Ground 3
18 The simple answer to this ground is that the Tribunal made no decision pursuant to s 14 of the SRC Act with regard to Matter N2004/1095 and N2004/1410, nor did it purport to make such a decision in either matter. As noted in [16] supra, the Tribunal had earlier indicated (at [9] of its reasons) that liability pursuant to s 14(1) of the SRC Act was not in question. The liability previously accepted under s 14 was neither revoked nor disturbed.
19 What the Tribunal did was consider the facts on which the claims before it were based. It not only was entitled to undertake this consideration, but had a duty to do so.
20 Under s 24(1) of the SRC Act, Comcare is liable to pay compensation to the employee in respect of an injury, but only where the injury results in permanent impairment. This raises at least two factual enquiries which the Tribunal is required to consider: Whether there is permanent impairment? If so, is it the result of the injury? These might be considered separately as framed, or holistically: Did the injury result in permanent impairment? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 24(1).
21 In respect of the permanent impairment claim, the Tribunal made two relevant findings:
At [94]:
'The Tribunal was satisfied in relation to Mr Riddle's back pain, that there was only a temporal, and no causal connection with the employment, and that any permanent impairment suffered on 19 February 2003 was therefore not compensable.'
At [95]:
'In summary, having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003.'
22 Clearly, the decision of the Tribunal on the permanent impairment claim by reference to those findings, affirming the decision of the reconsideration decision-maker in N2004/1095, was not a decision going to s 14 liability.
23 Under s 19(1) of the SRC Act, Comcare is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. This raises at least two factual enquiries which the Tribunal is required to consider: Whether the employee is incapacitated for work? If so, is it the result of the injury? Again, these may be considered separately as framed, or holistically: Is the employee incapacitated for work as a result of the injury? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 19(1) of the SRC Act.
24 In respect of the claim regarding the nature and conditions of the employment, the Tribunal made two relevant findings (at [101]):
'The Tribunal was satisfied from the medical evidence which it has discussed in the paragraphs above, that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of a natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment.'
25 Clearly, the decision of the Tribunal on the nature and terms of conditions of employment claim by reference to that finding, affirming the decision of the reconsideration decision-maker in N2004/1410, was not a decision going to s 14 liability.
26 In Lees v Comcare (1999) 56 ALD 84, the Full Court said at [35]:
'… a determination under s 14 … will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was "an employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.'
27 These observations were part of an overall review of the scheme of the SRC Act and the place of a determination under s 14 in that scheme. But they were not critical to the decision in either appeal that was before the Court and therefore do not think that, persuasive as they may be, having been embraced in subsequent decisions of single judges of the Court, they are binding upon me. In any event, my departure is small, even if important. I do not think that a determination under s 14 necessarily involves the final finding - that the injury 'has resulted in' death, incapacity for work or impairment. It may, but it may not. Such a finding, it seems to me, is ultimately a matter for determination under ss 17, 19 or 24, not s 14. The wording of s 14 is '... if the injury results in death, incapacity for work or impairment'. Thus, a determination under s 14 may determine that Comcare (or a body in a similar position such as the respondent) is liable to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that it will only be so liable 'if the injury results' in death, incapacity for work or impairment. And that is what seems to have occurred in this case. The s 14 determination involved no finding that Mr Riddle's injury had resulted in death, incapacity for work or impairment. The Statement of Reasons merely said:
'5. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that the claimant sustained an injury, namely aggravation of pre-existing spinal canal stenosis at L4/5, which has arisen out of or in the course of his employment with Telstra. I have relied on the specialist opinion of Dr Nall in making a decision and that there is no evidence presently available to indicate that the injury did not arise out of or in the course of the claimant's employment.'
The s 14 determination undoubtedly involved findings on the first four matters referred to in the extract from the Full Court's judgment in [26], but not the final matter.
28 It follows, in my view, that the Tribunal's findings at [94] and [95] of its reasons - that, in relation to Mr Riddle's back pain, there was only a temporal, and no causal connection with the employment; and that having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003 - were not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far.
29 It also follows, in my view, that the Tribunal's second finding at [101] of its reasons - that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment - was not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far.
30 On the other hand, the first finding at [101] of the Tribunal's reasons - that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 - is inconsistent with a finding underpinning the s 14 determination that Mr Riddle had suffered an injury on that day, namely, aggravation of pre-existing spinal canal stenosis at L4/5, which had arisen out of or in the course of his employment with Telstra.
31 The question of law which arises is whether the Tribunal's first finding at [101] of its reasons was open, in the face of the anterior finding underpinning the s 14 determination, and if it was not, whether it impacts on the second finding at [101] of the Tribunal's reasons, which, for the reasons given at [29], clearly was open.
32 This latter question of law was encapsulated by Moore J in Hannaford v Telstra Corporation Limited [2005] FCA 1298 at [27], where his Honour said:
'In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.'
33 The judgment of Sackville J in Power v Comcare (1998) 89 FCR 514 at 525 - 526 supports the proposition that it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of the four sections mentioned on the basis that a material fact (necessary to support the determination under s 14) did not exist. His Honour said:
'Only Comcare addressed in submissions the character of the 22 March 1995 decision. In supplementary written submissions, Mr Johnson argued that Comcare's powers under ss 69(a) and 70 of the SRC Actauthorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare's liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act. If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Actconferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate's decision that Comcare's liability had ceased from 9 March 1995.
I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act,to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act.
In these circumstances, I accept Mr Johnson's analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Actto make "determinations…in relation to claims": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise.
The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Acton the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant's coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis.
I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Actto make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)).' (Emphasis added)
34 In Hannaford, supra, at [29] Moore J said:
'In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62. In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination.'
35 In Comcare v Hill (1999) 56 ALD 487, Spender J - in particular at [9] - endorsed the approach of Sackville J.
36 The same question of law was recently considered by Moore J in Hannaford, supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said:
'The Full Court indicated at [39] of its judgment [in Lees] … that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.'
37 His Honour proceeded to say that this approach did not appear to him to render the scheme of the SRC Act unworkable. He said (at [44]):
'If a determination is made under s 14 in favour of a claimant and later medical opinions or other evidence raises doubts about whether it should have been made, then Comcare (or a body in a similar position such as the respondent) can act of its own motion and reconsider the determination under s 62. That way, clear and unambiguous rights of review arise and the subject matter of the review will be clear as will the powers of the Tribunal when undertaking the review. In its submissions, the respondent raises the spectre of the revocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or number of determinations made under other sections. This was not the subject of any detailed submissions. Accordingly, the views I express in the following paragraph are necessarily provisional.'
38 His Honour went on at [45] to find comfort in his approach from the power of Comcare, under s 114D of the SRC Act, to waive its right to recover from a person a debt due (assuming, for present purposes, any payment under a revoked determination is, without more, a 'debt due'). His Honour said:
'While that power to waive is subject to Ministerial directions, it nonetheless reveals the statutory scheme which could easily be moulded to ensure that, in a case such as the present, monies would not be recovered even if the s 14 determination was revoked.'
39 His Honour concluded at [46]:
'In my opinion, it was not open to the Tribunal to review findings on the question of whether the applicant had suffered RRF [Ross River Fever] and thereby make findings contrary to those underpinning the earlier determinations under s 14. Its decision should be set aside and the matter remitted to the Tribunal.'
40 Moore J's observation at [40] that Sackville J in Power, supra, recognised the conclusion he reached was not the only one reasonably open - by Sackville J's use of the words 'I think the better view is that …' in the last paragraph of the quotation in [33] supra - may well be right; on the other hand, and with respect, I think Sackville J's view is the better one. Moore J's approach may not, as his Honour says, render the scheme of the SRC Act unworkable, but it has the potential, with respect, to render it cumbersome in determining claims for compensation under specific heads which are rejected, such as in this case, following upon a determination of liability under s 14, unless that determination is itself reconsidered (by the determining authority's own motion) under s 62(1) of the SRC Act.
41 What is said in [40], is exemplified in Hannaford itself. First, it has the potential to lead to a situation where a claimant must repay money paid under one or a number of determinations made under other sections unless the relevant body exercises its power under s 114D of the SRC Act to waive its right to recover, assuming the power of waiver under that provision so extends. Second, it will be an exercise in futility for the applicant, in cases such as this, because as was said by his Honour at [47]:
'Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under s 62 for the reasons which prompted the Tribunal to determine the matter as it did.'
42 For the foregoing reasons, I do not think the ground of appeal can be sustained, but even if I am wrong, and it was not open to the Tribunal to make the first finding at [101], I do not think this infects the second finding at [101] namely, that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment, a finding, as I observed at [29], which was not inconsistent with any findings underpinning the s 14 determination because none of the findings went that far.
43 For the foregoing reasons, this ground of appeal must fail.