Comcare Australia v Hill

8. The Tribunal did not accept that view and determined that a quantum decision could not be used as a footing for abandonment of accepted liability. Ms Holmes then requested and was given a formal ruling that evidence relating to liability was irrelevant. Consequently, no such evidence was subsequently placed before the Tribunal." 5 The Tribunal, later in its reasons, referred to the evidence before it on other issues in Mr Hill's claim, and concluded, in paragraph 47, as follows: "The Tribunal therefore sets aside the Comcare determination of 35% permanent impairment due to the myocardial infarct and in its place substitutes the determination that the degree of permanent impairment due to the infarct is 70% of 65%, or in other words, a 45% total body impairment." 6 On this application, it was submitted on behalf of Comcare that the Tribunal's view as to the relevance of evidence concerning the "work-connectedness" of Mr Hill's injury to his work involved two errors, the first being that the 'reviewable decision' with which the Tribunal was concerned dealt solely with so-called "quantum", and the second being that acceptance of liability for myocardial infarction in the earlier claim determined liability in a later claim for permanent impairment as a result of the myocardial infarct. 7 Counsel on behalf of Mr Hill did not seek to oppose the appeal, but made application for a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 either in respect of his costs of the appeal or, if the Court is minded to make an order in favour of Comcare on the appeal, Mr Hill's own costs and the costs he is ordered to make to Comcare. 8 It is not necessary for the Court to determine the questions of law sought to be agitated by the appeal, in the light of the concession by the respondent. It seems to me that I ought to remit the matter to the Tribunal to be heard according to law, on the basis that, in the claim for permanent impairment, Comcare is entitled to defend the reviewable decision and to contest liability on the question of "work connectedness" of the injury. 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 (Federal Court of Australia, 20 November 1998, unreported). 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 Administrative Appeals Tribunal, pursuant to s 62 and s 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. 10 It is clear that issue estoppel does not apply in respect of decisions of Comcare and of decisions of the AAT in relation to disparate claims, and the position is that the question of "work connection" under a claim pursuant s 24 of the Safety, Rehabilitation and Compensation Act is not precluded by an earlier determination. The earlier determination by Comcare concerning incapacity and medical expenses and the subsequent decision of the Tribunal affirming that determination did not have the effect that the issue of "work connection" was irrelevant, that issue having already been concluded by the earlier stance taken by Comcare. 11 Lockhart J in Plumb v Comcare (1992) 39 FCR 236 noted that the Tribunal in that case had recognised the finding that it had made "...was not a finding which could bind anybody with respect to any future application...and the AAT (also the respondent) cannot bind itself in advance of any such subsequent application." 12 Black CJ and Gummow J agreed with Lockhart J. 13 On the question of whether the rehearing of this matter ought to be by the Tribunal as it has been constituted or by a differently constituted Tribunal, in Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39, Davies and Foster JJ said, at 42-43: "If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, '…subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted." 14 See also the remarks of Sheppard J in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 343-352. Also relevant are the observations by Heerey J in Nabru Nominees Pty Ltd (as Trustee of the Urban Family Trust No 2 Trust) v Federal Commissioner of Taxation [1997] ATC 4,902, where his Honour said at 4,911: "Brackenreg was a case where the breach of s 43(2B) was a failure to refer to the evidence on which the findings were based, rather than a failure to state the findings. However that is not a material distinction. I would respectfully adopt the comments of Sheppard J. In the present case, while I share Sheppard J's confidence in the good faith of the Tribunal, it would be an unseemly exercise for it to patch up its reasons by inserting findings of fact to accord with the decision already announced. This is particularly so in a case where the ultimate finding that the transactions in question were a sham involves a serious imputation against the persons concerned." 15 In this particular case, there are significant reasons why it would be appropriate for the rehearing to take place before the Tribunal as previously constituted, if that were possible. Unlike the other cases, there is no question here of a finding by the Tribunal adverse to Mr Hill's credibility. The questions which the Tribunal did decide are discrete questions from the question of the "work connectedness" of Mr Hill's injury. There would be a great deal of time and money wasted, and inconvenience caused, if those other matters had to be re-agitated before a differently constituted Tribunal. 16 Comcare, in this particular case, does not seek to challenge the other findings made by the Tribunal going to the degree of permanent impairment. It is only the question of causation or "work connectedness" that Comcare wishes the Tribunal to consider on the rehearing. It seems to me that, in those circumstances, this is a case where, having regard to the saving in time and costs and the relative speed with which a further rehearing could be arranged, it would not be wrong or improper if the rehearing were to occur before the Tribunal as previously constituted. Having indicated that view, the composition of the Tribunal is a matter, in my opinion, for the President. 17 In those circumstances then, the appeal is allowed and the matter is remitted to the Tribunal to be heard according to law. I have indicated that if the President were minded so to do, it would not be improper for the Tribunal on the rehearing to be constituted as it had previously been constituted, and for it to consider the issue of "work connectedness" as the remaining matter to which it has to give its disinterested consideration. 18 There remain two further questions: the first is the question of the costs of the appeal and, secondly, the question of any costs certificate under the Federal Proceedings (Costs) Act 1981. 19 Ordinarily, of course, the rule is that a successful party is entitled to its costs. This application however is an appeal by a Government agency to the Federal Court on a question of law from a finding adverse to it in the Administrative Appeals Tribunal. The respondent is brought before the Federal Court, with the possibility of having to pay costs, from success in an environment which is essentially costs free. That circumstance seems to me to be a telling consideration why, even if the applicant in the Federal Court is successful, it may not be appropriate to order the successful applicant to have its costs paid by the unsuccessful respondent. 20 The point which Comcare has sought to vindicate on the appeal is of wider concern than the personal circumstances of Mr Hill and his claim. It concerns matters of principle going to the significance of earlier determinations or earlier concessions made by Comcare in relation to different claims from those presently in issue either at Comcare level or at the AAT. In my opinion, that wider circumstance reinforces the conclusion that there ought be no order for costs in the present matter. 21 In this case, the position is even stronger for a "no costs" order, in that there has been no attempt to oppose the appeal by the applicant. I recognise that that stance was made plain only recently. The submissions by Comcare were available to the respondent on Wednesday, 14 April 1999 and it was on 16 April that the respondent indicated that it would not oppose the appeal. Conscious as I am of the general rule, nonetheless, in the exercise of the Court's discretion under s 43 of the Federal Court of Australia Act 1976, I am not minded, in the particular circumstances of this case, to order that Comcare have its costs of the appeal. So far as the costs of the appeal are concerned, the order that I make is that there be no order as to costs. 22 The final aspect deals with the question of a certificate under s 6 of the Federal Proceedings (Costs) Act 1981. Section 6(1) provides: "Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal." Subsection (3) provides: "The certificate that may be granted under subsection (1)...by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates." 23 Mr Hill satisfies the circumstances for an entitlement to a costs certificate. It is a question of whether, in the circumstances, the Court ought to exercise the discretion to order such a certificate. Comcare makes no submissions concerning certification. As was indicated in Main v Main (1949) 78 CLR 636 at 643, the respondent has to show some ground for the Court to exercise its discretionary power in his favour. Error of law on the part of the Tribunal leading to the allowing of the appeal is not of itself a sufficient reason to exercise a discretion in the respondent's favour: In Reeve v. Fowler [1965] NSWR 110, Walsh J said at 111: "…the grant of a certificate is not something which follows as of course upon an order upholding an appeal on a question of law." and at 112: "It does not follow, in my opinion, that a certificate may never be granted in a case in which the parties have agreed that the appeal will succeed, and in which the actual appeal itself has not been fully argued. There may be a case in which it appears that counsel on both sides have agreed that there was an error of law, and the Court before which the appeal comes is told of that, and what the suggested error of law was. Then, in a proper case, the Court might well act in the matter and allow the appeal without itself hearing full argument on it. If that was the course taken, then the question of the grant or refusal of the certificate could also arise in these circumstances." 24 Commonwealth of Australia v Twyman (1985) 8 ALD 554 is an example in which, notwithstanding the appeal succeeding on an error of law by the Tribunal, an application by a respondent for a certificate in respect of costs incurred by the respondent in relation to the appeal was unsuccessful. 25 The question of the grant of a certificate under s 6 was considered by Mansfield J in Australian Trade Commission v Underwood Exports Limited [1997] 1224 FCA, an unreported judgment of 11 November 1997. Mansfield J granted a certificate, holding that the respondent in that case was guilty of no disentitling conduct, and had played no part in the Tribunal's falling into the error of law that founded the successful appeal. 26 In the present case, it is significant that Mr Hill appeared for himself in the Administrative Appeals Tribunal. I regard that as a relevant factor. He contended, at the outset of the hearing in the Administrative Appeals Tribunal: "…my appearance before you on this matter is to determine whether there was permanent injury caused to myself following my heart attack in August 1992, and if so, what percentage relates to that occurrence. Nothing more and nothing less. Comcare admitted liability for my infarction, and for acceleration of coronary artery disease." 27 On that statement, the Deputy President of the Tribunal raised with counsel for Comcare whether it was open for it to contend, as it did in its second version of the Statements of Issues and Contentions, that the question of causation was a live question on the application for permanent impairment. A lengthy discussion between the Deputy President and counsel for Comcare followed, after which the Tribunal ruled, as I have earlier indicated, that the question of causation or "work connectedness" was irrelevant, having regard to the 1992 determination concerning the temporary effects of the infarction and medical expenses. 28 In those circumstances, the part that Mr Hill played in the error by the Tribunal is by no means significant. It seems, on a fair reading of the discussion, that the question of issue estoppel, or the binding effect of the earlier determination, was one which was embraced by the members of the Tribunal over the protestations of counsel for Comcare. That is a relevant circumstance in the exercise of the discretion whether or not to grant the certificate. Also significant is the fact that the question of law involved in the appeal is one of some significance for the general operation of Comcare and its dealings in the AAT. 29 In the circumstances, I certify that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the respondent in respect of the costs incurred by him in relation to this appeal. 30 I make the orders that I have indicated. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Quinlan Miller & Treston