Ramsay v Australian Postal Corporation

7. The respondent pay the applicant's costs, of and incidental to these proceedings, (including reserved costs), to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT 1 This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") whereby the applicant seeks review of a decision of Administrative Appeals Tribunal ("the Tribunal") constituted by a single Member, made on 30 June 2004. The decision of the Tribunal was: 'The Tribunal: (a) finds that the applicant had a reasonable excuse for failing to undertake the rehabilitation program commencing on 12 March 2001, pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (file number Q2001/1022); (b) affirms the decision of the respondent dated 17 September 2001 (which affirmed the decision of 7 March 2001), that the respondent is no longer liable to pay compensation to the applicant in respect of his neck, back, right shoulder and right knee conditions; and (c) being satisfied that it has no jurisdiction in relation to application number Q2002/856, directs that the application be dismissed.' 2 The decision of the respondent dated 17 September 2001 referred to in par (b) of the Tribunal's decision was a reconsideration decision pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") by Mr Lawrence, a reconsiderations delegate of Australia Post, who determined: 'I hereby affirm the determination of the Claims Manager of 7 March 2001 to deny liability for "injury to right knee, right shoulder and back".' 3 The determination of 7 March 2001 referred to in par (b) of the Tribunal's decision was a determination by Mr Dennis Hoffman, the Claims Manager, Compensation and Rehabilitation Branch, was in the following terms: '1. The degenerative changes in the cervical spine and the lumbar spine from which you now suffer are no longer influenced by effect from injury on 24 August 1999. Consequently there is no further entitlement in terms of section 14(1) of the Safety Rehabilitation and Compensation Act 1988 in respect of this condition. 2. The effects of injury to the right knee on 24 August 1999 have resolved. Any effects of that injury would not preclude or restrict return to employment and there is no further requirement for medical treatment. Consequently there is no further entitlement in terms of the provisions of section 14(1) in respect of the condition of the right knee. 3. Since surgery, recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment. I find further to this that Australia Post is able to offer suitable full time work within medical indications. Now therefore I determine that you are not entitled to further payment of compensation under section 19 of the Act in respect of any injury resulting from the accident of 24 August 1999.' 4 The amended notice of appeal contained six grounds of appeal. Concerning the grounds identified as 4.1, 4.2, 4.3 and 4.6, Mr David Thomae, Counsel for the respondent conceded: '1. On 8 October 2003, a date between the second and third hearing days in relation to this matter, the Full Federal Court of Australia handed down a decision in Australian Postal Corporation v Forgie (2003) 202 ALR 63. This had the effect of making grounds 4.2, 4.3 and 4.6 untenable for the Respondent as the Tribunal incorrectly applied the decision of the Full Court in Forgie. The Respondent has properly conceded those grounds in this Appeal. 2. In respect to ground 4.1, the ground of appeal is redundant as the concession on the other grounds makes it so. The Respondent has conceded this ground.' It follows that grounds 4.4 and 4.5 are the only contentious grounds of appeal on this application. 5 In the light of the concession by the respondent it is, however, appropriate to set out all of the grounds of appeal: '4.1 There was no evidence that Ms Harrison was authorised under s.37(1) of the Act to make a determination of 7 March 2001 that the Applicant undertake a rehabilitation programme and the Tribunal erred in law in deciding that she was so authorised. 4.2 The Tribunal failed to exercise its jurisdiction to review or decide upon the Respondent's decision of 17 September 2001 affirming the determination of 7 March 2001 that the Applicant undertake a rehabilitation programme. 4.3 The Tribunal: 4.3.1 misinterpreted s.37(7) of the Act by deciding that no decision need be made by the Respondent for that section to have operation; 4.3.2 then wrongly failed to exercise its jurisdiction to review the Respondent's decision of 17 September 2001 refusing to reconsider a determination of 28 March 2001 to suspend the Applicant's entitlements under the Act until he commenced the rehabilitation program. 4.4 The Tribunal denied the Applicant natural justice by failing to give the Applicant the opportunity to cross-examine Dr Walters and/or advise the Applicant that Dr Walters' reports could affect the outcome of the application. Particulars 4.4.1 The Respondent did not make Dr Walters available for cross-examination at the hearing, notwithstanding representations that it would do so; 4.4.2 the Tribunal gave significant weight to Dr Walters' report without notifying the Applicant that it proposed to do so and without requiring the Respondent to make Dr Walters available for cross-examination; 4.4.3 the procedures adopted by the Tribunal were unfair in circumstances including: (a) that the Respondent represented that Dr Walters would be called to give oral evidence; (b) that the Applicant had lodged a Hearing Certificate with the Tribunal in which he required that Dr Walters be made available for cross examination; (c) Dr Walters' reports were admitted into evidence; (d) at the last moment the Respondent indicated that Dr Walters was unavailable for cross-examination; (e) doctors whose evidence supported the Applicant's case had been cross-examined by the Respondent; (f) the Tribunal represented that if Dr Walters' reports were "going to tip the scales either way" the Tribunal would have to take oral evidence from Dr Walters; (g) the Respondent confirmed that Dr Walters' reports would not tip the scales; (h) The Respondent conceded that Dr Walters' reports were not a crucial part of its case. 4.5 The Tribunal: 4.5.1 had no jurisdiction or power to affirm a decision of 17 September 2001 affirming a determination of 7 March 2001 that the Respondent was no longer liable to pay compensation insofar as is decided that the Applicant was not entitled to payment of medical expenses. 4.5.2 failed to consider or address the issue of whether the Applicant was entitled to payment of medical expenses. 4.6 The Tribunal made errors of jurisdictional fact and law in deciding the Tribunal did not have jurisdiction in relation to Q2002/856. Particulars 4.6.1 The Tribunal misinterpreted s.37(7) of the Act in deciding that the Respondent was prevented by s.37(7) from considering the Applicant's claims for compensation for permanent impairment; 4.6.2 the Tribunal erred in deciding that the Respondent's letter of 10 July 2004 did not amount to a determination or a refusal to make a determination and that its letter of 21 August 2002 was not a reconsideration of a determination.' 6 The applicant is employed as a postal delivery officer by the respondent. On 24 August 1999 he was injured when the motorcycle he was riding struck a vehicle that failed to give way and he was thrown onto the road. As a result of the collision, the applicant sustained injuries to his neck, right shoulder, back and both knees. Between 14 December 1999 and 18 July 2000, the applicant had three operations on his right shoulder, all performed by Dr Fardoulys. The applicant also had an operation on his right knee, treatment for lumbar and cervical pain, and for a psychiatric condition which was diagnosed by Dr John N. Chalk on 14 November 2000 as 'an adjustment disorder with depressed mood in the setting of chronic pain.' 7 The respondent accepted liability for the injuries to his neck, back, right shoulder and right knee, and the applicant was awarded compensation under the SRC Act. Compensation benefits were paid from 31 August 1999 to March 2001. 8 A series of determinations, decisions and refusals to make decisions, as outlined below, followed: (a) On 7 March 2001 Ms Harrison, a delegate of the respondent, determined that the applicant was to commence a rehabilitation programme commencing on 12 March 2001 and ending on 6 April 2001. (b) On 7 March 2001 Mr Hoffman, another delegate of the respondent, determined that the applicant was not entitled to further payments of compensation under s 19 of the SRC Act. (c) On 28 March 2001 Mr Hoffman decided, pursuant to s 37(7) of the SRC Act that the applicant's rights to compensation and to institute or continue any proceedings in relation to compensation were suspended on and from receipt of the letter until such time as he began to undertake the rehabilitation programme which was the subject of the determination dated 7 March 2001. (d) On 17 September 2001 Mr Lawrence, a reconsiderations delegate of the respondent, wrote that he was unable to reconsider the determination of 28 March 2001 as the advice issued on that date was not a "determination". (e) On 17 September 2001 Mr Lawrence affirmed the determination of 7 March 2001, which he described as a determination that "the applicant was no longer entitled to compensation benefits in relation to the injuries sustained in the accident on 24 August 1999". (f) On 17 September 2001 Mr Lawrence affirmed the decision dated 7 March 2001 that the applicant undertake the rehabilitation program. (g) On 10 July 2002 Mr Casey, a delegate of the respondent, said that because of s 37(7) of the SRC Act, he was unable to decide whether to accept the applicant's claims for compensation in respect of an adjustment disorder with depressed mood in the setting of chronic pain, and for compensation for permanent impairment for injuries to his back, right shoulder, both knees and psychological injury until the issue of suspension had been decided by the Tribunal. (h) On 21 August 2002 Mr O'Keefe, a reconsiderations delegate of the respondent, decided that as Mr Casey had not made any determination, there was nothing to reconsider under s 62 of the SRC Act. 9 The applicant then appealed to the Administrative Appeals Tribunal. 10 In application Q2001/1022, the applicant sought review of three decisions, namely: (a) a decision dated 17 September 2001 confirming a determination dated 7 March 2001 by one Kate Harrison that the applicant undertake a rehabilitation programme. (b) a decision dated 17 September 2001 confirming a determination of 7 March 2001 to terminate the applicant's entitlement to compensation for injuries to his neck, back, right knee and right shoulder. (c) a decision constituted by a refusal to reconsider a determination dated 28 March 2001 that the applicant's rights to compensation and to institute or continue any proceedings were suspended until he commenced the rehabilitation program. 11 In application Q2002/856, the applicant sought review of: (a) a decision made on 21 August 2002 constituted by a refusal to reconsider a determination made on 10 July 2002 refusing to consider the applicant's claim for compensation for weekly benefits and medical expenses arising out of a condition of adjustment disorder with depressed mood in a setting of chronic pain. (b) a decision made on 21 August 2002, constituted by a refusal to reconsider a determination made on 10 July 2002 which refused to decide upon the applicant's claim for permanent impairment compensation for injuries to the applicant's back, right shoulder, right and left knees and a psychological injury. 12 In the light of the concessions made by the respondent concerning grounds 4.1, 4.2, 4.3 and 4.6, it is appropriate to make, inter alia, the following orders (a) It be declared that the Tribunal made an error of law in finding that Kate Harrison was authorised on 7 March 2001 to make a determination pursuant to s 37(1) of the SRC Act that the applicant undertake a rehabilitation programme commencing on 12 March 2001. (b) It be declared that the Tribunal made an error of law by failing to exercise its jurisdiction to review the respondent's decision of 17 September 2001 which affirmed its determination of 7 March 2001 that the applicant undertake the rehabilitation programme. (c) The respondent's decision of 17 September 2001 affirming the determination of 7 March 2001 that the applicant undertake the rehabilitation programme be set aside. (d) The respondent's determination of 7 March 2001 that the applicant undertake a rehabilitation programme commencing on 12 March 2001 be set aside. 13 Having regard to the Tribunal's conclusion that the applicant had a reasonable excuse for failing to attend the rehabilitation programme, the Tribunal would have set aside the suspension decision if it had power so to do. In those circumstances, it is appropriate for the Court to make the following orders: (a) It be declared that the Tribunal made an error of law by failing to exercise its jurisdiction to review the respondent's decision of 17 September 2001 by which the respondent refused to reconsider its determination of 28 March 2001 that the applicant's entitlements to compensation and to institute or continue any proceedings under the SRC Act in relation to compensation until he began to undertake the rehabilitation programme were suspended. (b) The respondent's decision of 17 September 2001 by which the respondent refused to reconsider its determination of 28 March 2001 that the applicant's rights to compensation and to institute or continue any proceedings under the SRC Act in relation to compensation were suspended until he began to undertake the rehabilitation programme be set aside. (c) The respondent's determination of 28 March 2001 that the applicant's rights to compensation and to institute or continue any proceedings under the SRC Act in relation to compensation were suspended until he began to undertake the rehabilitation programme be set aside. 14 In application Q2002/856, the applicant sought review of two decisions made on 21 August 2002 which were constituted by the respondent's refusal to reconsider determinations made on 10 July 2002, which determinations refused to consider his claim for compensation for weekly benefits and medical expenses arising out of his psychiatric condition, and refused to consider his claim for compensation for permanent impairment to his back, right shoulder, right and left knees and his psychiatric injury. The Tribunal was of the view that it lacked jurisdiction and that the applicant's claims in Q2002/856 should be dismissed. This view, as the concessions by the respondent indicates, proceeded on a misunderstanding of the decision of the case of Australian Postal Corporation v Forgie (2003) 202 ALR 63. The Tribunal had jurisdiction to review those decisions, and failed to do so. 15 It was accepted by Mr Thomae, that it was appropriate for the Court to order that the respondent pay the costs of the applicant of the application before the Tribunal in respect of the decision described in (c) in par 12 above, and of the decision described in (b) of par 13 above. 16 It is also appropriate in those circumstances to order that the Tribunal's order dismissing application Q2002/856 be set aside, and the Tribunal consider that application according to law. 17 It is now convenient to consider the grounds of appeal which remained in contention at the hearing, namely, ground 4.4 alleging a denial of procedural fairness, and ground 4.5 concerning the payment of medical expenses which relies on the assertion that the reconsideration decision of Mr Lawrence on 17 September 2001 wrongly described the determination of Mr Hoffman of 7 March 2001, in particular, in relation to the entitlement in the applicant to medical expenses. 18 Concerning ground 4.4, the applicant lodged a Hearing Certificate prior to the hearing, stating that he required that Dr Walters, an orthopaedic surgeon, to be made available for cross-examination. 19 The Tribunal found that the applicant's accident caused aggravation to pre-existing degenerative changes in his cervical and lumbosacral spine and that this aggravation was temporary and its effects had ceased. In reaching that conclusion, the Tribunal referred to and preferred the evidence of Dr Walters to the evidence of Dr Robinson, an orthopaedic surgeon, and Dr Coyne, a neurosurgeon. 20 Dr Robinson and Dr Coyne were cross-examined by the respondent. The applicant contends that it was not given any corresponding opportunity to cross-examine Dr Walters. This was because the respondent did not arrange for Dr Walters to give evidence on the third day of the hearing despite its representations that it would call him. 21 Dr Walters' reports were admitted into evidence and the Tribunal indicated that it would have to hear oral evidence from Dr Walters if his reports were going to sway the decision. The respondent then submitted to the Tribunal that the documents were not a crucial part of the respondent's case and agreed that less weight would be placed upon them as Dr Walters had not been called for cross-examination. 22 As the reasons of the Tribunal (referred to below) show, the reports of Dr Walters were critical to the decision of the Tribunal. The Tribunal failed to give the applicant the opportunity to cross-examine Dr Walters before making its decision. The applicant contends that this failure amounted to a denial of natural justice. 23 Part IV of the Administrative Appeals Tribunal Act 1975 (Cth) deals with reviews by the Tribunal. Section 33 relates to procedure and relevantly provides: '(1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. … (2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given: … (b) where the hearing of the proceeding has commenced - by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions. … (3) A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member empowered in accordance with this section to give such a direction in relation to the proceeding at that time.' Section 39 provides: 'Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case…' 24 Section 35 deals with private hearings. Sections 36 and 36B provide for the making of a certificate by the Attorney-General and a State Attorney-General respectively, that disclosure of particular information would be contrary to the public interest. 25 The General Practice Direction relevantly provides: 'Medical Witnesses Subject to compliance with any statutory time limits, the lodgement and service of a medical report ensures that it will be taken into account at the hearing, whether or not the author of the report gives oral evidence. … A party may require the attendance for cross-examination of a medical practitioner making such report. … Failure of the medical practitioner to attend in these circumstances will not, in itself, render the report incapable of being taken into account. Such failure may however be relevant in assessing the weight to be given to such a report …' 26 In Australian Postal Commission v Hayes (1989) 87 ALR 283, Wilcox J noted at 288: 'Although s33 gives to the tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, it is clear that the tribunal is bound to accord to the parties natural justice; or as the concept is now more frequently called, procedural fairness. The principles enunciated by the High Court of Australia in Kioa v West (1985) 159 CLR 550; 62 ALR 321 apply: see particularly the exposition of Mason J (CLR at 582; ALR at 345-6). An essential feature of procedural fairness is the opportunity of presenting one's case: see per Brennan J in Kioa (CLR at 615; ALR at 370). In Sullivan v Department of Transport (1978) 20 ALR 323 at 342 Deane J expressed the view that s39 of the Administrative Appeals Tribunal Act "constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe".' At 289 his Honour accepted the submission that: '… the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply.' 27 Procedural fairness requires fairness in the particular circumstances of the case. The duty imposed on a decision maker pursuant to s 39 of the SRC Act is to give each party an opportunity to present their case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is. 28 Before the hearing at the Tribunal, the applicant lodged a Hearing Certificate indicating that he wished to cross-examine Dr Walters on his evidence. On the day of the hearing, Counsel for the respondent stated: '…my solicitor and I forgot that he was supposed to be called today to give cross-examination … we've tried to make an inquiry this morning to have him be cross-examined by telephone, and he's simply not available.' 29 The General Practice Direction recognises that medical practitioners may not attend for cross-examination and that this failure may affect the weight given to the evidence by the Tribunal. In the proceeding before the Tribunal, Counsel for the respondent said: 'It's not a crucial part of the respondent's case, and in any event, I would agree that less weight would be placed on them because he's not been called for cross-examination.' The Tribunal member said: '…I think the documents [Dr Walters' reports] are appropriately before me … … it is a matter of weight … … my concern is that if there's going to be conflicting submissions about what weight I can put to it and if those reports are going to tip the scales either way then clearly I would have to make sure that I heard from Dr Walters …' (Emphasis added) 30 Dr Walters' evidence did turn out to be crucial to the Tribunal's decision, and he was not heard from orally. The Tribunal's failure give the applicant an opportunity to cross-examine Dr Walters, subsequent to the time when it reached the view that Dr Walters' reports could materially affect the outcome of the case, was contrary to the representation by the Tribunal. 31 In the circumstances of this case, I am quite satisfied that the Tribunal was in breach of the duty imposed on it by s 39 of the Act, (and explicitly recognised by it), to accord procedural fairness to the applicant by permitting cross-examination of Dr Walters. 32 The three doctors who gave evidence concerning the applicant's spine to the Tribunal were Dr Robinson, an orthopaedic surgeon, Dr Coyne, a neurosurgeon and spinal surgeon, and Dr Walters, an orthopaedic surgeon. Dr Robinson and Dr Coyne were cross-examined by counsel for the respondent, but despite the representation by the Tribunal, Dr Walters was not cross-examined. The Tribunal in its reasons said: '41. The medical evidence is consistent in relation to one matter. All doctors agree that the applicant had pre-existing degenerative changes in his spine prior to the accident, which were aggravated by the accident. The issue on which there is some disagreement is whether the effects of the aggravation caused by the accident have now resolved and whether the applicant's symptoms are currently referrable only to his existing degenerative conditions.' 33 It is plain from the reasons of the Tribunal, in pars 42 to 45, that the (untested) view of Dr Walters loomed very large in the conclusion of the Tribunal that any aggravation caused by the accident was temporary, and 'its effects have now ceased'. I set out the relevant reasons of the Tribunal: '42. Dr Walters was firmly of the view, even before viewing the video surveillance of the applicant, that the applicant's ongoing symptoms were due to the moderately severe degenerative changes in his cervical spine, and to a lesser degree his lumbar spine, and that any aggravating effect of the motor vehicle accident would have been temporary. … 43. Similarly, Dr Robinson opines that the increasing symptoms three years after the accident are likely to be related to the aggravation of the underlying degenerative changes in the applicant's cervical spine, lumbosacral spine and right knee. He considers that the accident caused asymptomatic degenerative changes to become symptomatic. … 44. Dr Coyne considers that the pre-existing degenerative changes are likely to be contributing to the severity and duration of Mr Ramsay's symptoms, although he is of the opinion that the fact the applicant had been asymptomatic prior to the accident implies that the accident is the most significant factor in the applicant's ongoing symptoms. … 45. Having regard to all of the medical evidence before it, the Tribunal finds that the applicant's accident on 24 August 1999 caused an aggravation to pre-existing degenerative changes in his cervical and lumbosacral spine. The Tribunal is satisfied that it is these degenerative changes which are causing the ongoing symptoms in the applicant, and that any aggravation caused by the accident was temporary and its effects have now ceased.' 34 The word "Similarly" at the commencement of par 43 of the reasons is not to be read as indicating that Dr Robinson was of the same view as Dr Walters as expressed in par 42: it properly is to be understood as referring to the concurrence of medical opinion that the symptoms of the applicant were due to degenerative changes in the applicant's spine. 35 I do not regard the evidence of Dr Robinson as supporting a conclusion that the aggravation caused by the accident was temporary and its effects have now ceased. In particular, Dr Robinson said: 'The aggravation of this degenerative change accounts for increasing symptoms three years after the accident.' And later: 'He has aggravated multiple areas of chronic degeneration. The accident has caused asymptomatic degenerative changes to become symptomatic.' 36 The second ground of this application was that Tribunal's affirmation of the decision of the respondent dated 17 September 2001 'that the respondent is no longer liable to pay compensation to the applicant in respect of his neck, back, right shoulder and right knee conditions' was wrong, in that the Tribunal purported to affirm a decision that had not been made. 37 Section 62 of the SRC Act deals with the reconsideration of determination. It relevantly provides: '… (2) A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant; … … (4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination. (5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.' 38 The decision in question is the decision by Mr Hoffman, Claims Manager with the respondent on 7 March 2001. The terms of that decision are set out above at par 4. 39 On 17 September 2001, a delegate of the respondent in accordance with sub-section 62(5) of the SRC Act purported to 'affirm the determination of the Claims Manager of 7 March 2001 to deny liability for "injury to right knee, right shoulder and back".' 40 In reaching his decision the delegate identified particular factors including: 'The Claims Manager determined on 7 March 2001 that the applicant was no longer entitled to compensation benefits in relation to the injuries sustained in the accident on 24 August 1999. The Applicant sought reconsideration of this determination on 3 April 2001 through his legal advisers.' 41 It was submitted by the applicant that the delegate wrongly identified the determination of 7 March 2001 as being that the applicant was no longer entitled to any compensation benefits in respect of any injury arising from the accident. 42 It is common ground that this determination denied liability in respect of injuries to the applicant's right knee and back under both s 14(1) and s 19. The dispute centres on the determination concerning the right shoulder. 43 Section 14(1) provides that: 'Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.' 44 Section 19(1) provides that: 'This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.' 45 Section 19 then goes on to set out the method of calculation of an employee's entitlements. Sections 20, 21, 21A and 22 deal with an employee's entitlements in specific situations - where they are in receipt of a superannuation pension, a lump sum benefit, both a superannuation pension and a lump sum benefit and where an employee is maintained in a hospital, respectively. 46 In Australian Postal Corporation v Oudyn [2003] FCA 318 at par 33, Cooper J stated: 'Where APC [Australian Postal Corporation] 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.' 47 The applicant contends that the original determination concerning the right shoulder was solely in respect of entitlement to compensation under s 19 of the SRC Act. The reconsideration delegate, it was submitted, treated the determination, in effect, as being made under s 14 of the SRC Act. The effect of this was that the applicant was no longer entitled to the payment of any compensation under the SRC Act, including medical expenses that had previously been met by the respondent. 48 In the reasons for his decision, Mr Hoffman explicitly addressed compensation for the applicant's back and right knee in respect of s 14(1) of the SRC Act in the last sentence of the relevant paragraph of his determination, set out in par 4 above. His reasons concluded with a general determination for all injuries in respect of s 19. However, there was no corresponding determination that the applicant was no longer entitled to compensation under s 14 for injuries to his right shoulder. In respect of the right shoulder, Mr Hoffman determined only that 'recovery of the right shoulder has stabilised and the condition does not preclude return to suitable employment'. 49 In my judgment, the Tribunal purported to affirm the reconsideration decision, which in turn purported to affirm a decision of Mr Hoffman that he had not made. For this reason also, its decision must be set aside. 50 For these reasons, the decision of the Tribunal of 30 June 2004 is set aside. The matter is remitted to the Tribunal for consideration according to law. The composition of the Tribunal on such remittal is a matter for the President of the Tribunal. The respondent is to pay the applicant's costs, of and incidental to these proceedings, to be taxed if not otherwise agreed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate: Dated: 20 May 2005 Counsel for the Applicant: Mr Darryl Rangiah

Solicitor for the Applicant: Maurice Blackburn Cashman Lawyers