Telstra Corporation Ltd v Keen

REASONS FOR JUDGMENT 1 The only issue, apart from costs, in this matter concerns the form of an order made by the Administrative Appeals Tribunal ("AAT") on an application by the present respondent for compensation by reason of incapacity flowing from an injury sustained by her in 1991. The parties are in agreement as to the further course of the proceedings. Their differences essentially concern whether the form of order made by the AAT achieves the result both parties intend. 2 The respondent was employed by Telstra or its predecessors from 1970 until 29 December 1997. In August 1991, she sustained a workplace injury to her neck and shoulders. By a determination made on 2 October 1991, the present applicant ("Telstra") accepted liability to make compensation payments in respect of the respondent's incapacity flowing from the injury. 3 On 6 March 2001, Telstra's delegate determined that the respondent was not entitled to weekly incapacity payments from the date of termination of her employment. On 10 May 2001, a Reconsiderations Officer affirmed the primary determination. The respondent applied to the AAT for review of the latter's decision. 4 The AAT, after hearing evidence and submissions, handed down its decision on 23 June 2003. In its reasons, the AAT made the following observation: "The reviewable decision contemplated the applicability of s 21 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)], whereby the employee receives a lump sum benefit under a superannuation scheme on retiring from employment, voluntarily or otherwise. However, the parties elected not to make submissions on the applicability of this section, requesting the [AAT] to accept their agreement that this question be left open, as a question of fact, for consideration subsequent to the determination of the applicant's entitlement to payment of compensation for incapacity. Accepting this agreement, the [AAT] notes that the amount of compensation payable under s 21 of the Act is to be worked out using the formula [specified in that section]." 5 Section 19(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act") provides that the section applies to an employee who is incapacitated for work as a result of an injury, other than (inter alia) an employee to whom s 21 applies. Section 19 provides for the quantification of weekly incapacity payments in accordance with a formula set out in the section. 6 Section 21(1) of the SRC Act applies to an employee who, being incapacitated for work as a result of injury, retires from his or her employment and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme. Section 21(2) provides that Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with the section for each week after the date of retirement during which the employee is incapacitated. The amount of compensation is to be calculated by the formula specified in s 21(3). That formula is different to the one specified in s 19 of the SRC Act. 7 The AAT's decision was as follows: "The [AAT] sets aside the decision under review and remits the matter to the respondent with the following directions: i) the applicant is entitled to payment of compensation for incapacity pursuant to s 19 of the [SRC Act]from 30 December 1997; and ii) the amount that the applicant is able to earn in suitable employment is nil; iii) the respondent is to assess any compensation owing in respect of the applicant's incapacity payments." 8 It will be seen that this decision makes no reference to s 21 of the SRC Act and purports to direct Telstra to act on the basis that the respondent is entitled to payment of compensation for incapacity pursuant to s 19 of the SRC Act. The parties' agreement, as recorded in the AAT's reasons, contemplated that the applicability of s 21 (and the consequential inapplicability of s 19) to the respondent would be determined as a question of fact by the decision-maker to whom the matter was remitted. 9 By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), a party to a proceeding before the AAT may appeal to this Court, on a question of law, from any decision of the AAT in that proceeding. Telstra duly filed a notice of appeal in this Court from the AAT's decision which was said to raise several questions of law. Telstra's notice of appeal did not challenge the form of the AAT's decision. 10 In its written submissions, filed in this Court on 2 December 2003, Telstra abandoned all grounds in the notice of appeal. It submitted, however, that the form of the AAT's decision departed from the parties' agreement recorded by the AAT in its reasons. Telstra did not, however, seek to amend the notice of appeal. Nor did its submissions expressly identify the error of law said to have been committed by the AAT, although they perhaps implied that a disconformity between the AAT's reasons and its decision constituted an error of law. 11 The respondent filed written submissions in response, contending that the AAT's reasons and decision disclosed no error of law. The respondent accepted that the AAT's reasons, in the passage quoted in [4] above, correctly recorded the agreement between the parties. However, she submitted that the AAT's decision, understood in the light of its reasons, would necessarily direct the decision-maker on the remittal to consider the applicability of s 21 of the SRC Act to her circumstances. 12 The hearing of the present appeal was listed for Monday, 8 December 2003. On Thursday, 4 December 2003, Telstra notified the AAT that it proposed to apply, pursuant to s 43AA of the AAT Act, to amend the AAT's determination so as to accord with the parties' agreement. Section 43AA of the AAT Act relevantly provides as follows: "(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal. (2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be. (3) Examples of obvious errors in the text of a decision or statement of reasons are where: (a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or (b) there is an inconsistency between the decision and the statement of reasons." 13 It appears that Telstra decided to apply to the AAT to vary the decision because of observations made by Gray J in Hazim v Secretary, Department of Family and Community Services (2002) 116 FCR 533, at 541-542. His Honour there left open the question of whether a variation between the findings of the AAT and its decision amounts to an error of law. However, his Honour indicated that, even if it does, the Court might well decline, in its discretion, to grant any relief if no attempt had been made to invoke what he described as the "slip rule" provision (that is, s 43AA of the AAT Act). 14 After a hearing late on Friday, 5 December 2003, the AAT made an order pursuant to s 43AA of the AAT Act amending its decision. It did so "to rectify the error" constituted by the original decision not being consistent with its reasons for decision. The AAT altered the decision, to read as follows: "Without prejudice to the question whether s 21 of the Safety, Rehabilitation and Compensation Act applies, the [AAT] sets aside the decision under review and remits the matter to the respondent with the following directions: (i) the applicant is entitled to payment of the compensation for incapacity pursuant to s 19 of the [SRC Act] from 30 December 1997; and (ii) the amount that the applicant is able to earn in suitable employment is nil; (iii) the respondent is to assess any compensation owing in respect of the applicant's incapacity payments." (Emphasis added) The bolded words were added by the AAT to its original decision. 15 In this Court, Mr Robertson SC, who appeared with Mr Polin for Telstra, accepted that the AAT had power under s 43AA of the AAT Act to amend its decision. However, he submitted that the amended decision still did not accord with the AAT's original reasons. This was so, according to Mr Robertson, because the amended decision did not make it clear that the decision-maker had to determine whether s 21 or s 19 of the SRC Act was the provision applicable to the respondent's circumstances. Mr Robertson said that subpar (i) of the amended decision should not have referred to the respondent's entitlement under s 19 of the SRC Act, since the existence of any such entitlement depended on whether s 21 applied to the respondent. (It should be noted that Mr Robertson did not seek to file an amended notice of appeal challenging the amended decision of the AAT, although he indicated that Telstra would be prepared to do so if necessary.) 16 Mr Robertson submitted that the appropriate course was to allow the appeal and to vary the original decision made by the AAT to add after the words "the following directions": "[W]ithout prejudice to the question of whether section 19 of the [SRC Act]applies directly or by reason of subsection 21(3)…". 17 Telstra's submission cannot succeed unless the AAT committed an error of law in making the amended decision in the form it did. I am prepared to accept, as Gray J did in Hazim v Secretary, that it is arguable that a disconformity between the AAT's reasons and its decision may constitute an error of law, at least in certain circumstances. The difficulty facing Telstra in this case is that I do not think that there is a disconformity in a relevant sense between the AAT's reasons and its decision as amended on 5 December 2003. 18 I agree with Mr Robertson that the amended decision, with due respect to the AAT, is not felicitously expressed. In particular, it would have been better if the specific reference to s 19 of the SRC Act in par (i) of the decision had been omitted, for the reasons given by Mr Robertson. Even so, it seems to me that the intent of the order is tolerably clear. The words "Without prejudice to the question of whether s 21 of the [SRC Act] applies" in my opinion are clearly intended to leave to the decision-maker the resolution of precisely that question. If the answer is in the affirmative, it must mean that the respondent's compensation is to be quantified in accordance with the formula in s 21 of the SRC Act, rather than that in s 19. Even without referring to the AAT's reasons in order to clarify any ambiguity in the decision (cf Repatriation Commission v Nation (1995) 57 FCR 25, at 33-34, per Beaumont J (with whom Black CJ and Jenkinson J agreed)), the AAT's decision clearly enough requires the decision-maker to act in the manner contemplated by the parties in their agreement recorded by the AAT. 19 I should add in fairness to the AAT that the form of amended order adopted by it on 5 December 2003 follows quite closely that proposed at the time by Telstra. In particular, the form of words proposed by Telstra to the AAT on that date incorporated par (i) of the original decision. Not surprisingly, that paragraph found its way verbatim into the AAT's amended decision. Yet it was precisely the reference to s 19 of the SRC Act in par (i) of the amended decision that, according to Mr Robertson, gave rise to the alleged disconformity between the decision and the AAT's reasons. 20 It follows that, in my opinion, the appeal should be dismissed. 21 The only additional question concerns costs. Mr Robertson did not dispute that Telstra should pay the respondent's costs up to and including 2 December 2003 (when Telstra drew attention to the difficulties with the original decision made by the AAT). Thereafter, so he contended, each party should be left to bear its or her own costs. 22 As Telstra acknowledged by its actions, a course open to it if it wished to correct any disconformity between the AAT's reasons and its decision was to apply to the AAT to vary the decision. That is the course Telstra took. I have rejected Telstra's contention that the amended decision of the AAT involved an error of law. In these circumstances, there is no reason to depart from the usual order as to costs where an applicant fails. 23 The appeal must be dismissed. Telstra must pay the respondent's costs of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.