. CATCH Ctus Compensetion - Cemmorwerlth employees - anneol from decisicn of Comeensation 'wreiounc:l powcr Of Grikbuncl in resoect of fr1lur- to obtain detrormination by Commissioner fer Umployces' Compens>t1on ~ power of Iribunsl to deal witn envlic-tion for redemeLion not previously considered bey Comnissicner - power of Tribunal te direet thot any further claim be heard by Iribur-l and not Commjyscicner - Comnenserion (Comrenworltn Gevernrort bLmcoloyses) Act LI7L MENT ROTDCCLTS ve AUSUPALIAN POoT*L CO urooICy (VG No. 152 of 1780) Corom: KDEELY J. Place: Melbourne Bete: 16 April 1981 IN TUL FLOLR&L COUFT OF \USTPALIY VICTORIA BPISTRICT REGISTRY VG No. 152 of 1980 ww reve YS GENERAL DIVISTON BETALEN: JENI ROIDCULIS Apoellart AND: AUSTRALIAN POSTAL COMMISSION Respondert JUDGE AAKING ORDER: KEELY J. WHERE MADE: Melbourne DATE OF ORDER: 16 April 1981 THE COURT CRDEPS THAT: 1. The appeel pe allowed. 2. The decision of the Conmonweelth Emvoloyecs' Compens-tion Tribunal of J1 November 1989 be set aside. 3. There be liberty to cither party to epply. a re er oT _ she. Pee ow wee =e > ee eee ee ----- nee eee eee -- EE parma ~ = IN THE FLDERAL COUPT OF AUSTRALIA VICTORIA DISPRICT PEFGISTPY ) ) ; ) VG No. 152 of 1986 ) ) GENERAL DIVISIO} BUOIWEEN: MLNTI ROTDOULIS Aceellant AND: AUSTP*LTAN POSTAL COMTSSTON Respondent REASONS FCP JUOGMENT 16 April 1961 RENLY i, This 1S an appeal by heni Roidovlis (the appellcnt) Fron a decision of the Commonwealth Employees Comnensition Tribunal (the tribunal) given on 11 November 1989. The appeal is hroucht under s.95 of the Comnensaticn (Commonvcilto Government Employees) Act 1971 (the Act) which allows an epperl on 2» question of law only. The tribunel gave written recsone for ites decision "to make no determination varying or revokina those determinations" - referring to "determinations" of tne tribune) mace on 24 July 1979 end 24 hugust 1979 respectively on the application of tne eppellent. In the procecdings before tue tribunal tre ainitictina Gocunert wee signed on behalf of the appellant by her solicitor and, omitting formal parts, vas in the following terms: + eee a ne - : - -- ee eee - =e - tm "BPPLICAGICI FOF WLFEPENCE TO COUPE es SATT SE PETIOVAL TAKE NOTICR that the Claimont beirg Aissatisfird ana aggrieved et tne faliure ct the [Tesrendent ta pay compensotion in respect of An injury susteincd in tne course of ner empjoyncnt on 26tn Junc, 1977: IIEREBY APPLIES for a Determination by the Compocnsation "ribunal on tne following grounds: 1. The Cleimant suffered an injury in the course of her employment on 26th Juno, 1977. 2. Medical cortificates nave been suoplied to Austrelia Post and to,tne Comalesioner cf Employecs' Compensation sunmortina the Applicant's total ¢rd continuing incapacity. 3. Letters of claim heve to date failed to produce eny deterninetion ny the Commissiorcr for Employecs' Compengeticn. AND IT Js libeheay REQUESTLD thet the Tribune] make tne tollowing Determinaticn: l. That the Clairont be paic Compensetion at tre rate of $8N.NG per week from 2?5tn June, 1977 to date and continuing. 2. That the Claiment be granted the legal cests incurred. 3. Such other orders a¢ the Tribunal considers fit anc proper in the circumstances. DATED this l0th dcy of January 1979." It was common ground that the statement, appearing twice in tne application, that the date of the injury was 26 June 1977, was not correct and that the injury occurred on 31 March 1976, At the comrencement of the nesring of tnis arperl Mr Knott of counsel on behelf of thre Pustrelian Postal Commi¢csion (the respondent) drew tne Court's attention to "a mrtter of jurisdiction" - e& qovestion of whether the tribunal nec nd es) neem kn ee em ne ee ne en tee wm ew aoe Jurisdiction to make tne drcisien the subject of this eopenl. tu [nott stated he wos not formally submitting that the tribunal hau no jurisdiction to meke the decision but that ne had "raised it aS a problem". Presuasbly tne decision' not to put a fermal subticsion wos related te 2 statement by the tribune], in ite decision of 24 July 1979, that it hed asked "the parties wnethor they considerec that the tribunal hed jurisJiction to reconsider the matter aim the absence of a determination relating to continuing liability (and that) betn parties rareed that the tribunal had jurisdiction to consider the matter ...". In refercing to "the absence of a determination relating ic continuing liability" the parties were reforrina to the ahsencer of 2a determination made by the Commissioner for fnployees' Compensation (the commissioner) es te the liability of the respondcnt to continue to make payments of an amount per week. Determinetions had been made previously by the commissioner in respect of periods of inconecity until 26 June 1977 resulting from the injury to the @onellent and also in respect of ner claims for medical exnenses. [owever, a8 appears from the application for reference, the tribunal was not arked to reconsider any determination by tne compisslon:r. The applicetion for a reference to the tribunal was directed to "tne failure of the Respondent to poy compenseticn" and its "grounds" expressly complained of tne fact that the appellant's letters of clcim had "to date farled to produce any determination by the Commissioner", It was this failure to cbtein = determination by Henerewnepann rae ner ener: 5 me eee + = = wee - - oe . os oe oe aa wear IN ane mt te eter Ue Moe mP saad te hana eel! Halse Fa en ee ee ee eS ee ee Te tA Oe 'es Nee nte be - ee fee the commissioner which wae a@venced at a "ground" for eonlyiny for "a Determination by the Compensation Tribunal". Tne tribunal's jurisdiction to deal with tne matter dependcd upon s.43(1)(a) of the Act whicn rezds as follows: "(1.) Subject to tnis Part, where a determination LS made under this Act, a party to the detcrminetion mey eitner - , (a) request the Commissionor in accor@ance with Division 3 to reier ell or ony of tne metters Or auecstions to whicn the determination relates to a Compensation Tribunal for reconsideration; or It will be noted that, before a matter can be referred ta the tribunal for reconsideration, it is necessary thet "a determinction (be) mede under this Act" whicn "reletes" to the matter. Further, only "a party to (@) determination" ius given the right to request the Commissioner to refer a matter to oa tribunal for reconsideration (s.63(1)). "Determination" 1s not defined by tne Act. However, various sections of the ct deal with the role of the commissioner in relation to claims fer comocns2ation. Section 54(1) provides that: "(j].) Comoensetion in relation to an emrloyee is not peyoble under this [fet te 2 orerson unless a Claim in writing fer tie comuensetion wts sorved, ec prescribed, on tne Conmistioner hy or on borelf wees ee nee es cn we ee ~~ oe ee eee Oe -- : -- -- - —e- - hem ie ek te ener ree + _~ 2 A ere ee re ot late eo ee ci EIT n of the person within tne prescribed perio0a." Section 58(1) gives the Commissioner power to require vericus medical exeminations. Section 20 deals witn thet ftunctiop and powers of the commissioner. Section 2N(1) provides that: "(1.) Subject to this Act, the function of the Commissioner under this Act is to determine al] Matters end aucsticns arising undor tnigs Act and the Commissioner 1S empowornd to do 311 things necessary for tne carrying out of thet function." Section 20(2) prescribes the menner in which the commissioner shall ect in "detcrmining any matter or avestion" under the fct. Section 20(3) of the Act requires that a "determination ny the Commissioner shotl be an writind"™. Secrion 29(4)!2} orpo.urirs the commissioner of hiS own motion to reconsidec P) determination. Tne introductory words of that sub-section ere "where a determination has been made under tnis Act". They my be compered with tne introductory words of s.63(1) which confers a right to seek a reference of @ matter to a triburel for reconsiacration "... where a determinetion is made under this Act". Section 20(4)(b) imposes a duty upon the commissioner to reconsider a determination in certain circumstences. Both s.&4(1) end s.76 support the view that the Act requires tnat «a request for a reference to tne tribunal muct Le made by a party to a determination tede by the commissioner an? must be a requcst for reference of a metter or cucstion to which Ne -~ 2 -o-e -- - -- - - +e - + de 0 eben ee er em nee eee me 8 eet SS ei ee ae ane ee en G. a determination, made by the commisticner, relates. in s.84(1)(a), (b) anc (c) the powers of the tribunrl are set out with detulled references to "tne deterpination race cy the Commissioner". Section 76(1) sets out detailed requirements prescribea py the @ct in respect of a request by @ perty to ¢ determination for the reference of @ matter to the tribunal for reconSlderation, Section 76(2) requires thet a "copy of a request ... shall ... be served ...* on every other party to - determination" and s.76(3)} contemplates tnet a persen meking - request for a reference under s.76 mey have recvested the commissioner to supply to him "tne reasons' for the determination". Having regard to the legislative schome of the 7-1, in ry opirion the "determinetion" referred to in s.63(1) is a4 determination made by the commissioner. It follows that in my Opinion there wes no "matter" properly before the tribunal] whic coula be "reconsidered" by the tribunal and tne decision aactinet which the appeal is brought was made without jurisdiction. Bn appeal nonetneless lies to this Court from the decision of the tribunal purporting to exercise powers under the Act (see Collector of Cuctems (N.S.W.) ve. Brien Lewlor Automotive Pty Ite (1979) 24 A.L.R. 307). It wes argucd by Wr Knott thet, even if a reference was properly before the tribunel, its nowers did not extend to the making of the purscorted orcer, on 24 Auqust 19380, "thet the Tere ae amen mes ee eee ee ee ee we - we eee eee Ree ee ee een - te aE Ly een ee bee ee "3 ne en Cn es 7. compensetien payable for one year fron today's Jdrte purcusnt te s.4G be redeemed in the sum of $3,999.08". The tribunel in its decision of 24 August 1930 soid: "In my view the intention of s. 84, read toaether with sub-s. 83(1), 1s to give this I'ribuneal discretion, where such an anrilicetion for reucnption 28 made, to der] witn that agnlicetion or to remit that matter for redeterminetion ny the Commissioncr in accordance witn the directions of the Trabunal." . Section 23(1) of the Act provides that: "(1.) Tor the ourocse of reconsidering a matter or question, a Compensetion Tripunal nzy exercise Al] tne powers that are conferred on the Commissioner by this Act an relation to tne gecterminetion of Matters and Gguestions." It will be noted that the power conferred upon the tribunal to "exercise all the powers" of the comrmissioncr 1s erpressly conferred for "the purpose of reconsidcring a matter ...", 1.c. a matter which a party to a determination has rocuested the commissioner to refer to the tribunel for reconsideration. Section 84 reauires the tribunal to "give a decision in writing - (a) affirming tne determination made by the Ccmmissioner in respect of that matter or gqucstion; (b) varying thet determination; or (c) setting eside that determination end ...". I am unoble to eccept the tribunel's view that those ARORA re Meee pene ewe ee ee .- - nee me 8. sections are intended to give the tribunal a diserction to de-l witn an aoplicetion for redemption which hes never been made to the commissioner Or considcred by nim. T have formed thet Opinion by reason of the wording of tne two sections but TJ considor that it gains support from the torms of s.49 which deals with arplicctions for redemption. Tne right conterrcd upon an employee by s.49(1) te request "that the liability of the Commonwealth tc make further payments to the cmployee under (s.46) be redcemed by the paytent to the employec of a lump sum" 1s expressly a right to £0 request "tne Commissioner" in writing. Section 49(3) imvoses upon "tne Comnissioner" 2 duty to moke oa determination - unless the request by the employee 1S withdrawn. Section 49(4) acals with the duty of the commissioner in determining the amount of the lump sum. Section 49(5) expressly imposes s duty uron tho commissioner that he "shell not make a determination thet th? liability of the Commonweelth ... is to be redeemed unless he 1s satisfied" as to three specific metters. For these reasons I have come to the conclusion thet the Act does not confer power uron the tribunal to deal witn en application fer redemption which has never been consi¢ered hy the commissloner under 3.49 of the Act. Nor does the Act, in W opinion, confer ony power upon the tribunal to """@irect"™ thet "any further claim for compensation on the grounis of continuing incapacity resulting from hor injury" cn21] "be taken ce port of RET ee pr eee ee eee ee eee = ee . a 7 -- we wee eee on tN lt - — Slee eee me ete mS re ae re! ad Re ne ieee i! en el Oe NE these proccedings to this Tribunal and not as ¢ further application to the Commissioner or his deleartes". tir Knott sougnt cnd ootained instructiors taet "there will be no diificulty raised" by the resvondent as to the wetter being considered oy the commissioner if the Court hele thet toz tripunal ned no power to make the decision the subiect of this appeal. Altnough the merits of the, appeal were argued I Go not consider that I snould express any view upon them as TI heve deciued tnat the tribunal had no jurisdiction. In my vicw the commissioner's consideration of tne appellant's claim shoulé be uninhibited py any of the findings of fact or exrressions of opinion contained in any of the three decisions of the tribunal. In this connection Mr Knott, after considering the matter overnight, wes unable to find any evidence before tne trabunal to support its finding "that what nas been developing 3S «tue natural progression of her disease ...". It follows from the foregoina that the decision of the tribunel given on 11 November 1980 was made without jurisdiction, tne appeel must be allowed and the decision of tine tribunal set aside. Each party shajl have liberty to apply. AS to costs, Mr Knott Supmitted tnat the Court should leave each side to bear 1ts own costs. Wr C. Wheeler of courcel on behalf of the appellant sougnt an order thet the responfent pay the costs of the oppellant ain resnect of both the NID art rme men aemneye pe ee ee me ee - - eo owe eee -- er sh - meee Sn Se etcetera kT a Hi tether em re nth nate ee cn ee Ne ee cam LN ER Rr he NER eh tS AP Oy ae « wa neta ate areal ns 10. procecadings in this Court 3nd tne heering before tne tribunal which led to 3ts decision of 11 November 19°Pf, As to tre latter, he was unable to advance any supmigsion thet tne Court had power to make such an order, having reaard to the terms of s.85(1) of tne Act. As to the former, althougn the eopeal hos been allowed, the Court has rejected the arguments edvenced by Mx wWhecler in support of the tribunol's jurisdiction and nes held that there was no metter properly before the tribunal which could be "reconsidcred" by the tribunel. It follows that the proceedirgs should not heve~ been brought and that the appellant's legal advisers wore im error ur bringing them - a matter relevant to what costs should be charged. I snould add that Mr wWneeler did not apvear for tne appellant in either the first or the second hesrinas before the tribunel. No sunstential argument hes been advenced - or in ty view could have been advanced - as to why the Court should make an order against the respendent for the pvaynent of the appellant's costs. The most that can be said is that the responuent agreed (at the hearing leeding to the Gecision on 24 July 1979) that the tribunel had jurisdiction despite "the absence of a determination relating to continuing liebility". In my opinion no order should be made as to the costs of tnis appecl. For the seme rcasons there should be no sucn order as to the hearing before the tribunal leading to the Zecision on 11 Noveroer 19°90 even 1f the Court b-s power to moke sucn an ere nengper ree mere ee eee - - --e -- we eee Fee He - - ay + ee eee et re Mme CL ree ee ome ee tee Nee SY ene A Hemet ~~ eee mee ne order. ee eee ee ee ee ee di. Associate Dated: /6/4f . ere rE en ree rere Sees OTS Sr rem em re ee -- oe we ee eee te ee ee