Consideration
27 The application by the applicant to the Tribunal, raised for review determinations made under s 16 and s 19 (as affirmed and varied by the decision of 26 July 2004 being the reviewable decision for the purposes of s 62) and determinations made under s 24 and s 27 as affirmed by the decision of 9 March 2004 (being the reviewable decision for the purposes of s 62). As noted earlier in these reasons, counsel for the respondent eschewed any suggestion that the Tribunal had before it any determination made under s 14. In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.
28 The judgment of Sackville J in Power v Comcare provides clear support for the position of the respondent. The applicant in that matter had claimed to have suffered a work-related stress disorder and the acceleration of coronary heart disease. In 1990 Comcare accepted liability under s 14. In 1993 Comcare determined that compensation was payable under s 24 and s 27 for permanent impairment as a result of these compensable injuries. In 1995, however, Comcare received a medical opinion that there was no causal relationship between the applicant's employment and the coronary artery disease. On 27 March 1995 Comcare, on its own initiative, made a determination that there was no further liability to pay compensation in respect of the acceleration of this disease. A similar decision was made on reconsideration under s 62(5) and that decision was affirmed by the Tribunal on review. In the review, the Tribunal considered whether the applicant had ever suffered from a heart condition causally connected to his employment. It concluded he had not and, in so doing, reached a conclusion (about a matter of fact) contrary to a conclusion founding the determination under s 14 made in 1990 and underpinning the determinations made in 1993. Sackville J concluded that the Tribunal had not erred in adopting this approach. His Honour said (at 525-526):
Only Comcare addressed in submissions the character of the 22 March 1995 decision. In supplementary written submissions, Mr Johnson argued that Comcare's powers under ss 69(a) and 70 of the SRC Actauthorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare's liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act. If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Actconferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate's decision that Comcare's liability had ceased from 9 March 1995.
I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act,to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act.
In these circumstances, I accept Mr Johnson's analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Actto make "determinations…in relation to claims": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise.
The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Acton the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant's coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis.
I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Actto make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)).
(Emphasis added)
29 In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62. In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination. As the Tribunal pointed out in its reasons in this matter, Sackville J's reasoning supports the approach it took.
30 Also supporting the approach of the Tribunal in this matter, is the judgment of Spender J in Comcare v Hill. Spender J was dealing with an appeal by Comcare against a ruling by the Tribunal that Comcare could not put in issue the connection between the applicant's myocardial infarction and his employment. Comcare had initially determined that it was liable to pay compensation to the applicant for incapacity and medical expenses in relation to a coronary infarction suffered by the applicant under s 19 and s 16 respectively. While his Honour did not say so expressly, this must have involved a determination under s 14 as well. The applicant later sought lump-sum compensation in respect of permanent impairment arising from the myocardial infarction. This claim was disallowed and that determination was affirmed on reconsideration (the reviewable decision). The applicant sought review of the reviewable decision by the Tribunal. Before the Tribunal, Comcare sought to raise the question of whether there was a connection between the applicant's myocardial infarction and his employment. The Tribunal ruled that Comcare could not raise that question and Spender J concluded it was wrong in adopting that approach.
31 In determining that the Tribunal had erred, his Honour said (at [9]):
Section 24 of the Act, and the definition of "injury" in s 4 of the Act, govern liability in respect of permanent impairment. The earlier determination was not a claim for permanent impairment. The Tribunal has to determine for itself whether the requirements for liability to pay compensation for injury resulting in permanent impairment are established: see Comcare v Miles (1995) 129 ALR 427 at 430 et seq. Similar questions were considered by Sackville J in Power v Comcare (1998) 56 ALD 141. Although the circumstances were a little different, his Honour reviewed the statutory scheme and relevant cases and held that both Comcare, under s 62 of the Safety, Rehabilitation and Compensation Act, and the AAT, pursuant to ss 62 and 43(1) of the Administrative Appeals Tribunal Act, could analyse all the necessary facts, including the question of whether the subject injury was work related, in order to resolve the question of liability. His Honour's conclusion was that no issue estoppel arose from the earlier determination or its affirmation by the AAT.
It can be seen that Spender J endorsed the approach of Sackville J. However, Spender J was wrong in suggesting (in the fifth sentence) that the reconsideration power (under s 62) can be exercised by the Tribunal in relation to a determination other than the determination which had been reconsidered and which had given rise to the reviewable decision. That he was wrong, is only apparent from the Full Court judgment to which I now turn.
32 The reasons for judgment of Sackville and Spender JJ have to be considered having regard to what was later said by the Full Court in Lees v Comcare (1999) 56 ALD 84; 29 AAR 350. That matter concerned two cases before the Tribunal. In the first case, a Ms Lees had successfully sought compensation (it seems under s 19) and the payment of future medical expenses (it seems under s 16) in relation to a work-related injury. She later sought payment under s 16 for taxi fares to attend medical treatment. A decision was made to refuse to make those payments (for taxi fares) and that decision was confirmed in the reconsideration undertaken under s 62 giving rise to a reviewable decision. Ms Lees sought review of that reviewable decision by the Tribunal. Before the Tribunal, Ms Lees sought to raise the question of whether she was entitled to compensation for permanent impairment under s 24. The Tribunal concluded it could consider this latter question in the hearing in which it would be considering the reviewable decision concerning taxi fares. Both the primary judge (Finn J) and the Full Court concluded that the Tribunal's approach was wrong.
33 In the second case, a Mr O'Donohue had claimed he suffered from major depression arising out of his employment. Comcare rejected his claim for compensation and did so, in effect, on the basis that he had not suffered any injury as defined by s 4(1) of the Act. This was treated by the Full Court as a determination under s 14 (though unfavourable to Mr O'Donohue). That decision was affirmed in the reconsideration undertaken under s 62 giving rise to a reviewable decision. Mr O'Donohue sought review of that reviewable decision by the Tribunal. At a preliminary hearing Mr O'Donohue indicated he proposed to raise his entitlement to compensation for permanent impairment (it seems under s 24) and non-economic loss (it seems under s 27). In a preliminary ruling, the Tribunal ruled that it could entertain those claims in the event that liability was established (effectively under s 14). The Full Court concluded that the Tribunal had erred in deciding that it could consider the claims for compensation for permanent impairment and non-economic loss in the review of the reviewable decision concerning liability under s 14.
34 The Full Court (Wilcox, Branson and Tamberlin JJ) said (at [33] - [37]):
[33] Section 60 contains definitions, among others, of 'determination', 'determining authority' and 'reviewable decision'. These definitions are in the following terms:
"determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X;
"determining authority", in relation to a determination, means the person who made the determination;
"reviewable decision" means a decision made under subsection 38(4) or section 62.
[34] The definition of 'determination' makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare 'is liable to pay compensation in accordance with this Act' in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
[35] This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an 'employee' at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
[36] Section 61 requires a determining authority, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it.
[37] Section 62 is concerned with the reconsideration of determinations (ie, with the second tier decision-making process). Section 62(1) provides for a determining authority to reconsider a determination made by it on its own motion, or to cause such a determination to be reconsidered by an authorised person, not being a person involved in the making of the determination. Section 62(2) authorises certain persons, authorities or corporations affected by a determination to request a determining authority to reconsider a determination made by it. Where such a request is made the reconsideration is undertaken by an authorised person who was not involved in the making of the determination. Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.
35 In relation to the liability to pay compensation as provided for in s 14 of the Act, the Full Court had earlier said (at [27]):
[27] As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability '[s]ubject to' Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act: see, for example, s 17(2). Secondly, the liability is a liability to pay compensation 'in accordance with' the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act :see, for example, ss 17(3),(4),(5), 19, 20, 24 and 25.
36 The jurisdiction of the Tribunal is to review a reviewable decision: s 64 of the Act. In relation to the powers of the Tribunal in a review, the Full Court said (at [39]):
[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers '[f]or the purpose of reviewing' the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
37 This general issue of the scope of the review by the Tribunal arose again in Australian Postal Corporation v Oudyn. The facts are a little complicated and need not be repeated in full. It is sufficient to note that the Australian Postal Commission ("the Commission") (which has a status under the Act analogous to that of the respondent in this matter as discussed earlier) initially determined the employee (Mr Oudyn) was entitled to medical expenses (it seems under s 16) and compensation (it seems under s 19) for a work-related injury. On 18 May 2000, a determination was made that "the effects of the injury which you [earlier] sustained [at work] have resolved and consequently you will not have further entitlement to compensation under terms (sic) of section 14(1) [of the Act]". Later, a claim was made by the employee for lump-sum compensation for permanent impairment (it seems under s 24). Before Cooper J (at [11]), the Commission made the following submissions:
(a) the decision of the claims manager made on 18 May 2000 that there was no further entitlement to compensation under s 14(1) of the Act necessarily included a determination that the injury did not result in permanent impairment;
(b) while there existed a determination that no permanent impairment arose in consequence of a compensable injury under s 14(1) of the Act, no occasion arose to assess a claim for lump sum compensation in accordance with s 24 of the Act;
(c) the Act did not contemplate or provide for a lawful claim under s 24 of the Act, in the absence of a determination of liability to pay compensation under s 14(1) of the Act;
(d) not being under any statutory duty to determine the claim made under cover of the letter dated 12 February 2001, the failure to process the claim does not amount to a reviewable decision; and
(d) the contentions relied upon followed from the decision of a Full Court of this Court in Lees v Comcare (1999) 56 ALD 84.
38 In dealing with those submissions, Cooper J said (at [29]-[33]):
APC purported to determine on 18 May 2000 that it had no further liability to pay compensation and Mr Oudyn had no further entitlement to claim compensation under any section of the Act, including s 24. It contended that he did not then have permanent impairment as a result of the injury sustained on 2 August 1999, and could not thereafter bring a claim for compensation for permanent impairment to be assessed under s 24 of the Act while the determination remained in existence. Since 18 May 2000, the whole of the conduct of APC in its dealings with Mr Oudyn have been based on that contention.
The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in 92, [35] of its reasons.
The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability "... to pay compensation in accordance with this Act", provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
39 In Rosillo v Telstra Corporation Limited Madgwick J dealt with a similar situation, namely a decision of the Tribunal affirming a reviewable decision affirming a determination under s 14 ceasing liability under the Act "on and from" the date of the determination. His Honour set aside the decision of the Tribunal. A more recent case to similar effect is the judgment of Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991.
40 The circumstances considered by the Full Court in Lees v Comcare do not directly parallel those which arose in Power v Comcare and Comcare v Hill nor those which arise in the present case. However, the Full Court appears, in my opinion, to have placed materially greater emphasis on the structure embodied in the Act creating the three-tiered process of decision making and review than is evident in the judgments of Sackville and Spender JJ. I think it can be said that Sackville J recognised the conclusion he reached was not the only one reasonably open when his Honour used the words "I think the better view is that…" in the last paragraph of the quotation set out at [28] above.
41 The three-tiered structure involves determinations being made of the type referred to in [3] above which continue to have legal effect until and unless they are reconsidered under s 62 and varied or revoked in the exercise of the powers conferred by s 62(5). It may be thought that a determination under s 14 does not have any particular significance because its operation, in practical terms, is conditional upon another determination being made. Its legal effect is, in a sense, inchoate. However, the Act confers on a decision under that section the status of determination (having regard to the definition in s 60) and, as such, it is no less amenable to reconsideration than a determination made under another section with, potentially, an operative practical effect involving payment to a claimant.
42 As the Full Court pointed out in Lees v Comcare at [35] of its judgment set out at [34] above, a determination under s 14 involves findings about five matters. The fourth is whether the employee suffered an injury and the fifth is whether the injury has resulted in death, incapacity for work or impairment. A finding on the fourth matter will involve a consideration of whether the injury (or, relevantly, a disease) arose out of or in the course of the claimant's employment (or, in relation to a disease, was contributed to in a material degree by the employment). So much is apparent from the definitions in s 4 and, in particular, the definitions of "disease" and "injury". Thus, a necessary step in making a determination is making findings about those matters. If the determination is in the claimant's favour, then it will include a finding that the claimant has suffered from an injury or disease with the requisite connection to the employment. Fairly clearly the power to make a determination under s 14 includes the power to make a finding about the fourth matter as well as the other four matters.
43 The Full Court indicated at [39] of its judgment set out at [36] above, that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.
44 This approach does not appear to me to render the scheme of the Act unworkable. If a determination is made under s 14 in favour of a claimant and later medical opinions or other evidence raises doubts about whether it should have been made, then Comcare (or a body in a similar position such as the respondent) can act of its own motion and reconsider the determination under s 62. That way, clear and unambiguous rights of review arise and the subject matter of the review will be clear as will the powers of the Tribunal when undertaking the review. In its submissions, the respondent raises the spectre of the revocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or number of determinations made under other sections. This was not the subject of any detailed submissions. Accordingly, the views I express in the following paragraph are necessarily provisional.
45 Comcare or a licensed Commonwealth authority or corporation (such as the respondent) may, as a "relevant authority", recover an amount of compensation that has been paid to a person under the Act if the amount should not have been paid: s 114(1)(b). The expression "should not have been paid" could mean a number of things. It may mean that the payment was made on a mistaken view of the facts: as to which see the Secretary, Department of Social Security v Migotto (1991) 103 ALR 36, or on a mistaken view of the law. This case illustrates a class of case where facts were found by the Tribunal which might enable the revocation under s 62 of an earlier s 14 determination and earlier determinations under s 16 and s 19. However, in this matter, the revocation of earlier determinations is not a course the respondent has taken or has indicated it proposes to take. This position may have been adopted because, for some discretionary or policy reason, the respondent does not wish to disturb payments earlier made under a mistaken belief about the entitlements of the applicant. However, that result may well be capable of being achieved by revoking the s 14 determination but not the determinations under s 16 and s 19. In any event, Comcare can, under s 114D of the Act, waive its right to recover from a person a debt due (assuming, for present purposes, any payment made under a revoked determination is, without more, a "debt due"). While that power to waive is subject to Ministerial directions, it nonetheless reveals the statutory scheme which could easily be moulded to ensure that, in a case such as the present, monies would not be recovered even if the s 14 determination was revoked.
46 In my opinion, it was not open to the Tribunal to review findings on the question of whether the applicant had suffered RRF and thereby make findings contrary to those underpinning the earlier determinations under s 14. Its decision should be set aside and the matter remitted to the Tribunal.
47 The proposed amendment to the notice of appeal was advanced on the basis that the applicant might not succeed on the appeal as originally framed. Probably the better course is to refuse leave to amend the notice of appeal. The respondent should pay the applicant's costs. Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under 62 for the reasons which prompted the Tribunal to determine the matter as it did. However, these are matters for the parties.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.