JUDGMENT No. moor LE CATCHWORDS ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal ~- Compensation - Compensation payable to employee who, being incapacitated for work as result of injury, retires from employment and, as a result of retirement, receives lump sum benefit under superannuation scheme - Amount of compensation to be determined by application of prescribed formula - Issue before Administrative Appeals Tribunal concerned correct application of formula - Matter decided on finding that employee not incapacitated at date of retirement so that entitlement provisions not applicable to him - Whether that issue raised before Administrative Appeals Tribunal or the subject of concession by employer - Whether employee afforded opportunity to adduce evidence and make submissions in relation thereto - Whether decision of Administrative Appeals Tribunal should be set aside. Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Safety Rehabilitation and Compensation Act 1988 (Cth), s 21 ROBERT FREDERICK HUCKEL v IMCARE No. ACT G 39 of 1994 Neaves J. 22 November 1994 Canberra RECEIVED 23 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL E DERAL RT_OF TRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) No. ACT G 39 of 1994 NERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBERT FREDERICK HUCKEL Applicant Respondent INUTE OF ORDER E N R 3: Neaves J. DATE OF ORDER : 22 November 1994 WHERE MADE 3 Canberra THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal given on 12 May 1994 be set aside. 2. The matter be remitted to the Administrative Appeals Tribunal for hearing and determination in the light of the judgment of this Court and upon such evidence as the parties may see fit to adduce before it. 3. The respondent pay the applicant's costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_ THE FEDERAL RT AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) No. ACT G 39 of 1994 GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIV. FE MINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBERT FREDERICK HUCKEL Applicant AND: COMCARE Respondent CORAM: Neaves J. DATE: 22 November 1994 ASONS FOR DGMENT Robert Frederick Huckel ('the applicant") has applied to the Court by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 12 May 1994. The Tribunal affirmed the decision made on 26 February 1993 by a delegate of Comcare ("the respondent") which affirmed the decision made on 4 September 1992 that the applicant had no entitlement on and from 10 February 1989 to weekly payments of compensation under 8.21 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (since 24 December 1992, the Safety Rehabilitation and Compensation Act 1988 (Cth)). 2. The applicant's history appears from the following paragraphs of the Tribunal's reasons for decision - "6. The applicant joined the Australian Federal Police in 1965 and was employed as a general duties police officer from that time until 1977. He achieved promotions throughout that period and eventually achieved a promotion to senior sergeant in 1982. However, in 1977 the applicant had suffered what has been described as a heart attack which required him to take about six weeks off work and then return to normal duties, but not including shift work, until 1979. In 1979 he resumed shift work. That shift work continued until May 1985 when the applicant was selected to attend a course as a prerequisite for promotion. The course was described to the Tribunal as a live-in course. 7. Notwithstanding that the applicant was cleared medically to attend the course, he in fact had considerable difficulty with it. It seems that the pace of the course was such that it was beyond the applicant's capacity to cope with the amount of work that was required and the long hours required for completion of the work. The result for the applicant was that he was unable to copy physically with the demands of the course. The course was having an adverse effect on his health and there was a general accumulation of the build up of work and his incapacity to handle it resulting in a loss of confidence and he started to get breathless. In the result, after about three weeks, the applicant pulled out of the course. 8. The applicant sought medical advice from the police doctor, who in turn referred him to Dr Coles and he was subsequently also referred to a psychiatrist, Dr Truman. In the result he was off work for about five months between May and October 1985 as a consequence of his condition following the attendance at the police college. 9. On return to work, and although he had been acting as a station sergeant prior to attending the course, he was re-assigned for work at Government House on security duties. Upon the responsibility for security at Government House being handed over to the Australian Protective Service, the applicant was then re-assigned to security duties at the Prime Minister's lodge for a month or so. Following that he was then assigned to security duties involving embassies. 10. Eventually the security duties in relation to the embassies was also handed over to the Australian Protective Service and the applicant then was given what might be called an office job in the Traffic Adjudication 3. Section. The duties of that position required daily attendance Monday to Friday at 8 o'clock to 4 pm. After that his last period of service with the Federal Police was in the personnel branch in Headquarters, a period he estimated to be the last seven months of his service in the federal police. The duties of that position were clearly described by the applicant as being an office job involving the handling of establishment details and the maintenance of establishment records. 11. The applicant said in the course of his evidence-in- chief that after the episode at the police college and his period off work, he had decided to resume work in the police force on the basis that he had no _ further prospects of promotion in his police career, and that he would not be doing any further study and would simply see it out until he turned 55, when he would be able to retire from the police force. However, before reaching the age of 55 years the applicant received an offer of redundancy from the Australian Federal Police. Up to the time of the redundancy offer the applicant had been receiving compensation payments, apparently to increase his income to his normal weekly earnings, although it is not clear on the material before the Tribunal as to exactly the basis on which these payments were made.... 12.... 13. Following retirement the applicant built a house at Malua Bay on land which he and his wife had owned for some two or three years and following the construction of that house, sold their home in Hughes and took up permanent residence in Malua Bay. The applicant agreed in cross-examination that there were very limited, if any, jobs prospects in the Malua Bay area and he also agreed that he had not made any real attempt to find employment in that area." Section 21 of the Safety Rehabilitation and Compensation Act ("the Act") provides: "(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme. (2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with 4. this section for each week after the date of the retirement during which the employee is incapacitated. (3) The amount of compensation is an amount calculated under the formula: | SA AC. ( ee +8¢| where: AC is the amount of compensation that would have been payable to the employee for a week if: (a) section 19, other than subsection 19(6), had applied to the employee; and (b) the week were a week referred to in subsection 19(3); SA is the superannuation amount; and sc is the amount of superannuation contributions that would have been required to be paid by the employee in that week if he or she were still contributing to the superannuation scheme." Subsection 4(9) of the Act provides: "(9) A veference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened." It is to be noted that, in its application to s.21, par.(b) refers to the period "immediately before the injury happened", 5. not to the period immediately before the employee's retirement. Section 19 of the Act imposes a liability on Comcare for the payment of compensation for injuries resulting in incapacity. It applies (subs.(1)) to an employee who is incapacitated for work as a result of an injury, other than an employee to whom ss.20, 21, 21A or 22 of the Act applies. Other subsections of s.19 prescribe the means of ascertaining the amount oof compensation payable in the particular circumstances in which the section operates. For present purposes it is sufficient to refer to subss 19(3) and (4). Subsection 19(3) provides: "(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation: (a} where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; (b) where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; (c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; (a) (e) (f£) 6. where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and where the employee is employed for 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings." Subsection 19(4) provides: "(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard tos (a) (b) (d) where the employee is in employment - the amount per week that the employee is earning in that employment; where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; where, after becoming incapacitated for work, the employee received an offer of suitable 7. employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment ; (e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f) where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to_ seek employment, as the case may be, was, in Comcare''s opinion, reasonable in all_ the circumstances; and (g) any other matter that Comcare' considers relevant." On 4 April 1986, a delegate of the Commissioner for Employees' Compensation determined that the Australian Federal Police was liable to pay to the applicant compensation under 8.27 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) in respect of "acute anxiety stress reaction" suffered on 29 May 1985. On 10 April 1986, a determination was made awarding weekly payments of compensation in respect of total incapacity for work from 29 May 1985 to 27 October 1985. On 15 October 1986, a determination was made under the above Act amending the determination made on 4 April 1986 by adding the words "and hypertension" after the words "acute anxiety stress reaction". On 16 October 1986, a further determination was made based on a finding that the applicant 8. had been partially incapacitated for work from 28 October 1985 as a result of the personal injury sustained on 29 May 1985. It appears that the weekly payments of compensation in respect of the period from 28 October 1985 reflected the applicant's reduced earnings due to the loss of penalties as a result of being unable to return to shift work. Weekly payments of compensation continued after 1 July 1988 under' the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The applicant retired from the Australian Federal Police on 9 February 1989. The determination made on 16 October 1986 was revoked on or about 23 February 1989 with effect from 15 February 1989. By letter dated 2 March 1989 the applicant was informed that his entitlement since 16 February 1989 was based on his still being able to earn at the average of his weekly salary (including penalties and overtime) over the previous six months and that that entitlement was to be reduced by the amount of the Government funded portion of his superannuation pension when that became known. The applicant continued to receive weekly payments of compensation in respect of the period from the date of his retirement until 4 September 1992. The applicant was, however, informed, by a letter of that date, that arrangements had been made for the cessation of his weekly payments forthwith on the basis that, applying the provisions of s.21 of the Commonwealth Employees' 9. Rehabilitation and Compensation Act 1988 (Cth), the superannuation component ($235.00) exceeded the weekly amount of compensation ($147.62) with the result that he had not been entitled to any weekly payments of compensation since his retirement on 9 February 1989. The essential figures on which the determination was made that the applicant had no entitlement to weekly payments of compensation on and from 10 February 1989 were - Applicant's normal weekly earnings $1,084.38 Amount per week applicant able to earn in suitable employment $665.65 Government funded portion of superannuation $106,609.19 Weekly superannuation contributions if applicant had not retired $29.98 The calculation made under s.21, applying the provisions of par.19(3)(a), was as follows: (s1. 084. 38x15 $665 -65)-(p 206:500-4° +529 -98] The above determination was reviewed at the applicant's request but was affirmed on 26 February 1993 by an independent review officer. It is clear that the determination of 4 September 1992 and the affirmation of that determination on 26 February 1993 proceeded on the basis that s.21 of the Act applied to the applicant, that is to say, on the basis that the criteria 10. prescribed by subs.(1) of that section were satisfied. In other words, it was accepted that the applicant was an employee who, being incapacitated for work as a result of an injury, retired voluntarily, or was compulsorily retired, from his employment after the commencement of s.21 and, as a result of the retirement, had received a lump sum under a superannuation scheme. It also appears to have been accepted that the applicant continued to be incapacitated for work after the date of his retirement (see subs.21(2)). The issue before the independent review officer was whether it was correct to regard the applicant as being able, after his retirement, to earn the amount of $665.65 per week in suitable employment. The independent review officer was not satisfied, on the material before her, that the applicant "had a reduced ability to earn from 10 February 1989 as a result of his compensable condition". As already mentioned, the Tribunal affirmed the decision that the applicant had no entitlement on and from 10 February 1989 to weekly payments of compensation under s.21. In par.5 of its reasons for decision, the Tribunal identified the issues before it in the following terms: "5S. In essence the dispute in this case revolves around the calculation of the AC component in the formula in sub-section 21(3) of the Act. That, of course, would require consideration of section 19 of the Act. For the present, it is sufficient to say that the issues that arise in this matter are the applicant's incapacity for employment and secondly, the amount that the applicant is able to earn per week in suitable employment, having regard to the criteria set out in sub-section 19(4)." 11. That paragraph of the Tribunal's reasons for decision is consistent with the applicant being a person to whom s.21 applied by reason of the operation of subs.(1) of that section. On that basis, it is clear that the reference to the issue of the applicant's incapacity for employment is a reference to the issue which would arise under subs.21(2), namely whether the applicant was incapacitated during each week after the date of his retirement in respect of which an entitlement to compensation is claimed. The Tribunal, however, did not decide the issues identified in par.5 of its reasons for decision but reached its decision on the basis that the applicant was not a person to whom the provisions of s.21 applied. It reached that decision upon a finding, in effect, that, at the time of his retirement from his employment, the applicant was not incapacitated for work. The Tribunal said: "28. Both section 21 and section 19 of the Act apply to an employee who is incapacitated for work as a result of an injury. Section 21 applies to such an employee who retires voluntarily or is compulsorily retired from his or her employment at any time after the commencement of the section and as a result of the retirement, received a lump sum benefit under a superannuation scheme. The applicant comes within the terms of sub-section (1) of section 21 if I am satisfied that he was incapacitated for work as a result of an injury and the other circumstances of the sub-section having been satisfied, that is the only issue that has to be decided by the Tribunal. The sub-section does not deal with a situation of threatened redeployment. I have taken into account the fact that the Commissioner of the Australian Federal Police had made a declaration that the applicant was subject to redeployment but I can find no basis for making a finding other than one that the applicant was able to continue in employment with the Australian 12. Federal Police, albeit in other duties, if he chose to remain with the Federal Police. As to what those other duties may or may not have been, we do not know, because the applicant did not exercise that option, he chose voluntary retirement from the Federal Police. 29. After taking all the material before me _ into account, I am not satisfied that the applicant's acceptance of the redundancy package was motivated by his incapacity for work, it being clear on the material before me, and I think really beyond argument, that the applicant did not like the work he was doing and that when the opportunity to accept a voluntary retirement presented itself, he accepted that. That, I think, is the reality of the situation. That, I thank, is what actually happened and that, I think, must be the answer in this case. The result is that I am unable to find that the applicant was incapacitated for work at the time he accepted the redundancy package and I am therefore unable to find that section 21 applies to him and, as a consequence, section 19 also does not apply." Before the Court, counsel for the applicant submitted that the Tribunal had erred in that it decided an issue, namely the applicability of s.21, that was not in dispute between the parties and that it did so without informing the parties, who were agreed that s.21 was applicable, that the applicability of the section was to be considered. It followed, so it was submitted, that the Tribunal had failed to determine the real issue between the parties, whether the formula prescribed by subs.21(3), when properly applied to the circumstances of the applicant's case, resulted in the respondent being not liable to pay compensation to him. Counsel for the applicant expressed optimism that counsel for the respondent would concede that the only issue before the Tribunal concerned the application of the formula 13. prescribed by subs.21(3). Almost immediately, however, it became apparent that counsel's optimism was misplaced. Counsel for the respondent submitted that, although a concession that had been made by the respondent before the Tribunal, that concession went no further than conceding that s.21 was the relevant section to be considered and did not extend to conceding that the applicant satisfied the criteria prescribed by subs.21(1). Counsel went so far as to submit that the question whether the applicant was incapacitated for work at the date of his retirement was "a live issue set out in both the submissions and the statements of facts and contentions of the parties" and that, during the course of the hearing before the Tribunal, there was presented "a great deal of evidence, both medical and lay evidence" directed to that question. To resolve the dispute which thus emerged, it has been necessary to examine in some detail what took place before and at the hearing of the matter by the Tribunal. There can be no doubt, as has already been noted, that the decision that was under review by the Tribunal proceeded on the basis that the applicant was a person to whom 8.21 applied. The Court was provided with a copy of each of three documents that were prepared prior to, and for the purposes of, the hearing before the Tribunal. The first in point of 14. time is a document described as "Statement of Issues" and dated 22 July 1993, prepared on behalf of the respondent. The second is a document, also prepared on behalf of the respondent, described as "Respondent's Statement of Contentions" and dated 21 September 1993. The third is a document headed "Applicant's Statement of Issues and Contentions" and dated 23 September 1993, prepared on behalf of the applicant. The first of those documents identified two issues, being - (a) whether the applicant's entitlement to compensation was nil pursuant to the formula in s.21; and (b) whether, in applying par.19(3)(a), the AC component of the formula was $147.64, calculated by determining 75% of the applicant's normal weekly earnings (being $1,084.38) and subtracting the amount per week he was able to earn in suitable employment (being $665.65). The second document, the Respondent's Statement of Contentions, is in the following terms: "1. Between 10 February 1989 and the date of this application (the relevant period) the Applicant did not suffer: (a) any incapacity for employment; (b) to which employment with the Australian Federal Police had contributed to [sic] in a material degree or otherwise had contributed to [sic] in any degree apart from an incapacity to undertake night shift work. 2. From 28 October 1985 to February 1989 the Applicant undertook normal duties as a Senior Sergeant with his only restriction being he did not work night shift. 15. Accordingly when the Applicant accepted a voluntary redundancy package in February 1989 he had an ability to earn in suitable employment an amount commensurate with the amount he was earning as a senior sergeant. Pursuant to sections 21 and 19 of the Safety Rehabilitation And Compensation Act 1988 the Applicant had a nil entitlement to compensation on and from 10 February 1989." The third document, the Applicant's Statement of Issues and Contentions, reads: "ISSUES: i. What is the applicant's entitlement to compensation pursuant to the formula in Section 21 of the Safety Rehabilitation And Compensation Act 1988 (hereafter 'the Act')? Whether in applying Section 19(3)(a) of the Act the AC component of the Section 21 formula is 75% of the applicant's normal weekly earnings? 3. Whether the applicant was able to earn any amount for the purposes of Section 19(3)(a) of the Act? CONTENTIONS : 1. Between the 10th February 1989 and the date of this application the applicant has been totally incapacitated for employment and therefore has had no ability to earn within the meaning of the Act. From the 28th October 1985 to February 1989: (i) The applicant did not undertake normal duties as a Senior Sergeant; (ii) The applicant undertook only those duties that, upon medical advice, were designed to avoid stress to the applicant; (iii) The applicant was restricted from doing any shift work; (iv) That in any event the applicant had difficulty coping with any work duties during that period. 16. 3. Pursuant to Sections 21 and 19 of the Act the applicant was entitled to compensation on and from the 10th February 1989, for each week on the basis that the AC component of the Section 21 formula should be determined without deduction of any amount for the applicant's ability to earn." The matter was opened before the Tribunal by counsel who then appeared for the applicant on the basis that it was an application seeking a review "of the respondent's application of the formula under s.21 of the Comcare Act". Referring to the formula in subs.21(3), counsel for the applicant informed the Tribunal that there was "no dispute as to the relevant matters as to anything other than the AC component", the SA and the SC components being agreed. Counsel went on to state that the respondent erred in applying the formula in three ways, namely - . in treating the applicant as having an ability to earn, it being contended that the applicant had been totally incapacitated for work since 10 February 1989; . in failing to take into account the factors set out in par.19(4)(e) and other relevant matters under par.19(4)(g); . in failing to take into consideration, in determining, for the purposes of subss 19(3) and (4)¢ the "suitable employment" in which' the applicant might earn after his retirement, the matters referred to in par.(b) of the definition of "suitable employment" in s.4(1). Before any oral evidence was called, counsel for the respondent, in the course of raising some preliminary matters and tendering various documents including certain medical reports, stated that the respondent proposed to adduce oral 17. evidence from medical practitioners to the effect that the applicant, "on and from the date of his retirement, was capable of performing the job he was performing at the date of retirement", which counsel described as "light clerical duties", and that "the partial incapacity does not preclude him from performing those duties". In his closing address, counsel for the applicant identified the question for determination as whether, for each week following 10 February 1989, the applicant was able to earn anything in suitable employment as defined in subs.4(1). Counsel for the respondent, in the course of his address, said: "I am instructed that both parties have agreed that section 21 applies and I am instructed not to suggest otherwise but, even looking at section 21, it is very clear that, when one comes to work out and calculate entitlement, one goes back to section 19. The formula specifically provides for that .... Section 21 clearly contemplates, in calculating entitlement, consideration of section 19 and, of course, in particular, section 19(4)." No submission was made that the applicant was not incapacitated for work at the date of his retirement. It is difficult to see how such a submission could have been put in the light of the fact that prior to, and up to the date of, his retirement the applicant was receiving weekly payments of compensation under the statute, albeit of relatively small amounts. What was put was a more limited submission that the 18. applicant had before his retirement, and continued to have after retirement, "the capacity to perform the job he was required to perform by his employer". Counsel elaborated on that submission - "The reality in this case, in my submission is this. That you cannot find that, as at the date of retirement he was incapacitated for the job he was then doing, as required by his employer. Certainly in the eight months before retirement you were able to look at and rely upon the evidence that there was overtime performed, no sick leave taken, no treatment. And you were able to look at the evidence, as it appears in the 'T-documents, particularly the report of Dr Truman. And able to also look at the evidence of the applicant and his wife, that he could have batted on, had he not chosen voluntary early retirement. In those circumstances, for those reasons, it is my submission the decision under review should be affirmed. Now, I ought to add this, that whether you apply section 21 or not, you will have to get to section 19. You still have to calculate a formula, and in my submission, on any of the grounds I have raised, although you might want to substitute a determination if one was going to be particularly pedantic about it, the nil effect, or the nil outcome effect is still applicable." As I read the transcript of the proceedings before the Tribunal, the submission was directed, not to the question whether, at the date of the applicant's retirement he was incapacitated for work within the meaning of subs.21(1) read with subs.4(9), but to the guestion of his capacity to earn during the weekly periods after retirement in respect of which compensation was claimed, that being one of the elements of the formula prescribed by subs.21(3). Further, counsel for the applicant, in the course of his address in reply, identified the only issue as being whether the applicant's capacity during those periods was nil, as the applicant 19. contended, or the equivalent of full "non shift" duties as a senior sergeant in the Australian Federal Police, as the respondent contended, or something in between, such as that of, for example, a shop assistant. A consideration of the material to which I have referred leads me to the conclusion that no issue was raised before the Tribunal that the criterion prescribed in subs.21(1) that the applicant be a person who was, at the time of his retirement, incapacitated for work as a result of an injury was not satisfied. In those circumstances, it was inappropriate for the Tribunal to decide that that criterion had not been satisfied without affording to the applicant an Opportunity to adduce evidence and make submissions in relation thereto. In the light of what I have said it is strictly unnecessary to consider the further submission of counsel for the applicant that the Tribunal erred in law in its consideration of the question whether the applicant was a person who, at the date of his retirement, was incapacitated for work as a result of an injury. However, as that question may arise upon the further hearing and determination of the matter consequent upon the orders which I propose to make, it is appropriate to make some comment upon the way in which the Tribunal approached the matter. 20. I have already adverted to one relevant consideration in noting that subs.4(9) of the Act refers to an incapacity to work at the same level at which the employee was engaged "immediately before the injury happened". The relevant injury to the applicant appears to have been sustained on 29 May 1985. The Tribunal made no reference to subs.4(9) but determined the question of incapacity by reference to the fact, as found by the Tribunal, that the applicant voluntarily chose to retire and to his motivation in accepting the redundancy package (see pars 28 and 29 of the Tribunal's reasons for decision set out earlier in these reasons). In my opinion, in taking each of those matters into account, the Tribunal took into account irrelevant considerations. For the reasons set out above, the decision of the Tribunal is set aside. The matter is remitted to the Tribunal for hearing and determination in the light of this judgment and upon such evidence as the parties may see fit to adduce before it. The respondent must pay the applicant's costs of and incidental to the application. I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Neaves. Dated: 22 November 1994 Counsel for the applicant Solicitors for the applicant Counsel for the respondent Solicitor for the respondent Date of hearing Date of judgment 21. Mr F.J. Purnell Snedden Hall & Gallop Mr M. McInnis Australian Government Solicitor 6 October 1994 22 November 1994