Appellant's Argument
21 The appellant submitted that it is not liable to pay compensation to the respondent in this case because, as a result of the determination of 25 May 1999 by the delegate, the provisions of s 45(1)(a) of the SRC Act were not satisfied. The respondent contended, however, that the fact of such a determination is irrelevant and that the question whether or not compensation is payable under s 24, in circumstances where an election under s 45(1) has been made, is a matter for determination by the trial judge in common law proceedings.
22 It should be noted at the outset that, in its argument on the appeal, the appellant did not assert that its position was protected by an estoppel in relation to the administrative determination and for its part the respondent denied that any estoppel was available: see Minister for Migration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359; Commonwealth v Sciacca (1988) 17 FCR 476 at 480; Midland Metals Overseas v Customs (1991) 30 FCR 87 at 96-99. Rather, the appellant submitted that as a matter of the plain meaning of the words of s 45, where there was a valid determination by a delegate of the appellant, that determination operated to preclude an election under s 45 if the valid determination was that no compensation was payable under s 24.
23 Both parties relied upon the decision of this Court in Walsh v The Commonwealth in support of their respective arguments.
24 The issue which arose for determination in Walsh was whether it was an essential pre-condition of a valid election for the purposes of s 45 for there to have been an administrative determination by Comcare (or other relevant authority or the AAT) under, relevantly, s 24 of the SRC Act. This issue was stated as a separate question for determination which was removed, by order of the Master, into the Court of Appeal. Mason P, with whom I agreed, held that a determination by the relevant authority that compensation is payable under s 24 was not an essential pre-condition of a valid election for the purposes of s 45 of the Act. In so determining, Mason P agreed with and applied the reasoning of the Queensland Court of Appeal in Janssen v The Commonwealth. In that case, Fitzgerald P and Pincus JA in a joint judgment considered that the expression "is liable to pay compensation" in s 14(1) was used in a broad sense and did not mean a crystallised obligation. Their Honours held, at 603, that the expression "is payable" in s 45(1)(a) had the same meaning:
"… 'payable' in s 45(1) refers to liability subject to compliance with the procedural requirements, including making a claim. There would be no more sense in a reading which necessitates that a claim for compensation under the Act be made by anyone who wants to sue than in a requirement that the claim be pursued and determined."
25 In reaching this conclusion their Honours had noted at 600 that s 24(1):
"uses the expression 'liable to pay' without including any express qualification with respect to procedural requirements; that is, the expression in s 24(1) plainly means 'liable, subject to compliance by the claimant with procedural requirements, to pay'".
26 Their Honours added:
"To our minds 'liable to pay' when used in isolation has no less implication of crystallised liability than 'payable' has."
27 McPherson JA in a separate judgment agreed with the joint reasons of the President and Pincus JA. He added at 603:
"The pivotal provision of the … Act is s 14(1). It makes the Commonwealth 'liable to pay' compensation in accordance with the Act in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment. The expression 'liable to pay' in the comparable context of s 5(1) of the Workers Compensation Act 1958 (Vict) was said by Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, 584 to refer to 'a situation in which a duty or obligation can arise as the result of the occurrence of some act or event'.
I consider that also to be its meaning in s 14(1)."
28 His Honour concluded at 604 that the expression "where … compensation is payable under s 24 …" in s 45(1)(a) did not mean that compensation must first have been determined in accordance with the Act and that this must have taken place before the employee became entitled under s 45 to elect to institute an action against the Commonwealth for damages.
29 In Walsh, Sheppard AJA agreed with Mason P that the separate question should be answered in the negative. He did so in circumstances where he felt obliged to follow the decision in Janssen as a matter of judicial comity in respect of substantially identical legislation in both states: see Australian Securities Commission v Marlborough Gold Mines Ltd (1933) 177 CLR 485. But for that decision his Honour would have dissented. However, in the course of his consideration of the legislation he made the following observation at 195:
"… on the face of the language of the section, there can be no action until there is an effective election and there can be no effective election unless the conditions provided for in the earlier part of the section are fulfilled. The language of s 45(1)(a) of the Act is such that it will not permit an effective election unless compensation is payable under s 24 … In order to determine whether it is payable under … [that section] one has to have regard to [it]. In my opinion, the stumbling block for the plaintiff's submission is s 24(7) which provides that, where [Telstra] determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under the section. So it is [Telstra], subject to the review provided for in the Act, which must determine whether the amount of permanent impairment of the employee is less than 10%. If it does make that determination, no compensation is payable. … It follows that s 45 cannot, in that event, apply because compensation will not be payable and one of the conditions of an effective election will not be made out." (emphasis added).
30 The appellant submitted that this approach by Sheppard AJA was correct and should be followed.
31 I will return to the appellant's argument again shortly.
32 The respondent submitted that the ratios in Janssen and Walsh were equally applicable to a case where a determination under s 24 had in fact been made by the relevant authority, as had happened here. It was said that those judgments were intended to ensure that it would not be necessary for employees who had no real interest in the relief available under the SRC Act to pursue that relief fully before being entitled to make an election under s 45 to pursue common law rights.
33 The practical consequence of the respondent's submission is that it is for the common law court to determine whether an employee 'qualified' for compensation under s 24, regardless of whether an administrative determination under the SRC Act had been made. Senior counsel for the respondent, in making this submission, did not grapple with its logical consequence, namely, that an employee can choose whether to accept or ignore an existing determination under s 24 when making an election. In my opinion, to state the logical consequence serves to highlight its very difficulty.
34 In support of his submission, the respondent also placed reliance upon the passage at 188 in Mason P's judgment where his Honour said that the question to be determined was:
"… whether parliament expressed an intention that Comcare [here Telstra] (or the AAT, on review) should be the body that determines that matter (pre-election) or whether the court hearing the damages claim is to decide what the determining authority would have done in the particular case if it is asserted that compensation would not have been payable under s 24 …"
35 His Honour then commenced his consideration of this question with the observation:
"There is nothing unusual in a statute conferring a conditional right to institute an action, where the court deciding the action must determine if the conditions were fulfilled."
36 In my opinion, Mason P's formulation of the relevant issue does not support the respondent's submission. In the first place, by its very wording the question formulated only addresses the question where there has been no determination. In this sense, Sidis DCJ's view that there at least be a final tribunal decision before a court was not entitled to embark upon a determination as to whether an employee was entitled to compensation under s 45(1) cannot, in my view, be correct. Secondly, the question recognises the role of the relevant authority - in this case Telstra - in determining liability to pay under s 24.
37 The respondent next supported its submission by listing the factors relevant to the determinations in Janssen and Walsh which, it was said, applied equally to the factual circumstances of the matter under appeal. Those factors were: