Linfox Australia Pty Ltd v Warusawithana [2025] FCA 717

The applicant, Linfox Australia Pty Ltd, appeals from a decision of the Administrative Review Tribunal under s 64 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal set aside reviewable decisions made by Linfox under s 62 of the SRC Act which had relevantly affirmed determinations that there was no present liability to pay compensation to the respondent for medical expenses or incapacity benefits pursuant to ss 16 and 19 of the SRC Act, and purported to substitute decisions that Linfox was liable to pay compensation to the respondent under ss 16 and 19 "to the present and continuing".
The parties agree that the appeal should be allowed, on the basis that the second question of law contained in the notice of appeal should be answered in favour of Linfox, that is, the Tribunal misconstrued and misapplied ss 16 and 19 of the SRC Act and thereby failed to perform or complete its statutory task. The parties have provided a minute of proposed consent orders by which the appeal is allowed on that question and the matter is remitted to the Tribunal to be heard and determined according to law.
These reasons provide an explanation of the basis on which the parties have reached that agreement, as a result of which the respondent concedes that the Tribunal's decision should be set aside.
Before making the consent orders, I must be satisfied that those orders are both within power and appropriate: see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [7]-[11] (French J); Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]-[15] (Downes, Greenwood and Tracey JJ); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[6] ( Colvin J); AWX24 v Australian National University [2024] FCA 1075 at [20] (Kennett J); HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 at [7] (Stewart, McElwaine and McEvoy JJ). However, this does not necessarily require an "exacting inquiry" into the basis for the orders sought: Kovalev at [14] (French J).
Further, the orders should be either self-explanatory or accompanied by brief reasons that publicly disclose the basis on which the orders are made: Kovalev at [8] (French J). In particular, when making orders setting aside a decision made by the Tribunal and remitting the matter to be decided "according to law", it is generally important to identify the error of law which led to the decision being set aside, and which must be rectified or avoided on remittal: Kovalev at [9], [13]-[15] (French J). In some cases, this can be made clear in the terms of the orders themselves, or in a note forming part of those orders. For such purposes, it may be sufficient that the orders identify the ground of the originating application on which the orders are based. Otherwise, the basis of the orders should be addressed in accompanying reasons for judgment. Nevertheless, while the Court must be satisfied that the orders sought are within power and appropriate on the basis identified, the reasons for reaching that satisfaction need not be elaborated in detail: see Kovalev at [19] (French J).
In order to provide context to the orders sought by the parties in the present case, it is necessary briefly to set out some background to the Tribunal's decision.
The respondent was employed by Linfox as a storeman in a warehouse. On 31 October 2022, the respondent slipped and injured his right ankle while he was at work. He subsequently lodged a claim for compensation under the SRC Act.
On 21 December 2022, Linfox (as a licensed corporation under the SRC Act) made a determination to accept liability under s 14 of the SRC Act "in respect of a right ankle condition, sustained on 31 October 2022", being a "small sprain of the ATFL of the right ankle". Linfox accepted liability under s 16 of the SRC Act to pay compensation for reasonable medical treatment expenses "up to and including 20 December 2022", and liability under s 19 of the SRC Act to pay compensation for incapacity benefits in respect of claims for time off work "up to and including 20 December 2022", but also determined that there was no present liability to pay compensation pursuant to ss 16 and 19 of the SRC Act in respect of the respondent's right ankle condition "as of 21 December 2022" (being the date of the determination).
On 30 January 2022, Linfox made a further determination by which certain medical treatment expenses incurred by the respondent in respect of his injured ankle prior to 21 December 2022 were authorised, but other medical expenses incurred after that date were determined not to be payable pursuant to s 16 of the SRC Act.
The ensuing dispute between the parties concerned whether Linfox was liable to pay compensation under ss 16 and 19 beyond 21 December 2022. I note that the covering letter from the claims manager at Linfox dated 21 December 2022 did not necessarily foreclose any entitlement to further compensation, but rather stated "[s]hould you need medical treatment or have time off work after 20 December 2022 as a result of your accepted right ankle condition, you will need to provide supporting medical evidence from your treating doctor or specialist". Nevertheless, the dispute proceeded by way of requests for reconsideration of the determinations under s 62 of the SRC Act, and for review of the reviewable decisions under s 64 of the SRC Act.
The determinations dated 21 December 2022 and 30 January 2023 were each affirmed by Linfox on reconsideration under s 62 of the SRC Act, by decisions made on 9 February 2023 and 7 March 2023 respectively.
The respondent applied to the Tribunal for review of both decisions. The review was heard over three days between 11-13 November 2024, and the Tribunal made its decision on 24 December 2024. In broad terms, the Tribunal accepted the evidence given by the applicant about his injury, and preferred the medical evidence of the orthopaedic surgeons called by the respondent over the medical evidence relied on by Linfox. The Tribunal concluded that the respondent continued to suffer from the effects of his accepted right ankle condition, and found that he required ongoing medical treatment under s 16 of the SRC Act beyond 20 December 2022 and was entitled to incapacity benefits under s 19 of the SRC Act beyond 20 December 2022. The Tribunal purported to give effect to those findings under s 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) by substituting decisions that Linfox pay to the respondent compensation pursuant ss 16 and 19 of the SRC Act "as and from 21 December 2022 to the present and continuing".
In its notice of appeal under s 172 of the ART Act, Linfox identified the second question of law as whether the Tribunal had misconstrued and misapplied ss 16 and 19 of the SRC Act or failed to complete its statutory task. The particulars to this question of law relevantly alleged that the Tribunal "failed to decide each element" of ss 16 and 19 necessary to make decisions under those provisions. The parties agree that the Tribunal erred by failing to make the necessary findings in order to substitute a decision under each of ss 16 and 19 of the SRC Act, and therefore failed to carry out its statutory task of reviewing the reconsideration decisions made by Linfox under s 62 of the SRC Act.
Liability to pay compensation under s 16 of the SRC Act turns on findings as to the injury suffered by the employee, the medical treatment obtained in relation to that injury, whether it was reasonable for the employee to obtain that treatment in the circumstances, and whether the amount payable is appropriate to that medical treatment.
Liability under s 19 of the SRC Act for an employee who is incapacitated for work as a result of an injury turns on the application of a formula which takes the amount of the employee's normal weekly earnings and deducts the greater of the amount per week (if any) that the employee is able to earn in suitable employment and the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
It is common ground that the Tribunal did not make findings on the elements on which liability depended under ss 16 and 19 of the SRC Act. Without making such findings, it was not open to the Tribunal to substitute a decision that Linfox was liable to pay compensation under ss 16 or 19, let alone that Linfox pay such compensation "as and from 21 December 2022 to the present and continuing". In so far as it might have been possible under s 105(c)(ii) of the ART Act for the Tribunal to set aside the reviewable decisions and to remit the matter to Linfox for reconsideration in accordance with any orders or recommendations of the Tribunal, that was not the power that the Tribunal purported to exercise: c.f. Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23] (Lee J); Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 at [16]-[18] (Moore J).
Accordingly, I am satisfied that the Tribunal erred in law in that it misconstrued or misapplied ss 16 and 19 of the SRC Act, and failed properly to exercise its jurisdiction to review the decisions made by Linfox under s 62 of the SRC Act.
It is therefore appropriate to allow the appeal and set aside the Tribunal's decision. Neither of the parties has pressed for any directions to be given to the Tribunal on remittal, nor for any restriction on the taking of further evidence by the Tribunal. In such circumstances, the appropriate order is that the matter be remitted to the Tribunal to be decided again in accordance with law. On remittal, the Tribunal can have regard to the record of the proceedings and any document or thing given to the Tribunal prior to the appeal, including a record of any evidence taken in the proceeding: ART Act, s 184. Of course, it remains open to the parties to resolve the matter by consent so as to avoid the need for any further hearing by the Tribunal: see s 106 of the ART Act.

Linfox Australia Pty Ltd v Warusawithana [2025] FCA 717 | Case summary | Zoe

The applicant, Linfox Australia Pty Ltd, appeals from a decision of the Administrative Review Tribunal under s 64 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal set aside reviewable decisions made by Linfox under s 62 of the SRC Act which had relevantly affirmed determinations that there was no present liability to pay compensation to the respondent for medical expenses or incapacity benefits pursuant to ss 16 and 19 of the SRC Act, and purported to substitute decisions that Linfox was liable to pay compensation to the respondent under ss 16 and 19 "to the present and continuing".
The parties agree that the appeal should be allowed, on the basis that the second question of law contained in the notice of appeal should be answered in favour of Linfox, that is, the Tribunal misconstrued and misapplied ss 16 and 19 of the SRC Act and thereby failed to perform or complete its statutory task. The parties have provided a minute of proposed consent orders by which the appeal is allowed on that question and the matter is remitted to the Tribunal to be heard and determined according to law.
These reasons provide an explanation of the basis on which the parties have reached that agreement, as a result of which the respondent concedes that the Tribunal's decision should be set aside.
Before making the consent orders, I must be satisfied that those orders are both within power and appropriate: see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [7]-[11] (French J); Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]-[15] (Downes, Greenwood and Tracey JJ); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[6] ( Colvin J); AWX24 v Australian National University [2024] FCA 1075 at [20] (Kennett J); HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 at [7] (Stewart, McElwaine and McEvoy JJ). However, this does not necessarily require an "exacting inquiry" into the basis for the orders sought: Kovalev at [14] (French J).
Further, the orders should be either self-explanatory or accompanied by brief reasons that publicly disclose the basis on which the orders are made: Kovalev at [8] (French J). In particular, when making orders setting aside a decision made by the Tribunal and remitting the matter to be decided "according to law", it is generally important to identify the error of law which led to the decision being set aside, and which must be rectified or avoided on remittal: Kovalev at [9], [13]-[15] (French J). In some cases, this can be made clear in the terms of the orders themselves, or in a note forming part of those orders. For such purposes, it may be sufficient that the orders identify the ground of the originating application on which the orders are based. Otherwise, the basis of the orders should be addressed in accompanying reasons for judgment. Nevertheless, while the Court must be satisfied that the orders sought are within power and appropriate on the basis identified, the reasons for reaching that satisfaction need not be elaborated in detail: see Kovalev at [19] (French J).
In order to provide context to the orders sought by the parties in the present case, it is necessary briefly to set out some background to the Tribunal's decision.
The respondent was employed by Linfox as a storeman in a warehouse. On 31 October 2022, the respondent slipped and injured his right ankle while he was at work. He subsequently lodged a claim for compensation under the SRC Act.
On 21 December 2022, Linfox (as a licensed corporation under the SRC Act) made a determination to accept liability under s 14 of the SRC Act "in respect of a right ankle condition, sustained on 31 October 2022", being a "small sprain of the ATFL of the right ankle". Linfox accepted liability under s 16 of the SRC Act to pay compensation for reasonable medical treatment expenses "up to and including 20 December 2022", and liability under s 19 of the SRC Act to pay compensation for incapacity benefits in respect of claims for time off work "up to and including 20 December 2022", but also determined that there was no present liability to pay compensation pursuant to ss 16 and 19 of the SRC Act in respect of the respondent's right ankle condition "as of 21 December 2022" (being the date of the determination).
On 30 January 2022, Linfox made a further determination by which certain medical treatment expenses incurred by the respondent in respect of his injured ankle prior to 21 December 2022 were authorised, but other medical expenses incurred after that date were determined not to be payable pursuant to s 16 of the SRC Act.
The ensuing dispute between the parties concerned whether Linfox was liable to pay compensation under ss 16 and 19 beyond 21 December 2022. I note that the covering letter from the claims manager at Linfox dated 21 December 2022 did not necessarily foreclose any entitlement to further compensation, but rather stated "[s]hould you need medical treatment or have time off work after 20 December 2022 as a result of your accepted right ankle condition, you will need to provide supporting medical evidence from your treating doctor or specialist". Nevertheless, the dispute proceeded by way of requests for reconsideration of the determinations under s 62 of the SRC Act, and for review of the reviewable decisions under s 64 of the SRC Act.
The determinations dated 21 December 2022 and 30 January 2023 were each affirmed by Linfox on reconsideration under s 62 of the SRC Act, by decisions made on 9 February 2023 and 7 March 2023 respectively.
The respondent applied to the Tribunal for review of both decisions. The review was heard over three days between 11-13 November 2024, and the Tribunal made its decision on 24 December 2024. In broad terms, the Tribunal accepted the evidence given by the applicant about his injury, and preferred the medical evidence of the orthopaedic surgeons called by the respondent over the medical evidence relied on by Linfox. The Tribunal concluded that the respondent continued to suffer from the effects of his accepted right ankle condition, and found that he required ongoing medical treatment under s 16 of the SRC Act beyond 20 December 2022 and was entitled to incapacity benefits under s 19 of the SRC Act beyond 20 December 2022. The Tribunal purported to give effect to those findings under s 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) by substituting decisions that Linfox pay to the respondent compensation pursuant ss 16 and 19 of the SRC Act "as and from 21 December 2022 to the present and continuing".
In its notice of appeal under s 172 of the ART Act, Linfox identified the second question of law as whether the Tribunal had misconstrued and misapplied ss 16 and 19 of the SRC Act or failed to complete its statutory task. The particulars to this question of law relevantly alleged that the Tribunal "failed to decide each element" of ss 16 and 19 necessary to make decisions under those provisions. The parties agree that the Tribunal erred by failing to make the necessary findings in order to substitute a decision under each of ss 16 and 19 of the SRC Act, and therefore failed to carry out its statutory task of reviewing the reconsideration decisions made by Linfox under s 62 of the SRC Act.
Liability to pay compensation under s 16 of the SRC Act turns on findings as to the injury suffered by the employee, the medical treatment obtained in relation to that injury, whether it was reasonable for the employee to obtain that treatment in the circumstances, and whether the amount payable is appropriate to that medical treatment.
Liability under s 19 of the SRC Act for an employee who is incapacitated for work as a result of an injury turns on the application of a formula which takes the amount of the employee's normal weekly earnings and deducts the greater of the amount per week (if any) that the employee is able to earn in suitable employment and the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
It is common ground that the Tribunal did not make findings on the elements on which liability depended under ss 16 and 19 of the SRC Act. Without making such findings, it was not open to the Tribunal to substitute a decision that Linfox was liable to pay compensation under ss 16 or 19, let alone that Linfox pay such compensation "as and from 21 December 2022 to the present and continuing". In so far as it might have been possible under s 105(c)(ii) of the ART Act for the Tribunal to set aside the reviewable decisions and to remit the matter to Linfox for reconsideration in accordance with any orders or recommendations of the Tribunal, that was not the power that the Tribunal purported to exercise: c.f. Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23] (Lee J); Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 at [16]-[18] (Moore J).
Accordingly, I am satisfied that the Tribunal erred in law in that it misconstrued or misapplied ss 16 and 19 of the SRC Act, and failed properly to exercise its jurisdiction to review the decisions made by Linfox under s 62 of the SRC Act.
It is therefore appropriate to allow the appeal and set aside the Tribunal's decision. Neither of the parties has pressed for any directions to be given to the Tribunal on remittal, nor for any restriction on the taking of further evidence by the Tribunal. In such circumstances, the appropriate order is that the matter be remitted to the Tribunal to be decided again in accordance with law. On remittal, the Tribunal can have regard to the record of the proceedings and any document or thing given to the Tribunal prior to the appeal, including a record of any evidence taken in the proceeding: ART Act, s 184. Of course, it remains open to the parties to resolve the matter by consent so as to avoid the need for any further hearing by the Tribunal: see s 106 of the ART Act.

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