"9. I conclude that it is proper to find the facts on the evidence of Dr Sheridan. I will take 1st February 1982 as being the equivalent of 'early in 1982' as in Dr Sheridan's report of 24th July 1981. By that date any effect of this litigation should have departed allowing some improvement in symptomology as Dr Sheridan anticipates."

"The Tribunal decides :

(a) to set aside the determination in this matter of 29th October 1980; and the same is so set aside;

(b) to remit the matter to the Commissioner with the directions that :

(i) the applicant's incapacity for work resulting from her anxiety state continued as total incapacity and will continue up to and including 31st January 1982;

(ii) thereafter the applicant would be unable to return to work with the respondent but will be able to earn the average weekly earnings of the holder of that position;

and the same is so remitted with those directions;

(c) to order the respondent to pay the applicant's costs in these proceedings in accordance with the appropriate Scale in the New South Wales Workers' Compensation Commission; in the absence of agreement costs to be taxed by the Registrar or Deputy Registrar; and the same is so ordered."

In order to understand the effect of this decision, it is necessary to refer to statutory provisions. Section 45 of the Compensation (Commonwealth Government Employees) Act 1971 provides, inter alia,

"45.(1) Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section

have effect.

(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -

(a) $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or

(b) the average weekly earnings of the employee before the injury,

whichever is the less."

It will be noted that the effect of the decision of the Tribunal was that the applicant had at all material times been and was still at the date of the Tribunal's decision totally incapacitated for work and that the applicant was entitled to compensation under the Act with respect to that incapacity.

Section 20 of the Compensation (Commonwealth Government Employees) Act provides, inter alia,

"20.(1) Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function."

The determination of the Commissioner which was under review by the Tribunal was a determination of a matter or question arising under the Act, namely, whether at the date of the determination the applicant was totally incapacitated for work as a result of a compensable injury.

Section 63(1) of the Compensation (Commonwealth Government Employees) Act provides that, where a determination by the Commissioner is made under the Act, an application may be made to the Administrative Appeals Tribunal for a review of the determination. The matter which was in issue before the Administrative Appeals Tribunal in the 1981 proceedings was a review of the determination of 29 October 1980 which had terminated the award of compensation to the applicant. Section 43(1) of the Administrative Appeals Tribunal Act 1975 provides :

"43.(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in

writing -

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and -

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

It will be seen that the decision of the Tribunal of 3 September 1981 adopted the course of setting aside the determination under review and remitting the matter to the Commissioner with certain directions. Although the terms of the decision did not expressly remit the matter to the Commissioner for reconsideration in accordance with directions or recommendations of the Tribunal, it can be inferred from the decision that the matter was remitted to the Commissioner for that purpose.

On our reading of the decision of the Tribunal, the Tribunal set aside the determination under review but did not itself exercise the power which s.20 conferred upon the Commissioner. Rather, it remitted the matter back to him for his reconsideration in accordance with the directions which the Tribunal gave.

On 30 September 1981, a Delegate of the Commissioner made the following determination :

"1. WHEREAS on 3 September 1981 the Administrative Appeals Tribunal set aside the determination of 29 October 1980 and remitted the matter to the

Commissioner for Employees' Compensation with the directions that :

'(i) the applicant's incapacity for work resulting from her anxiety state continued as total incapacity and will continue up to and including 31st January 1982;

(ii) thereafter the applicant would be unable to return to work with the respondent but will be able to earn the average weekly earnings of the holder of that position.'

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sub-section 20(4) of that Act, and further to the determinations previously made in this matter, I hereby determine :

(a) the determination of 22 September 1980 is hereby amended by deleting from paragraph (6) the words 'a date to be determined by the Commissioner for Employees' Compensation or his delegate' and inserting in lieu thereof the words '29 October 1980';

(b) subject to paragraph 2(c) below, the said Patricia Marcella Devine is entitled to the payment of compensation under sub-section 45(2) of the said Act of $105.00 per week from 30 October 1980 until 31 August 1981 and $114.00 per week from 1 September 1981 until a date to be determined by the Commissioner for Employees' Compensation or his Delegate;

(c) having regard to the provisions of sub-section 45(7) of the said Act, the weekly compensation payable to the said Patricia Marcella Devine cannot exceed the amount of the difference between :

(i) her average weekly earnings at the date of the injury as varied calculated in accordance with section 25 of the Act; and

(ii) the part of the pension paid or payable to her under the Superannuation or Provident Schemes that is not attributable to contributions for the pension paid by her;

(d) the average weekly earnings at the date of the injury as varied since 17 July 1980 calculated in accordance with section 25 of the Act are as follows :

$292.91 per week from 17 July 1980 until 14 January 1981;

$303.74 per week from 15 January 1981 until 6 May 1981; and

$314.67 per week from 7 May 1981 until a date to be determined by the Commissioner for Employees' Compensation or his Delegate.

(e) the part of the pension paid or payable to the said Patricia Marcella Devine under the Superannuation or Provident Scheme that is not attributable to contributions for the pension paid by her is as follows :

$142.94 per week from 27 June 1980 until 25 June 1981; and

$156.38 per week from 26 June 1981 until a date to be determined by the Commissioner for Employees' Compensation or his Delegate;

(f) in accordance with the provisions of sub-section 45(7) of the said Act the said Patricia Marcella Devine thereby is entitled to the payment of compensation of :

$105.00 per week from 30 October 1980 until 31 August 1981; and

$114.00 per week from 1 September 1981 until a date to be determined by the Commissioner for Employees' Compensation or his Delegate."

This determination gives rise to no objection. It was a determination made pursuant to the remission to the Commissioner and it gave effect to the direction of the Tribunal that the applicant's incapacity for work resulting from her anxiety state was continuing. Relevant sums fixed by the determination were fixed ". . . until a date to be determined by the Commissioner for Employees' Compensation or his Delegate".

On 18 January 1982, a delegate of the Commissioner for Employees' Compensation made the following determination :

"In pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to the determinations

previously issued in this matter, I hereby determine :-

The determination made in this matter on 30 September 1981 awarded weekly payments of compensation on the basis of the total incapacity for work of the said Patricia Marcella Devine from 30 October 1980 until a date to be determined by the Commissioner or his delegate. That entitlement ceases on 31 January 1982 and weekly payments of compensation therefore are not payable under that determination after that date."

The present application lodged on 22 February 1982 seeks a review by the Tribunal of that determination. A question has arisen as to the jurisdiction of the Tribunal to deal with the application. On the hearing of this jurisdictional issue, Mrs P. Flemming, counsel for the Commissioner, submitted that the determination of 18 January 1982 was not a determination within the meaning of s.63 of the Compensation (Commonwealth Government Employees) Act for the reason that it was not a determination made pursuant to the exercise of any independent consideration by the Commissioner or his delegate but was simply an administrative act which gave effect to the direction of the Administrative Appeals Tribunal contained in its decision of 3 September 1981. Mrs Flemming further submitted that the present application was no more than a request to re-open the earlier proceedings and that the Tribunal could not re-open those proceedings as the Tribunal was now functus officio in relation to that matter. Mrs Flemming further submitted that the determination of 18 January 1982 was not a determination under the Compensation (Commonwealth Government Employees) Act but was a determination under s.43 of the Administrative Appeals Tribunal Act. These submissions were opposed by Mr R. Toner, of counsel, who appeared for the applicant.

In our opinion, the directions given in the Tribunal's decision of 3 September 1981 that the applicant's total incapacity ". . . will continue up to and including 31st January 1982 . . . thereafter the applicant would be unable to return to work with the respondent but will be able to earn the average weekly earnings of the holder of that position . . . " were no more than guides to the Commissioner as to the future steps that he might take in relation to the applicant's continuing claim for compensation. There was no issue before the Tribunal on 3 September 1981 as to what would be the state of the applicant's incapacity from 1 February 1982. That was not a matter which could be assessed in futuro. Necessarily, it had to be assessed upon the facts as they stood at the relevant time, namely, on and from 1 February 1982. There is no provision in the Compensation (Commonwealth Government Employees) Act which empowers the Commissioner to determine in advance when the total incapacity of a claimant will cease if that cessation is dependent upon an improvement in the claimant's medical condition.

In Mrs Devine's case, the Tribunal knew no more of the matter than that Dr Sheridan, whose opinion the Tribunal accepted, anticipated that by early in 1982 ". . . any effect of this litigation should have departed allowing some improvement in symptomology. . . ". Certainly, in a situation such as this, there was no power to fix in advance a date when the total incapacity for work would cease. Section 45(2) provides that ". . . compensation is payable to the employee, during the period of the incapacity, . . . ". The effect of this provision is clear. While the total incapacity continues compensation must be paid.

Moreover, as we have said, there was no issue before the Tribunal as to what would be the situation as from 1 February 1982. The only issue before the Tribunal was whether, on 29 October 1980, and from that date up to and including the date of the decision, the applicant was totally incapacitated for work. That issue was determined in favour of the applicant.

It necessarily follows that the directions given by the Tribunal with respect to the position at the end of January 1982 were either invalid in that they were outside the jurisdiction of the Tribunal or were mere guides to the Commissioner intended to assist the Commissioner with respect to his future management of the applicant's claim. We believe that they were intended to be guides to the Commissioner. In either event, however, they did not bind the Commissioner to make the determination which was made on 18 January 1982.

Thus, when the Commissioner's Delegate came to consider in January 1982 whether or not to terminate the award of compensation as from 31 January 1982, he should have made his determination after reviewing the facts of the matter as they then stood. If he made a determination simply giving effect to the directions stated in the decision of the Tribunal of 3 September 1981, he failed to give proper consideration to the matter for his duty was to make a determination on the state of the facts as they then stood. And, indeed, the facts before the Tribunal suggest that Mrs Devine's condition deteriorated rather than improved for she is now subject to a direction given by a Magistrate that she become a temporary patient at Rozelle Hospital and she is thereby a patient within the meaning of the Mental Health Act 1958 (NSW).

We therefore do not accept the submissions put by Mrs Flemming. Nevertheless, we add that, whether or not the directions of the Tribunal were valid directions, we think that this Tribunal has jurisdiction to review a determination of the Commissioner or his Delegate made on a matter remitted to him for consideration pursuant to s.43 of the Administrative Appeals Tribunal Act. We think that a determination made by the Commissioner after reconsidering a matter remitted by the Tribunal is a determination made by him pursuant to s.20 of the Compensation (Commonwealth Government Employees) Act. In his reconsideration, the Commissioner is bound to take into account and to give effect to any directions given by the Administrative Appeals Tribunal which it had power to give. The power conferred upon the Tribunal by s.43 of the Administrative Appeals Tribunal Act to give directions implies an obligation upon the Commissioner to give effect to any such directions validly made. But the fact that, in his consideration, the Commissioner is constrained by directions given by the Administrative Appeals Tribunal does not preclude a determination made by him as a result of the remittal from being a determination under s.20 of the Compensation (Commonwealth Government Employees) Act. The Tribunal has jurisdiction to review any such determination.

In so far as such a determination under review simply complied with directions given by the Administrative Appeals Tribunal within its jurisdiction, the determination will be affirmed. In the second review, it is not the function of the Administrative Appeals Tribunal to go afresh into the matters which were determined by the decision of the first Tribunal. But, in so far as the directions of the first Tribunal were not within its power to give or the determination of the Commissioner did not give effect to the directions given or the determination dealt with matters additional to those covered by the directions of the Tribunal, the applicant may seek a substantive review.

In our opinion, the Tribunal has jurisdiction in this matter.