Rosillo v Telstra Corporation Limited

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is a proceeding brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Tribunal Act'). That section permits a party to a proceeding before the Administrative Appeals Tribunal ('the Tribunal') to 'appeal' to this Court on a question of law from any decision of the Tribunal in that proceeding, in consequence of which this Court, pursuant to s 44(4), is obliged to hear and determine the appeal and empowered to make 'such orders as it thinks appropriate by reason of its decision'. Section 44(4) makes it clear that that general expression is not to be limited merely to affirming, or setting aside and remitting for re-hearing, a decision. 2 The appellant was employed by the respondent for many years. He suffered injury to his back in work-related incidents in 1991 and 1993. On 2 June 1993, a delegate of the respondent determined in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the Compensation Act') that Telstra's predecessor, Telecom Australia, was liable to pay the appellant compensation under the Compensation Act, in respect of a 'strained lower lumbar region' injury and subsequently the appellant was paid periodic amounts on account of his incapacity for work and was reimbursed for medical and hospital expenses in connection with operative treatment he underwent for his back. 3 In 1999 a reviewable decision (that is, by the Tribunal) denying liability for permanent impairment was made by a delegate of the respondent and the appellant contested that by way of an application for review made to the Tribunal. In the end, a consent determination was made by the Tribunal on 8 October 1999 awarding permanent impairment compensation under ss 24 and 27 of the Compensation Act. Such a determination necessarily presupposes, as counsel for the appellant points out, that the effects of the injury will 'continue indefinitely': see the definition of 'permanent' in s 4 of the Compensation Act. 4 In June 2001, a delegate of the respondent wrote to the appellant noting that he had received no medical expenses nor made any claim for incapacity for work over the previous three months and that 'it would appear therefore that your claim should no longer remain open'. An opportunity was given to the applicant to submit additional medical evidence. A claims officer of GIO Australia (who stood in the shoes of the respondent for all relevant purposes) purported on 28 August 2001 to issue a 'determination' as follows: 'In accordance with the provisions of [Compensation Act], I hereby determine that: "That on the basis that your condition has now resolved, [the respondent] is not liable to pay compensation in respect of your injury to 'strain lower lumber region' on and from 28 August, 2001." ' In response, the appellant's solicitors requested a re-consideration of the determination. Among other things, they said: '…we would respectfully suggest that your determination is manifestly incorrect.' 5 In purported reliance on s 62(5) of the Compensation Act a 'Reconsiderations Officer' of GIO Australia affirmed the decision of 28 August 2001. It was this decision, as affirmed, that the appellant then asked the Tribunal to set aside. 6 Opening the case before the Tribunal, his counsel made clear what the appellant's concerns were. Counsel said: 'Essentially the reviewable decision affirms that [the determination of 28 August 2001] to the effect that liabilities, that is all liabilities on the claim made by the applicant some years earlier should cease ... and the issue for determination by the Tribunal is whether that determination is correct and at the outset I should say that this is one of those cases where the applicant, as things stand at the present time, [does not] assert any particular entitlement to specific compensation in terms of money. In other words, he is not saying at the present time that he has an [entitlement] under section 19. He is not saying that he has some outstanding amounts for which he has submitted receipts for medical treatment under section 16 ... ... the medical evidence will be that [there] is some degree of likelihood that he will require treatment in the future and indeed if [he] requires surgical treatment is it likely to be associated for some period of time with loss of income and so on and possibly then an increase in permanent impairment, one doesn't know. So the reason why we are here is simply to protect, if you like, the applicant's position against that day when he will require probably a degree of compensation to pay for medical treatment and extensive periods off work. There is obviously a question about whether or not one could have left the issue to the day when that happened and come back then and the reason why we are here though is that one can - if one lets a reviewable decision, ceasing liabilities to get away from you and you want to come back five years later you may find yourself in a position where it is very difficult to argue because one then raises the obvious question of why didn't you challenge it at the time it was made and that is what the applicant is doing and we would simply say what you need to do at the end of this hearing is simply set it aside and find that liability continues, no other [finding] would be necessary.' 7 Some evidence, including medical evidence was then tendered. The Tribunal reserved its decision and ultimately made a decision in the following terms: 'The Administrative Appeals Tribunal affirms the decision of Telstra of 28 August 2001 which was affirmed by the decision of 26 October 2001 to deny liability for compensation pursuant to section 14 of the [Compensation Act] in respect of "strained lower lumbar region" on and from 28 August 2001. Costs: No costs may be awarded in this matter pursuant to section 67(8) of the [Compensation Act].' 8 The Tribunal Members concluded as to the evidence that they were: '…satisfied he has not required medical care since 1993' and, as to the future, the Tribunal noted the report of the appellant's treating surgeon, Dr Grant, 'whose report is given most weight, and who did not expect further surgery to become necessary'. The Tribunal also noted the report of Professor Sambrook who suggested that there was a likelihood that surgery might become necessary in the future. The Tribunal went on to express conclusions that Mr Rosillo was 'no longer incapacitated for work' and that there was 'not available' any 'specific evidence to support a claim for future medical treatment'. This was on the basis of an acceptance of Dr Grant's view. 9 The Tribunal, after a consideration of various authorities, sought to explain its intention in making the decision in para 69 (which I have referred to above) in the following way: 'The Tribunal noted ...further from Plumb v Comcare (1992) 39 FCR 236... that the respondent could not bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation from an injury under a particular section of the Act. Accordingly, notwithstanding a finding of no liability under section 14 of the Act at the present time, should Mr Rosillo's situation change, he would not be disentitled from making a claim under the relevant head of liability. However based on the evidence before the Tribunal in this instance, the correct and preferable decision is to affirm the decision under review.'