. This is apparent from two matters. First, the phrase 'Subject to this Part' is the drafting device by which the remainder of the statutory provisions are able to qualify and define the liability imposed by s 27. Second, through the use of the words 'in accordance with this Act', s 27 directs attention to the nature and extent of compensation payable, matters which are set out in other provisions.

65    It is to be understood in a similar manner to s 14 of the 1988 Act, as explained in Lees v Comcare (referred to by the Tribunal), and also adopted by Mortimer J with respect to s 14 of the 1988 Act in Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220 at [8].

66    The analogy with s 14 in the 1988 Act is apparent. No specific compensation is payable under s 27 of the 1971 Act. It is necessary to have regard to other provisions of the 1971 Act to ascertain the nature and extent of any compensation payable once liability is accepted. Relevantly as to lump sum payments, s 27 is to be read subject to s 39 to s 42 that deal with such payments, none of which refer to psychological conditions.

67    Therefore, I do not consider the Tribunal erred in its understanding of and conclusions as to the operation of s 27 of the 1971 Act.

Second Question - the 'no evidence' ground

68    The Tribunal dealt with the issue of when Mr Ascic's impairment became permanent in paras 40-60 of the reasons. While the Tribunal was not satisfied that there was sufficient evidence to allow it to determine the precise date by which the impairment became permanent, it did determine, on the balance of probabilities, that the impairment became permanent at some point prior to 1 December 1988, because:

The date of injury, the date the Applicant went on leave, the date of the Applicant's compensation claim, the date of his retirement, and the dates of diagnosis and injury referred to in the medical reports by Professor German and Dr Yeap all tend to suggest that the Applicant's impairment became permanent prior to 1 December 1988.

69    Those events and diagnoses, referred to more fully in the Tribunal's reasons, can be described as follows:

(a)    Mr Ascic commenced continuous leave from his employment on 11 December 1987, did not return to work, was retired on invalidity grounds from 1 September 1988 and has received a pension from ComSuper since this time;

(b)    Mr Ascic's claim for compensation that was lodged in April 1988 referred to him first receiving treatment in December 1987, and that claim was accepted in May 1988;

(c)    a report from the Commonwealth medical officer dated 9 May 1988 which recommended that Mr Ascic be retired on invalidity grounds at that time, and on the basis that in consequence of mental incapacity he was incapable of performing his duties;

(d)    a report dated 17 May 1988 by Professor German, diagnosed Mr Ascic with 'a paranoid personality disorder', and 'occasional intensifications of paranoid personality traits to the extent of an acute paranoid reaction, brought on by perceived stress in his employment …';

(e)    in a medical certificate for workers' compensation dated 31 March 2009 Dr Yeap, Mr Ascic's treating practitioner, certified that he was unfit for work in relation to a permanent injury which was stated to have occurred on 11 December 1987;

(f)    in a Comcare Medical Review Certificate dated 7 April 2010, Dr Yeap certified that Mr Ascic was totally unfit for work for a further 12 month period, and again cited the injury as being sustained on or around 11 December 1987. Dr Yeap stated his diagnosis of Mr Ascic to be 'depression and acute paranoid reaction to perceived stress in [his] employment' which, in his opinion, was a probable consequence of 'stress in workplace'; and

(g)    in Dr Yeap's letter dated 21 August 2011 he stated that Mr Ascic '… has depression and "acute paranoid reaction to perceived stress in employment" since 1987'. Dr Yeap further stated that:

His current condition is related to his former employment in the Commonwealth Police.

His initial condition has not been superseded by a different condition.

He still has the same underlying mental condition that precipitated his current condition in the first place.

He is still not on any medication.

Medications have not helped in the past and I do not think it will make a difference.

70    As to the applicable principles, a decision-maker makes an error of law if they make a finding of fact for which there is 'no evidence': Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ). It is for the Court to determine whether there is evidence before the decision-maker that can support the factual finding in question: Kostas at [91]. To do so, one must look to the record before the decision-maker to see whether the material can justify the making of the fact: Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [16] (Besanko J).

71    As Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 observed, there is no 'error of law simply in making a wrong finding of fact', and:

So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

72    In my view the evidence to which I have referred was a sufficient basis for the factual finding made by the Tribunal. The relevant dates precede 1 December 1988 and paint a consistent picture of a serious and enduring psychological condition that was diagnosed and acknowledged by that time.

73    I add that Mr Ascic submitted before the Tribunal that his impairment did not become permanent prior to 1 December 1988. The Tribunal recorded his written submission that there was a lack of evidence, including not being supported by medical opinion, to indicate that his incapacity became permanent prior to 1 December 1988. At the hearing Mr Ascic submitted that his impairment became permanent in 1996 when he stopped taking medication. He stated:

Now, my idea - and my memory - and I lived through it - when my condition became permanent it wasn't until after 1996 because until then I know that I suffered many of the things that I thought were a consequence of either my injury or my medication but I did not have any idea of the concept of permanent impairment that was entitlement to compensation for that, that was anything. I just knew that I had changed - my condition, and eventually when I got rid of all the medications I know that I stabilised to a certain level of being able to live without the medications and that is the time that I would say my condition became permanent because it did not vary much since that time. You know, I still have the same issues that arise - come and go - but most of them are with me all of the time.

74    The Tribunal considered that Mr Ascic was emphasising the periodic medical reviews that he was required to undertake until 1996. The Tribunal agreed with Comcare's submission that it is common for compensation recipients to be subject to periodic reviews for the purpose of determining if they are still incapacitated for work, and that it does not follow from that practice that Mr Ascic's impairment was not permanent before that time.

75    No error is apparent for this approach by the Tribunal. There was a sound evidentiary basis for the conclusion reached by the Tribunal and it properly tested, before rejecting, the submission to the contrary made by Mr Ascic.

Determination on those two questions of law

76    It follows that I would grant leave to amend the notice of appeal so that it is to be read as if it incorporates the First Question and the Second Question, would dispense with any obligation to serve an amended notice, and for the reasons given above, would dismiss those grounds of appeal.

Additional matters raised by Mr Ascic

Construction of s 124(1A)

77    Mr Ascic put particular store in s 124(1A) of the 1988 Act, submitting that it does not purport to be restricted to current employees and should be construed generally.

78    Pulling together several threads disclosed by Mr Ascic's submissions, a number of observations might be made.

79    First, s 124(1) and s 124(1A) are not alternate routes to entitlement for compensation. Each is to be read having regard to the balance of Part X.

80    Second, it can be accepted that s 124(1A) is expressed generally. This was explained by Murphy J in Comcare v Dalgleish [2018] FCA 2092 where his Honour stated:

[31]    As Comcare submits, Pt II of the SRC Act and in particular s 14 indicate that an entitlement to compensation under the SRC Act 'in respect of an injury' refers to a general entitlement to compensation rather than entitlement to a specific head, type or amount of compensation.

[32]    The text and statutory context of subs 124(1), (1A) and (2) also indicate that they are intended to deal with a general entitlement to compensation under the SRC Act (that is, entitlement to any compensation). They operate to entitle and disentitle a person from compensation under the SRC Act if compensation was or was not payable in respect of that injury. They do not purport to entitle or disentitle a person in respect of particular types or heads of compensation by reference to corresponding types or kinds of compensation that were or were not payable under an earlier relevant compensation statute.

[33]    In contrast subs 124(3)-(9) deal with the entitlement to specific kinds (or heads) of compensation under the sections they mention, namely ss 17, 19, 20, 21, 22, 24, 25 and 31. For example, s 124(4) provides that the amount of compensation for permanent impairment or death occurring before the commencing day is the amount payable under the 1971 Act or earlier statute. Section 124(7)) provides that the rate of compensation in respect of the death of an employee and the rate of compensation for incapacity, where the compensation relates to a period occurring before the commencing day, are in accordance with the earlier (repealed) compensation statutes. The effect of other subsections is to gear payments under the SRC Act to the relevant earlier compensation statute: Esber v the Commonwealth (1992) 174 CLR 430 (Esber) at 437 (Mason CJ, Deane, Toohey and Gaudron JJ).

[34]    If Parliament had intended s 124(1A) to create an entitlement to a particular type or kind of compensation by reference back to an earlier compensation statute it could have easily inserted the word 'that' or 'such' so that the subsection provided 'a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if that compensation was payable in respect of that injury, loss or damage'. Other parts of s 124 make use of such a device to make clear that a specific injury, impairment or death is being referred to. The absence of this device in s 124(1A) and (2) suggests the references are to a broad entitlement to compensation rather than a specific kind or type of compensation.

[35]    It is also noteworthy that, as initially enacted, the SRC Act did not include subs (1A). The effect of sections 124(1) and (2) was (and is) to ensure that the SRC Act applies in relation to any injury suffered whether before or after the commencement of the Act and to preclude any entitlement to compensation under the SRC Act in respect of injury loss or damage before 1 December 1988 if there was no entitlement under the relevant earlier compensation statute: Esber at 437; Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 (Schlenert) at 142 (Lockhart J).

[36]    Subsection (1A) was inserted into the SRC Act by s 16 of the Industrial Relations Legislation Amendment Act 1991 (Cth) to clarify the operation of s 124. The Explanatory Memorandum for that Act states:

The purpose of the proposed subsection is to remove any doubt that an employee continues to be entitled to compensation under the Act in respect of an injury, loss or damage suffered before the date of commencement of the Act (1 December 1988) if compensation was, or would have been payable in respect of that injury under the repealed legislation.

Subclause 2(2) provides that the amendments made by this clause and clause 14 are to be taken to have come into operation on 1 December 1988. This ensures that the position of employees who were receiving compensation immediately before the commencement of the CERC Act is more effectively preserved.

Having regard to its text, context and purpose subs (1A) does not alter the effect of subs (1) and (2) so that a person's entitlement to a particular type or kind of compensation is to be determined under a previous (repealed) compensation statute rather than under the SRC Act.

(original emphasis)

81    These passages are to be read also noting the observations in Brennan (see [41] above) that 'any obscurity in the application of s 124(1A), in the generality of the conferral of rights by s 124(1) freed from temporal limitation, and in the interrelation between these subsections, is limited by the opening phrase in each provision'.

82    As explained in Brennan, s 124(1A) also includes the words 'subject to this Act'. If compensation is not available by application of s 124(3), then s 124(1A) does not operate as an alternative method for seeking that same compensation. It must be read subject to s 124(3). The difficulty for Mr Ascic is that the nature of the compensation he sought was compensation for permanent impairment. It necessarily follows that he is a person within the meaning of s 124(3) and is bound by that exclusion.

83    Third, and relatedly, whether or not a person has an entitlement under the 1988 Act is not necessarily determined by the date of, or fact of, their retirement. A number of cases have considered an entitlement to compensation under the transitional provisions of the 1988 Act although the applicant was retired prior to its commencement date, but whether the applicant was retired was not decisive: for example, Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 (claim disallowed because the nature of the claim was not one that would result in a lump sum payment under s 39 of the 1971 Act); Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127 (claim allowed under s 124(1) for ischaemic heart disease, which manifested before 1988, because s 20(1) of 1971 Act provided it was compensable); and Cooper v Comcare [2002] FCAFC 347 (claim disallowed because back-related injury resulted in permanent impairment before 1988, and no lump sum payment was available for back-related permanent impairment under 1971 Act).

84    It may be accepted that whether and when a claimant was an employee for the purpose of the 1971 Act may well be part of an assessment of what their entitlements would have been under the 1971 Act. But none of this assists Mr Ascic, as he is excluded in any event from the compensation the subject of the claim before the Tribunal by the plain terms of s 124(3). The statute directs an approach which commences with a potential entitlement on the part of a 'person' (s 124A), circumscribed in that certain 'persons' are disentitled to compensation for permanent impairment, and resulting in an assessment of their entitlement having regard to (in this case) the 1971 Act.

The limit on the Tribunal's jurisdiction

85    It was perhaps in recognition of the difficulties he faced in claiming compensation under the 1988 Act for permanent impairment that Mr Ascic asserted before this Court that his claim was something different to one of permanent impairment. Doing my best to distil a number of allegations and contentions made by Mr Ascic about the nature of his claim, Mr Ascic contended that Comcare should have assisted him in recognising or making a different claim, that he had a claim to personal injury under s 27 of the 1971 Act and that s 128 assisted him in this regard. He claimed that in his dealings with the Tribunal he strenuously denied an entitlement to permanent impairment compensation under s 124; that the Tribunal processed a 'pretend' complaint; and that Comcare should have told him what claim it was open to him to pursue.

86    A similar argument as to the role of Comcare and the Tribunal and whether the Tribunal should have addressed a different claim to that the subject of the reviewable decision was addressed in Lees v Comcare.

87    Lees v Comcare involved two appeals. The common issue was whether the Tribunal had jurisdiction to determine a claim by the claimants (Ms Lees and Mr O'Donohue) which was raised before the Tribunal but not made to the original decision-maker. Ms Lees' claim before the original decision-maker was for compensation arising from payment of taxi fares to the rooms of those providing her treatment. She then sought to raise before the Tribunal a claim for permanent impairment compensation. Mr O'Donohue's claim before the original decision-maker was a claim for 'rehabilitation and compensation' in respect of 'major depression' arising out of his employment. It was found he had no injury as defined within s 4(1) of the 1988 Act. He then wished to raise before the Tribunal the issue of his entitlement to compensation for permanent impairment and non-economic loss as a result of his condition of depression. The Tribunal in both cases considered that it had jurisdiction. The Full Court held that it did not.

88    The Full Court described at [32]-[39] the 'structured decision-making process established by the Act' (and the provisions have not been relevantly amended): first, a determination to be made by an authorised person within Comcare or a licensed authority; second, a reconsideration of the determination to be made within the same authority as the original decision, but ordinarily by a fresh decision-maker; and third, a decision of the Tribunal reviewing the reconsidered determination.

89    The process is commenced by submission of a claim form. Section 54 of the 1988 Act provides:

(1)    Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

(2)    A claim shall be made by giving the relevant authority:

(a)    a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b)    except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

(3)    Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

…

(5)    Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

90    Section 61A provides that the determining authority (defined as the person who makes the determination) must consider and determine each claim for compensation under s 14. Under s 61(2), the determining authority, as soon as reasonably practicable, is to give the claimant a notice setting out the terms of the determination, the reasons for the determination and a statement to the effect that the claimant may request a reconsideration of the determination under s 62(2).

91    Section 62 provides for a reconsideration to be undertaken by a determining authority on its own motion or on request. 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.

92    An application can then be made under s 64(1) to the Tribunal for review of a reviewable decision. A reviewable decision is defined to mean a decision under, relevantly, s 62. Section 64(3) provides that a person may not make an application to the Tribunal for a review of a reviewable decision except as provided by s 64(1).

93    The Full Court in Lees v Comcare said the following as to the limits of the power of the Tribunal:

[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.

94    As the Full Court explained, the Tribunal has powers to review. It does not have powers that may be exercised at large. It is not within the authority of the Tribunal to make a determination about a claim that has not been decided in the first and second tier of decision-making.

95    This position was endorsed in Szabo v Comcare [2012] FCAFC 129. The Full Court confirmed that the Tribunal did not have jurisdiction to consider a claim that the employee's back injury was due to the nature and conditions of his employment, in circumstances where it was not possible to find in the documents a claim in respect of some injury or disease arising from the nature and conditions of his employment. Their Honours did observe, however, that:

[42]    That is not to say that it would not now be open to [the appellant] to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.

96    In this case, Mr Ascic's Claim Form related to, and only to, permanent impairment and non-economic loss relating to his accepted condition. On its face, the Claim Form was properly completed by Mr Ascic and his treating practitioner, and its content is clear.

97    It is the claim made by the Claim Form that is the subject of the reviewable decision. The terms of the reviewable decision are revealed by the notice in writing dated 16 March 2017 and it refers to the claim for permanent impairment and non-economic loss in relation to Mr Ascic's compensable condition under the 1988 Act.

98    It is therefore not surprising that the Tribunal did not review or determine any other claims that Mr Ascic may have purported to make or pursue during the course of the Tribunal hearing. Its powers did not extend to reaching a decision on a matter other than the reviewable decision.

99    In any event, despite indicating in his submissions that he had access to the transcript of the hearing before the Tribunal (amended submissions filed 31 March 2020, page 10), Mr Ascic did not tender the transcript, take this Court to parts of the transcript that might have assisted him or take the Court to any evidence that he was seeking common law damages before the Tribunal, and as counsel for Comcare submitted, it was open to Mr Ascic to withdraw the claim for compensation on the basis of permanent impairment and to start again with some different claim that he alleged it was open to him to bring.

Other pathways that may have led to compensation for permanent impairment

100    The Tribunal considered the two pathways which may have led to compensation for permanent impairment being payable to Mr Ascic. Compensation would have been payable:

(a)    if it were established that the impairment became permanent after 1 December 1988, and the degree of whole person impairment was at least 10%; or

(b)    if it were determined that the impairment became permanent prior to 1 December 1988, and there was a qualitative and quantitative change to the impairment after that date such that the new impairment gave rise to a whole person impairment of at least 10%.

101    For this reason, the date upon which the impairment became permanent was a key issue before the Tribunal. The Tribunal considered both of these potential paths and properly applied the principles that were discussed in Maida and West. As discussed above, it concluded at para 39 that Mr Ascic had a permanent impairment. It concluded at para 60 that on the balance of probabilities the impairment became permanent prior to 1 December 1988. It concluded at para 65 that on the balance of probabilities Mr Ascic continued to suffer from the same permanent impairment without any significant change, deterioration or worsening that might be a distinct or new impairment after 1 December 1988.

102    These other potential pathways were therefore carefully considered by the Tribunal before being rejected.

Section 128

103    Mr Ascic contended in his oral submissions that under the transitional provisions and because of s 128, any injury that took place under the 1971 Act becomes an injury under the 1988 Act 'for all the intents and purposes that are relevant to that injury and the entitlement to that injury'. However, it is clear that s 128 has a narrower operation. It is concerned with actual, but not fully discharged, liabilities of the Commonwealth to pay compensation under the 1971 Act: Comcare v Etheridge [2006] FCAFC 27 at [65] (Branson J). An example of its application may be seen in the Ascic Weekly Earnings Judgment at [14], where it was noted that the section operated to ensure that Mr Ascic's pre-existing compensation entitlements were payable under the 1988 Act. I do not consider s 128 assists Mr Ascic in this appeal, having regard to the application of s 124(3) discussed above.

Other Full Court decisions

104    Mr Ascic asserts a number of Full Court authorities are incorrect and that the courts have not understood the legislation. It is true that in Brennan, the view was expressed that the manner in which the Full Court addressed the question of a gradual worsening of impairment in Blackman v Australian Telecom Corporation (1990) 12 AAR 11 might be reconsidered at some point, but Blackman must now be read having regard to the majority's reasons in West (at 510, 511). And in any event, the reservation expressed in Brennan is not relevant to the circumstances of this case, where the Tribunal found that the evidence did not suggest any significant change, deterioration or worsening of Mr Ascic's impairment such that it would constitute a new or distinct impairment.

105    Relevantly for this case, Mr Ascic also asserts that Brennan is wrong. As can be seen, I consider Brennan to be a useful decision in terms of explaining the operation of the 1971 Act, the 1988 Act and the transitional provisions. As a judge sitting at first instance I am bound by it. In any event, I respectfully agree with it and would apply it. I am not aware of any matter that would undermine its precedential value.

Mr Ascic is not a malingerer

106    For completeness, it should be noted that Mr Ascic asserted in his submissions that Comcare considered him to be a malingerer and that this in some manner affected its view of his claim or his argument. There is no evidence to support that assertion. To the contrary, Comcare expressly stated in its written submissions that it has never considered Mr Ascic to be a malingerer and accepts that he continues to suffer the accepted injury.

Leave to amend notice of appeal

Relevant principles

107    The Court has the power to grant a party leave to amend a notice of appeal from the Tribunal under s 44 of the AAT Act: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62]. The power is discretionary, but leave to amend should not be granted unless the court is positively satisfied that it is proper to do so: Frugtniet v Tax Practitioners Board [2013] FCA 752 at [30] (Murphy J); and Secretary, Department of Employment and Workplace Relations v Cameron [2007] FCA 552 at [6] (Graham J). Where a proposed amended ground is bound to fail, such an outcome weighs heavily against granting leave to amend: Nguyen v Commissioner of Taxation [2018] FCA 1420; (2018) 265 FCR 355 at [192], [201] (Kenny J).

Procedural fairness

108    Mr Ascic purported to allege by ground 9 of the amended notice of appeal an allegation of 'denial of due process' before the Tribunal based on an issue with the telephone hearing being interrupted, as referred to in the Tribunal's reasons. There is no doubt that the Tribunal was obliged to accord Mr Ascic procedural fairness when dealing with his appeal: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [32]-[35]; and Kowalski at [57]. A denial of procedural fairness is an error of law which may give rise to a question of law for the purposes of an appeal under s 44 of the AAT Act: Clements at [8]. However, there is no evidence that Mr Ascic's allegations as described in his draft notice relating to the Tribunal's conduct have any substance or that the Tribunal's conduct denied him procedural fairness.

109    As I have noted above, according to his amended written submissions, Mr Ascic had in his possession a copy of the transcript of the hearing before the Tribunal. However he did not place any of the transcript before the Court or point to any part of it that may have supported his submission.

110    The Tribunal expressly disclosed the following at para 10 of the reasons:

At the conclusion of the hearing, the Applicant's telephone line was cut off. However this was not immediately apparent to the Tribunal. Consequently, the parties were recalled that afternoon to ensure that the Applicant was afforded the opportunity to make all of the submissions that he wished to make. The Tribunal is satisfied that the parties were afforded an adequate opportunity to be heard and to make submissions.

111    Mr Ascic asserted in his amended notice of appeal that he did not hear the submission made by counsel for Comcare or have its written submissions and was not provided with a copy of the transcript. He makes no reference to the parties being recalled by the Tribunal.

112    I note, having regard to the Tribunal's reasons, that there is no suggestion that Comcare filed written submissions before the Tribunal. It provided a statement of facts and issues, and this was received by Mr Ascic, as is evidenced by the fact that he provided a responsive statement: reasons at para 9.

113    Mr Ascic has filed no evidence to establish that he was not given an opportunity to hear submissions made on behalf of Comcare. He filed no evidence that after he was reconnected to the hearing anything occurred which impacted on his ability to present his own submissions. Furthermore, the Tribunal's decision makes no reference to Mr Ascic raising any such concern with it when he was reconnected to the hearing or at any time between the hearing ending (on 28 March 2019) and the Tribunal handing down its decision (on 9 August 2019).

114    There is an absence of any evidence upon which the Court could assess whether this proposed question of law gives rise to an error. I therefore consider it is bound to fail. Such an outcome weighs heavily against granting leave to amend: Nguyen at [192], [201]. In the circumstances, I would refuse leave to amend the grounds to include proposed ground 8.

The balance of the proposed grounds of the amended notice of appeal

Question of law No 1

115    By purported question of law No 1 Mr Ascic notes that the 1988 Act does not provide a definition of 'permanent impairment'. This appears to be an observation and does not give rise to a question of law. Leave is refused to amend the notice to rely on this purported question.

Question of law No 2

116    By purported question of law No 2 Mr Ascic observes that the relevant permanent impairment provisions in the 1988 Act relate to employees and asserts that it is lawful that these can be applied to former employees or the transitional provisions would be redundant. This appears to be an observation rather than a question of law. Leave is refused to amend the notice to rely on this purported question.

Question of law No 3

117    By purported question of law No 3 Mr Ascic asks whether s 27 is a part of s 24. This is not a valid question of law and it is self-explanatory that those are distinct sections. No particular issue of construction is raised by the proposed question, and leave is refused to amend the notice to rely on this purported question.

Question of law No 4

118    By purported question of law No 4 Mr Ascic asks whether it is possible or lawful to apply a legislative interface between the 1971 Act and the 1988 Act and apply both provisions to a former employee: this appears to be a question as to the operation of the transitional provisions but it enunciates no particular question. To the extent the question might encompass the operation of s 27 of the 1971 Act, I have addressed it as part of the First Question above. Otherwise, I have attempted to respond to Mr Ascic's submissions as to the operation of the transitional provisions in the section headed 'Additional matters raised by Mr Ascic' above. There is no proper basis for granting leave to incorporate proposed question 4.

Question of law No 5

119    By purported question of law No 5 Mr Ascic asks whether a retired Commonwealth employee has a right to take action for damages and whether this right is enshrined within the legislation. This is not a matter that arises on this appeal. This appeal is concerned with a claim for lump sum compensation for permanent impairment, for the reasons addressed under the heading 'The limit on the Tribunal's jurisdiction' addressed above. Leave is refused to amend the notice of appeal to incorporate this proposed question.

Question of law No 6

120    By purported question of law No 6 Mr Ascic asserts that Comcare has undertaken spin-doctoring of the legislation. This is a spurious allegation and does not give rise to any question of law. Leave is refused to amend the notice to rely on this proposed question of law.

Question of law No 7

121    By purported question of law No 7 Mr Ascic asks whether officers of the court are entitled to disregard legislation and principles of justice. This is no more than unsubstantiated rhetorical commentary on Mr Ascic's part and it gives rise to no question of law. Leave is refused to amend the notice to rely on this proposed question of law.

Question of law No 8

122    By purported question of law No 8 Mr Ascic asserts that Comcare seeks to 'win at any cost to justice'. This is an unsubstantiated and vexatious submission and gives rise to no question of law. Leave is refused to amend the notice to rely on this proposed question of law.

Question of law No 9

123    By purported question of law No 9 Mr Ascic raises the alleged lack of procedural fairness. I have dealt with this above.

Question of law No 10

124    By purported question of law No 10 Mr Ascic makes a generalised assertion that inferences drawn by the Tribunal were unsupported. Mr Ascic does not identify any particular question of law. Comcare fairly pointed to the only manner in which such question might have arisen and that is the Second Question, as determined at [68]-[76] above. Otherwise, leave is refused to amend the notice to rely on this purported question of law.

Purported grounds

125    Mr Ascic also seeks to amend the notice of appeal to rely upon 14 grounds. Ground 1 is a submission as to the 'validity' of a number of cases including Brennan. I have dealt with this above.

126    Ground 2 is no more than a submission that Comcare's 'construction of inferences and submissions' involved confusion and misunderstanding and is not a legitimate ground.

127    Ground 3 is a submission as to the meaning of permanent impairment. To the extent the ground relates to any question of law, it is addressed as part of the Second Question. Further, I have referred to Mr Ascic's submissions that might bear some relation to this ground in the above section headed 'Additional matters raised by Mr Ascic'. There is no proper basis for granting leave to incorporate proposed ground 3.

128    The same can be said of grounds 4, 5, 6, 7, 8, all of which relate in one manner or another to the operation of the transitional provisions and have been addressed to the extent they raise any legitimate question of law by way of addressing the First Question and the Second Question. I have referred to Mr Ascic's submissions that might bear some relation to these purported grounds in the above section headed 'Additional matters raised by Mr Ascic'. There is no proper basis for granting leave to incorporate proposed grounds 4, 5, 6, 7 and 8.

129    Ground 9 seeks to rely on s 128. I have dealt with this above. The ground does not give rise to any relevant question of law and I would refuse leave to amend the notice to incorporate this purported ground. It also seeks to rely on s 27 of the 1971 Act, which has been addressed in considering the First Question above.

130    Proposed ground 10 purports to relate to s 27 of the 1988 Act and a claimed entitlement to common law damages. To the extent any question of law arises it has been addressed as part of the First Question and the Second Question. Otherwise, it does not constitute a ground of any valid question of law in the circumstances of this case. To the extent Mr Ascic purports to refer to or assert a claim based on common law damages, it is to be recalled that no such claim formed part of the reviewable decision, as discussed above under the heading 'The limit on the Tribunal's jurisdiction'. To the extent Mr Ascic sought to rely on the definition of non-economic loss in the 1988 Act, s 124(3) operates in any event so that no compensation is payable under s 24 (referred to in s 27(1)), and furthermore s 27(3) operates to exclude such claim and the definition therefore does not assist him. In the circumstances, leave is refused to amend the notice of appeal to assert this ground.

131    Ground 11 involves a complaint by Mr Ascic that he has only recently found certain forms with respect to alternative actions for damages. To the extent this has any relevance, I have addressed it under the above heading 'The limit on the Tribunal's jurisdiction'. The same can be said of proposed grounds 12 and 13 which purport to complain about various forms required for compensation applications. I would refuse leave to amend the notice of appeal to assert these grounds.

132    Ground 14 again refers to s 27 of the 1988 Act. The comments at [130] above are repeated. It does not constitute a ground of any valid question of law. I also refer to my comments above as to the transitional provisions and in particular, under the above heading 'Construction of s 124(1A)'. In the circumstances, leave is refused to amend the notice of appeal to assert this ground.

Determination as to leave to amend

133    Therefore, apart from those parts of the purported questions of law and grounds of appeal that relate to the First Question and the Second Question, it is my view that none of the purported questions or grounds the subject of the application for leave properly enunciate a question of law. It follows that it cannot be said that any of the proposed amended questions of law, or the various grounds relied upon, have any prospect of success.

134    It therefore follows that I would decline leave to Mr Ascic to amend the notice of appeal, save for the grounds enunciated fairly by Comcare as the First Question and the Second Question.

135    Although I would grant such leave to amend with respect to those two questions, for the reasons given above, I would dismiss the appeal.

136    For completeness, I have also had regard to the original notice of appeal, although Mr Ascic did not purport to rely on it in any manner before me, having brought his application for leave to amend. Save for those matters that have been addressed as part of the First Question or the Second Question, the matters raised in the original notice of appeal fail to properly articulate any proper question of law arising out of the Tribunal's decision. The appeal insofar as it relies upon the original notice of appeal is also dismissed.

The applications to adduce evidence

137    Finally, I have considered the applications by Mr Ascic to rely on evidence on the appeal that was not before the Tribunal.

138    The Court may receive evidence that was not before the Tribunal pursuant to s 44(8) of the AAT Act. Even before the introduction of s 44(8) it was acknowledged that further evidence could be admitted on an appeal from a decision of the Tribunal in limited circumstances: Committee of Direction of Fruit Marketing v Delegate of Australian Postal Commission (1979) 37 FLR 457 at 458-459 (Franki J, Brennan J agreeing).

139    The Full Court in Rana v Repatriation Commission [2011] FCAFC 124 explained that there was a limited scope for the reception of further evidence in an appeal from a decision of the Tribunal, 'where that evidence tends to provide that the specified question of law should, for a reason given in a specified ground of appeal, be answered in a way that entitles or, as the case may be, disentitles an applicant to the orders sought'. The Full Court observed:

[20]    The further evidence must … have a tendency, if admitted, to demonstrate an error of law. If, for example, the power of an administrative decision-maker or the tribunal sitting in place of that person was, on the true construction of the legislation conferring that power, only exercisable if a particular jurisdictional fact existed, further evidence was showed that the fact did or did not exist might be admitted on the hearing of a s 44 appeal in the exercise of a judicial discretion … In contrast, further evidence which touched on a matter of evaluative judgment on the factual merits of a claim would not be admissible, save perhaps exceptionally for the very limited purpose of underscoring why it was that, in the event that a question of law were answered as an applicant contended, a remitter of the matter to the tribunal for rehearing would not be an exercise in futility.

140    It may be observed that it is now generally accepted that s 27 of the Federal Court of Australia Act 1976 (Cth) does not provide an alternative source of power to admit further evidence on an appeal from a tribunal: Clements at [9]-[12]; and P v Child Support Registrar [2015] FCA 116 at [41] (Katzmann J).

141    Returning to Mr Ascic's applications, it remains necessary for Mr Ascic to explain why the evidence which he now seeks to adduce and rely upon was not reasonably available at the time of the Tribunal hearing: Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [44] (Griffiths J). It also remains necessary for Mr Ascic to explain its relevance to identified questions of law upon which he seeks to rely, and to explain how it tends, if admitted, to demonstrate an error of law.

142    The documents sought to be admitted were:

(a)    copy of an email from Mr Ascic to the Perth Registry of the Tribunal dated 10 August 2019;

(b)    copy of an email from Mr Ascic to the Perth Registry of the Tribunal dated 14 August 2019;

(c)    copy of Comcare 'Section 45 Election Form' for election to institute proceeding for damages for non-economic loss;

(d)    one page extract from the Comcare website commencing with the heading 'What is your entitlement?';

(e)    one page extract of Comcare Claim for Permanent Impairment form; and

(f)    copy of a Comcare 2010 - 2018 Statutory Benefit Rates schedule.

143    Mr Ascic filed an affidavit in support of his applications to rely on these documents.

144    Mr Ascic seeks to rely on the first and second documents, being emails sent after the Tribunal delivered its reasons, in support of his claim as to the alleged denial of 'due process'. However, those emails advance the issue no further than Mr Ascic's submissions made to this Court relating to proposed amended question of law No 9, because the emails were sent to the Tribunal after it had issued its decision. The emails do not evidence what occurred during the hearing or evidence that Mr Ascic notified the Tribunal, when the hearing was reconvened, of any concerns at any point between when the hearing was held and the time when the Tribunal delivered its decision. They therefore do not assist this Court in resolving the question of whether Mr Ascic was denied procedural fairness. I had regard to those emails at the time of determining that leave should not be granted to amend the notice of appeal to incorporate proposed question of law No 9. The documents do not assist Mr Ascic.

145    Mr Ascic seeks to rely on the third document with respect to his claims relating to common law damages as addressed by proposed question of law No 5. As I noted in refusing leave to amend the notice of appeal to incorporate proposed question of law No 5, this appeal is concerned only with a claim for lump sum compensation for permanent impairment. The document does not assist Mr Ascic in this appeal, and is irrelevant.

146    As to the fifth document, it is the first page of a blank Comcare Claim for Permanent Impairment form. An identical completed copy (with the same substance, albeit in a slightly different format) was included in the Appeal Book. I have had regard to that document in the Appeal Book. The fifth document is therefore unnecessary.

147    The fourth and sixth documents appear to be relied upon with respect to proposed question of law No 1 of the proposed amended notice of appeal. For the reasons outlined above, leave to amend the notice of appeal to include ground No 1 is refused. It might be thought that the documents might potentially be related in some manner to the First Question and the Second Question, but having inspected them they are irrelevant and do not assist Mr Ascic's arguments on this appeal. Even if admitted, they do not demonstrate any error of law.

148    Therefore, the applications to adduce further evidence are refused.

Orders

149    There will be orders giving effect to the above reasons. However, I indicated to Mr Ascic during the hearing that I would make no orders as to costs without according to him the opportunity to make submissions. I will also make orders to give effect to that proposed course.

Associate:

Dated:    30 November 2021