Heath v The Commonwealth of Australia

Federal Court of Australia|1982-10-27|Before: Fitzgerald J, Burchett JJ, Justice J, Honourable J

The Commissioner for Employees' Compensation appears to have a strange aversion to making determinations

(Commonwealth Government Employees) Act 1971 ("the Compensation Act"). It appears that the Commissioner goes to

extraordinary lengths in avoiding making determinations

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granting requests under that section. The provisions of the Act are clear. Under sub-section 49(1), a qualified employee is empowered to make a request in writing to the Commissioner for a determination that further payments of compensation for partial incapacity under 3.46 of the Compensation Act "be redeemed by the payment to the employee of a lump sum". A request under sub-section 49(1) is to be treated as a claim for compensation under the Compensation Act; see sub-section 61(6). Where a request has been made, and unless it has been withdrawn, the Commissioner is under a duty to determine that request. The Commissioner must determine whether the liability of the Commonwealth is to be redeemed or not. If the Commissioner determines that the liability of the Commonwealth is to be redeemed, he must determine the amount of the lump sum to be paid in redemption of further payments of compensation under 3.46; generally, see sub-section 49(3). Under sub-section 49(5), the Commissioner is directed not to make a determination that the liability of the Commonwealth be redeemed unless he is satisfied that:-

"(a) the injury is not likely to result in the employee becoming totally incapacitated for work;

(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

the interests of the employee that the liability of the Commonwealth be redeemed."

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(1981) 61 F.L.R. 13 and in the High Court, (1982) 151 C.L.R. 76, is an illustration of the aversion of the Commissioner to make a determination under s.49. There, a qualified employee made a request in writing under sub-section 49(1). Immediately, the Commissioner, on his own motion, made a determination under s.39 of the Compensation Act. He determined that thereafter, the employee was no _ longer entitled to payment of compensation under s.46 and thus there was no liability on the part of the Commonwealth that could be redeemed by the payment of a lump sum under 3.49. As a result, the Commissioner made a determination refusing the request made by the employee. The High Court held that the

In the present case, on 30 April 1981, the applicant, being entitled to payment of compensation under 3.46 of the Compensation Act, made a request in writing under sub-section 49(1) to the Commissioner for the liability of the Commonwealth to make future payments to him be redeemed. The request complied with the requirements of sub-section 49(2). On 14 January 1982, a delegate of the Commissioner made a determination refusing the request because he was not satisfied that "the injury is not likely to result in the employee becoming totally incapacitated for work"; see paragraph 49(5)(a). On review by the Administrative Appeals Tribunal, that determination was affirmed by a decision made

on 15 July 1982, but on different grounds. On 27 October

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1982, the Federal Court of Australia constituted by Fitzgerald J., allowed an appeal, on a question of law, from that decision of the Tribunal. The Court ordered that the decision of the Tribunal be set aside and that the request by the applicant under sub-section 49(1) be remitted to the Commissioner to be determined by him according to law. It is not clear why the request was not remitted to the

Administrative Appeals Tribunal: see sub-section 44(5) of the

Administrative Appeals Tribunal Act 1975. His Honour ordered

also that a "determination of 3 April 1981 of a delegate of the Commissioner that the applicant is entitled to compensation from 1 September 1980 until a date to be determined by the Commissioner or his Delegate of payment of $105.00 per week in respect of compensation for partial incapacity" be remitted to the Commissioner. It is difficult to see how the Court had jurisdiction to make that second order. The determination of 3 April 1981 had not been the subject of any review under the provisions of the

Compensation Act then in operation. There could have been no appeal to the Federal Court from that determination by a

delegate of the Commissioner. The applicant appealed from the orders of the Court made on 27 October 1982 and on 5 August 1983, a Full Court of the Federal Court of Australia constituted by Lockhart, Morling and Neaves Jd. allowed the appeal in part. It varied the orders made by Fitzgerald J. by deleting that part of the order which remitted the

determination of the delegate of 3 April 1981. but otherwise

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dismissed the appeal. As a result, since 27 October 1982, there has been in existence an order of the Federal Court of Australia that the request by the applicant under sub-section 49(1) of the Compensation Act be determined by the

Commissioner according to law. The Commissioner has ignored that order. The Commissioner has mot yet made a determination with respect to that request. Such lack of

obedience to an order of the Court is to be condemned.

Instead of determining the request under sub-section 49(1) of the Compensation Act, in January 1983 the Commissioner, on his own motion and in the exercise of the powers conferred upon him by s.20 of the Compensation Act and in particular paragraph 20(4)(a), commenced to reconsider the determination made on 3 April 19861. It should be noted that thereafter and until March 1984, the applicant continued to receive weekly payments of compensation under s.46 of the

Compensation Act on the basis that he was partially incapacitated for work. The amount of the weekly payments

was varied from time to time by determinations made by

On 22 March 1984, a delegate of the Commissioner made a determination which in substance provided that on and after 22 March 1984, any incapacity for work by the applicant was not the result of personal injury arising out of or in

the course of his employment and was not the result of the

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contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor. As a result of that determination, the Commonwealth ceased to make payments of compensation to the

The applicant sought a review by the Administrative Appeals Tribunal of the determination of 22 March 1984. On 10 July 1985, the Tribunal, constituted by Davies J. and Messrs. Williams and De Maria, by majority, Davies J. dissenting, made a decision affirming the determination made on 22 March 1984. The applicant appealed to this Court from that decision. The appeal is limited to questions of law and comes within the original jurisdiction of the Federal Court, even though it has been heard by a Full Court; see

sub-sections 44(1) and (3) of the Administrative Appeals Tribunal Act 1975.

The applicant, who is a solicitor, appeared in person. The substantial questions of law raised by the appeal, as amended during the course of the hearing, are:-

"(a) (1) Whether the Tribunal, on the material before it and properly directing itself as to the relevant law, could reasonably have reached the conclusion that it was satisfied that any incapacity for work suffered by the applicant, Frederick Victor Reitano, on and from 22 March 1984 was not the result of personal injury arising out of or in the course of his employment;

before it and properly directing itself as to the relevant law, could reasonably have reached the conclusion that it was satisfied that any incapacity for work suffered by the applicant, Frederick Victor Reitano, on and from 22 March 1984 was not the result of a disease or the aggravation acceleration or recurrence of a disease to which his employment was a contributing factor."

In addition, the applicant raised questions of law directed to whether the Commissioner had power, on his own motion. to review a determination already made and as to whether s.94 of the Compensation Act as in operation prior to its repeal in 1981, prevented a review of the determination made on 3 April 1981 by a delegate of the Commissioner. These last two matters can be disposed of quickly. On no view did 3.94 apply to decisions of the Commissioner or his delegate. Section 94 was limited to decisions made by a Compensation Tribunal or an order of a prescribed Court. The section was directed to preventing challenges to decisions made by those bodies. Inno circumstances could it prevent the Commissioner from exercising the powers conferred on him

by the Compensation Act; see sub-sections 5(7) and (9).

The applicant further argued that once a request was made under sub-section 49(1) of the Compensation Act, the Commissioner could not, in law, exercise powers conferred by paragraph 20(4)(a) by revoking or varying an earlier determination even though, as a result, further payments of

compensation under s.46 could cease or be varied. With all

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respect, the Full Court in Reitano v. The Commonwealth of Australia, unreported, 5 August 1983, (but noted at (1984) 5 ALN No. 169 at 238) expressed the correct answer to that argument. Ina joint judgment, the Court said:-

"We can see no basis for this submission and, indeed, apart from asserting the proposition, Mr Callinan was unable to point to any reason why the plain words of sub-s. 20(4) should be read down in the way that he suggested. It would be extraordinary if the mere making of an application for redemption were to deprive the Commissioner of the power to reconsider the question whether the employee is entitled to continue to receive the weekly payments which are the subject of the redemption application. In the present case under the determination of 3 April 1981 the weekly payments were expressed to continue 'until a date to be determined by the Commissioner or his Delegate'. Plainly it was contemplated that consideration might be required at some time in the future of the question whether the payments should continue. We reject Mr Callinan's argument.

We should say that, in any event, it would he relevant in determining the amount of any lump sum payable under sub-s. 49(4) of the Act to have regard to the prospect of the employee ceasing to be entitled to payments of compensation under 3.46. In determining the value of the right of the employee to receive further payments of compensation it would be relevant, in our opinion, to have regard to any matter which might affect the continuation of those payments. What sub-s. 49(4) requires to be valued is the right of the employee to receive further payments of compensation under s. 46. The right which that section confers is a right to receive compensation only during the period during which the employee is partially incapacitated for work due to injury. Clearly, if it be shown that an employee is no longer partially incapacitated for work, this circumstance would need to be taken into account in assessing whether the Commonwealth's liability should be redeemed and, if so, the value of the employee's right to receive further payments of compensation: see Heath v Commonwealth of Australia, (1982) 43 A.L.R. 673 at p.678."

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The substantive issue raised on this appeal is whether, on the material before the Tribunal, the majority of the Tribunal could have made the findings they did. The Tribunal was reviewing the determination made on 22 March 1984 by a delegate of the Commissioner. In conducting that review, it was exercising all the powers and discretions conferred upon the Commissioner by the Compensation Act; see

s.43 of the Administrative Appeals Tribunal Act 1975. The Tribunal had the benefit of the applicant and the

Commonwealth appearing before it, but this should not obscure

the nature of the powers and discretions conferred upon it; see McDonald v. Director-General of Social Security (1984) 1 F.C.R. 354. In addition to the material that was before the delegate, the Tribunal had the benefit of oral evidence given for and on behalf of the applicant and the Commonwealth. The

ultimate issues for determination by the Tribunal were:-

Whether personal injury arising out of or in the course of his employment by the Commonwealth was caused to the applicant; see sub-section 27(1) of the Compensation Act. and if so, whether as a result of the injury the applicant was totally incapacitated for work; see sub-section 45(1), or whether as a result of injury the applicant was partially incapacitated for work; see sub-section 46(1),

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Whether the applicant was totally or partially incapacitated for work resulting from a disease or from the aggravation, acceleration or recurrence of a disease to which the employment of the applicant by the Commonwealth was a contributing factor; see sub-sections 29(1) and (2) and 31(4) of the Compensation Act. If yes, consequential issues arose similar to those set out inl.

The reason why these two issues arose as separate matters is because in the Compensation Act the word "injury" is defined to have a meaning which, subject to 3.29, does not include a disease or the aggravation, acceleration or recurrence of a disease; see sub-section 5(1). See also

For present purposes, the relevant history of the medical condition of the applicant is set out in the reasons of Burchett J. and need not be repeated. It is true that a number of decisions have discussed the need of a "change in circumstances" before an existing continuing award made under

workers' compensation legislation is sought to be varied.

This matter is discussed by Burchett J. The position under

the Compensation Act is different in nature to that under workers' compensation legislation in the various States. Under the Compensation Act, the Commissioner has power to act on his own motion; see paragraph 20(4)(a), a power not normally conferred upon a Tribunal by workers' compensation legislation in the States. The true position is more akin to the nature of claims for pensions under the Social Security Act 1947; see McDonald v. Director-General of Social Security, above, especially per Woodward J. at pp.356-357 and Northrop J. at pp.365-366. With necessary adaptions, the principles discussed in those passages have application to the present case. The majority of the Tribunal analysed at length the material placed before the Tribunal. They preferred the evidence of some doctors in preference to the evidence of other doctors and in so doing, accepted the opinions of the doctors whose evidence was preferred. This clearly is a case involving the issue of whether the employment of the applicant by the Commonwealth was a contributing factor to the aggravation, acceleration or recurrence of his disease of hypertension; see 3.29 of the Compensation Act. After reviewing the evidence and stating their acceptance of the opinions of some of the doctors over those of the other doctors, the joint reasons of the majority of the Tribunal continued:-

"After a full consideration of the evidence, we are

have existed has now ceased to exist, and that whilst he has a present partial incapacity for

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work in that he cannot engage in stressful occupations, that incapacity arises from the natural progression of his pre-existing condition."

That was a finding, which on the material before the

It is noted that the majority cast the overall onus of proof upon the Commonwealth, a view expressed by the High Court in Phillips v. The Commonwealth of Australia (1964) 110 C.L.R. 347 per Kitto, Taylor and Owen JJ. at pp.350-1. That view was expressed with respect to proceedings before the

County Court in Victoria and were described as a "judicial review" where "the Court" was required "to pronounce anew upon the rights of the parties as disclosed by the evidence before it". On this aspect of the matter, the Court said at p.350:-

"That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court."

The whole of the passage on pp.350-351 should be read. See

also the Commonwealth of Australia v. Muratore (1978) 141 C.L.R. 296.

Whether the principles stated by the passage quoted

apply to proceedings before the Tribunal, which is nota

judicial body and is not bound by the rules of evidence, but'

which exercises the powers and discretions conferred upon the

Commissioner by the Compensation Act, is open to question;

see McDonald v. Director-General of Social Security, above.

It is not necessary to decide that question in this case. The majority of the Tribunal placed the onus of proof on the Commonwealth and found that that onus had been satisfied. That approach did not operate to the detriment. of the

The most serious defect in the reasons of the majority of the Tribunal is that no reference is made to the__ definition of the word "injury" in s.5 of the Compensation Act and to s.29 and sub-sections 5(11) and 31(4). The ultimate issue should have been whether, having regard to those provisions of the Compensation Act and the facts of the case, the undoubted incapacity for work of the applicant resulted from the aggravation, acceleration or recurrence of the disease of hypertension to which the employment of the applicant by the Commonwealth was a contributing factor. The

; In some cases, where a relevant section of the Compensation Act is not referred to in the reasons for decision of a Tribunal, or an issue is wrongly stated, the Court, in exceptional circumstances, may allow an appeal and

make a substantive order where, on the material before the

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Tribunal, only one answer could have been given; see for example, Delahunty v. The Commonwealth (1981) 53 F.L.R. 9. In most cases, where the issue is not stated correctly, or a relevant section of the Compensation Act is not referred to, the Court allows an appeal and remits the matter to the Tribunal to determine the matter according to law after hearing such further evidence as it may decide to receive; see for example, Langham v. The Commonwealth of Australia, Full Court, Federal Court of Australia, 12 December 1984, unreported. /

On the facts of the present case, special circumstances exist. From a consideration of the material before the Tribunal and the reasons of the majority of the Tribunal. it is clear that the majority were aware of the relevant provisions of the Compensation Act and took them into account and were aware of the issue to be determined and decided that issue even though that issue was stated in an incorrect form. The determination of the delegate of the Commissioner made on 22 March 1984 was in a correct form, namely:-

"1 On the evidence before me, I find that the employee presently suffers from controlled hypertension which is solely the result of the

2 NOW THEREFORE in pursuance of the provisions of the Act I hereby determine:

(a) any incapacity for work the employee may have had onor after 22 March 1984 is not the result of personal injury arising out of or in the course of his employment;

(b) any incapacity for work the employee may have had on or after 22 March 1984 is not the result of the contraction of a disease, or the aggravation, acceleration or recurrence of a disease, to which his employment was a contributing factor."

The decision of the Tribunal was ina correct form, namely

"The decision under review is affirmed". In all the circumstances, it is apparent that the Tribunal could have come to no other result if they had made express reference to the relevant provisions of the Compensation Act and had stated the issue in the correct form. Further, having regard to the unfortunate history of this matter, it is desirable that it be determined as soon as possible and so bring the

dismissed, but there should be no order as to costs.

I certify that this and the preceding pages are a true copy of the Reasons

for Judgment herein of their Honours Mr Justice Evatt and Mr Justice Northrop.

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BETWEEN : FREDERICK VICTOR REITANO Applicant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM ; Evatt, Northrop and Burchett JJ. DATE: 13 December 1985 PLACE: Sydney

This appeal is the latest stage in a journey which began in 1977. It was then that Mr. Reitano, the applicant, left his employment as a Crown law officer in Darwin. He came to live in Queensland and was retired on the ground of invalidity as at 2nd February 1978, when he was 58 years of age. At the time he actually ceased work, in September 1977, he had been in the employ of the Commonwealth for less than two years, having

commenced in November 1975. Previously, he had been in private

practice, and then in Government employ, in Papua New Guinea.

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Between 1966 and 1970, the applicant had been under intermittent treatment for essential hypertension, and from 1970 onwards he was on regular medication for this condition. The

ground of his retirement was his hypertensive state.

In about October 1979 the applicant lodged a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 on the basis that he had suffered during the period of his employment in Darwin an aggravation, of his disease of essential hypertension, to which his employment by the Commonwealth had been a contributing factor. He asserted that his hypertension had been stable prior to his joining the Public Service, and had become unstable and unable tc be controlled by medication, by reason of work stress, particularly in relation to the supervision of junior staff. The aftermath of the Darwin cyclone, which occurred almost exactly one year prior to the commencement of the applicant's service, apparently continued to

affect the stressfulness of work inthe Crown Law office in

On 7 March 1980 the Delegate of the Commissioner for Employees' Compensation made a determination in the applicant's favour, but only in respect of the period up to 4 February 1980. The applicant appealed against this determination to the then Commonwealth Employees' Compensation Tribunal, constituted by Mr. Ballard. That Tribunal ruled that from 4 February 1980 the

applicant had been partially incapacitated for work and that the

claimed aggravation had contributed to his partial incapacity.

Thereupon the applicant requested a redemption of his entitlement by the payment of a lump sum under s.49. The Delegate obtained a medical report for the purpose of this request from a physician, Dr. M.E.B. Murphy. Apparently misled by a complete misreading of Dr. Murphy's report, which he quite wrongly took to indicate a significant risk of a stroke, the Delegate then rejected the request upon the ground contained in s.49(5)(a) of lack of satisfaction that "the injury is not likely to result in the employee becoming totally incapacitated for work." An application for review and appeals followed, to the Administrative Appeals Tribunal, from it to Fitzgerald J., and from him to a Full Court of this Court. Fitzgeraid J., in view of the admittedly incorrect basis upon which the Delegate had proceeded, considered that the matter ought to be remitted to the Commissioner for Employees' Compensation, but he made it clear that upon such a remittal it would be open to the Commissioner to "reconsider whether or not Mr. Reitano continues to be partially incapacitated and entitled to compensation", and he referred to s.20(4) (a) of the Compensation (Commonwealth Government Employees) Act. To his formal order remitting the matter, which was of course a remittal of the request for redemption under 8.49, he added a remittal of the question of reconsideration of the determination which had been made pursuant to Mr. Ballard's decision. The decision of the Full Court (unreported, but noted

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August 1983) in substance affirmed the decision of Fitzgerald J. However, without ruling upon the correctness of an argument that "as the determination dated 3 April 1981 (that is the determination pursuant to the ruling of Mr. Ballard) was not before the Court. it had no power to remit to the Commissioner the question whether he should exercise his power under sub-s. 20(4) of the Act", having regard to the fact that action had already been taken by the Commissioner to carry out the contemplated reconsideration (which was of course well within the Commissioner's power), the Full Court ruled that the convenient course was simply to vary the order of Fitzgerald J. by deleting that part of it which was by then otiose, since it required the

Commissioner to take a step upon which he had already embarked.

Following the Full Court decision. both the Commonwealth and the applicant submitted further material to the Commissioner

for the purpose of his reconsideration of the Commonwealth's

liability to pay compensation pursuant to s.46 of the Act. On 22 March 1984, the Delegate of the Commissioner issued a determination, finding that the applicant then suffered "from controlled hypertension which is solely the result of the natural progression of an underlying condition", and determining that any incapacity for work on or after 22 March 1984 was not the result of a relevant injury disease or aggravation. Upon this determination, there was of course no longer any "liability of the Commonwealth to make further payments to the employee under

(section 46)" which could be the subject of any redemption

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The applicant then applied to the Administrative Appeals Tribunal for a review of the Delegate's decision, and it is against the affirmation of that decision by majority (Williams, Senior Member, and De Maria, Member, Davies J. dissenting) that

The applicant, who conducted his own case, put primary reliance upon the proposition that the decision of the Commissioner under appeal was inconsistent with the 1981 decision of Mr. Ballard. It was argued that it was not competent for the Commissioner to make a decision inconsistent with that of Mr. Ballard. Reference was made to the concepts of res judicata and

issue estoppel and to the now repealed section 94 of the

Compensation (Commonwealth Government Employees) Act 1971, which

"94, Subject to the Constitution, a decision of a Compensation Tribunal or a judgment or order of a prescribed Court under the foregoing provisions of this Part is final except so far as appeals may be brought in accordance with this Division or appeals may be brought to the High Court from a judgment or order given or made under this Division."

These arguments cannot prevail. In the previous Full Court decision of Reitano v. The Commonwealth (supra) the joint judgment described as "the substantive point in the appeal", an argument that "the appellant's (i.e. Mr. Reitano's) entitlement

to continuing payments of compensation on the basis of partial

incapacity for work was no longer open to question". This argument was put on two bases, and each of them was rejected. The first basis was that "once an application was made under s.49

of the Act for the liability to make further weekly payments of compensation to be redeemed, it was not competent for the Commissioner to take any action under sub-s. 20(4) of the Act varying or revoking the determination under which those weekly

payments were made." As to this, the Court stated that it could "see no basis for this submission", and referred to "the plain

"It would be extraordinary if the mere making of an application for redemption were to deprive the Commissioner of the power to reconsider the question whether the employee is entitled to continue to receive the weekly payments which are the subject of the redemption application. In the present case under the determination of 3 April 1981 the

weekly payments were expressed to continue 'until a date to be determined by the

Commissioner or his delegate'. Plainly it was contemplated that consideration might be required at some time in the future of the general question whether the payments should continue."

The Court also stated: "The right which (section 46) confers is a right to receive compensation only during the period during which

the employee is partially incapacitated for work due to injury."

The second basis on which the applicant's case was put in that appeal was that the "very question had already heen

determined by Mr. Ballard". This argument was also rejected as

As has already been pointed out the other question raised in the previous appeal was the jurisdiction of Fitzgerald dg. to remit to the Commissioner the question whether he should exercise his power under 3.20(4) of the Act. Lack of jurisdiction was asserted on the ground that the only matter before Fitzgerald J. was the applicant's request for redemption pursuant to s.49 of the Act (cf. The Repatriation Commission v. O'Brien 59 ALJR 363 at 365). The Court ruled that it was unnecessary to determine the jurisdictional point since "the

Commissioner had, in fact, taken action under sub-s. 20(4) to

reconsider the determination of 3 April 1981." The Court added:

"As we have already indicated, we think that it was competent for the Commissioner to

reconsider the earlier determination, notwithstanding the making of the redemption application."

The Court therefore simply varied the order under appeal, hy

deleting the requirement to undertake a review which had already

been commenced, and otherwise dismissed the appeal with costs.

In the light of this decision, the majority of the Administrative Appeals Tribunal felt at liberty to review the applicant's continuing entitlement to payments in respect of partial incapacity. (It should be pointed out, indeed, that Davies J., though expressing some doubt, did not dissent on this

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In O'Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744, the appellant had suffered an

injury to the eye in the course of his employment when he had been struck by a palm leaf whilst travelling upon the footboard of a tran. He had become blind and had obtained a judgment in the Supreme Court of New South Wales, awarding him wages for the period up to his retirement, under a section of the Transport Act conferring an entitlement to wages until retirement in respect of

"disablement arising from ... injury". However, in subsequent

workers' compensation proceedings, in which he sought

compensation for the period following his retirement, medical

evidence was led upon which a finding was made that, although he continued to be blind, the blindness from which he was suffering

Upon appeal, the High Court held that no estoppel interdicted that conclusion. Latham C.J. referred at p.758 to the rule established at least since the decision in the Duchess of Kingston's Case in 1776 that a judgment relied upon to raise an estoppel is not "evidence... of any matter to be inferred by argument from the judgment." Evatt J. at p.763 considered the worker's argument to be that "a conclusive determination (scil. "of") incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness ata later point of time", and he

rejected it, saying: "But this method, though logically sound,

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In the present case, the nature of the evidence, intended to be relied on by the Commonwealth, was before the Full Court when it reached the conclusions already cited. For it was upon the evidence of Dr. Murphy that the decision to refuse the request for redemption under s.49 had been confirmed, when Mr. Reitano's second application had heen before the A.A.T. The contention 'that it was not, in the present case, open to the Commissioner '(or the A.A.T., upon appeal) to review the applicant's continued entitlement to payments of compensation

But it was argued that the majority of the A.A.T. erred in its conclusion. At the outset of consideration of this argument, it is important to emphasize that an appeal from the A.A.T. is restricted to questions of law (Administrative Appeals Tribunal Act 1975, 3.44). In this case, the decision of the Tribunal was a majority decision, with the President dissenting. But the members of the Tribunal did not themselves see their difference as one of law. Had they done s0, the President's opinion must have prevailed (s.42). Was there nevertheless some

unnoticed question of law upon which the majority erred?

The majority analysed the evidence at length, and with care. On grounds which cannot be dismissed as irrrational or not open to them, they preferred the opinions of Doctors Murphy, Goodwin, and O'Shea. Those opinions they contrasted with the

view of Dr. Ringrose "that stress played a part in the aggravation of (the applicant's) hypertension while in Darwin", and "did increase any gravity or seriousness of the hypertensive condition to the extent that it is an attributing (sic. - scil. "a contributing", on the basis there was probably a textual corruption in the transcript) factor to his not being able to engage in stressful employment." They wrote:

similar view. Dr. Murphy was of the opinion that any contribution to the applicant's

Although s.29, 3.5(11) and s.31(4) of the Compensation (Commonwealth Government Employees) Act 1971 were not referred to, the relevant question which they posed for this case was clearly whether the aggravation (to which the employment in Darwin had been held a contributing factor) contributed to the continuing partial incapacity of the applicant at the date of the determination. In the context, it cannot be doubted that this was the question the answer to which was suggested in the passage I have quoted. Indeed, the reasons proceed, immediately after that passage, to refer to a volume of clinical evidence showing an absence of "the visible signs which might be expected had the applicant's Darwin experience had lasting effect upon his

condition." To the extent that the statement quoted from the

majority's reasons is ina condensed form, it expresses the

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question in a manner quite similar to that which Kitto J. thought

appropriate in Federal Broom Company Pty. Ltd. v. Semlitch (1964) 110 CLR 626 at 632-3. Kitto J. said:

contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc."

Following the discussion I have cited, the majority refers to the question at issue as being whether "circumstances no longer exist which authorise continuance of the grant", and

"After a full consideration of the evidence, we are persuaded, on the balance of probabilities, that any work-related aggravation of the applicant's pre-existing condition of hypertension which may have existed has now ceased to exist, and that whilst he has a present partial incapacity for work in that he cannot engage in stressful occupations, that incapacity arises from the natural progression of his pre-existing condition."

In arriving at this conclusion, the majority rightly required that the burden of persuasion be borne by the arguments against the existing entitlement of the applicant (see Phillips v. The Commonwealth 110 CLR 347 at 350; The Commonwealth v.

It was put by the applicant that the reference, in s.20(2)(a) of the Act, to "equity, good conscience and the substantial merits of the case", assisted his appeal. He also relied on certain well-known dicta enjoining a liberal

construction of workers' compensation legislation (see Wilson v.

Wilson's Tile Works Pty. Ltd. 104 CLR 328 at 335; Thompson v. Armstrong and Royse Pty. Ltd. 81 CLR 585 at 616; Dodd v.

~s Executive Air Services Pty. Ltd. 1975 VR 668). It is sufficient
to say that the decision of the A.A.T. was reached upon a

consideration of the substantial merits as disclosed by the

evidence. Indeed, a perusal of the evidence shows that the applicant received the benefit of a view, apparently held by those advising the Commonwealth, that the specialist cardiologists consulted must accept (contrary to what was obviously the medical opinion of several of them) the correctness of the Tribunal's view in the earlier decision that the applicant's hypertension was in fact aggravated by his employment in Darwin, in the statutory sense that the employment was a contributing factor to the aggravation (3.29(1)(b)). In the light of O'Donel's case (supra), this unnecessarily constrained the witnesses within a tortured mixture of medical science and bad law, but it certainly was not to the disadvantage of the

fa € > os. eer ts Pt tt a 2 Day 'eay

(tee

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. . . Anca 2.4. Aahash

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Judgment (183 paragraphs)

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Cases Cited (12)

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