'é. CATCHWORDS Administrative law - judicial review - emvlovee - compensable injury - award of compensation - employes required to return to work - application for order of review of decisicn - "decision" - "conduct for the purpose of making a decision' - rules of natural justice - failure to consider a relevant sonsideration - order ct review granted Administrative Lecistons \Tudicial Review) Act 1977 5.5, 3.5, 3.13(1) compensation 'lommonwealth Severnmen; Employees: Act lg71, 3.27, 3.45 LAWN MARTIOYN DONNELI/ THE AUSTRALIAN TELECUMMUNICATIONS uo" : = = c ta pan in oO my, be aA to aa IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 316 of 1983 GENERAL DIVISION BETWEEN : DAWN MARILYN DONNELLY Applicant AND THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent MORLING J. 20 culy 1984 The applicant seeks an order of review under the Administrative Decisions (Judiczal Review: Act 19°77 « "the Judicial Review Act") in cesfect of a decirsicn and cenduct sf cfificers of the respondent '"Teleccm': afleccing her empleoment az a telephonist. The applicant commences sueloyrenc with Telecom in November 1975 a5 An accounting macninist. she continued in that sosition until Sitcber 198. wnen, reczause cf tendovaginitis in the cight snoulder and arm, she was transferred to duties as a telepnonist. In or about November or Tecember 1.321 she made an application for comtensation pursuant '9 th D Donmpensation (Commonwealth Government Employees) Act 1971 ('the Usompensation Act") in respect of the tendovaginitis from which she wag 2. suffering. On 31 May 1983 the Delegate of the Commissioner for Employees' Compensation ("the Delegate") determined that the applicant had contracted a disease, namely tendovaginitis of the right arm, and that her employment was a contributing factor to that disease. He further determined that total incapacity for work resulted from the disease on 23 June 1981 and that 1t was deemed to be a personal injury to the applicant arising out of her employment. He also determined in accordance with the provisions of s. 27 of the Compensation Act that Telecom was iliarie to pay compensation to ner. Ina Further determination made on <1 July 1983 the Delegate Geterminei purguant to 3.45 of the Act that the applicant was entitled to payment of tompensation at varying amounts during a number of specified periods, ana that she was entitled to be paid compensaticn frcem 1 May 1932 to a date to be determined Ey tae Commissioner or his Deiegate. Telecom has not taken any steps ts ave terminated the apelicant 3 entitlement to weekiy compersation caynents. Ns ms has it sought to 2xercise rights given TO. 61t)6in) 6th m compensation Act t> 'inallenge the Delegate 5s determination. Thus the determination remains in force and the applicant has a continuing right to yecelve payments of compensation upon the dasis that she 15 totally incapacitated for werk. Prior to the Delsgate's determination on 21 July 1942 the applicant nad seen examined by a number of medical 3. specialists, as well as her own doctor. These specialists had expressed differing views as to her fitness for work. Dr Hedberg, a consultant orthopaedic surgeon, saw her on behalf of Telecom in March 1983 and advised that she should be reviewed by a physician or a rheumatologist. Accordingly, she was asked by her employer to see Dr Peter Thorpe, a specialist rheumatologist. On 30 March he furnished Telecom with a report in which he expressed the cpinions that "on the basis of probabilities (her) condition is due to her work as an accounting machine operator" anc ct w at cne appears at the moment unfit for work". On 28 June 2 Ww wo 3, l2 fuly 1983 and 23 August 1983, Dr D.M. Cunningham, the appiicant's own doctor, turnished certificates that th uw aprliztant remained unfit for wo She was again reterrea ta Dr 4edcera an 28 June i983 Dr Bitchy examined the apelicanc on behalf of Telecom on 3 August 19832. He @xpressed the opinicn that tne arplicant aid not have any occupationally related _znditicn and chat 'S 1s fit for ali duties as a telephonist torthwith". The applicant was not shown a copy of [Lr Bioch 5 report. However on September 1985 Teleccm wrote «9 her ain the following Terms: 4. "As you are aware a review of your fitness for continued duty has been undertaken by the Common- wealth Medical Officer. As a result of the review, the Department of Health has advised that you are fit to resume normal duty. Accordingly you are directed to resume duty and report to Mr Reg Walker, Administration Manager, 6 Floor, 309 Kent Street, Sydney 2000 at 8.30 a.m. on 12.9.83. Failure to obey this directive will result in any absence being regarded as unauthorised. (Sgd) B. Butier B. Butler for CHIEF MANAGER PERSCNNEL AND iNDUSTRIAL RELATIONS DEPARTMENT 1.9.83" The applicant did not resume duty on 12 September 1983. Prior to that date she supmitced to Telecom a medical report from her own coctor certitying that. in his opinion, she was unacle to carry on her work. Notwithstanding this certifi- cate Teleccm advised the applicant that the Department of Healtn 3 opinion remained uncnanged that she was fit for full duty, ana her attention was again drawn to tne direction to resume duty on 12 Septemser. On 5 October tne applicant's solicitors advised Telecom that she proposed to apply to the court for an order of review of its decision of 1 September to airect her to resume duty. The solicitors requested Telecom to furnish a statement pursuant to s. 13(1) of the Judicial Review Act. in response te the request a statement was furnished 1n which 1t was said 5. that the decision had been made "having regard to advice of Ms Donnelly's fitness for duty as assessed by the Department of Health" and reference was made to the fact that the Department had had access to reports on the applicant submitted by a number of doctors. No mention was made in the statement of the Delegate''s determination or of the applicant's entitlement to receive continuing compensation under that determination. Certainly nothing was said inthe letter to convey to the applicant, 1£ ait were the fact, that Telecom had taken into acount the Delegate's determinaticn and the applicant's rights under it. However, it 18 clear from evidence filed in the case at alate stage that Mr Butler, who wrote the letter of l September on behalf of the Chief Manager cf Telecom's Personnel and Industrial Kke:ations Department, waz aware of the existence of the Delegate's determinaticn and ctnat Telecom was making weekly compenzation payments tec the applicant sursuant to the terms of the determination. It appears from Mr Butler's cral avigence that his knowledge of the Delegate's determination did not lead him to place any weight upcn it whe i@) =) he wrote to the arplicant. It rt, was his view that th iD only affect of the setarminaticn was taat Telecom was obliged to make continuiny weekly payments of compensation to the applicant. He did not regard the deter- mination ag a finding that the applicant was unfit for work. This appears from the follcwing passages in his avidence: 6. "Would not you see that question of fitness to be one to be determined by the tribunal?---I saw it as one to be determined by the Department of Health as our adviser on someone's fitness for duty. You thought- - -?---As distinct from a determination for liability on Telecom in respect of a condition arising out of employment." "You do not accept the award as containing a finding that on a continuous basis she is not fit for duty?---I see that on a continuous basis she was receiving payment for that absence. I do not see that as a restriction on her actually resuming duty, and [I would like further to say that 1£ she in fact resumed duty there 1s no payment of compensation. Ali you accepted the award as being was an order that a continuing payment be made?---That is correct. And not a finding that she was continuously unf1t?---Exactly, your Honour. That is how you interpreted the effect of the award?---Yes, that 15 correct." Cn 11 October 1983 the applicant applied to the court for an order of review of Telecom's decisicn that she te directed to resume duty on 12 September 1983 and that her absence from duty after that date would be regarded as unauthorised. Apparently the applicant returned to work for a short time on 12 October 1983 but thereafter she has been absent from work. She was advised by Telecom that her continued absence was regarded as unauthorised. On 1 December 1983 the Chief 7. Manager of the Personnel and Industrial Relations Department wrote to her in the following terms: "I refer to the medical certificate dated 15 November 1983 from Dr D Cunningham, which you submitted to this office on 29 November 1983. In accordance with Section 65(3)(b) of the Tele- communications Act I wish to advise that on che basis of medical advice from the Department of Health, this Commission is not willing to grant a leave of absence. Accordingly, you are required to return to duty and, unless you return to duty within a period of two weeks from and including the date onwhich this notice 1s sent, you wtil be deemed to nave resigned upon the expiraticn of this two week period, ' It was conceded that the applicant 15 an cificer of Telecom within the meaning of sub-s.29(2) of the ~elecommunications Act 1975 and was not a temporary employee. Subsection 56(1) or the Teleconmunications Act peoviaes, inter alia, that if an off:iter appears to the Commission to be unable to discnarge cr incapabie of Qlscharging tne duties of hiz position, the Commizsion may retire him from the Australian Telecommunication Commission's service. No action nas deen taxen by Telecom sursuant to s.56. Section 65 of the Telecommunications Act provides, is "65. (1) Where an cfficer 13 absent from duty without permission, and has been 30 absent for a continuous period of not less than 4 weeks, the Commission may send to him, by prepaid registered post addressed to him at the address 8. of the officer last known to the Commission, a notice informing him that unless, within a period of 2 weeks from and including the date on which the notice was sent - (a) he returns to duty; or (b) he explains his absence and seeks the permission of the Commission for any further period of absence that may be necessary having regard to that explanation, he will be deemed to have vresigned upon the expiration of tnat period of 2 weeks. (2) Where an officer to whor a notice under sub-section (i; has been sent does net, within a period of 2 weeks From and incluaing the date sn which the notice was so sent - {a) return cto duty; or (b) explain his absence and -eek the permission cf tne Commisticn for 2 further period of abserce,. and the notice has met been revered under sub~section (11), he shall be deemed =5 nave resigned on the day following the expiration of that period of 2 weeks. (3° Where a notice has Lely cent tc ar offarer under sub-section i1) and, witnin tne period of 2 weers after that notice was 36 sent, the officer explains his abserce ara ssexs tne permission of the Commission for a further period of absence, che Jommission snail, as 30cn as practicable, csnsider tne matter and may, oY notice in writing sent to him by ere-caid redistered pos addressed tc him at nis address Last known to the Commigston, intorn Alm - {a) that ke has been gran absence for such péricd and on such conditions as are spec notice; cr (Dp) that he 1s required to return co duty and, unless he returns to duty within a period of 2 weeks from and including tne date on which the notice 1s sent, he will be deemed to have resigned upon the es expiration of that last-mentioned period. (4) Where an officer who is required by a notice sent to him under sub-section (3) to return to duty does not return to duty within the period referred to in the notice, and the notice has not been revoked under sub-section (11), he shall be deemed to have resigned on the day following the expiration of that period." The applicant contended that the letter of 1 September was either a decision to which the Judicial Review Act applied (53.5(1)) or, aiternatively, constituted conduct engaged in by officerz of Telecom for the purpose of making a decision to wnich the Act applied (3.6(1)). This latter decision was identified as being the decision, made pursuant to $.65{(1) of bs te Telecommunications Act, to send a notice to the applicant in accordance with the terms cf that section. Counsel for the respondent submitted that the letter of 1 feptemoer 1983 was not a decision 37a which the Judicial Review Act applied. He contended that it was cnly a letter giving -notice to the applicant that she was directea to resume duty and chat failure to obey the notice would result in her continued absence being regarded as unauthor:sed. The sending of the letter, soit was argued, was no more than action taken Ly Telecom pursuant to the applicant's contract of service and was not properly identified as a decision taken under the Tele- communications Act or the by-laws made under the Act. He further, contended that the writing of the letter could t e) fe] tr @ seen as being necessarily connected with any action which th Dp 10. Commigsion thereafter took under 3.65 of the Telecommunications Act and that therefore 1t was not conduct engaged in for the purpose of making a decision under that section. Counsel for the applicant argued that although the direction to her to resume duty was made in the course of and as a consequence of the employment relationship between the applicant and Telecom it was nevertheless given under the Act and by-laws. Reliance was placed upon the circumstance that the applicant's terms of employment were nct contained in a document separate rom the Act and the by-laws. The terms of her employment were orly to be ascertained from the Act itself and the by-laws made thereunder. Reference wu uw~ roy oO ny p ny ron ne a io jo w ts fay hy ct oO py-law 8 made under s. 1ll of the Pelec-rmunications Act which provides as follows: "8, An officer or empisyee - (a) Who vecords, a3 time Sf 415 ayrivalocn duty or his departure from auty. a2 time other than the AcStsal Time" Il Als arrival on duty or his separtur3 trom duty, as the case may be; (b) who. having arrived wv duty iater than 10 minutes after the time at which ne 15 required to commence duty, fails to report to the officer in cnarge or, having so veported, fails t explanation for nis late (c) who commences duty azter tne time at which he 1s required to commence suty on any day or after the time at which he 15 required to ccmmence duty after a meal break; (d) whe ceases duty before the time until which he 13 required to perform duty on li. any day or until which he is required to perform duty before the commencement of a meal break; (e) who 1s frequently late in attending for duty; (f) who 1s, during his hours of duty, absent from duty without the express permission of the Commission or the officer in charge; or (g) who, being prevented by illness or other emergency from attending for duty, does not, as soon as he may do 30, report the fact to the officer in charge, commits a breach of these By-laws." I donot think that the direction to resume duty contained in the letter of 1 September can be related to any of th o paragraphs of by-law 8&8. It was also submitted that the a Ht ie] ts of the present case were quite aifferent from those in Australian National University v Surns (1982) 43 A.L.R. 25 where there was a separate contract of employment enshrined in correspondence. I agree that this 1s so, but this does not answer the question whether it can re said that the direction was given under the Act or in pursuarce sf the applicant s contract of service as an employee of Telecom. I think there 15 sunstance in the respondent's argument that the letter of 1 September 1983 does not constitute a decision to which the Judicial Review Act applies. Tt the letter of 1 September 1s looked at 1n isolation from the events that followed it, it should properly be regarded as communicating a decision made, not under the Act or by-law 4, but in pursuance of the applicant's contract of service. 12. But, in ny opinion, the writing of the letter, seen in the context of the events that followed it, did constitute engagement in conduct for the purpose of making a decision under sub-s. 65(1) of the Telecommunications Act. The events that transpired after the writing of the letter clearly demonstrate that 1t was written for the purpose of making it possible for action to be taken under 3.65 should the applicant not comply with the direction contained in it. So much appears Plainly from the last sentence of the letter, in which the applicant waS advised that - "failure to obey this directive will vesuit in any absence peing regarded as unauthorised". There can be no doubt that the purpose of this sentence was to 'S advise the applicant that if she were arsent 'from duty on and after 12 September 1933 she would be regarded as 'absent from duty without permission" in terms of sub-3s.55(1)}. At no stage did the respondent or its officers have any other course in mird. Mr Butler's evidence included the Fsliloaving: 'In the last sentence of your 2tter of 1 Septenber you say, failure to cbserve this directive will result in any apsence Feing regarded as unauthorised. In terms of the applicant's employment . what censequences flcwed from failure on her part to obey the airective in your Letter?---Her absence peyond 12 September was rejardea as being unauthorised. And what flowed from that?---In effect that means she does not receive any payment of sick leave, any sick leave credits available. Seyond that once Mrs Donnelly was absent for a continuous period of fcur weeks action was taken to advise her in accordance with section 65(1) of the Telecommunications Act.' 13. On the whole of the evidence I think that the proper conclusion is that the writing of the letter constituted conduct for the purposes of making a decision under sub-s.65(1) of the Telecommunications Act. The application for the order of review in this case was filed in court before Telecom sent to the applicant the letter of 1 December i983 to which I have aiready referred. Had I not been of the opinion that the sending of the letter of 1 September 1983 was conduct for the rurpose of making the decision referred to in the letter of 1 December 1983 I wouid have permitted an amendment sco as to sermit the applizant to seek an order of review in ._spect of the decziszon referred to in the latter letter. In ny opinion that letter plainly refers to a decision made under 2.55 ct the Telecommun- 1cations Act. However, I donot think such amendment is eo] necessary because of my view that the writing of the letter of 2 Septemser amsuntea *c conduct torr the pusoos2s rf 3.6. Even 1f the action tawxen by Telecom was taken under tne applicant's contract of service it does not necessarily follow that the action was not also conduct f5r the pursose of making a decision under sub-s. 65(1) of the Tealesommuniczations Act. In Surns Case (supra) at p. 33 Bowen C.J. ard Lockhart J. pointed out that 1f the making of a contract 15 authorized by ar enactment, and such a contract. wnen made, provides fcr the making of certain decisions, it does not necessarily follow 14. that the making of those decisions are not made under the enactment. The same observation can be made 1n respect of conduct engaged in pursuant to a contract of service the making of which is authorized by an enactment. In the present case the writing of the letter of 1 September was so clearly related to the prospective and intended action under sub-s.65(1) that 1t should be treated as conduct for the purpose of making a decision under that section. The applicant claims that a breach of the rules of natural justice occurred in connection with the writing of the letter of 1 September. She also claims that the letter was written withcut regard to a relevant crcnsideration, i.e. the DeLegate's determination in her favour (s.6(1l)(e) of the Juliclal Review Act as expanded py s.6(2)). Other provisions of 3.5 wer2 also relied upon, particularly ss. 6(1)'s,; and coany 't Pe tL, here 1s an initial crfficulty in tre applicant 3 way on the first of tnese arguments. The lerter of 1 September did not, of atseif, affect the applicant's rights. In Particular, 1t did not bring about any termination of ner employment. There are three ways in which the applicant's services could have been terminated by Telecom. It could have wn co retired her (s.56), dismissed her for misconauct (3s. } taken action under 3.65 to oring about a situation where she would be deemed to have resigned. But before deemed 15. resignation could occur under s.65 Telecom was required to send a notice to her giving her an opportunity to explain her absence from duty. In other words, sub-s.65(1) has a built-in provision which ensured that the applicant was given an opportunity of explaining her absence before she would be deemed to have resigned. In these circumstances I do not think that, even if 1ags was conceded) the rules of natural justice applied, there was any requirement that Telecom give notice to the applicant that 1t was intending to write to her in terms or the letter of 1 September. It may well be that the letter sucht not to have taken the form that it did. Its farlure to explain why Telecom was proposing to ignore the Deiecate's finding was most unfortunate. But bearing in mind tnat any subsequent action under 3.55 necessarily required the applicant to be given an opportunity to explain her absence 'trsm duty, 5 do not think that the rules of natural justice resuirea Telecom 'to give or to consider any representation uo rt Ss a1T . om w 'TtSbe a is] tw pa] ot ty ib Baul G rs 1D sending it. In National Companies and Securities Tommission v The News Corporation Limited & Ors. '(High Court cf Auztralia, 15 May 1984 - as yet unreported), Sibbs C.J. said: "In Russell v The Duke of Norfolk £1949] 1 All E.R. 109 Tucker L.J. said, at p. 118: 'The 16. requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.' The passage has frequently been approved - for example, by this Court in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at p. 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; 1t requires fairness inall the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v MacKellar CNo. 23 (1977) 137 C.L.R. 396, at p.444, the rules of natural justice 'may also vary from case to case although eacn pe conducted before one and the same tribunal cr person'." Applying this dictum to the facts of the present case, lt seems to me that fairness to a person against whom action is taken under 3.65 is preserved by the requirements in the section ztself that Telecom give the requisite notice to the officer concerned and afford him the oppcrtunity ¢f explain g his tu absence. Accordingly the applicant's first arqument fails. The next attack on the letter of 1 September founds upon the submission that it failed ta take a relevant consider- ation into account in putting in train action against the applicant under 5.65. The appiicant submitted that it sufficiently appeared from the letter that the making of the proposed decision under s.65 would be an improper exercise of the power under that section because the decision was proposed to pe taken without having regard to the existence of the Delegate''s determination. It was argued that the absence of any 17. reference in the letter to the Delegate's determination sufficiently showed that it had been improperly left out of account. I think there is considerable force in this submission. It was stated in the letter that as a result of a review of the applicant's fitness for duty undertaken by the Commonwealtn Medical %fficer, Telecom had been advised that she was fit to resume normal duty, and that "accordingly you are directed to resume duty ...". A letter written in such terms could only have lea the apriilcant to believe that the existence of the recent determination in her favceur had not been taken into account. Certainly it was ignored in the letter. If Telecom nad taken 1t into account and decided, for reasons pest known to ztseif, to ignore it, common fairness dictated that those yeascns should have been disclosed to the applicant. Yet they were rst In those circumstances I think that the applicant was we mn assuming that Telecom was orcpesiny to make a meciusicn against her under $.€5 witheut cegari tc che existence of the determination. This assumeticn could only have been reinforced by the apsence of any mentisn of the Delegate''s determination in the statement of reasons furnished by Telecom under 3.13 of the Judicial Review Act. I should observe tnat counsel for Telecom informed the court that, because of the form of the correspondence that was sent to tne applicant, no order for costs would be scugnt against the applicant in the evont that she did not succeed in her application. 18. However, after counsel for the applicant had concluded her address I permitted Telecom to file additional evidence. That evidence makes it clear that Mr Butler knew of the Relegate's determination and of the applicant's entitlement to continuing payments of compensation thereunder. In the light of this evidence I think the court should not assume that either Mr Butler or the Chief Manager of the Personnel and Industrial Relations Department was unaware of the Deleaate's aetermination. But to say this is not to say that' they correctly assessed the relevance sf .t, nor that the decision tq give it no weignt did not invelve an error cr law. In my opinion, Mr Butier 5 avidence makes it plain that ne failed to appreciate the full significance cf the determin- ation. f have already referred to his evidence that he did not accept it as amcunting toa finding that the applicant was continucusiy unfit. However ine Deleaacs 3 determination did amount tc sath a finding. Tt was hls rurction. as the Delegate "4 of the Commissioner, to deter ai arising under che Compensation ''Vsorronwealtn Sovernment Employees) Act - vide ss.20(l*' and 24°42) a5 tnat Act. The question of the applicant's entitlement tc contgensation was a question which arose under the Act. The anzwer to that question Gepended upon whether th Delegate was satisfied that the applicant was totally or partially incapacitated for work as a result of the disease from which sne suffered anc whether that disease amounted to a personal injury arising out of her 19. employment (3.29(2)(e)). The Delegate's determination was expressed to be made under 3.45 of the Act. That section only applies "where an injury to an employee results in the employee being totally incapacitated for work ..."(emphasis added). The effect of these statutory provisions, when applied to the facts of the present case, :s that the Delegate determined, inter alia, that the applicant was totally incapacitated for work as at 21 July 1982. His determinaticn was expressed in the tollowing words: "In pursuance of the provisions of Section 45(2) of the said Act, (the applicant) 1s... entitled to the payment sf compensaticn ... from 1.5.83 toa date to be determined by the Ccsmissioner or his Delegate." In my opinion it was arronecus of Mr Butler to treat wig uetermination as being no more than an order that 2 continuing fayment of compensaticnr ce maze to the applicant. Ts tceat the determination in that fashion :5 to ignore tne statutory basis upon which it was made, That basis was tnat the applicant was totally incapacicated for -vork, and ona continuing basis. However Mr Butler 413 not regard this as a finding that the applicant was continuously unfit. In the ct oO be on t of the facts of the present case, the Delegat2's i¢] determination can only be regarded as a finding that she was continuously unfit. Indeed, Telecom's continued acceptance 95f its liability to pay compensation to the applicant upon the basis that she continues to be totally incapacitated for work 20. seems to me to be a tacit acceptance of her continued unfitness for work. It was submitted that it was for Telecom and its officers to decide what, if any, importance was to be attached to the Delegate's determination and that any failure to give it any weight did not justify 'che making of an order of review. Reliance was placed upon Sean Investments Pty Ltd v Mackellar (1981) 38 A.L.R. 3€3 at 375 where Deane J. said: "In a case such as 'che present, where relevant considerations are not specified, 1t 1s largely for the decision-maker, in the light of matters placed betore him Sy the parties, tc determine which matters he regards as relevant aid the comparative importance to be accor2ted to matters which he so regards. The ground of failure to take into account a relevant consideration wili only be made good if 1t is shown that the decision-maker has failed to tase into acccun a consideration which he was, ain the circumstances, bound to take into account for there to be a valid exercise of tne rower to decide." Ido not think this argument answers this part st tne applicant's case. Ahatever view 32 cater cf the arcit cr the matters which were relevant for consiceration, i% 18 inpessible to say that the UCDelegate 5 findirq that the applicart was totally incapacitated for work was lirrelevant. Further, this 1s not a case in which the decision-maker wterely failed to take into account a particular consideration cr tc give 1t particlar weight. Me Butler 5s failure to appreciate tnat the Delegate had made a finding that the applicant was unfit for her duties 21. was a misapprehension which, in itself, was an error of law or the kind referred to in 5.6(1)(f) of the Judicial Review Act. Counsel for Telecom also submitted that the Delegate's determination did not give rise to any issue estoppel between 1t and the applicant because it was an administrative, not judicial, decision and did not finally decide any question. Blair v Curran (1939) 62 C.L.R. 464 at 531 and Administration of Papua_and New Guinea v Daera Guba (1973) 130 C.L.R. 353 at 453 were relied upon. Even if this argument is correct, it does not answer the applicant's case that Telecom and its officers misapprenended the effect of the Delegate's determination. It matters not for the purposes of the applicant's argument whether the determination was final, or liabie to subsequent revocation, or whether it was strictly sudicial in character. What matters 1s that Telecom misunder- stsod the effect of the determination wnich was binding upon It was submitted that the power ain s.20(4) of the Lompensation Act to revoke a determination included a power to revoke a determination ab initio. Thus, so it was argued, it would be open at any time in the future for th Delegate to revoke his determination and, 1£ and when that occurred, the finding that the applicant was totally incapacitated for work from 21 July 1983 snwards would be retrospectively reversed. Even if this were to happen, it would not lead to the result 22. that Telecom or its officers placed the right interpretation upon the Delegate's determination as at the time the decisions were taken affecting the applicant's3 employment. The letter of 1 September was written to the applicant under the mistaken belief that, at that time, there was not a finding that she was unfit. If the Delegate's determination 1s ever revoked ab initio that would not lead to the result 'hat the proper interpretation was placed upon the determination when Telecom and its officers took the decisions which adversely affected the applicant. I shoula add that, notwithstanding that more than twelve months have passed since Dr Bloch furnisned his report, there 1s not the slightest suggestion in the evidence chat Telecom has any intention of seeainy a revocation of the determination ab initio. On the facts of tne present case, [ tnink 1t ais unreal to thinx that the Delegate could be rersuaded to make an order retrospectively depriving the appuicant of payments of compensation made to ner by Telecom witn £.il knowledge of all the relevant fact affecting ner ue entitlement to compensation. In the result, 2 am of the opirion that Mr Butler's U oD misapprehension of the true nature of the o fag is) rs o Ppf legate's a ation entitles the applicant to an order of review on the tTrounds referred to in s.6(1)(e) as expanded by s. 6(2)¢(h} ani s.6(1)(f) of the Judicial Review Act. Being of this view, [ find it unnecessary to determine whether sne is also entitled zo succeed on the ground referred to in s.6(1)(e) as expanded 23. by 3s. 6(2)(g). There is much to be said for the view that having regard to the currency of the Delegate''s determination, to the fact that it had been made only a few weeks before the letter of 1 September was sent to the applicant, and to Telecom's failure to request the Delegate to vary or revoke his determination, the decision to require the applicant to return to work was so unreasonable that no reasonable person could have reached it. Bearing in mind the serious adverse consequences to which the applicant was exposed if she dia not comply with the terms of the letter there 18 a strong argument that no reascrable ferson could have engaged in conduct for the purpose sf making a aecision te send a rotice to the applicant under sub-s. 65(1) of the Telecommunications Act. There were two courses of acticin oren to Telecom when 1t ysceived cr Bloch $s report = and dJsciied to act upon it. One was ta vefer the question of tne apeliczanr 5s fitness for work 3S an impactial arbiter, l.e. tne Celeqace. The sther was to make a unilateral decision, on that yuesticn, adverse to the applicant. In tnes2e circumstances it is difficzult co accept that a reasonable employer could elect to take the latter course, thus ignoring 'the obvious and traditional nechanism for resolving a dispute as to an emeloyee's fitness fer work. On the facts of the oresent case the provisions of sub-3.65(8) of the Telecommunicarticnrs Act were a poor substitute for a re-appraisal of the applizant's fitness for 24. work by the Delegate. It 13 unsatisfactory and unfair that an employee who has obtained a determination in her favour should have to invoke the appellate proceedings of a Disciplinary Appeal fSoard. It seems to me to be singularly inappropriate that an employee who has been found to be totally incapacitated for work should be required, in effect, to defend that finding before a Disciplinary Appeal Board, I doubt whether sub-3.65(8) was ever intended to apply toa case where an employee has not merely been absent from duty, but has also obtained a determination in her favour by the Delegate. It was argued on behalf cf the applicant that, whether the letter of 1 September was reqardead as a decision for the purpeses of sub-s. 511} ot the Judicial teview Act, or engaging 14n conduct for the purpose of naking a decision within the meaning of sub-s. 6:1) of the Act, the author of the letter, Mr Butler, did not have jurisdiction to make the decision or engage in the conduct (see s.5(1l)(c) and s.6(l)ic)). Mr Butler ais the officer in charge of tne Staffing Unit of ~2-ecom's sGeneral Personnel Services Sranch. H1s duties involve, inter alia, the oversight or daily activities concerning staff movements and appointments. By sub-s. 33(1) of the Telecommunications Act the Commission 1s given power, by instrument under its seai to delegate to, inter alia, an orficer or employee any of its powers under the Act. It was supmitted that, in the absence of a specific delegation, Mr Butler did not have power to give the direction contained in 25. the letter of 1 September. This submission overlooks the fact that the letter was sent for and on behalf of the Chief Manager of Telecom's Personnel and Industrial Relations Department. There 1s no suggestion that the Chief Manager did not approve and adopt the contents of the letter. In my cpinion, it was within his competence to direct the applicant to resume duty. Ido not think that sub-s.33(1) required that Telecom should execute a formal instrument of delegation to the Chief Manager before he could give a direction to an employee to resume duty. I think the powers referred to in sub-s. 33(1) are powers specifically referred to elsewhere in the Act e.g. s.11 and do not extend to action taken by an cfficer of Telecom in the discharge of duties within the scope of the authority attaching to nis position. This argument tnererore tails. During the course of argumert I was aivised by counsel tnat, unless some relief 1s geant+e2 "> tae actlicant, g.2a will be left in the position wnere she will ce isemed tc have resigned from ner employment Sy virtue of the provisicns of s.65. This would be a manifestly untairs :¢3..£, notwicthstand ing her right to receive continuing payments of compensation until the Delegate varses or revokes his determination. If she were to seek other employment she would be sbliged, if asked, to inform her prospective employer that sne had lost her job with Telecom because she was ab3en 2 'from duty without its my, permission. This couls weil adversely affect her prospects of obtaining future employment. 26. Telecom is not, of course, obliged to retain her as an employee. If she is incapacitated for work, then 1t is open to Telecom to retire her under 3.56. If she is not incapicitated for work, then it is open to it to request the Delegate to vary or revoke his determination. What has happened in the present case is that Telecom has by-passed both these avenues and has placed the applicant in a position where she has been treated as absent from duty without permission and, against her will, 1s deemed to have resigned. This result has been brought about by Telecom's inexplicable refusal to request the Delegate to vary or revoke his dstermination. I am left with the impression that Telecom dces not think that, in a fair contest before the Delegate, it would succeed in persuading him that the applicant was fit for duty. It is plain that no proceedings inthis court can cetermineé the real question at issue between the parties to this litigation. Telecom takes the view that the applicant is tit te resume her normal duties. Whether that view is justified or not cannot be determined by this court. Only the Delegate can determine that matter and then only if Telecom elects to raise the question before him on an application to vary or revoke his determination. Indeed, it was conceded that even if, as a result of the cgeration of sub-s. 65(1), the applicant should be deemed to have resigned, her entitlement to receive payments of compensation under the Delegate's determination would continue. Thus the present case has not 27. determined the only real issue between the parties. That issue should be determined as s00n ag possible in the proper place. For the above reasons, the applicant is entitled to an order of review. Telecom must pay the applicant's costs. The matter will stand over for the making of formal orders. aE | \ - ¢ the 7 a -- tw acnour DatediodO ¢ Whig