BR tee ede ele kin ee tate Frey Bane = Seek mene ae ida AR bee ea ele ee Pk ae Ne i et Att tie EX TEMPORE JUDGMENT s i 209 FURTHER DISTRIBUTION UNNECESSARY IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 62 of 1982 ) GENERAL DIVISION ) BETWEEN: MARJORIE EDITH THOMAS Appellant AND: THE COMMONWEALTI OF AUSTRALIA Respondent 31 JULY, 1984 KEELY J. REASONS FOR JUDGMENT FSI aT ARAN Panera Crerere me er RINT WR RENIN mn Erte Wart ater opmecra enn meme ewe eee ee ce ee ee ee ee oe -_ wae oe ame ee re Ce ke mY rarer rs od 4" HIS HONOUR: On 28 April 1982 the Administrative Appeals Tribunal made a decision: (a) To set aside the determination of 3 June 19381; and the same is so set aside; (b) to remit the matter to the commissioner with the directions that: (2) the applicant remains partially incapacited by injuries received in the course of her employment; {21) the applicant 1s able to do the work of a dressmaker in accordance with the appropriate award 1n the State of Victoria; and the same 1s so remitted with those directions; (c) to order the respondent to pay the applicant's costs in these proceedings an accordance with the appropriate scale in the County Court of Victoria; in the absence of agreement costs to be taxed by the Registrar or Deputy Registrar; and the same 1s so ordered. The appeal is "from that part of the decision ... which determines that the applicant has a capacity for employment." The notice of appeal is dated 14 May 1982. It 1S not known why two years elapsed before the appellant's solicitors sought a hearing, but it should be said for the record-that the delay in having the matter listed for hearing 1s not the fault of the registry or of the court. There is nothing to be gained by the court delaying its decision on the appeal, and there is much to be said for the appellant knowing the result of the appeal without further delay so that she can consider what other steps are open to her. The appeal can be determined without the need for elaborate reasons. . The difficulties faced by the appellant were pointed out in some detail to her counsel yesterday. Those difficulties stem from the nature of the evidence placed before the tribunal and, in particular, the absence of certain evidence. The statute only permits an appeal to this court "on a question of law". The questions of law sought to be resolved originally by the notice of appeal were as to whether the tribunal erred in thocom 31.7.84 108 ep mvs la > ane ee enh Lae ett ase tea LANA a at ORS hy ee aK AIM I A A a ni nie ae anit mamh Linal Ae amends ae ee ee Buhne Sette ~ making certain findings of fact, and as to whether it should have made certain other findings. In relation to each of those findings of fact, 1t 1S not open to this court, hearing an appeal on a question of law, to form an opinion on those questions of fact and then substitute 1ts opinion on those questions for the findings of fact made by the tribunal. The Australian Parliament has decided that those questions of fact are to be determined by the tribunal, not by this court. As Mr Justice Deane said in Commonwealth of Australia v Lyon (1979) 24 Australian Law Reports 300, at 301 to 302: The question for me on this appeal is not whether, in my opinion, that finding was the correct or preferable one. The question for me on this appeal is whether there was a proper foundation in the evidence for it. See Davidson v Mould (1943) 44 State Reports New South Wales 113, at 115; Department of Health v Clancy 1961 Workers Compensation Reports (New South Wales) 233, at 235. The appellant, 1n crder to succeed on one or more of her grounds of appeal, must satisfy the court that the finding of fact was not one that a reasonable tribunal could have made on the evidence before 1t. See Simons v Herald and Weekly Times Limited 1979 Victorian Reports 131, at 136 per the Chief Justice Sir Henry Winneke, Mr Justice Gowans and Mr Justice Gillard. The original grounds of appeal overlap to some extent, and are as follows: (a) that the tribunal erred in law in finding that the applicant was not totally incapacitated for work; (b) that the tribunal erred in law in not finding the applicant to be an "odd lot", and hence incapable of gainful employment or alternatively "deemed to be totally incapacitated for work" pursuant to section 26 Compensation (Commonwealth Government Employees) Act 1971; (c) that the tribunal erred in law in that there was no evidence to support the finding that the applicant is able to do the work of a dressmaker and/or can earn an equivalent sum as a dressmaker employed under an industrial award of the State of Victoria; thocom 31.7.84 109 cp mvs 2a ~—— eee toe Sea nin mene Cee tne le (ad) that even 1£ the tribunal was correct in finding the applicant to be partially incapacitated for work the evidence required the finding that she 1s capable of only part-time work. As the difficulties standing in the way of those grounds of appeal were raised with the appellant's counsel yesterday, 1t is not necessary to refer to them in great detail. As to ground (a), there was medical evidence that the applicant was not totally incapacitated for work. It 1s not necessary to refer to all that evidence, but it 1ncluded evidence by Dr McKenzie and by Dr Stephens that, as far as her physical injuries are concerned, the applicant was capable of undertaking work which did not involve repetitive bending or heavy lifting. Insofar as the appellant sought to rely upon non-physical aspects of her condition, Dr Sime said in a report that, "there is probably heightened anxiety which may be contributing to some degree of functional overlay", but he thought it was "fairly minimal". Further, in his oral evidence Dr Sime said, "I would categorically state, in my opinion, that she 1s not suffering from a neurosis." In the light of the evidence placed before the tribunal ground (a) of the appeal cannot succeed. As to ground (b), in my opinion the onus was upon the applicant to satisfy the tribunal that she fell within one or other of the two categories referred to in that ground. In my opinion the evidence placed before the tribunal did not compel it, as a matter of law, to hold that it was satisfied as to either of those matters. The applicant gave evidence that about 30 years before the hearing she had performed dressmaking work for one or two years in a factory in Footscray. Her description of that work did not include a statement that that work would now be beyond her physical capabilities or that she would be prevented by pain from performing 1t; of course it may be that that work would prove to be beyond her capabilities if 1t were available to her and she tried to perform it. A major difficulty facing the present appellant 1s that there was no evidence to that effect before the tribunal. In addition the applicant gave evidence before the tribunal that she had done sewing at home until about five years before the tribunal hearing, although the details of that work are not clear. Ground (b) must fail. thocom 31.7. 84 110 cp mvs 3a oe einen beers ae a lets Te Bee te ee ee ee et ee ee et ob an = Ground (c) 1s, to some extent linked with ground (a). The evidence as to the dressmaking work an the factory was rather brief. In particular the applicant's evidence, as I have said, did not include a statement that she was unable to perform that work now. The appellant's counsel contended that such a statement should be inferred from the appellant's evidence. However, the tribunal did not draw that inference and I am not prepared to hold that the tribunal was required, as a matter of law, to draw such an inference. It should, however, be pointed out that the tribunal, on my reading of the last sentence of its reasons for decision, contemplated the possibility that the applicant may succeed in satistying the delegate that she is not "able to do" dressmaking work for an employer. Her inability may be by reason of pain or py limitation of movement or she May be unable to find any such employment. The decision on this appeal will not operate to prevent her from exploring that possibility and placing any such evidence before the delegate when the matter 1s remitted to him in accordance with the tribunal's decision. _ As to ground (da), on a careful consideration of the evidence before the tribunal I do not consider that that evidence "required the finding that she is capable of only part-time work." However, it may well be that the delegate will reach such a conclusion on considering new evidence or he may conclude that the applicant 1s not capable of even part-time work 1f he has evidence before him - which was not placed before the tribunal - that, using the words of the tribunal in the last sentence of its reasons, the applicant has, "faited to find work she is able to do". This morning the appellant was granted leave, without objection by the respondent, to amend its grounds of appeal by adding the following grounds: (e) that the tribunal, having concluded that the applicant may have been able to work as a dressmaker, erred in law in not offering an adjournment or giving the parties an opportunity to lead further evidence regarding the duties of a dressmaker and/or the possibility of the appellant finding such work. ' (£) that the tribunal erred in law in not determining all matters before it and referring the matter back to the delegate without a decision on such matters. Se tewmey actabntnnns Suet ve thocom 31.7.84 111 igs mvs 4a be Teme oe + nT. Bata e ~ ew tee Ground (e) fazls because, in my opinion, there was no duty in lay on the tribunal to take either of the two courses referred to in that ground. Ground (£) was said to be complementary to ground (e) and it fails for substantially the same reason. The appellant's counsel referred to the need to amend paragraph 3 of the notice of appeal, by formulating two additional questions of law raising the matters referred to in new grounds (e) and (£), but the terms of those additional questions of law have not been formulated. As each of the grounds cf appeal has failed, the appeal must be dismissed and the decision of the tribunal affarmed. Counsel for both parties were 1n agreement that costs should follow the event. Accordingly, the formal order of the court is, (1) the appeal 1s dismissed. (2) The decision of the tribunal is affirmed. (3) The appellant Marjorie Edith Thomas shall pay to the respondent, Commonwealth of Australia, 1ts costs of the eppeal which costs shall, 1n the absence of agreement -between the parties, be taxed by the Registrar. Any matters arising out of that, gentlemen? MR WHEELER: Perhaps as an excess of caution I wonder if your Honour would reserve liberty to apply? HIS HONOUR: Certainly. MR WHEELER: Simply in relation to the delegate, perhaps considering the matter in the future. Although I submitted there is no objection to it - - - HIS HONOUR: I follow that. Any objection, Mr Lencazner? MR LENCZNER: No objection. HIS HONOUR: I will add to the formal order (4) laberty reserved to each party to apply. AT 3.25 PM THE MATTER WAS ADJOURNED INDEFINITELY . thocom 31.7.84 112 Jgs mvs Sa