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[2004] FCA 476
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Federal Court of Australia
2004-04-23
Spender J
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REASONS FOR JUDGMENT 1 This application is an appeal from the Administrative Appeals Tribunal ("the Tribunal") constituted by a Member, Mr R.G. Kenny, given on 19 July 2002. The decision of the Tribunal was: 'The Tribunal sets aside the decision under review and, in substitution therefore, decides that: (a) the respondent is liable, pursuant to section 14 of the Act, to pay compensation to the applicant in respect of his left knee injury; and (b) the respondent is liable, pursuant to section 19 of the Act, to pay to the applicant compensation in the amount of $19.82 per week for the period from 1 October 1997 until 31 August 1998.' 2 The matters the Tribunal had to consider, in the proceedings leading to that decision, were matters which were remitted by the Full Court of the Federal Court to the Tribunal by orders made on 11 October 2001. 3 It is necessary to set out the extensive history of the matter. 4 Mr Gordon Slater ("the applicant") was an employee of the respondent, Telstra Corporation Limited ("Telstra") on a fixed-term contract for the period 4 July 1996 to 4 January 1997. On 11 July 1996 the applicant sustained an injury to his left knee in the course of his employment with Telstra. On 19 July 1996 he made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). Except for two days work on light duties in late July 1996, the applicant has not returned to work. 5 On 6 August 1996, Telstra accepted liability for incapacity payments to the applicant from 1 August 1996. On 17 March 1997, Telstra determined that, as of 9 January 1997, the applicant was capable of returning to full-time work duties, with restrictions, and that it was not liable to pay compensation in respect of any period after that date. The applicant requested reconsideration of that determination. On 16 April 1997, Telstra affirmed the decision, although it also determined that liability still existed for certain medical expenses, such as future physiotherapy, until early May 1997 and for medical monitoring of the applicant's condition for a further period of approximately eighteen months. 6 The applicant applied to the Tribunal for review of the decision as affirmed. On 13 March 1998, the Tribunal decided that the applicant was partially incapacitated for work, but fit for full-time work in suitable employment. The Tribunal remitted the matter to Telstra, with a direction that Telstra determine what would be suitable employment for the purposes of s 19 of the Act. 7 It is useful to set out at this stage the provisions of s 14(1) and ss 19(1), (2) and (4) of the Act: '14. (1) Subject to this Part, [Telstra] 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. … 19. (1) This section applies to an employee who is incapacitated for work as a result of an injury … (2) Subject to this Part, [Telstra] 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. … (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, [Telstra] 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 [Telstra's] opinion, reasonable in all the circumstances; and (i) any other matter that [Telstra] considers relevant.' 8 Following that direction by the Tribunal, Telstra had the applicant assessed by Work Directions Australia Pty Ltd ("WDA"), and in a report dated 4 September 1998, WDA assessed the applicant to be suitable for seven named occupations. In addition, a Margaret Kennedy of WDA wrote to the applicant on 25 November 1998. As well as the WDA report dated 4 September 1998, there is a document headed "APPENDIX TO MEDICO-LEGAL/EMPLOYABILITY REPORT DATED 4 SEPTEMBER 1998". 9 The Tribunal, in its reasons of 19 July 2002, noted at par 51: 'In that appendix, Ms Kennedy noted that "clerical occupations may well have been included in the list of identified occupations". She continued by stating that, because of the applicant's "interests, preferences, transferable skills, and aptitude", the other options were seen to be better matches for him.' 10 On 14 October 1998 Telstra determined that suitable employment of the applicant, for the purposes of s 19 of the Act, were the seven named occupations assessed by WDA as being suitable, with the addition of a further occupation styled 'Clerical Position'. 11 The applicant requested reconsideration of that decision, and on 10 November 1998 the determination of 14 October 1998 was affirmed. The reasons for the affirmation of that decision included: 'I am satisfied that the claimant is fit for employment in duties of a clerical nature, which may well attract financial remuneration equal to, or greater than that earned as a Communications Officer Grade 2 with Telstra. Furthermore, I find that such duties would be deemed suitable in accordance with the Act, and that it is a reasonable expectation for the claimant to undertake such duties. … I find that the claimant's ability to earn is such that there would be no entitlement to compensation in accordance with Section 19 of the Act.' 12 The applicant then sought review by the Tribunal of that decision as affirmed. The Tribunal, in a decision of 12 November 1999, decided to vary the decision under review and determined that suitable employment for the applicant was limited to the occupations listed by WDA in its report of 4 September 1998. That decision excluded 'Clerical Position', apparently because the occupation was not mentioned by WDA in its report. The Tribunal remitted the matter to Telstra again, in order for Telstra to calculate compensation payments payable by Telstra to the applicant in accordance with s 19 of the Act. In addition, the Tribunal directed that: (i) compensation payments as calculated in accordance with s 19 of the Act be payable from some date in October 1997 to be agreed on by the parties; (ii) Telstra provide vocational counselling for the applicant to select an occupation from the list provided in the WDA Report; and (iii) Telstra provide a rehabilitation program pursuant to s 37 of the Act, or some other form of program, with the aim of retraining the applicant for his chosen occupation. 13 Telstra then appealed to the Federal Court, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). On 28 February 2001, I ordered that Telstra's appeal be allowed, that the orders of the Tribunal of 12 November 1999 be set aside, and that the applicant's application for an order of review to the Tribunal of the decision of 10 November 1998 be dismissed. 14 On 11 October 2001, a Full Court of the Federal Court (Tamberlin, Mansfield and Emmett JJ) concluded that the appeal should be upheld in part, and that the order that I made that the application to the Tribunal be dismissed should be set aside. The Full Court concluded that in lieu thereof, there should be an order that the matter be remitted to the Tribunal for decision according to law and in accordance with the reasons of the Full Court. The Full Court ordered that Telstra should pay the applicant's costs of the appeal, and as to the costs before me at first instance, there should be no order as to costs of that hearing. 15 It is helpful to set out the reasons of the Full Court in making those orders, using the paragraph numbering of their Honours' reasons for judgment: '18. The decision-maker in respect of the decision of 10 November 1998 failed to undertake the exercise required by ss 14 and 19 of the Act. In order to determine whether Telstra had a liability to pay compensation, it was necessary to compare two amounts as follows: · the amount of the appellant's normal weekly earnings with Telstra, as calculated under s 8 of the Act; and · the amount per week (if any) that the appellant is able to earn in suitable employment. 19. There is no indication that the decision-maker undertook such a comparison. The decision-maker simply concluded that she was satisfied that the appellant was fit for employment in duties of a clerical nature, which may well attract financial remuneration equal to or greater than that earned by the appellant with Telstra. 20. The Tribunal concluded that Telstra's determination evidenced a basic and fundamental misconception of the requirements of the Act. In so far as the decision-maker failed to make such a determination, that was so. The appropriate course for the Tribunal, therefore, was either to make such a determination itself or to remit the matter to Telstra to enquire into and determine those two amounts in order to make a determination in accordance with s 19 of the Act. However, it does not appear to have adopted either course. To that extent, it erred in law. 21. In so far as the Tribunal directed Telstra to provide vocational counselling and to provide a rehabilitation program, the Tribunal appears to have misconceived the operation of s 37 of the Act. Section 37 confers a discretion on Telstra to make a determination that an employee should undertake a rehabilitation program and, where it so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. It is not obliged to do so. Mere failure to do so was not a neglect by Telstra of its statutory obligation. 22. On the other hand, there is no indication that the decision-maker turned her mind to the exercise of the discretion conferred by s 37 of the Act. The appropriate course for the Tribunal was to give consideration to that question and decide whether to exercise the discretion vested in Telstra or to remit the matters to Telstra to consider whether the discretion should be exercised. The Tribunal erred in so far as it found that Telstra had an obligation to provide a program.' (Emphasis by Full Court) 16 It is important to note that the "decision-maker" referred to in the reasons of the Full Court is the decision-maker who, on 10 November 1998, affirmed the determination of 14 October 1998. That decision-maker had concluded that the applicant was 'fit for employment in duties of a clerical nature'. There was no error of law identified by the Full Court in relation to that finding. The matter that the Full Court remitted to the Tribunal for decision according to law and in accordance with the reasons of the Full Court, was the matter which was before the decision-maker and which resulted in the decision of 10 November 1998. 17 In the reasons of the Tribunal of 19 July 2002, the Tribunal recited the factual background that I had set out in my reasons for judgment of 28 February 2001, pars 10 to 33. The Tribunal said that no challenge was made to that summary by either of the parties before the Tribunal. Both parties before the Tribunal were legally represented, the applicant by Mr G. Porter, a solicitor of Mahoney and Hesford Solicitors, and Telstra by Mr R. Dickson of Counsel instructed by Standish Partners Solicitors. The Tribunal analysed my reasons at first instance, and the reasons for judgment of the Full Court in allowing the appeal from my judgment in part. 18 As to the role of the Tribunal at the re-hearing ordered by the Full Court, the Tribunal specifically directed its attention to the two errors of law which were identified by the Full Court in pars 20 and 22 of its reasons, where the Full Court said: '… The appropriate course for the Tribunal, therefore, was either to make such a determination itself or to remit the matter to Telstra to enquire into and determine those two amounts in order to make a determination in accordance with s 19 of the Act. However, it does not appear to have adopted either course. To that extent, it erred in law.' (Emphasis added) and: '… The appropriate course for the Tribunal was to give consideration to [the exercise of the discretion conferred by s 37 of the Act] and decide whether to exercise the discretion vested in Telstra or to remit the matters to Telstra to consider whether the discretion should be exercised. The Tribunal erred in so far as it found that Telstra had an obligation to provide a program.' (Emphasis added) 19 Under the heading "Issues", the Tribunal said at pars 25-28: 'This reconsideration of the respondent's decision is not concerned with the initial finding by the Tribunal on 13 March 1998 that the applicant has partial incapacity and fitness for full-time work in suitable employment. On that occasion, the Tribunal remitted to the respondent the issue of what constitutes suitable employment and, as indicated by Spender J in the Federal Court and the Full Court of the Federal Court, there was also an obligation to make a determination under section 19 of the Act. The first issue for determination by the Tribunal is what constitutes suitable employment for the applicant. The second issue for the Tribunal relates to section 19 of the Act. In accordance with the direction of the Full Court, the Tribunal must either make a determination by applying the formula in that provision or remit the matter to the respondent to do so. This will involve an enquiry into and determination of the amount of the applicant's normal weekly earnings with the respondent, as calculated under section 8 of the Act; and the amount per week that the appellant is able to earn in suitable employment, as calculated in accordance with sub-section 19(4) of the Act. The third issue for the Tribunal relates to section 37 of the Act. In accordance with the direction of the Full Court, the Tribunal must exercise the discretion conferred under that provision or remit the matter to the respondent to consider whether the discretion should be exercised.' Findings of the Tribunal 20 The Tribunal found, at par 60: 'On the evidence, I am satisfied that, for the purposes of sub-section 4(1) of the Act, the list of eight employment options determined in the decision under review constitutes suitable employment for the applicant. The decision of Spender J in the Federal Court was to the same effect and that part of His Honour's decision was not called into question by the Full Court.' 21 The Tribunal, for the purpose of applying the formula in subs 19(3)(a) of the Act said at par 63 of its reasons: 'I cannot be satisfied that the applicant was required to work overtime on a regular basis and it follows that the relevant component of the definition of NWE is that set out in sub-section 8(1) of the Act.' 22 The Tribunal found that the amounts listed in the third column of the table which follows, correctly record the calculations of 75 per cent of NWE for those periods. Period Number of Weeks 75% NWE $ 1 October 1997 - 31 August 1998 48 446.02 1 September 1998 - 23 December 1998 16 446.02 24 December 1998 - 31 August 1999 36 463.86 1 September 1999 - 22 December 1999 16 463.86 23 December 1999 - 31 August 2000 36 473.13 1 September 2000 - 19 December 2000 16 473.13 20 December 2000 - 31 August 2001 36 492.05 1 September 2001 - 19 December 2001 16 492.05 20 December 2001 - 1 June 2002 23 511.73
23 In applying the formula in s 19 of the Act in respect of the component of AE, the Tribunal found at par 74: '… the letters sent by the applicant to various potential employers did not represent any genuine attempt by him to seek suitable employment. That means that his situation falls within the terms of paragraph 19(4)(e) of the Act.' 24 The Tribunal found that the amounts in the third and fourth columns of the table that follows are those that the applicant could reasonably have been expected to earn in suitable employment as a console operator or in a clerical position respectively, during the periods nominated in the first column of the table.
Number of Weeks Motoring Services Award Clerical Employees Award Period 1 October 1997 - 31 August 1998 48 372.90 426.20 1 September 1998 - 23 December 1998 16 386.90 465.20 24 December 1998 - 31 August 1999 36 386.90 465.20 1 September 1999 - 22 December 1999 16 398.90 506.40 23 December 1999 - 31 August 2000 36 398.90 506.40 1 September 2000 - 19 December 2000 16 413.90 552.80 20 December 2000 - 31 August 2001 36 413.90 552.80 1 September 2001 - 19 December 2001 16 426.90 609.50 20 December 2001 - 1 June 2002 23 426.90 609.50
25 The Tribunal found at par 82: 'I find that the decision by the applicant to discontinue his involvement with WDA resulted in the decision by WDA to close his rehabilitation file. I also find that it was unreasonable for him to discontinue with the initiatives that had been commenced on his behalf by WDA and this conduct is a factor which can be taken into account as a relevant matter under paragraph 19(4)(g) of the Act.' 26 The Tribunal concluded that the amount the applicant was able to earn in suitable employment should be that applicable to a person in a clerical position. The Tribunal therefore concluded that compensation was payable to the applicant in the period 1 October 1997 to 31 August 1998 and at a weekly rate represented by the difference between $446.02 and $426.02, that is $19.82. 27 As to whether the discretion in respect of rehabilitation under s 37 of the Act should be exercised favourably to the applicant, the Tribunal referred to the relevant factors and concluded at par 85: 'On balance, I am satisfied that a rehabilitation program should not be made available to the applicant by the respondent.' Proceedings in the Federal Court 28 A notice of appeal from the decision of the Tribunal was filed in the Federal Court by the applicant on 29 July 2002 29 Pursuant to s 44 of the AAT Act, such an appeal is limited to questions of law. Section 44 provides: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. … (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction: (a) may be exercised by that Court constituted as a Full Court; (b) shall be so exercised if: (i) the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and (ii) after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and (c) shall be so exercised if the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge. (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal, the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates.' 30 The notice of appeal alleges twenty-three matters which are said to be 'questions of law': '(i) The Tribunal erred in its findings of N.W.E. at paragraphs 61-65 of the decision. An initial determination as to a level of N.W.E. by the respondents dated 6 August and identified as T21 (Exhibit A1 record 331) was amended to reflect the overtime remuneration element of N.W.E., as evidenced by Exhibit A3, in the determination of 23 August 1996 and identified as T25 (Exhibit A1 record 334) (ii) A determination dated 19 December 1996 (record 349) shows an N.W.E. of $678.00 per week (iii) At paragraph 64 the Tribunal found that compensation had been paid continuously to the applicant by Telstra to 1 October 1997, however there was no documentary evidence before the Tribunal as to that level of compensation (iv) In Matters where the Tribunal considers there is little or no evidence in respect of submissions or findings to be made, Section 38 of the AAT Act 1975 allows the Tribunal to request additional statements when it considers that statements lodged do not contain adequate particulars of findings on material questions of fact (v) Section 39 of the AAT Act states "the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case" (vi) The Tribunal erred in not giving the applicant the opportunity of addressing the absence or the lack of evidence on material questions of fact, of which the Tribunal made subsequent findings which were more beneficial to the respondent (vii) The Tribunal erred in that it did not have the jurisdiction to determine how the N.W.E. was constituted. The determination of 23 August 1996 which supported by exhibit A3 showed that the calculation relating to N.W.E. included an element for overtime, is a determination which was not challenged and as such there was no reconsideration of this decision and as such, the method used for the calculation of N.W.E. was not before this Tribunal and as this matter was not properly before the Tribunal, the Tribunal did not have the jurisdiction to make findings as to how the level of N.W.E. should be calculated, this matter being previously determined by Telstra (viii) The Tribunal erred in making the findings as to the levels of remuneration from clerical work applicable to the claimant. The first figure in the list is based upon an assumption that the applicant would be able to engage in clerical work at level 1 with 4 years of service. The findings also indicate that there is an assumption of a mandatory yearly promotion to the next level of employment. There is no evidence to support these assumptions. (ix) The Tribunal erred in failing to take into consideration a material question of fact in that at paragraph 51 the Tribunal refers to the Decision of Spender J where he noted that the reference to clerical position had been included because of the terms of a letter by Margaret Kennedy to the applicant on 25 November 1998, however the inclusion of clerical position in the original decision predated this letter by over 1 month therefore the delegate could not have had regard to this letter when making the determination of 14.10.97 and on the respondents own admission the inclusion of clerical position was based upon a report of the CRS dated 07.07.98 (record 500-501) (x) The Tribunal erred in that it did not have sufficient regard to the report of the CRS dated 07.07.98 identified by the respondents as the authority for the inclusion of Clerical Position which categorically states that Mr Slater is currently not able to perform any gainful work (xi) The Tribunal erred in finding that the claimant failed to seek suitable employment, this finding is not supported by the evidence (xii) The Tribunal erred in its finding of failure to seek suitable employment under s19 by not having regard to S19(4)(g) "any other relevant matter" and in particular was the occupation identified as suitable employment (and used in the calculation, clerical position) available to the applicant based upon his status at that time (xiii) The Tribunal erred at 18 in that having found that the applicant did not attend the third consultation with WDA until the position relating to suitable employment had been addressed failed to take into consideration a relevant material of fact in that the rehabilitation plan produced by Telstra dated 04.06.97 had a return to work goal of new workplace and new job and until the element of suitable employment had been determined as any job leads may have proven unsatisfactory as mentioned in my letter to Telstra of 2 September 1997. (xiv) The tribunal erred in that in making a wrong finding of fact as to a level of compensation it then had regard to this wrong calculation when making its finding under section 37 not to provide a rehabilitation programme (xv) The Tribunal erred under S37 by not having regard to the first and most important subparagraph under this section, notably S37(3)(a) any written assessment given under subsection 36(8) (xvi) The Tribunal erred in that having made a determination at the hearing of 31.05.02, of which it gave oral reasons (which would be disclosed in any transcript of the hearing of 31.05.02), following submissions by the respondent that the Tribunal should have regard to matters concerning the applicant from March 1999 to the present, determined that the matter before it was the matter which was properly before the Tribunal of 1999, and in particular relating to the reviewable decision of 10.11.98, and that Tribunal was concerned only with matters that were before that hearing, then has regard to matters post that hearing up to the present time (xvii) The Tribunal erred at 58 by discounting the applicants' former trade of 22 years, as a refrigeration mechanic, by stating that by undertaking work with Telstra he had moved away from the skill base which his trade had brought him. If this were so then all of the skills experience and qualifications, which this trade had brought him, would also have to be discounted for the purpose of determining suitable employment. (xviii) The Tribunal erred in finding that suitable employment included Clerical Position when all of the evidence from the report providers states that without retraining I am unable to access this position (xix) The Tribunal erred in finding that WDA had closed their rehabilitation file as a result that I had decided to discontinue my involvement with WDA in a letter to WDA dated 26.08.97 and did not have sufficient regard to a letter dated 9 September 1997 from WDA to Telstra where B. Fielke informs Telstra that the file had been closed in accordance with a phone call between these parties on 7 August 1997 (xx) The Tribunal erred in not having proper regard to the applicants entitlements under the whole of the SRC Act and in particular to part VIIIA (s 107g) (xxi) The Tribunal erred in that at the hearing of 31 May 2002 Mr Kenny stated that it was his intention to remit the matter back to Telstra for them to determine an amount of compensation and to reconsider the question of a rehabilitation plan prior to submissions being made in this regard by the applicant or the respondent, thereby displaying a profound bias towards the submissions of Telstra prior to submissions being made by the parties and as a consequence displaying prejudice toward the submissions of the applicant (xxii) The Tribunal erred in finding that the applicant did not seek work this is unsupported by the evidence (xxiii) It would be a miscarriage of justice to allow this decision to stand as it does, based upon unsupported assumptions, and incorrect calculations and findings without these same assumptions being afforded to both parties' By the notice of appeal, the applicant has sought the following orders: '(a) That the decision (b) that "the respondent is liable, pursuant to section 19 of the Act, to pay the applicant compensation in the amount of $19.82 per week for the period 1 October 1997 until 31 August 1998" be dismissed (b) That the court order the Tribunal to recalculate the amount of compensation payable having regard to the true N.W.E. based upon the determination of Telstra dated 23 August 1988 [sic 1996] (c) That the court order that the amount being able to earn in suitable employment throughout the period of compensation in relation to clerical position is as per the award sheet in that it starts at level 1 year 1 and progresses to level 1 year 4 after a deemed period of 4 years employment, whereby that level of remuneration is maintained, or in the interests of Justice and fair play the level of the applicants level of employment and subsequent increase in N.W.E. is matched to the calculation of remuneration of clerical employment, as there is no evidence to suggest any increase in either of the levels of employment (d) That the court order the Tribunal to have regard to a rehabilitation programme, to include retraining following the correct application to a calculation of compensation.' Or alternatively: '1. That the Court dismiss the decision (b) of the Tribunal and order that clerical position is not suitable employment for the purpose of section 19 and remit the matter back to the Tribunal for the Tribunal to re-determine an amount of compensation. 2. That the court order the Tribunal to reconsider the provision of a rehabilitation programme to include re-training, OR 3. That the matter Q2001/1154 be dismissed and remitted back to the AAT for reconsideration according to law and in accordance with any direction given by the Federal Court 4. Costs of the appeal to be paid by the respondent.' 31 I have set these parts of the notice of appeal out extensively, because whilst the applicant has as an address for service a firm of solicitors in Brisbane, his notice of appeal was filed by him, and the extensive submissions concerning his application were prepared by him personally, as the "questions of law" alleged in the notice of appeal reveal. 32 In my judgment, the applicant is seeking to challenge factual findings made by the Tribunal contending that they are erroneous, and relying for that contention on references to pieces of evidence in various of the proceedings that have occurred since his injury, as well as other material that was not before the Tribunal. 33 On 14 November 2002 the applicant submitted thirty-three pages of written submissions, numbering some 229 paragraphs. 34 The respondent filed written submissions on 25 October 2002 and amended submissions on 27 November 2002. The amended submissions total twenty pages and comprise 61 paragraphs. On 3 December 2002 the applicant filed a document called "Response of the Applicant to Respondent's Argument". That response occupied twenty-four pages and 177 paragraphs. The applicant made further submissions dated 24 March 2003 and the respondent filed "Further Submissions for Respondent" on 19 May 2003. 35 The applicant has made a claim for total incapacity from March 1999 which is ongoing. It appears that material that may be relevant to that appeal has been sought to be relied on by Mr Slater in this appeal from the decision of the Tribunal constituted by Mr Kenny. 36 The applicant asserts that those documents are in the category of fresh evidence, and he also makes further submissions. 37 The submissions of the applicant of 24 March 2003 commence: 'In relation to the above matter I seek to have entered as evidence significant material which has only recently been provided by the Respondents (received 28 February 2003) which when read in conjunction with previous submissions confirms my position that the N.W.E. provided by the Respondents did not contain an element for overtime, which it had to include under s8(1) or s8(2) of the SRC Act and more significantly that I was unable to make any earnings in suitable employment (AE) for the entire period from 1.10.97 up to at least the date of the calculation of these documents being 06.02.03 Furthermore the provision of these documents now and not before the hearing of 31 May 2002 before Mr Kenny leads to the conclusion that these documents were deliberately withheld as they undermine the respondents arguments at the hearing of Mr Kenny.' 38 The respondent indicated its objection to the receipt of the documents on which the applicant sought to rely, and to the further submissions. 39 Most of the matters referred to in the notice of appeal and in the submissions by the applicant reveal a misunderstanding of the basis on which an appeal may be made to the Federal Court. Even if it can be demonstrated that a finding made was wrong (with or without reference to material that was not before the Tribunal), making a wrong finding of fact is not an error of law. The thrust of the notice of appeal and of the submissions on behalf of the applicant is to re-argue the applicant's case before the Tribunal so as to demonstrate that the findings made by the Tribunal were wrong. 40 The position is made plain by the observations of Brennan J (as he then was) in Waterford v The Commonwealth of Australia (1986-1987) 163 CLR 54 at 77-8: '… The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. As the purpose for which a document is brought into existence is a question of fact (per Jacobs J. in Grant v. Downs (1976) 135 C.L.R. at p.692)), the contents of document 29 are immaterial to the question whether the A.A.T. has made an error of law on the material before it.' 41 I repeat the view I expressed in Servos v Repatriation Commission (1995) 129 ALR 509 at 517: 'The policy of the legislation in my opinion is to make the decision of the tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the court on an application pursuant to s 44 of the Act, the object of which is to invite the court to disagree with a factual conclusion reached by that tribunal.' 42 The ordinary requirements of fresh evidence are those referred to in Orr v Holmes (1948) 76 CLR 632 at 635 and 640. In Florance v Andrew (1984-1985) 58 ALR 377 the Court (Lockhart J) said at 381: '… that before the further evidence could be received by the court, it was necessary for the trustee to establish that it must be reasonably clear that if the evidence had been available at the trial and had been adduced an opposite result would have been produced or, if it is not reasonably clear that such a result would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Also reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the trial. Fresh evidence will not be received unless it produces such a different complexion on the case that a reversal of the former result ought certainly to ensue …' 43 In this appeal, I therefore decline to have regard to any material that was not before the Tribunal. 44 The submissions of 14 November 2002 correctly state that the matters that the Tribunal of Q2001/1154 had to consider were the remitted matters from the Full Federal Court in Q52/2001. Those submissions continue: 3. In the preliminary legal argument at the start of the hearing of Q2001/1154 the respondents made submissions that a claim for total incapacity from March 1999 be heard before the Tribunal as constituted by Mr Kenny (A.B p. 46 line 29 to p. 48 of transcript of 31.05.02). Mr Kenny made a determination (A.B. p.63 lines 9-24 of transcript) and gave his verbal reasons that, the issues which were before him, concerned the matters that were before the Tribunal of Q1998/1300 and Q1998/1303 as at the hearing of August 1999 and he would hear no submissions relating to the claim of Total incapacity from March 1999 nor admit any evidence of same. 4. It was my legal representatives opinion that what was before the Tribunal of Mr Kenny constituted legal argument only (A.B.p.53 lines 6-12 of transcript) and there was no need for me to give evidence, furthermore Mr Kenny gave the respondents the opportunity to call witnesses, which they declined (A.B. p.79 lines 24-25 of transcript). Also Mr Kenny had the opportunity to question me, as I was in attendance and he declined this opportunity. Section 33(1)(c) of the AAT Act states: the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. 5. There was no barrier for the Tribunal not make itself aware of what my circumstances were for the period following my departure to England in February 1999 to the present, nor on any other aspect where there was a complete lack or minimal evidence.' 45 Mr Slater seems to be saying that he did not give or call evidence because that was the legal advice he received, that the Tribunal, of its own motion, should have questioned him, or that the respondent should have called him to give evidence. The fact of the matter is that the Tribunal was charged with the consideration of the matters remitted from the Full Federal Court. Mr Slater was legally represented and had the opportunity to put such evidence and material before the Tribunal as he wished, which related to the matters for determination remitted by the Full Court of the Federal Court to the Tribunal. 46 Section 39 of the AAT Act obliges the Tribunal to ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding, and to make submissions in relation to those documents. The Exhibit Register before the Tribunal shows that seven exhibits were submitted on Mr Slater's behalf and two on behalf of Telstra. On the whole of the material, there is an absence of any basis to conclude that the Tribunal, in this case, failed to comply with s 39 of the AAT Act. 47 The Tribunal, or Telstra, has no obligation, as Mr Slater contends, to assist his case. In Commissioner of Taxation v Glennan (1999) 90 FCR 538, the Full Court (Hill, Sackville and Hely JJ) said at 558: 'As a matter of general administrative law, it has long been accepted that it is no part of the duty of the decision-maker to make out a case for the applicant: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170, per Wilcox J.' 48 In Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 413, Hill J referred to an article by Professor Campbell, Principles of Evidence and Administrative Tribunals, Campbell and Waller (ed) "Well and Truly Tried" Monash Studies in Law (1982) at p 53: 'There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings.' Hill J said at 413: 'Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf Vulic v Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.' 49 Mr Slater made complaints in his written submissions that in the matter Q2001/1154, the subject of this appeal, there were no s 37 statement or s 37 documents produced to him, nor submitted before the Tribunal. The fact is that Q2001/1154 is the file number given to the remitted matter, and was concerned with aspects of the earlier proceedings before the Tribunal which had been allocated file numbers Q1998/1300 and Q1998/1303. It is therefore unremarkable that there was no s 37 statement or s 37 documents concerning the file numbered Q2001/1154. 50 I reject the contention by Mr Slater that he was denied procedural fairness and that the proceedings in the Tribunal amounted to 'trial by ambush' and 'is error of law'. 51 Mr Slater, in his written submissions, of the finding by the Tribunal '… the evidence is not only that the applicant did not seek work but that he engaged in an elaborate process of preparing and sending letters to a range of potential employers with no intention of actually seeking employment',said: 'This statement is unsupported by evidence and is erroneous and furthermore gives a misleading impression. In making this finding Mr Kenny has had no regard to the manner in which Telstra has conducted itself in these matters and the elaborate scheme of obstructionism, misinformation and neglect of its statutory duties perpetrated by Telstra.' 52 In support of this last complaint, Mr Slater outlined a long litany of his complaints which are referred to in pars 20 to 41 of his written submissions. The Tribunal, however, made the finding set out by Mr Slater on evidence before it, some of which is set out in pars 71 to 74 inclusive of the Tribunal's reasons. 53 Further in the written submissions, after a deal of historical references, Mr Slater submitted: 'It is quite clear from the Decision of Mr Kenny of 19 July 2002 that he has not made any determinations regarding what was suitable employment for the purpose of section 19, what my Normal weekly Earnings were, how much I could earn in suitable employment nor determined whether I should be provided with a rehabilitation program.' Mr Slater submits: 'Although Mr Kenny has made findings relating to these matters they are not determinations and as a result has caused error of law (a finding is not a determination Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 paras 42-44).' 54 In my opinion, the Tribunal properly addressed the matters remitted by the Full Court to it for consideration, and properly dealt with those matters. There is no utility in the supposed distinction between a finding and a determination. 55 The finding of the Tribunal that there was a failure to seek suitable employment, in my view, was open to the Tribunal on the evidence before it. The question of suitable employment and matters relevant to whether there was a failure to seek suitable employment were the subject of extensive submissions by Mr Porter on behalf of the applicant before the Tribunal. The Tribunal did not accede to those submissions. 56 An important part of the submissions of Mr Slater challenge the determination of Net Weekly Earnings ("NWE") made by the Tribunal. Mr Slater points to material that was before the Tribunal which reflects a higher NWE than those which the Tribunal accepted. 57 Some of those documents were the subject of specific submissions made by Mr Porter concerning the question of whether overtime should be taken into account. Those submissions were referred to in par 34 of the Tribunal's reasons, as was the schedule of payments made to the applicant (exhibit A4). The Tribunal considered the documents in exhibit A3, which indicated the overtime worked by the applicant prior to his injury. The Tribunal noted the submission made on behalf of the applicant, that the schedule of payments did not accurately reflect the level of overtime payments for rostered Saturdays. 58 The documents, which were tendered on Mr Slater's behalf, led the Tribunal to conclude at par 63 of its reasons: 'The overtime payments noted above vary significantly from one fortnight to another and include one fortnightly entry where there was no overtime worked at all. I cannot be satisfied that the applicant was required to work overtime on a regular basis and it follows that the relevant component of the definition of NWE is that set out in sub-section 8(1) of the Act.' This finding was open to the Tribunal and, in any event, is a finding of fact. 59 There was evidence supplied by counsel for Telstra as to the NWE in the period from 1 October 1997 to 1 June 2002. This document was not the subject of any challenge by Mr Porter, and it was open to the Tribunal to conclude at par 65 of its reasons: 'In the absence of any evidence to the contrary of NWE during the periods identified in the first column of that table, I find that the amounts listed in the third column of that table correctly record the calculations of 75% NWE for those periods.' 60 I am satisfied that no error of law attends the finding as to the calculation of net weekly earnings. 61 Mr Slater complains that the figures which the Tribunal adopted for the Clerical Employees' Award were based on assumptions that there would be entry at level 1 with four years experience and progressing through to level 5 automatically, and that the Tribunal was not entitled to make these assumptions. 62 The summary of the weekly award payments earlier set out in these reasons followed observations by the Tribunal as to the material put before it. The Tribunal said at par 76 of its reasons: 'Both the applicant and respondent provided evidence of the weekly payments for the relevant periods applicable under the Motoring Services Award, which is relevant to a console operator working in a service-station (see exhibit A5, provided by the applicant, and the documents in exhibit R2, provided by the respondent). Additionally, both the applicant and the respondent provided evidence of the weekly payments applicable under the Clerical Employees Award which is relevant to a worker in a clerical position. The applicant, in exhibit A6, did so for the period from 1 September 2001 and the respondent did so in the documents in exhibit R2 for the period from 1 October 1997.' 63 It is consequently unremarkable that the Tribunal made the finding in par 77 of its reasons: 'I find that the amounts in the third and fourth columns of that table are those that the applicant could reasonably have been expected to earn in suitable employment as a console operator or in a clerical position, respectively, during the periods nominated in the first column of the table.' Even if there were assumptions behind these figures, and even if it be that the assumptions were not justified, no error of law was made by the Tribunal in its finding as to the level of weekly earnings that the applicant could reasonably have been expected to earn in suitable employment. 64 Mr Slater makes extensive complaint concerning whether a program under s 37 should have been provided to him. Mr Slater's written submissions refer to Policy Guidelines issued by Comcare. 65 Notwithstanding Mr Slater's assertion that 'I have a right to a rehabilitation program under Section 37', subsection 37(3)(f) of the Act requires the Tribunal, in considering whether to make the rehabilitation program available, to consider the employee's attitude to the program. The Tribunal found as a fact that Mr Slater was unwilling to complete the assistance plan put in place for him by WDA in 1997. The Tribunal regarded Mr Slater's attitude to that assistance plan as a highly relevant factor in whether a rehabilitation program should or should not be made available to the applicant by the respondent. 66 In my opinion, no error of law attends the exercise of discretion conferred by s 37 where the Tribunal found at par 85 of its reasons: 'On balance, I am satisfied that a rehabilitation program should not be made available to the applicant by the respondent.' 67 For the reasons expressed above, I decline to permit the applicant to rely on material that was not before the Tribunal. In my judgment the Tribunal carefully and comprehensively approached the task which the Full Court had remitted to it, and made findings which are unimpeachable for error of law. The findings made were open to it on the material before it. On the whole of the material, including the very extensive and detailed submissions of the applicant, I am not satisfied that any error of law has been demonstrated in the decision of the Tribunal, the subject of this application.
68 The application is dismissed with costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
Associate: Dated: 23 April 2004 The applicant made submissions, in writing, on his own behalf
Counsel for the Respondent: Mr Ross Dickson
Solicitor for the Respondent: Standish Partners Solicitors
Date of Final Submissions of Applicant: 24 March 2003
Date of Final Submissions of Respondent: 19 May 2003 Date of Judgment: 23 April 2004
Slater
Telstra
(1999) 90 FCR 538
(1989) 86 ALR 399
(1995) 129 ALR 509
(1948) 76 CLR 632
(1985) 6 FCR 155
(1990) 170 CLR 321