Pelgrave v Comcare Australia

REASONS FOR JUDGMENT 1 On 2 May 1987 the appellant injured his wrist while working as a baggage handler for Australian Airlines. Compensation in respect of the incapacity he suffered as a result of that injury was paid to him until 5 June 1989 at which time the applicant's employment was terminated after he refused to undertake a course of training as a ticketing officer. Subsequently, the appellant worked in various jobs until May 1998. 2 On 23 May 2000, the solicitors acting for the appellant made a claim for compensation payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") on the grounds that, as a result of his earlier incapacity, the applicant has been unable to obtain any suitable employment since about May 1998. 3 The claim was rejected by a delegate of the respondent ("Comcare"). Pursuant to s 62 of the Act the appellant requested a reconsideration of the delegate's determination that Comcare is not liable to pay compensation to the appellant under the Act. On a reconsideration by an Independent Review Officer ("the Review Officer") the determination of the delegate was affirmed. The Review Officer stated in her reasons that it was not in dispute that the claimant is unfit for work as a baggage handler but that there was no evidence that the claimant was incapacitated for suitable clerical duties that were previously offered to him and which he refused. The reasons concluded that there is no evidence that the claimant sought suitable employment, nor that any failure to obtain suitable employment is due to his compensable condition. 4 The appellant applied for a review of the Review Officer's decision by the Administrative Appeals Tribunal ("the AAT") under s 64 of the Act. The AAT affirmed the decision of the Review Officer. It accepted that the appellant was claiming compensation for incapacity due to his inability to undertake suitable employment as from May 1998 but made the following findings which it regarded as dispositive of the appellant's case: "97. The respondent accepts and the Tribunal so finds that the applicant continues to suffer from his wrist injury, is unable to perform heavy manual labour and is unable to perform his pre-injury duties as a baggage handler. To this end, the Tribunal needs to consider sub-section 19(2) of the Act in the light of the factors set out in sub-section 19(4). Such would include, inter alia, whether the applicant sought employment, whether he declined an offer of suitable employment and whether he was offered employment on the basis that he undertook a rehabilitation programme. 98. It is not disputed and the Tribunal is satisfied and so finds that the applicant has not worked since May 1998. In considering the medical evidence there is no evidence before the Tribunal that suggests the applicant's condition 'is a little bit worse' although it may have deteriorated. In applying sub-section 19(4) to the matter before it, the Tribunal rejects the explanation of the applicant as it is not satisfied that the applicant made any sincere and bona fide attempt to actually obtain work. The Tribunal hence is satisfied and so finds that the applicant has not sought work in accordance with provisions of sub-section 19(4)(e) of the Act." 5 Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) the appellant appealed against the decision of the AAT on the ground of error of law. The alleged error is that the AAT failed to discharge its function according to law, as it did not determine the matters it was required to determine under s19 of the Act which, relevantly, provided: "(1) This section applies to an employee who is incapacitated for work as a result of an injury, … (2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula: NWE - AE where: NWE is the amount of the employee's normal weekly earnings; and AE is the amount per week (if any) that the employee is able to earn in suitable employment (3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation: (a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; … (4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: (a) where the employee is in employment - the amount per week that the employee is earning in that employment; (b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment (c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment-the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition-the amount that the employee would be earning in that employment if he or she were engaged in that employment; (e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f) where paragraph (b), (c), (d) or (e) applies to the employee-whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and (g) any other matter that Comcare considers relevant." 6 Although the Act has been amended from time to time the parties were agreed that the above provisions were applicable to the present appeal. 7 The appellant contends that: · under s 14(1) of the Act Comcare is liable to pay compensation in accordance with s 19(3)(a) in respect of the appellant's incapacity as from May 1998; · the only issue for the AAT to determine was the amount (if any) of that compensation, which is to be determined in accordance with s 19(3)(a); and · although the findings at [97]-[98] of the AAT's reasons were matters to which it was to have regard under s 19(4), and those matters are relevant to the determination of the quantum of the amount payable under ss 14(1), 19(1) and 19(3)(a), they were not determinative of that issue. 8 In particular, the appellant contends that under s 19(3)(a) the AAT was required to determine what constituted "suitable employment" (as defined in s 4(1)), the amount (if any) the appellant was able to earn in suitable employment during the claim period and the amount (if any) payable by way of compensation under ss 14(1), 19(1) and 19(3)(a) of the Act. 9 Subject to one important qualification, Comcare does not really dispute the appellant's statement of the duties of the AAT in the circumstances of the present case. The qualification is that the AAT was only required to deal with the case put by the appellant to Comcare and the AAT and that that case, which was decided by Comcare and the AAT adversely to the appellant, did not relate to quantum but rather, related to the matters decided by the AAT at [97]-[98] of its decision. 10 Comcare also contended that, in any event, the AAT's reasons should be read generously and the AAT should be taken to have implicitly found that the amount the appellant was able to earn during the relevant period for performing suitable employment, namely clerical duties, was equal to or greater than 75% of "normal weekly earnings" (which is an amount calculable by reference to the appellant's earnings prior to the termination of his employment with Australian Airlines or Qantas). Accordingly, it is contended, no amount is payable as compensation under the Act. 11 The function of the AAT on a review under s 64 of the Act was considered by a Full Court in Lees v Comcare (1999) 56 ALD 84 at 93: "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." 12 Plainly, in the present matter the powers and discretions of the delegate and the review officer at the first and second tier decision-making stages respectively, included the determination of the amount (if any) payable under ss 14(1), 19(1) and 19(3)(a), it having been found that the applicant continued to suffer from his original incapacity and that he had not worked since May 1998. Accordingly, it was within the power and the discretion of the AAT to determine that amount (if any). The real issue in the present appeal is whether the AAT was obliged to determine the amount payable (if any). 13 At the hearing before the AAT there was a factual contest in respect of numerous matters relating to the appellant's post May 1998 claims. Although that contest related to the matters found by the Review Officer and the AAT adversely to the appellant, I was not taken to any material before the Court that indicates that the appellant accepted that an amount to be determined under s 19 was not part of his case, or that those adverse findings were sufficient to dispose of his claims. Indeed, at [77] and [82] the AAT recorded that counsel for the appellant contended that the only issue is the amount that the appellant is able to earn in suitable employment since May 1998 for the purposes of ss 19(1) and (3)(a) of the Act. 14 In Noble v Repatriation Commission (Unreported, Federal Court of Australia, Beaumont, Branson and Merkel JJ, 3 November 1997) at 15-16 the Full Court observed: "In Bushell [v Repatriation Commission (1992) 175 CLR 408] Brennan J said (at 424-5): 'Section 120 governed the review by the A.A.T. of the decision of the Board on Mr. Bushell's claim. This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s. 120 create any presumption which has to be dispelled by the material before the decision-maker.'" and "…the Tribunal [is] entitled to be guided by the issues that the parties choose to put before it for its consideration: see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489." 15 I am not satisfied that the appellant has put the issues before the AAT in a manner that absolved it from determining the amount (if any) payable to the appellant under ss 14(1), 19(1) and 19(3)(a) of the Act. Rather, as has been explained above, that was a matter that the appellant claimed the AAT was required to determine as the appellant's original incapacity had continued, he had not been employed since May 1998 and the amount, if any, that is payable as a result of those matters is the amount to be determined under s 19(3)(a). 16 I would add that it is quite clear that, although the matters set out in ss 19(4)(a) to (f) are matters to which the AAT was required to have regard, the AAT's finding as to an amount that an employee is able to earn in suitable employment is not to be made exclusively by reference to those matters: see Woodbridge v Comcare (1994) 20 AAR 196 at 205. 17 In support of his submission that there was an implicit finding by the AAT that no amount was payable, counsel for Comcare relied on Telstra v Slater [2001] FCA 149 at [55] where Spender J observed that the legislature could not be taken to have intended of a decision-maker applying s 19: "that he or she always determine a precise amount for the figure 'AE' in the formula provided" 18 However, in that case the decision-maker had expressly determined that the applicant was able to earn an amount in suitable employment equal to or greater than 75% of "normal weekly earnings" with the consequence that no amount was payable in accordance with s 19 of the Act. 19 It is unnecessary, for present purposes, to explore the precision with which a decision-maker is to make or express findings as to what constitutes suitable employment and the amount able to be earned in that employment for the purposes of s 19, as I am satisfied that no findings on either matter have been made by the AAT. The approach of giving a beneficial construction to the reasons of an administrative decision maker does not entitle or oblige a court to fill in gaps in the reasons, or read into the reasons findings that were not made. 20 Finally, it was submitted that the outcome of a remitter to the AAT will be that no amount will be payable. That may or may not be so. It has not, however, been demonstrated that a remitter would be futile. In those circumstances there is no reason to refuse the remittal sought by the appellant.