Chapman v Australian Postal Corp [2000] FCA 1700

FEDERAL COURT OF AUSTRALIA

Chapman v Australian Postal Corp [2000] FCA 1700 ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – where the decision of the AAT contained an error of law – whether it would be futile to remit the matter to the AAT – where on the evidence before it various findings of fact were open to the AAT

John Martin v Australian Postal Commission (1999) FCA 655 followed Commonwealth Banking Corp v Percival (1988) 20 FCR 176 followed Repatriation Commission v Nation (1995) 57 FCR 25 distinguished RAYMOND HOWARD CHAPMAN v AUSTRALIAN POSTAL CORPORATION Q 27 OF 2000 TAMBERLIN J SYDNEY 23 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY Q27 OF 2000

BETWEEN: RAYMOND HOWARD CHAPMAN

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 23 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal is set aside. 2. The matter is remitted to the Administrative Appeals Tribunal, differently constituted, for determination in accordance with law. 3. The respondent is to pay the applicant's costs. 4. The respondent is granted a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 in respect of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY Q27 OF 2000

BETWEEN: RAYMOND HOWARD CHAPMAN

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 23 NOVEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") given on 8 March 2000, which affirmed a decision by an officer of the respondent. The officer had originally determined that the respondent was not liable to pay work place injury compensation to the applicant from 19 June 1999. The injury had been diagnosed as "lateral epicondylitis of the right elbow". 2 The grounds of appeal, which was brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), included an assertion that the AAT failed to provide adequate reasons for its decision. 3 On the appeal it was common ground that there had been material errors of law in the decision and no submission was made by the respondent as to the adequacy of the reasons in the AAT decision. Rather, the submission of the respondent was that notwithstanding any errors of law the AAT had nevertheless reached the correct conclusion and a referral back to a differently constituted Tribunal would be futile. Counsel for the respondent argued that there was evidence before the Tribunal sufficient to support the findings made in par 13 of the decision and referred to a number of pieces of evidence. 4 The decision under appeal recites the history of the applicant's employment with the respondent and summarises the work in which he had been engaged. It records that the applicant was accepted, for compensation purposes, as having lateral epicondylitis of the right elbow arising from the repetitive nature of his work in sorting mail. 5 After reciting the history of the matter the AAT said: "10. The Tribunal heard evidence from Dr Stabler, orthopaedic surgeon. Dr Stabler believes that certain people are susceptible to the problems of lateral epicondylitis, tennis elbow and golfer's elbow, because of their physical characteristics. He believes that Mr Chapman is one of them. Consequently, for Mr Chapman to remain free of lateral epicondylitis, he should not re-engage in the type of work he was doing when he hurt his elbow. It was the repetitive nature of the work which caused the problems. 11. It was submitted on behalf of Mr Chapman that he is entitled to compensation on the basis of the difference in wages between what he was earning as a sorter on full-time plus overtime and what he is now earning as a three day per week mail deliverer. 12. Subsection 14(1) of the Safety Rehabilitation and Compensation Act 1988, provides that compensation is payable if the injury results in death, incapacity for work or impairment. … 13. Mr Chapman cannot return to his previous work of sorting second-class mail because of his physical characteristics which make him susceptible to developing another bout of lateral epicondylitis. However, he is not impaired and he has no incapacity for work. He is ready, willing and able to work full-time. The state of the availability of the work that he would like to do is not relevant. 14. Australia Post is not liable to pay compensation to Mr Chapman." (Emphasis added)