FEDERAL COURT OF AUSTRALIA Blewitt v Telstra Corporation [2013] FCA 110 Citation: Blewitt v Telstra Corporation [2013] FCA 110 Appeal from: Blewitt and Telstra Corporation [2012] AATA 25 Parties: DIANNE BLEWITT v TELSTRA CORPORATION File number(s): ACD 18 of 2012 Judge: JAGOT J Date of judgment: 21 February 2013 Catchwords: ADMINISTRATIVE LAW – questions of law – questions do not arise – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) Cases cited: Commission for Safety Rehabilitation & Compensation of Commonwealth Employees v Rawling (1993) 42 FCR 421 Date of hearing: 30 January 2013 Place: Canberra Division: GENERAL DIVISION Number of paragraphs: 17 Counsel for the Applicant: Mr D Shillington Solicitor for the Applicant: Brian Hatch Solicitor Counsel for the Respondent: S Whybrow Solicitor for the Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY GENERAL DIVISION ACD 18 of 2012 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DIANNE BLEWITT Applicant AND: TELSTRA CORPORATION Respondent JUDGE: JAGOT J DATE OF ORDER: 21 FEBRUARY 2013 WHERE MADE: SYDNEY VIA VIDEO LINK TO CANBERRA THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY GENERAL DIVISION ACD 18 of 2012 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DIANNE BLEWITT Applicant AND: TELSTRA CORPORATION Respondent JUDGE: JAGOT J DATE: 21 FEBRUARY 2013 PLACE: SYDNEY VIA VIDEO LINK TO CANBERRA REASONS FOR JUDGMENT THE APPEAL 1 This is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 19 January 2012 affirming a decision by Telstra Corporation to reduce the applicant's entitlement to compensation under s 19(4)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). 2 Pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), an appeal from a decision of the Tribunal may only be brought on a question of law. The applicant identified three questions of law in her notice of appeal as follows: (1) whether the Tribunal erred in law in refusing to consider the reasons for the applicant's relocating to Brisbane when assessing whether or not the applicant's failure to continue to engage in employment was reasonable (s 19(4)(g) of the SRC Act) (the relocation point); (2) whether the Tribunal erred in law in refusing to consider the advice given to the applicant by a claims manager on behalf of the respondent when assessing whether or not the applicant's failure to continue to engage in employment was reasonable (s 19(4)(g) of the SRC Act) (the claims manager's advice); and (3) whether the Tribunal erred in law in refusing to consider the advice given to the applicant by Dr Eaton as to the suitability of her call centre employment when assessing whether or not the applicant's failure to continue to engage in employment was reasonable (s 19(4)(g) of the SRC Act) (Dr Eaton's evidence). The SRC Act 3 Section 19(4) of the SRC Act sets out the matters to which regard must be had in making a decision about the amount per week that an employee is able to make in suitable employment. Insofar as relevant, s 19(4) provides that: (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 to: … (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. 4 By s 43(1) of the AAT Act, for the purpose of reviewing a decision, the Tribunal "may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision". Accordingly, the Tribunal is bound to have regard to the matters specified in s 19(4). 5 In Commission for Safety Rehabilitation & Compensation of Commonwealth Employees v Rawling (1993) 42 FCR 421 O'Loughlin J at 426 rejected a submission that each of the sub-paras of s 19(4) should be read as mutually exclusive, concluding that there is no "justification for such a limited and selective interpretation." It follows from this that any matters relevant consideration under s 19(4)(f) or any other sub-para may also be relevant under s 19(4)(g). One other matter should be noted. Section 19(4)(g) requires that regard may be had to "any other matter that Comcare considers relevant". The assessment of relevance, accordingly, is a function vested in Comcare and, by s 43(1) of the AAT Act, the Tribunal. Unless it can be said that the Tribunal is bound by necessary implication from the subject-matter, scope and purpose of the SRC Act to treat a matter as relevant, failing to consider that matter cannot constitute an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40). Discussion 6 The applicant's arguments depend on reading the Tribunal's reasons in a particular way. Before identifying how the applicant submitted the Tribunal's reasons should be understood, it is appropriate to observe that the Tribunal considered at some length the applicant's reasons relocating to Brisbane relating to her family (at [18]-[19], [25] and [71]), the claims manager's advice (at [22]-[25] and [71]-[77]), and Dr Eaton's evidence (at [16], [17], [29], [30], [35]-[38], [48], [49], and [67]-[69]). These, of course, are the very matters that the applicant contends the Tribunal failed to consider. 7 Other than in respect of Dr Eaton's evidence, the contentions depend on reading [81] of the Tribunal's reasons as a statement to the effect that despite having considered and weighed the issues at some length, the Tribunal treated the issues as irrelevant. At [81] the Tribunal said: Apart from the misleading advice that Ms Blewitt received, no further factors which might relate to the reasonableness of the relocation were discussed. It was accepted that the predominant reason that Ms Blewitt moved to Brisbane was to assist her daughter and partner with their children. This was in her personal sphere and was not work-related. As a consequence, although a desire to assist family is laudable, it is not a factor to be taken into account in deciding whether her move to Brisbane was 'reasonable'. 8 As to Dr Eaton's evidence, the contention depends on the notions that the applicant's oral evidence about Dr Eaton's advice differed from or added to his written evidence and that the Tribunal considered Dr Eaton's evidence for the purposes of ss 19(2) and (3) of the SRC Act but not s 19(4). 9 All aspects of the contention confront difficulties of principle and fact. 10 In terms of principle, the Tribunal's reasons must be read as a whole and not "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]). Further, the observation of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [14] applies, namely, that: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 11 In terms of fact, the Tribunal reached the view at [69] of its reasons that "work in a call centre, although not ideal, was 'suitable employment'" for the applicant. The applicant does not dispute this finding. The Tribunal then went on to say at [71] that, despite this finding: The matter cannot be concluded, however, without consideration of whether there were any other grounds which made it reasonable for Ms Blewitt to move to Brisbane and to engage in work of the kind she was doing at Premier Plumbing. Other factors to be taken into account in relation to 'ability to earn' The Tribunal is required to take into account a number of factors for the purposes of deciding the 'amount per week that an employee is able to earn in suitable employment'. These include the amount per week that the employee is earning (section 19(4)(a)). Ms Blewitt is employed by Premier Plumbing and the amount she earns in that employment which is substantially less than the amount she was formerly earning, is a matter which the Tribunal has taken into account in relation to its finding on what is 'suitable employment' for Ms Blewitt. The other matter which is raised in this application for review is section 19(4)(g) 'any other matter that Comcare considers relevant'. Three such matters were considered: the advice Ms Blewitt received from her claims manager and on which she relied in making the decision to relocate; the failure by Telstra to offer Ms Blewitt rehabilitation or vocational retraining; and the desire of Ms Blewitt to assist her daughter with the children. 12 The Tribunal proceeded thereafter to consider each of the three matters, two of which the applicant now contends the Tribunal failed to consider by reason of the statement at [81] of its reasons. Once this is appreciated it should be apparent why the contentions cannot be accepted. The Tribunal, having undertaken the very task of consideration which the applicant says it failed to do, concluded that the applicant's personal reasons for relocating were "not a factor to be taken into account". In context, this cannot be understood as the Tribunal concluding that the matter was irrelevant. To the contrary, the Tribunal said it was relevant (at [71]), assessed the matter, and ultimately decided not to give it weight. In the context of the reasons as whole [81] can only be understood as conclusion about weight on the facts of the particular case, not a statement of principle. It is simply that on the facts of this case, the Tribunal did not consider the matter was of material weight and, accordingly, it was not a matter the Tribunal considered relevant under s 19(4)(g) of the SRC Act. This weighing and assessment process was a matter for the Tribunal alone and does not involve any error of law. Understood in this way, which I am satisfied is the only reasonable way in which [81] can be understood, the Tribunal performed the function which it was required by law to perform. 13 As to the advice from the claims manager, it is also apparent that the Tribunal considered this relevant but did not accept it to be sufficient to make the applicant's cessation of suitable employment by relocation reasonable. The applicant's real complaint appears to be that the Tribunal did not have regard to an email which the applicant sought to tender as fresh evidence in the appeal. In this regard, the problem is that the Tribunal was aware of the prospect of an additional email (see its reasons at [22]) but the email was not able to be located by the parties at the time and thus was not tendered into evidence. There is no error of law in the Tribunal not considering a document that was not in evidence before it. Irrespective of this, and as the respondent submitted, the applicant's approach to the email involves a misconception. The relevant issues were the applicant's understanding of the position and whether that was reasonable. The applicant gave evidence about her understanding and the Tribunal assessed its reasonableness. Confirmation of the applicant's understanding by the terms of the email could not have made any difference one way or another. This is particularly so having regard to the Tribunal's finding about suitable employment for the applicant and the availability of such employment in and around the area to which the applicant had relocated. 14 The applicant's submission that the Tribunal did not consider the advice given to her by Dr Eaton cannot stand in the face of [69] of the Tribunal's reasons. The Tribunal found at [69] that: Although [Dr Eaton's] letter and recommendation are couched in mandatory language, the circumstances in which the report was written indicate that his recommendation was just that; it was not a certification that she was unfit to work in a call centre environment. So much was conceded by Ms Blewitt at the hearing. On that basis, there is no medical evidence to suggest that Ms Blewitt is unfit for such work. The Tribunal finds that work in a call centre, although not ideal, was 'suitable employment' for Ms Blewitt for the purposes of section 4(1) and is relevant to her 'ability to earn' for the purposes of section 19(2), (3) and (4). No evidence was provided to the Tribunal about other occupations relying on comparable skills for which Ms Blewitt could apply. [footnotes omitted] 15 It is clear from this that the Tribunal considered Dr Eaton's evidence for the purpose of not only ss 19(2) and (3) of the SRC Act but also s 19(4). 16 To the extent that the applicant submitted that the applicant's oral evidence about Dr Eaton's advice was not considered, two answers are apparent. First, the applicant's evidence about Dr Eaton's advice was equivocal. The evidence shifted from computer work being a definite "no-no", to Dr Eaton suggesting the applicant use the relocation to move out of such work, to Dr Eaton suggesting that maybe the applicant should try to avoid such work. The written communication from Dr Eaton of 8 December 2010 was more direct. Dr Eaton recommended the applicant not undertake intensive computer work. The Tribunal considered this report (at [37] and [67] – [70]). In other words, the Tribunal considered the advice given to the applicant about the type of work she should not do, being the same subject matter the applicant contends the Tribunal failed to consider. The contention of a failure to consider a relevant matter on this basis is untenable. 17 For these reasons the applicant's case on appeal cannot be accepted. The Tribunal's reasons do not disclose any of the three questions of law said to vitiate the Tribunal's decision. Orders will be made accordingly. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 21 February 2013