. OM naar Comme nsation -— Comronuce Lin « rleyee es = seresl fren Cerreian ia Comvencction Trabenel - fever ef rethurcl te recenei ter 2 Lies decision by Tripunel in freeones af - retereret of the eerep qn tne 'ribunel by ter Cerisysesiene cr ter umerleyocst tease: whether ony eviconce toet rrthertis catrayace gr seas tert hs py work = wnetaer oggravetien or cceelermtior "Pues te pee ep ter c, tac cmrloyment"™ - Comreeme-let antes cs! Corcrncrtscr Tor $937 - en' a ee ee ~ Compernsari)en (Common crite Cevirteont fete e} 7 $ 78,) COLON LATTAR CP OAUSTPALI* ve VEYT pI py IN Tate TT (Wo. Cl of 1981) Cores: KELLY J. ae] ow yu ie) " Nelecourne o ry cr B 2? Foril eal Te With Teter th 7" JUPT Pb 7 SEAT. QULEM STs DIST! ICT Vcr ctry Jo. Glo of 1951 ) ) ) ) ) GLULI7L PIVIS1S BUDGE: CMMI TAS LTH OR "Wo rP* Ls} . Porellant AND: VLVEN PATATOY JOU NAR TES Respore met JUDGE 24KING CroLe: KLELY oT. DATE Ub CPNEP: 22 A*rrid eF) WHERE .2DL: Melbourne THE CCURT OLDLR> THat: l. The eppellart be grezntect Lleoave te awend the notice cf aprerl by deleting poragrrph 2(c) wd inszerting the fellewins grounG es paregrapn ?(c) of tne cmended natier Of correct: "2(c) tnat tne Conrensation Yribunel vee watnout juriscgiction in nearina the refererce an tenet: (1) tne Comeansation 'oipunzd wee functus OiLlci1c iA that the Ceompensstion oribynel Gove a Gecigion dr writing on tyne cuestion in sgu> on J°tn ticrc1 19753 ano, (21) tnr Cors.-s7tion vwrinenal hed po nevor to con, leer une Tefgeone spits of -ha avidanee Ce nae arm me Re ee cee ee - a z Aa ?. upless cna until fa t tresh corsidered by tic Compenss taon." . 2. 'Ine zpncal be -llowe?, 3. The decision +&@ tire Ceomteows clip Tribunal of 15 Decenker 1986 F: tei arile 4. There be liberty .c citnee TON ee me evd nec hee 3eon Ceomnirecionsr for tuntoyoce' Lerloyecs' rorty toe arply. a 8 Ceomrnensttlon In TRE FEELFAL CCORT OF AULIRALI™ QUEENSLANE DISTRICT PECIITFY Ne. Gl of 14°] wee GENERAL OTVT st GM APPE®T. Fro' PIPLOYEE Ss! oO - THU. AG BETWEDN: CULION BART TF AMSTPALT AND: KEVIN PAaTRIC® TOU WNT Pesponic it FEASOUS FOOT JUPGUE SS 22 April 1981 KBELY J. This 1S an appeal by the Commonwealth of *ustralie (the appellant) from ""tnose parts of tne ¢Ceacision" of the Commonwealtn Employces' Comnpensstion 'tribunal (the tribunel) on 15 December 19280 "... whicn are set out hereunder: (a) that the omployment of the Pespondrent as a P.T. Instructor and as a Roller fFttendent did aggravete his underlying arthritis; (b) that the omnloyprnt af the Fesoendent as 2@ P.T. Inetructor ane as ae Eoliler Attendant did accelerate nis unterlying artnritis; (c) that the employment of the Responeent as @ P.T. Instructor cnd 5 3 Beller Fttendonrt invelvead a ececi7)] risk of fqarevation or accclerebtion of ortrritis ain oe cersan sufferirg from thai Jicease; PRE Se cremate ae TR me Re 8 tte ne a --- wwe eee ee owe - ey 2. (d) that tao employywent of tae Pesrorvcent as - P.T. Ipetructer end as 2 Toller Attencant hes . a tendency to exnet. tne Feeronicnt to fas risk of aqarav>ting or accelerating nic underlying erthritis; ' (e) that the Fesrpondent's arthritis woe due ke tbc neture of hig erployment vith th: RAPE: (L) tnat the Reeponcont wos partially incepaecitated stile he wee working 2s Boller 7ttendent wilti tne F.a.7.PT. by arthritis which wes Guc to the ncokure of hic employment; . (9g) that the eepordent nee heon totrlly ineepecitated Since ne ceas- emslcyment with the Comronwesltn Banx Cue "to arthritis whicn 1S due to the returce cl his emoloyrent wniie working with the F.A.ALP.s" we Ame me Paragraphc (n) and (1) reletcd to the orders sought by 'ke appellant. The grounds of the apsorl cof out un the netice cf ; ry") appeal in the form in which it wes originally filed, go far as yon Par rons presently eterial, were: "(e) (b) thet the Corncnsoticn Tribunel erred ir lew in cach case in making the findings set ovt an paragraphs l(s), (b), (c), (e), (e), (£) and (a) of thic Potice of Avpeal in that in erch case tnot finding wes not onen to the Tribunel on #® proenmer consideration of the evigence; tnet the Comrnenestion Tricunesl erred in lew in finding thrt the Ressortent's arthritic 2s 'Puc to tne nature of His cmploynert! on the proper cenctruction ci seetiers 29 anv 104 of tne Conmpensction (CoTtronwe tz] tu Government Ernloy7es) Act 197] and Section 156 of the rereceled Cormmenvecitn Emnloyecs Compensztion Act 1939; WE ae eee nee apes sen em oe eee ee - one = ee ee - Be A ee | aad! wateuee © ce er A ne ke ee me EN te tens waren Romer meee ee eee --- - ---- - -- -- see ~- - I shell refer Jeter to the agpelicetien fer ierve te emend the notice of apperl., It willl te seon thet the "oerts ci tne Jecisicr™ ect out esrlier as (a), (b), (c), (A), (e), (£) ene (9g) constitute tiv "Finuings" which are the subject of the contenticn in gioun: (a) of the grouncs of appeal that in cfcen case the "fineing wae rot open to the Tribune] on ... the evidence". Mr Hengcer of counsel on bchel£ of the aproeclleant rleces considerable reliance upon groun® (b), namely that, on th. proper construction of the relevent stotutory rrovicicns, t> tripunai cored if law in findirg teat the reesendonk's arthritis was "Que to the nature of his c™ploynent". Mr Herbert of counsel on behalf of itr Howkins (the respondent) soccifically disewned any suggestion tnet Jt hr? ever been pert of the respondent's case thet the inceptior of tne discase of rheumatoid-arthritis «ag duc to the natures of the employment. It was his submission thet tne ""findangc" of tue tribunal set out in paraarapis («), (£) znd (5) akove were rat intended by the tribunal es a finding thet the Gaiscacz of arthritis was "due to the nature of the omrloyment". To oaceect his submission tn-t, when the pascoqes are rend ain the cerie.d of the triounsl's decision, the tritunal wes sgntoniing to finn os a foct tart '¢ Uevkins wes suffering from 1 Arseeces, neanely ee EN een re mm ee ee ee ee oe coe - ae oe ee - - Pree wee a rte ee me hei ee Ville aa eas he Bra, © bert Freon wee eee - --- - - = -- a -- - - ee mae meee rheumatoid-artnritis, tn? aggrryctior cnd acceleration of .% disease was due to the naturs of the crarteymenk in whic ar was enasged by tne Commonwealth. It weet commen grovne that itr Hawkins' entitlencnt to compensstion Scparéed upon tis torn: of tac Commenne lth erplsyces'! Cenmensction Act 1°93 whicn defines A} "diccese" ac aincludirg "tans oggreavition, acertoration or , recurrence of 2 pre-oxlsting dicctase", In my cpinion there wos ample evidence pefere £h° tribunal to enable it te fine thet the existing Jaiureoce oF rheumetoid-arthritis had been -ygorevated end ceccelereted by the work peitormed by him whilst omployed by che appellent. ilr Hanger contended that tne x~gerevation or acceleracion of che responcent's pre-existing @iscese couie ret, as a mitter of liv, be neld to be "due te the nature of tre anploynonc". Re]yiny upon Conntir v. Fre criksen (197%) 25 AVLLLR. 155 end ir particular upon the reasons for judenent of 'lsason J. (rt p.172), he submitted tnat it was reocessary for tne respondent ta establish that tne cmploynent "involved some special risk of producing isn a person" with rheumatoid-artnritis cucn ocr aggravation. je also subtitted that such a finding ceuld net bo made unless there wes ovidence thet tne employment "nat ¢ tendency to aggravate or accelerate sucn 2" pre-existing diceasr and that, altnougn it was not necesscry fer "tne tendency ... to be exclusive to cmployment of the kind un cucstion", Le was neccssary for the tondency to be one which "distimauistice cic employment {rem most, 1f not all, otacr emrloynerts". aN es ee aan ea ee ee ee Oe eer In my opinion there was ovidence Erfore tho tribrne] tn-- tne ompleyrent pAcd such a tentency en? also evidrnes os to the unusual nature of the cmploynent From which the tribunal coul4 conclude that the tendency "distinguishes tho enployrent froa most, 1f not all, otner croloyr7nte". Further, JI have elready cxoress2d the opinion thet there was ample evidence belore the tribunal to ensble it to find tast the existing disease of rheumatcic-rrthritis brad been cagrevrtes and accelerated by the s.ork poerforted by hir whslct enmeloy7a vy the appellant. In Conneair v. Fre@orikseen (suvra) Gibbs J. (fe he tnen wes) hele (at p.163) tnat such cvidencr was "releven' to the issue" and left cpen thy auectien ef "whethsr such evidence IN would alone have been sufficicnt", noving seid (ct 0.162): "Although the test established by the English legislation was whether the discase wis due te tne nature of the cnployment, rather than whether af was due to the cmoloynrcnt itself, tne outhoritics are not opposed to the view tnet tne fact that the disease was ceused by the employment is in many, 1f not mest, ceses evidence that it was in the ncetere of tne work to cause it. Fer ¢ltrough the eccentricities of animate beheviour woy ccuse persone and wninals to cect contrrry to their natures, the sere is net truce of ermploy=cnt, and when 1t 15 proved thet - diserse «ts ceuced by (cond not merely contracted during) the employnent, and lt appesrs, eltner by nrocf or -s a Metter of common knowlecge, thet the incident, aspect or cnaracteristic of tne employnent tast ceuced tir dise7se 15 one thet woull be exrected to eecur ip employment of thal cless, it seul" secm to tollov that tne dlsease wee ve to tne neture of thre emoloyiont." Se ee oe enemas = ere nee ene ae wee alate - --- - Pare Pree "ss anata ee we Bt me we one Thy es ls JJ. Honeur 2lco referred to verious Sicizc by Poyjoer and detrz.c: in 6. Carlier cases ing sald (7L 9.162}: "But if tuey intended to sugqest thar evidence? thak the discase yrs in fect cruses, edirayoto i accelerated by tac onpleymen s tirelev ont to t guestion wnether thet test has heen esticfied, that un no case wevlc cuca evidence be sufticien roOpO meen La I would reseectfully "iscarec, TE their romeras wero intended to have that teonind they vere no more thon obiter, mcvina regerd to trae facts to wnich I have already referred. I woulu respectfully aroly the tests tguceqeeted by Dixon CJ in Commonwerltn v Pourrn (394 CTP ot -9): 'I do not Enirn tret the ex rcecicn ..."4ve to the neture of tne encloymert in which the employce is enduged" covers -n cmplayerrt woica hes no perticular tendency to give Lise to 1 djcerisr, contribute or cenduce to 1b or eevejerete it and no wncidcnt, cdjunct cr crelity cof wien involves tnose cmoloyed therein in ary pertacuier liabilits to the controattion of tne diecers*> or fro the aggravation or accelerrtion of its covurse.... Tne word "neture™ 1s 2 wide as well c¢ 2a voquc .ord «ne one must be cereful not to narrow ite aprilcaticn Or attempt to reduce it to too mucn precisien. Rut it does secm to refer to a conrexion betvecn tre "Gisease" in tne defined sense and the descrirtior of employment in virtur of its tenetencics, incidents or crerectericticr.' In the erme care, Fullager J (at 40) suggecsted tnat the vorlrer muzt show tnat & cherecterigtic cer dictinctive teaturc of the employnent wee ai tendency to cerusc, aggrevate or eccelerite tne diserso, anid adted that the section oniy enplics to coses where there 31s a special risk of contracting - particular ¢1i¢9re0e or of suricring cn oggrav7tiorn or acccleration of Gi) particular arscesé Re Vid not, however, suaqtest tnat the ris eneuld te hign, or tmat it ws necessary the t he eroloytent chould Crequently or commonly ceus tne disc tse. [he ¢eocigion din Commonwealth v. * putledae is enrcessd te sny sucn notion, since yt cen beraly be suqasstcd thet «@ person serving -s 2# eleric2t employes in the Postmecter-Gernural's Peorrtment runs 2? 'ich cask of contrecting e severe csyehotic icerder, or of sufferine en cagravation cr accelercticr of A existing isor?er of thrt kird, cr tnac there or: a 7. Meny ccses in which service in that cepse ty results in mental disease." Purtacr, Mucphy J. sid (at p.173): : "T agre> aenerally with whot has been cela sy ir Justice Gibbs. In my opinicr, it 1s sutficlent but not peersssry if the aprclicant shows, thot the disersc vas duo te tne enplcynont. Tne contrary view would J-2s te the result that @ diseose whicn 15 not Jue to the employment may he held to be Jue to tre neotvre of the enployment and cempensitle, but ore whien jis due to tne cnploytent nay be Frld to be not auc to the neture of the employrent -nd not compcersrbic. In workers' compensation legislation, tnis vavld he ludicrcus." Having regard te tnose statements py Gives end 'lurray JJ. one ic the prssaqe cuoted fron Dixon C.J. in Comronverlth v. Pournsc (supra), In my opinion there was evidence unon which tne tribunel was ertitled to find, in the words used by Nixon C.J., the "connexio ketween the ''digeese' in the a@efined sense cri the description of employment in virtue of its tendencicst, incidents or charactcristics". For tne purpose ot this eo. al on a cucstion of law 1t 1S not necessary to fiscuss the eviderc- in detail but tt mzy be dosireble to refer to some cf Lt. there ses evidence that tir Hawkinc' work 25 © bBhyciceld training instructor (P.T.J.}) was "pnysicelly very strervous" at a time whorn ne was suffering pein from metatarsclaia. dic sorK anvelved urcluine natlleonel servicumen, traince valuts, Services et em ee ee te ee we ee eee eee - ~ we ee yee ere policemen was "much too peri aet iat on the mus . and eventually I onySiccl attack sr trainece who "went was deccribec by buffeting" of his various anklic. heavy lifting, which he had to ¢@o by himself at times, ""csoecielly rt and otners 8. and incluéed 3. 12 mile run waren ue Foun? «ee IT vould an inte a scalding hot shover one cles . I mod te think akeout civing it eeey dia". Re taught them "every known epert, ort" including boaing end wrestling itn your? £o bn the P.T.7T.". The effect of this work Mr HéewkKins os "receiving 2 battering ane body. He had to nave netical trertaent for Later his dutics including the lifting of Matters including "luyss on his @leows" antl ¢ broken a boller attent=ent includet reaular 109 Jb. bogs even thougn he "tried to get a man to ceive a hand, becnvec st was murder by yourself". He continucd work as 2 boiler attendent until tis discherge in 1964 end that canacity he had to clean sut individual fire tubes witn ai stecl por uncer "rrelly noi" conditions. It was "physically strenuous to lift thrt wr" which hed to be cone G or 7 tines um and down for 20 to 10 er more tubes. During this perioc he continued fo have trovhle with his elbows, tne joints of his fingers and his fect and bis "attendance eat RAAF Hcspitels incre-sed roticcably". He was als helped the reccllect:ion 9 "granted problcn with cecut tne acc ling proccss special snoes by the RAP wnict feet. Acked 1f he had any oorsor a ef tne frockurc cf bis we deen hn dean Pee ote ot dares hen We iE hills ee 9. Lragnt enalc, oar Uerwkins sald "No, bccaus Gt WAS YUL. merece one of my @Clec cpd pains, as for as I was conecrnca " ne required physiotherapy treatment on his fra and soaic thot 3s hands "were alwrys giving (me) troublc. When T trirxt onenins tne valves, they used to hurt". Bis e)bhoves end firsere cep, getting worse at the time wnen he acs doinqd tris work. As to his hends, vir Hawkins grve toc following ovidsnce: "You heve given evidence also of strenuous activity aunvolyed in tnrt? (boiler oaktunisrt job)--- Thet 4s right, yee. Did you over find tae rheumeroid arthritis effecting tnose activitioes?---Ch, yes, cvery morning, opening up thore big - - - Without using hend actions, crn yeu tel) tne tribunal whet tne crocolem wrs wlth oo nire the valves?---.ell, first of ell was co act into position becouse senerally tiey er up on top of a boiler, yeu h-ve qot to act up a2 ledder to get ud tne ter: you tvina ccrors, get cround tnore ond ther you heave got te creck it optn, and you apply ere pressure until finally you oten it un znd - - - How did your rheumetond arthritis inhibit you in coiling that?---well, you cannot aet 7 grip on the pipes, for one thira, You could not clench your harey aroun? 1£?---Cannot clench your hand, you "zve got te aet yeur hand and push 1t on to 1t. Well, tnis is wnat tne tribun2l wants toa khrow?--- You have got to put your hand tnere ant wicn your fingers coround ie. Lore times To would even use - there are wrys and merns by putting to bolts ane you att = rieee Cf wood or metal and you con open it up tnet wry, 3n] TI heve used those moerns. you will @ 'mything when you have to." Just KelLore ily Rowkins' casenerge Crom the F.A.AL FP. or tw ou 10. 1964 ao Dr Tiopkhins, who b2a cPrricd out 4. tensive cects on ule, sat: . ""fthe patient has polverthritis, #f£{octaina particulerly the left hand, second anti Frise metsterso-ohaleongee Joince, and ccuses hair creme disability. 2eth gout and query orcicularly the latte 1s fit clrtss 2." Tnat recommendation, nowever,. was medicel officer end Mr Hawkins was Dr William Douglas, N.P.B. practising rheumatoloqist eince overseas in rheuunatology, hac tirst and hed examined the R.A.ALF. that Mr Hawkins had been under arthritis. Referring to the need arthritis "If nis feet were involved, it could be sitting ccsicion, of work. GOCE I£ tne man did the and) agaravetion destruction. of would you consider deecribees 2S aagravrti would cxist in an Secu RE ree reece memes ee aaa me mecical for 4 to change to a lighter occupation, arranged tnat net teKe thet likely consecuenc As?---Panid tae trruxe rheum tolu erteritis - cr.' ALS recourencctien superviciat ese t- ry ") os] v at cl S F.P.A.C.P., &.R.C.P., a or 1964 with mricr trainine eeen ") Bawkins 1a Jure 1573 fale. Te gove covidene: his care with rheeracoid- Petrent suff{crin e for © na be icsly at sone whet would be progression an' yoint advice, diseasc sucna oa S nq orcheem- to. Me clOmN Fuel wey y ae In cross exrmin-tion his evidence incluéed the following _ ro) . training instructor?---Definitely, because as Iooundeestcnd jit, 8 Lhytier]} trrinanag instructor 13 cenetontly 23ereing creunsi cn nis feet, trking mest of the svoraht on his metatarsal yoints, 15 wlll aS coine other Pnysical treks which would oxcrecively aggravete any inflenmetion in the jeiptc. What about boring? Hicw would tnat affoct on urfLlarmed c«lJbow?---Tft ne had crat, or anfirn anklos, knockirg cr? bangino 1t all the time would makc 1t Tucn seLs*, would you considor en ercunatien cucn as a bojler attendant would have cimiler offoets, where the oceuration. incJuitra cuca duties +6 lifting neavy boqs vn te 199 pountls LF woraght, turnira on Jarce selves, calraning down the ccuiraent, on your {feet cneckineg the couipment, un cnd dowr on tne coulpaert to meke sure the bolJore ere in coo? nick, thoes sorte of ectivitres? Whet would you tnat?---Yes, tne ern principle ce @ patiert of minc were a bal doirg heovy tagKxs, T would sree employer "co ensure -# lighter tase is for hia." statements: "Rheumstolg orthritis could be dctined as an inflammatory condition of thre joints or the body. It occurs in -epproxinatcly 1 percent of the populetion, so it 1s relatively common. It 36 charactorised py progressive iunvolvcment of the peripneral joints, meanina tne hards and feat and knecs znd elbows, ratner then the spine. The ce¢formitics willl gen relly become worse Li tne anflemecd joints are subjected to renetitive trauma and pressure. eee LE you rest rn ainflamec jeinrt, the rest is Ssufricirnt in meny inetrncees ta settle tne PR ween eee re ee - eee ee a -- - - - - oy ee a Re lt te oe ee ee ee -- eee eee ee ee ee - nee De bee 12. intlenmzitory process do nr, Converstly, if you é¢ not reste that yoint, the inflremetion wid} he eqgraveted by it, cra if to & drek ef reeset as tino even frrtocr wacre you are acturlly treounetis) n the joint, the precess will becom cceeleretsa an worsen. Tn. end result wil] be wore severe. Iam sugy2stinag tnt (nis sy optoms) wevld rave Leur mMucn more ereéily cortrclled end inp 211 lrkelitcot tne deformity voulu not hove been nerrly rs sever ™"S 1t is today." In my opinion there was erple evidence to support the tribunel's finding tnat "continuing to very as a P.T.J. (end cs a boiler attundsnt) ... adversely crffectec the iuntlanmctory process in the joints", that those emplcyments "invelved soar- specicl risk of aggravation or 2ecelerction cf£ arthritis" ne that those "joke, involvini as they 2414 strenuous physiccl excrtion, hud o tendency to ersos> tne cleivert (mr Pawkins) to the risk of aggrsvating or accelerating the '1seaso". Cn the evidence, and in pzrticulor tne evicerce cf Tr Douglas, in my opinion it was open to the tribunel to fin? (cr. pearegrepns (b) ond (c) of its "directions" te the commission. 1) that the cggrevation end acceleration of the rheumatori—- arturitis haa resulted ain or Hawking being vertisily incapacitated for work while workine es 1 bosler attendant witn the R.2.4.P. anc nad resulted in tis totel incanacity for wort Since he ccasod earloyment with tne Cormonwerlth Park. On this aspect tir Uanger sought to rely on che decision of the fia court in jeLrrahlin & fe, Pty La. va "rinnare (1945) W.c.P. — ARES CR ee ee en ree me ete em ee i so = _ ote ae ee nae ne eae eee te arerry | tet at ee ale 1 Me wt a 1?. 112, However, in tnet case tho cvisence us trat, Lryder clive of nis work, the worker would neve required the sent tre-arcni at about the same time - sce fer fenzies J. (2.115) are cer Owen J. (9.120). In the present eppeal there w25 cloar iva cnet to the contrery ~ notwithnetending Dr Douglics' lest ansuor to tie tribunel thet "the cnences are that he almost errtainly .onld have developcd 1t at some stage or other". To reject the greures of appeal set out in parr graph & 2(2) ens 2(b) of the oriqincl notice of oppeal. Tne appellant sought leave to amend the notice of apperl: "by @cleting varegrarh 2(c) rd insertind +h following ground 2s paragrcrh 2? (c) of the aaenecé Netice of Apperl: '2(c) that tne Comnensstion Trivunsl wes without jurisJiction in hearing the reference in that: (i) tne Compensation Tribune] wes furctus officio in that tne CotTrensation Trikunai gave a decision 1 writing on tho cyestions in issue on 19th "arch 1966; and/or (Lt) the Componsation TFribuns}) had no row: t consider the Fesrondent's freeh cvidenc unless snd until tnat freeh evidence h-4 see an corsiderze by the Commission r for Employes Compensatien.'" It sens clezr that the date srt ovt in peragrerh 2(c)f2) urs intended to refer te the tribunel's decision in writine oa 19 Marcn 1976. Tne application was not ore.sed ane is now geenrucé - with the Mate in psragraph 2(c)(1) altered From 1966 to 1°74, By consent tuc copellent was granted leave to place befor: tncz we te eee ee ee ee ee ee ee - oo. - - - oe. e - weer tee eee ee Neer rues enn dee ane a te - -- - --- -- eee - - eee we ae "+ - = 14. Court evidenec additional to the evidener before tue traben-d. The commissiorer had mede = determination cr & Sprit Jags . tnet We dawkins was not entiticd to compensaticr ant tart detcrminetion hed been affirmes by the tribune] (cifierenily constitute?) on 19 "ieren 1976 in the Zectision r-ferr-d to sn parraraph 2(c)(1) of the amendc'? greun@s of aorta). Or 1f ierch 1980 Mr Hewkhins wrote to the tribun. 1 in tne following terrae: "Dear dit. Ballerd, fhe Deputy Ombucsman, cir. EK... Crotty, hrs Suggestes that I write to you with > rocucct for re-consideraction otf < review of my cluim walca wat heard in Pricbene on 19 'ler. 1976. I first wrote to tne Onnuds rzn or 23 Jun.1978. Since that time it nas been estrblisae? thet certain records were not nade evoijablre to mo "rior to tne frivunci. In fect Mr. Crotty intorius ac that it is not clear if theee recerds varr ade available to the Triounel. T refer to the PAAF medical records which were compile? over = oericda of my 12 yeerr servic? and which contcired an absolut? and srauceticoned record of all facets cf both symptoms end trerztment for tne period unéer contention. Tt would eapperr thet ai merical file conteinina over 75 peges was reduced to o "winery" containing some 20 lince. This wes fForvwar.an +9 and czvecpted by the Commissioncr of Enmvloyces' Comecnsée tion -vcperently without cuestion. In reviewing my claim the C.E.C. want to extremes in sSéecurinjy complete details of alt medical and vocctional records from 5 end evcn un to 10 ycers ctter the tire ot my clrin. iiven of this was totelly unnecess. ry as 1 can prove. Bis accertencs, therefore, of < 20 line "Sumircy" is not consiscenl. In fact, sir, I claim tort my cltim sronla ceyetemen Oy ne tee ee en a eee ee ee ee ee ee os aes oe ~ ee - 15. never nave receened Trikenal level hea ict been treited on its merits in the first bo . If you decide thet my cease 2s tligible for re-coneidcration could you clesse inform ac as to tne correct »rocedure. For you inform-tion IT s.at a cepy of tne AAP medicrtl file to 2 erccirelast A doctor wne forwarded nis summrry to the OrLuasnan Neturelly, my copy will bo forwaraecd to you i reguested, Yours sincorely, (signed) (Kevin Patrick Jonn HBewkins)" Mr Hawkins' statement thet certain medics] records wore nat "mede avallable to me prior to the Triben=l" nearing in 1974 was confirmed by the tribunel decision the subject of this appeal, It referred to various "RAAF Sick Parede Cords cad Outsstient Records ana RAAF meticel records none ot whieclh 32? been evaileble at the nacering in 1976" ond edced thrt the "fvil facts of his cicim had never been heard before". As to the failure to plaice the tull medical nistory before the trioun] in 1976, Mr Hanger, on behelf of the aopellant Cornonwealtn, s7164 "I cannet condonc enytning of that nature opviously ... Tr is unfortunate thet this man was not represented at the tine". The tribunal, in deciding to "reconsider its own decision" at the request of dr Hawkins, referred to Cormonve-1Wt) ot Australia ve. willicr Dowson Scott (1979) 1 C.C.r. 113. However, in that case (at p.322) the tribunal had: "adjoverncu the hearing to a Jeter dote when it woul? 'then alive appropriate @srections for thc TTD ae re eres te we ee ce ee ene ee . ee se ae . - ~ een ate ea more | PC) meee a ow pie Oe amt relia ee nen ne wae eee ee eee ee ee ee ee - =<. agree nee 16. continued reconsideration cf this tattcr to cnrhle a determin-tion to oe nate in substitutiton for che determination ect esiaet." The argunent put to Fisher J. on this aspect of the ren- that "the Tribuncl had nede e finding of partial ancepacicy irr work, and that it covld not go back on this decision" (2% p.123). In dealing witn this crgument Tisnher J. enid (1b) "It iS not in my vicw correct to say that the Tribunal hac pricr to the final hearing meiz a determination of partial incesccity for work. This I think 15 indiceted by ta. concluding terms of the Tribunalts september 1977 cre TJenurry 1978 rea-sons already quoted which mike it clear tnat no determinelion, ap from that of the dJclegete in ¢ a March 1977 was m until tne one moace in January 1978." ere de It is true that his Honour ssid thet "cll the powers conLlerrod on the Commissioner by the Act (s.87(1)) ... enure to the Tricunal" and "it was open to Tribun.1 to vary its ceterTinetion of partial incevecity for work". Gowever, that obiter dictum was in a context where the tribunal hed not wTade a detcrnination, had adjourncat the hearing and, es hic Honour expressly neld, nad not made tne finding which the appollert contencea (a4) nad been made and (b) could not be altered by tne triounal at tne resumptien cf the nearing after the adjourntent, The rcsponcent's letter of 10 <farch 198% «asked the tribunal for a reconsideration cf 1£s own decision aiven on 1Y March 1976 (which tne letter crJled "e review of my citi"). ' | eee ee ee oe wee ee - ee ee wee - + " we eee ee _— 1?. The traouned's decisten given on 15 Deeomper 1920, tne sueyoct of this enpecl, purported to cet avice the decision of tho tribunal given on 19 Jiareh 1976 - end also toc A@ecerminsti.n of the commission-r ef °® Anr4il 1975. Further, "the matter" wos "remite.a for r.deterainrtion by the Couwnigsioner in ~ccoréence wlth" cortain directions. lig Hanger submitted tnet tno tribunal only f-4 power to "reconsider" 2 uetermination oi tne commissicner and further that, cven 1f Lt nad vowrr to iccensitrr ite ciun Fecisior, it cculd only do so if the commicciorer halt ie Farrced the matttr or quvst.on to tne tribunil. Ee rcliee epon the Jegistrtive sencre as « whole <n ouren perticalar gectiers of tho Act. since Neceing the Sreo me tersael To pave given yedgaent (16 April 1947) jr sicnt Roidoulis ve. Puctradicnm Pest-] Tontissicn - an apres be heard by mé xeroro t.e hearini of the orosent appeci. &ec I adhere to che views there expressed ard, as they ere nok yet readily availsole to tho partiez in the present zppezl, I sioall repeat them at tnis point 1s pert of theer reesons for Judgment. Tne tribunal's jurisdiction to deal waitn the matter depended upon s.53(1)(a) of the Act which reads 2s follows: "(1.) Subject to tnis Part, wher determination 1S made under this Act, a party to tne determinstion may citner - > i) (2) recvest tht Co7mi:rcioner in recorésnes vith Pivasion 3 to refer cid or -ny of tne ratters OL cucstions to wniery the drtermincrtice Leolatcs to a Convenszticn Trainunrl tor SUMO PR sere ms mene re ene ew ee "ne - we nee -s ee - — -- ene aw te ee oe, - see ate we ee eons eee ee ae ee eee eee ee mae wee --- +e ~ 18. recenlideretion: or " It wll] ce note? tnit, before a matter cen be referred to tere tribunel for reconsideration, it is necessary that "er deteraincticn (br) made unger tnis Yet" wnicn "relernec"™ to Ee matter. Further, only "* party to (#) determination" is civen the rignut to request tne Cotmissioncr to refer a matter te 2 tribunel for reconcideration {(s.63(1)). "Determination" 1s not dzf£ired by the Act. However, verlous sections of the Act deal with tne role cf tne commicsioner in relctiorp to cleinms for conmpencetion. fection 54(1) yrevidges tnat: "(1.) Ceomoensaetion in rolrttion to an amployee is not payaole under this Act to 43 voorson urlees a claim in writing for th> cemmensation «as server, aS prescribctd, on the Commissioner by or on behalt of the person within tne ereecribed periol." Section 58(1) gives the comnissioner power to require vaLicus medica} coxaincotions, Section 20 deals with the function cone powers of the cormissioner. Sectior 20(1) provides thet: "(1.) Subject to this Act, the function of the Commissioner under ts Act 15 to dctermin> all motter3 ona cuestione erieing unaer this Act and tne Commissioner is ompowered to co all things necessary Lor tne cerrying out ct tnot Function." bea Ok noe Be ede een wre oe eee © terre Me eee ee ee ™ cr eh asc a Pras HR ens ate eral alos athe denne em tee ee ee ee - - we ee ee ee rr 19. Section 20(1) prescribes the menner ain whicn bac commissior 1 snall act in "Setermining any matter cr question" under to Act. Section 20(3) of tne that oa ' Act reculres . Commissioner shrll be in writina™. the commissioner of his Own wWOotLON determinotion. the aintroductery words "Whore a determinetion has been vale be compered with the introauctory words of s. "determineticn by Section of that sub-sockicn under this tno 20(4) (2) cemrowers tc reconsiceér a 7eL"™, Incy ney oO a ~ i] aay i} 63(1) which c a richt to seex a reference of a matter to a tiidun-l "or reconsideration ""... where a determination is ede under tnis Act". Section 29(4)(b) iatposes 2 duty upon tae commigcicner to reconsider a determination in certain circumstenees. Botn s.f4(]) and 5.76 support the view ctnonac the Aet requires tnt 2 request for 2 references te tne tribunal ruse bo mede by a sariy to 4a determination macic lt must be @ request for reference of a matter by tne commisslor cr "nd or cuestion to whicn @ dcterminetion, mede by tne commissioner, reletce. In s.84(1)(a), (b) and (c) the powers of the triounal are est out with detailed references to "tne determination majie sy tne Commissioner". Section 76(1) sets out deteiled reevirerents prescribed oy the Act in respect of 3 determination for the reference of 3 matter to the tribunal recensidgeretion. Section 75(2) requires t request ... snell ... be served ... determination" end s.76(3) contenvlates that recuest fer a ref-roence under ¢.75 beeadeentiantallinie eae tneeitecteanetehetenketreenl anetaam temdadalicennetetona mw ee recuest by a on every other moy have orrty to 1 for not = "copy of a parky to a a person mekinda a reaueste? the 4. PAY nen ee ee et en a ee or et. nee a anaes = te Se wn ate! xy — thes 20. commissioner to supply to nim "tne reasons for ine determination". . Having regard to tne legislative scheme of the Act, ian ay opinion the "determination" referred to in s.63(]) ais e determination mace by the commissioner. Mr Herbert relicd strongly upon 5s.83(1) and s.29(4)(2) of tne Act. In his submission ¢.83(1) empowered the trabur:t in this case to "exercise all the oowers that are conferreé on the Commissioner by this Act" - ancluding tne power conferred by s.20(4)(a) that: "(o) the Commissioner may, of nis own motion, whetner or not a procecding has reen insttitut.4 cr completed under Parr V. in respect of the determination, reconsider the ¢etermination and may, 1f he thinks fit, wake @ determinction varying or revoking the first-menticned detorminetion:". Section 83(1) of the Act provides that: "(1.) For the purpose of recorsiderina a matter or guestion, 4 Compensation Tridunal may cxercise ot] the powers that are conferred on the Ccxmissicner by this Act in relation to the determination of Matters end questions." However, tne power conferred ucon the tribunrl to "exercise 2ll the powers that are conferred on the Commissioner" 15 expresccee as 3 power taat 1s conferred for "tne purpose of reconsiderine 2 matter or question ...". In my opinion those words refer to 2 ERS RP ORR ENTE ETE TE OE RE A Me ne me me - ba an a al a ee ae ok Ne ee et ee ee ee ee ee "keene Means aes ae er 1 te nee a ety oe ee ee et matter or cuestlon wnlcn & Barty to 2 determineticen urs reguested (uncer sud-s.63(1)(2}) the commiesioncsr to reher ty tue tribunel fer revonsiceratison end do not rfer to 2 erse where tne tribunal hos been askad to reconsider its own decisicn. In cedition, ¢.84(1) recuires a tribunal "tcnarvt reconsiders & matter or question" tc: "J... give a decision ir writing ~ (a) affirming the deternin-tion mide vy the Conmissioner in roesplct of tant wottir or Guestion: (b) varying thot determinetion; or (c) setting aside that determination and - (1) making a detorainition in subscitution for the determination -o s2t acite; or (11) remitting the case for ree-d-ter yineticn by tne Comnisciorer in accerecre, vith the directiors of tne Tribunel." I accept tir Hanger's submission that that sub-section, by conferring upon <= tribune] in express terms the nower, artes alia, to affirm, vary or set aside e determination made by tne commicsicner, impliedly excludes the oxistence of any sucn rover in relation to e decision of a tribunal. Section £5 is enotaer sectlon contsining repeated refercnces to a decision of the ide ef v t nw oO tribunel offirming, varying er scttin "a detormin ac the Commicsioner"™ - sec sub-scections (2), (3) end (4) - srt oon My view lt does not 3dd any greater ferce to Mr Fanger's argumen:. Oe ee tee eugene ett ne ee ee eee - = mee "we wane ne -- ate eeu Se ae ee ee re Nate we ed Ata 22. i also scceut wr Fanger's svomission thet nis "rgument ag to tne intention of the legisletive scheme grairs further supmort from s.5(9) which, so for ts material, reads as Foilows: s fe verles a determination, ... tne dotermin-ticn aried ... enell, for the wovrnoces of this Act eotner tuan ecetion G1 ana Port Ve, unless tex contrary aintentacn encrrars, fe doemead te oe dcterminstion of tac Commissioror." here 2 Compercation Tribunal or a Court as € Part V of the Act is headed "Refcronces to commensatian tribunele and applicetions to vrescribed courts". Te inclules ss.63, 76, 83, 84 and 85 to whicn reference has already been made, Accordingly, in my opinicn tne dzersion of the trabunal of 15 Cecember 19°60 was mede witheut Jurisdiction. The avnerl 1s allowed, the decision of Lne tribunel is set aside end hotn partics nave liberty to apply. During the nearing of tne anpral a auestion was raised 3s to whether, if tne appellant's submissions as to jurisdiction were upheid, 1t would be open to 'r Hawkins to obteir e2n adjudication by the commissioner upon the merits ef his clrit, i.2@. the claim which was cut te ana accented by the tribuns} (witnout Jjurisciction in my opinion) in its decision of 13 December 1939. Mr Herbert <xoresse*% some concern ther en attetet to put such < claim to the cormigsionecr at this siraqe mignt ve too lete. eto odenger, ofver chheining insctructicnec, fm ea ee ee Ue Ne et fe es ee rn a ee ew woe eee eee ee we ee ee a ee ee 22. upiormed the Court thet tne oppeilant Commenwoulth would not take any objection to the conmizeierer noaring the patter, rnd, more Sspecificilly, tust tne Cornonwealth ceceptse thet it "wculd not, by reason of the failure (to comply with the time TVirst prescrabea by tna Act) be prequiicea if tne clain were tracted Cc as 7 sufficient claim" (5.54(6)(c)). as to costs, wc Henger undertook on ctenalf of the appeJlent that, 1f it succerdeG only on tne guesticr of jurisdicticn (the grounis of expeal oadéca by leave), 1t weuld pay 'Ix Havkins' costs botn for the hear'ng in this Court on eppeal end also tae heering befcro the tribunal. nr 0 ae Ll certify thet this ent *n- 24 + a ~- af the recur ome pues are a fo Obey of th : fon Lepent ner tab wi Leo Won0Uur Peak ae Daw Let wea, Ju'tice Ké€khy | ees Associate Dated: 22 /./#/ rN eae ree ee es - --s - ee es - a eae wore