19 Similarly, in the present case the AAT reached the conclusion, in effect, that Mr Pascoe ought to be excused from undertaking the rehabilitation program, rather than whether Mr Pascoe himself had a reasonable excuse for non-attendance. Section 37(7) also requires an excuse "personal to the employee" and not an opinion by the AAT as to the appropriateness of the particular program.
20 As was said in Forgie at [40], the s 37(7) process:
"…requires that the person at least consider the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances."
21 In our view, the AAT, standing in the shoes of Australia Post, did not evaluate the reasonableness of any excuse presented to explain Mr Pascoe's failure to undertake the program devised for him, rather it focused on the reasonableness of the program itself. It was not its role to do so. The AAT should have taken the program as having been provided to the employee without challenge following a determination, and assessed the reasonableness of Mr Pascoe's excuse, if he had one, for failing to undertake that particular program.
22 Accordingly we would dismiss the appeal.
23 Counsel for Mr Pascoe submitted that, should the appeal be dismissed, the matter should be remitted to the same AAT member who made the original decisions, for that member to deal with further evidence on the issues raised by s 37(7). We do not think that is a desirable course. We see no reason to inhibit the AAT, in the manner in which it considers it to be appropriate, to properly review the decisions of Australia Post which were the subject of the AAT decision of 30 August 2002. Any order, other than one upholding the primary judge's remittal of the decisions subject to appeal in this Court, may be productive of confusion and perhaps further litigation. That result should be avoided.
24 A question arose at the hearing of the appeal concerning whether Mr Pascoe should be entitled to a costs certificate under the Federal Proceedings (Costs) Act 1981(Cth)("the Costs Act"). Written submissions on those issues were received by the Court subsequent to the hearing. Those submissions also addressed the question whether a costs order should be made against Mr Pascoe in the appeal, should the appeal be dismissed. Having considered these submissions we are of the view that there are no special or exceptional circumstances in this matter which would prevent costs following the event, both on the appeal and before Whitlam J: see Hewlett Packard Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 278 at [8]; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 per Toohey J at 48,136; Ruddock v Vadarlis [2001] FCA 1865; 115 FCR 229 per Black CJ and French J at [9]-[25].
25 Section 6(1) of the Costs Act provides that:
"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."
That subsection has no relevance to this appeal, but Mr Pascoe may consider applying under it to the primary judge in respect of the costs at first instance, in what was "an appeal" from the AAT.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Marshall and Finkelstein.