The reasons for the decision of the primary judge
32 The primary judge described the central issue arising on Mr Hannaford's application for review by way of appeal to the Federal Court at first instance more comprehensively as follows:
'… whether, in reviewing determinations under ss 16, 19, 24 and 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 [to] 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.'
That description of the issue presented to the primary judge is in line with the question of law raised by Mr Hannaford's amended notice of appeal which I have earlier extracted. Telstra's case in response was to the effect that it was open to the AAT to so consider those issues (as of course the AAT had earlier decided), whereas Mr Hannaford's case was that a s 14 determination was immune from reconsideration by the AAT, including the facts underpinning it, unless the reviewable decision in issue before the AAT was itself a decision under s 62 of the SRC Act by way of reconsideration of the determination under s 14 (see in that regard the concluding sentence in [27] of the reasons for decision of the primary judge). Telstra had not, in the context of the events I have recorded, purported to undertake any such reconsideration explicitly pursuant to s 14 of the SRC Act.
33 The primary judge acknowledged nevertheless that the reasons for judgment of Sackville J in Power v Comcare (1998) 89 FCR 514 provided 'clear support for the position of [Telstra] here pursued'. In that regard, Sackville J said at 526 as follows:
'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.'
That acknowledgment of the primary judge is not without significance to Telstra's case on the present appeal, notwithstanding that the primary judge adopted a different view to that taken above in Power. The context to that dictum of Sackville J, commencing at 525 of his Honour's reasons for judgment included the following clarification of further significance by reference to the operation of s 62 of the SRC Act:
'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 1993 determinations. In other words, both parties explicitly agree 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.'
34 Subsequently in Comcare v Hill (1999) 56 ALD 487, in the context of an application for review by way of appeal relating to quantum of compensation, Spender J determined at first instance that the AAT had erred in refusing Comcare the right to seek a review of the question whether there was a connection between an employee's myocardial infarction and his employment, that context being a subsequent lump sum claim to permanent compensation, his Honour holding also that Comcare was not bound by an issue estoppel flowing from Comcare's initial determination of liability. In so doing, Spender J accepted that the circumstances in Hill were a 'little different' to those involved in Power, in that Comcare had initially determined that it was liable to pay compensation for medical expenses and incapacity pursuant to ss 16 and 19 respectively, and having later sought a lump sum payment for permanent impairment. The primary judge also acknowledged that 'the judgment in Hill … support[ed] the approach of the Tribunal in this matter', Spender J having concluded that the AAT's preceding ruling in the context of that Hill litigation was wrong for the following reason:
'Similar questions were considered by Sackville J [in Power]. Although the circumstances [in Power] were a little different, his Honour reviewed the statutory scheme and relevant cases, and held that both Comcare, under s 62 of the [Act] and the AAT, pursuant to ss 62 and 43(1) of the Administrative Appeals Tribunal Act, could analyse all the necessary facts, including the question of whether the subject injury was work related, in order to resolve the question of liability. His Honour's conclusion was that no issue estoppel arose from the earlier determination or its affirmation by the AAT'.
The primary judge asserted the view however that Spender J '… was wrong in suggesting… that the reconsideration power (under s 62) can be exercised by the Tribunal in relation to a determination other than the determination which had been reconsidered and which had given rise to the reviewable decision…'. I have encountered difficulty in accepting that restrictive view of the primary judge as to the scope of operation of s 62, at least in the light of the purported generality of the language used in the framework of s 62.
35 In thus expressing disagreement with the decision in Hill, the primary judge purportedly placed reliance upon the subsequent Full Federal Court reasoning in Lees v Comcare (1999) 56 ALD 84 (Wilcox, Branson and Tamberlin JJ) at [33]-[39], where it was concluded unanimously that the AAT had erred in deciding that it could consider claims for compensation for permanent impairment and non-economic loss in the context of its review of a reviewable decision concerning liability under s 14. That passage of the reasoning of the Full Court included in particular the following references below to 'the Act' being of course to the SRC Act:
'34. … A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.'
I do not understand Telstra to have submitted to the contrary of those views as to the operation of s 14, at least so far as so framed. Moreover the Full Court had earlier observed in Lees, in relation to the scope of operation relevantly of the SRC Act, as follows:
'27. As Finn J noted [in Comcare v Burton (1998) 157 ALR 522 at 525], s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability "subject to" Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act… Secondly, the liability is a liability to pay compensation "in accordance with" the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.'
Those qualifications bear implicitly upon the present debate, in that they reflect the generality of the scope of s 14, generality in the sense that they foreshadow the crystallisation of the liability to compensate in the various circumstances of Part II (headed 'Compensation')thereafter to follow, being a generality reflected in particular by subsection (1) thereof.
36 The Full Court in Lees said further at [35] of its reasons that a determination under s 14 was not 'without real significance', in that it would '… 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.' Sections 53 and 54 appear in Part V of the SRC Act, headed 'Claims for Compensation'.
37 After summarising the operation of s 62 of the SRC Act, which as I have foreshadowed appears within Part VI headed 'Reconsideration and review of determinations', the Full Court in Lees moved to a discussion of the AAT's jurisdiction to review a reviewable decision pursuant to s 64 of the SRC Act; that discussion of the Full Court is reproduced in full below:
'[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage'.
The AAT did not exemplify circumstances which would attract the operation of the last sentence of that discussion of the statutory review provisions, and it does not explicitly address the potential significance of a change in diagnosis as to the cause of an employment illness or disability.
38 The primary judge next drew attention to two first instance decisions of the Federal Court that were made subsequently to Lees, and which concerned the operation mainly of s 64 of the SRC Act. The first was Australian Postal Commission v Oudyn (2003) 73 ALD 659 (Cooper J), and the second Rosillo v Telstra Corporation Limited (2003) 77 ALD 396 (Madgwick J). In relation to Oudyn, the primary judge extracted in full [29]-[33] from Cooper J's reasons for judgment, where it was observed (inter alia) that '[t]he decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay under s 14 compensation under the Act in accordance with the provisions of the Act in respect of a particular injury', and further that '[t]he content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24… [which] do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act [since] [t]he liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act'. Thereafter Cooper J referred (in Oudyn) to the operation of s 62 of the SRC Act, and concluded that '[w]here APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant… [for the reason that the section] operates in respect of the claim then in existence for the payment of compensation under that section [and it]. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.' Those observations of Cooper J made in Oudyn do not bear precisely upon the issue arising in the present proceedings, but on close analysis bear implicitly a measure of support for Telstra's contentions as to the operation relevantly of the SRC Act.
39 The further decision of this Court in Rosillo, which resulted in the setting aside of the decision there below of the AAT, which had upheld a Telstra decision affirming a determination under s 14 of the SRC Act '… ceasing liability under the Act "on and from" the date of determination', was described by the primary judge below as having dealt with 'a similar situation' as that addressed in Oudyn.
40 The primary judge observed that the circumstances involved in Lees were not directly parallel to those involved in Power and Hill, nor to those involved in the present litigation, but pointed to what he saw as significant that the Full Court in Lees placed 'materially greater emphasis on the structure embodied in the [SRC] Act creating the three-tiered process of decision-making and review' than what his Honour thought to be evident in the first instance judgments in Power and Hill. It was in that context that the primary judge made the following observations at [41] of his reasons for decision:
'The three-tiered structure involves determinations being made of the type… [the subject of ss 14,16,19, 24 and 27 of the SRC Act] continue to have legal effect until and unless they are reconsidered under s 62 and varied or revoked in the exercise of the powers conferred by s 62(5). It may be thought that a determination under s 14 does not have any particular significance because its operation, in practical terms, is conditional upon another determination being made. Its legal effect is, in a sense, inchoate. However, the Act confers on a decision under that section the status of determination (having regard to the definition in s 60) and, as such, it is no less amenable to reconsideration than a determination made under another section with, potentially, an operative practical effect involving payment to a claimant.'
So much would once more appear to be uncontroversial, but the issue remains as to why the necessity for a formal process of reconsideration of the basis for an earlier decision when that basis is subsequently shown to be vitiated.
41 The primary judge next referred to the fourth and fifth findings said by him to be required by a s 14 determination, the fourth being 'whether the employee suffered an injury', and the fifth 'whether the injury resulted in death, incapacity for work or impairment', and said that a finding whether an employee suffered an injury would involve a consideration of whether the injury (or relevantly a disease) arose out of or in the course of employment, or in the case of a disease, was contributed to in a material degree by that employment. The primary judge further said that 'a necessary step in making a determination is making findings about those matters,' and thus if the determination is to be in the employee's favour, then it would 'include a finding that the claimant has suffered from an injury or disease with the requisite connection to the employment'. As a consequence, so his Honour's reasoning continued, '[f]airly clearly, the power to make a determination under s 14 includes the power to make a finding about'the latter subject, as well as about the preceding four matters identified by his Honour. To the extent that the injury must satisfy the s 4 definition, which contains three definitive alternatives, so much is beyond dispute.
42 The primary judge thereafter postulated in [43] of his reasons that '[t]he Full Court [in Lees] indicated at [39] of its judgment… 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 of the Act and who made the reviewable decision'. I have of course already extracted above the whole of that paragraph of the reasons in Lees. The primary judge considered further that 'it is not a large step to say, and it would be consistent with the approach taken by the Full Court [in Lees],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.' I am unable to perceive why that should be so, either by reason of the text, and the context to s 14, and in any event by reason of the provision made by s 62 of the SRC Act as to reconsideration of determination. I would respectfully disagree moreover with the ensuing observation of the primary judge (in [43] of his reasons) that '… 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, [whether] the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination under s 14', and further that '… this is the way the Act, (together with the AAT Act), was intended to operate having regard to the Full Court's construction [in Lees] of various provisions of the Act'.
43 The primary judge did not regard any such scheme of operation of the SRC Act to be 'unworkable', pointing out in [44] of his reasons that '[i]f 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 [Telstra]) can act of its own motion and reconsider the determination under s 62'. By that means, the primary judge asserted that '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'. The primary judge drew attention in that context to Telstra having raised in its submissions below 'the spectre of the vocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or a number of determinations made under other sections',but observed that the raising of that question had not been the subject of any detailed submissions, and accordingly the primary judge characterised his ensuing views below as provisional.
44 The primary judge addressed finally the operation of s 114(1) of the SRC Act, whereby Comcare or a licensed Commonwealth authority or corporation, such as of course Telstra, may recover an amount of compensation that has been paid to a person under the SRC Act if the amount should not have been paid, whether '… in consequence of a false or misleading statement or representation or in consequence of a failure or omission to comply with this Act', or even if it be a 'payment made on a mistaken view of the facts'. In any event, the primary judge pointed out that '…in this matter, the revocation of earlier determinations is not a course [Telstra] has taken or has indicated it proposes to take'.
45 In the result, the primary judge concluded that '[i]t was not open to the [AAT] to review findings on the question of whether [Mr Hannaford] had suffered [Ross River Fever], and thereby make findings contrary to those underpinning the earlier determinations under s 14'. The primary judge concluded his reasons with the observation that '[p]otentially [Mr Hannaford] 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.' In the result, the primary judge disallowed Telstra's appeal from the AAT and set aside its decision below, and remitted 'the matter' to the AAT for consideration according to law. Telstra was ordered to pay Mr Hannaford's costs of the application, made of course by way of statutory appeal from the AAT to the Federal Court at first instance. Accordingly as a consequence of the primary judge's decision, the status quo antecedently to Telstra's receipt of updated evidence in contradiction of the earlier diagnosis of Ross River fever remained in operation in relation to Telstra's preceding outlays made to or for the benefit of Mr Hannaford, and would continue to do so in the absence of any effective s 62 revocation or variation (see in particular subsection (5) thereof).