FEDERAL COURT OF AUSTRALIA Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068 Citation: Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068 Appeal from: [2013] AATA 38 Parties: MICHAEL FREEMAN v FLEETMASTER SERVICES PTY LTD File number: NSD 243 of 2013 Judge: EDMONDS J Date of judgment: 23 October 2013 Catchwords: ADMINISTRATIVE LAW – workers' compensation – s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether reasonable excuse for failing or refusing to undertake rehabilitation program – no error of law by Tribunal PRACTICE AND PROCEDURE – leave sought to file and rely on further amended notice of appeal raising validity of s 37(1) determination going to Tribunal's jurisdiction – not raised in the Tribunal nor capable of being raised – not appropriate to be raised on appeal on a question of law pursuant to s 44(1) of AAT Act – leave refused Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 38, 62 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Court Rules 2011 rr 33.12, 33.15 Federal Court Rules 1979 O 53 r 3 Cases cited: Australian Postal Corporation v Forgie (2003) 130 FCR 279 cited Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 followed Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 followed Comcare v Singh [2012] FCA 136 (24 February 2012) cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Date of hearing: 23 July 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr H Marshall SC with Mr L Robison Solicitor for the Applicant: Schofield King Lawyers Solicitor for the Respondent: Mr Dubé of Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 243 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MICHAEL FREEMAN Applicant AND: FLEETMASTER SERVICES PTY LTD Respondent JUDGE: EDMONDS J DATE OF ORDER: 23 OCTOBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 243 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MICHAEL FREEMAN Applicant AND: FLEETMASTER SERVICES PTY LTD Respondent JUDGE: EDMONDS J DATE: 23 OCTOBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("Tribunal") (Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38) affirming a reviewable decision of the respondent that the applicant had failed, without reasonable excuse, to undertake a determined rehabilitation program provided for him under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("Act") and, in consequence, the suspension of his rights to compensation under the Act as provided for in s 37(7). BACKGROUND 2 By way of background, s 37(1) of the Act permits a rehabilitation authority (the respondent is a rehabilitation authority) to make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. A rehabilitation authority that makes a determination under s 37 is obliged by s 38(1) of the Act to serve a notice on the employee concerned setting out the terms of the determination and the reasons for it as well as a statement to the effect that an employee dissatisfied with the determination may request Comcare to review the determination. Additionally, and by operation of s 62(2) of the Act, the employee concerned, described as "the claimant" in the sub-section, may, if dissatisfied with the determination, request reconsideration of it. A decision on reconsideration is a "reviewable decision" (s 60 of the Act), that is, one capable of being reviewed in the Tribunal (s 64 of the Act). The applicant did not exercise either of these options; instead he declined to participate in the program. In such circumstances, s 37(7) of the Act becomes relevant. It provides: Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program. 3 In Australian Postal Corporation v Forgie (2003) 130 FCR 279, a Full Court of this Court concluded (at [86]) that s 37(7) of the Act was a provision which requires a "determination", within the meaning of s 60(1), to be made and that an employee can also request a reconsideration of such a "determination" under s 62 of the Act. That is what the applicant did in this case. 4 In the Tribunal, the relevant issue/question was identified by the Tribunal at Reasons ("R") [24] in the following way: The nature of the task that I am obliged to undertake in the present proceedings has been authoritatively determined by the decision of the Full Court in Pascoe v Australian Postal Corporation [[2004] FCAFC 4, (2004) 77 ALD 464 (Hill, Marshall & Finklestein JJ)]. In that case the Tribunal was held not to have considered whether the applicant had a reasonable excuse for his failure to undertake the rehabilitation program but had instead considered whether the program was an appropriate one for him. It is not now open to Mr Freeman to challenge the appropriateness of the rehabilitation program provided by Fleetmaster (and he does not seek to do so). Pascoe decided that [at [14]], …when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee. Their Honours subsequently said [at [21]] in relation to the Tribunal's decision, In our view, the AAT, standing in the shoes of Australia Post, did not evaluate the reasonableness of any excuse presented to explain Mr Pascoe's failure to undertake the program devised for him, rather it focused on the reasonableness of the program itself. It was not its role to do so. The AAT should have taken the program as having been provided to the employee without challenge following a determination, and assessed the reasonableness of Mr Pascoe's excuse, if he had one, for failing to undertake that particular program. 5 The Tribunal then proceeded to consider whether the applicant had a reasonable excuse for his failure or refusal to participate in the rehabilitation program and concluded that he did not. Under this head, the Tribunal made the following observations and findings at R [25] – [33] in respect of the events of 15 November 2010, when the applicant attended the respondent's Grafton depot for work: 25. It is now necessary to consider in greater detail the events of 15 November 2010. Those events were the subject of evidence from Mr Freeman, Mr Michael Durbin, a mechanic at the Fleetmaster Grafton depot, and Mr John Geary, the manager of that depot and the person responsible for supervising Mr Freeman. I should say immediately that I see no reason to doubt the accuracy and reliability of the evidence of Mr Durbin and Mr Geary. They both impressed me as being reliable historians and their evidence was supported by logic and common sense. I lack similar confidence in the evidence of Mr Freeman for reasons that will emerge. 26. There is no doubt that Mr Freeman was given duties to perform in and around the depot on his return to work on 15 November 2010. Mr Freeman's case is that the duties he was given to perform, … were unsuitable as they either required use of both his hands or were duties that were unsuitable due to his level of training and experience. Consequently, so Mr Freeman says, he was unable to perform those duties satisfactorily and suffered an exacerbation of the pain in his arm requiring him to cease work. That, he says, provided him with a reasonable excuse for his failure or refusal to participate in the rehabilitation program that Fleetmaster had determined he should undertake. 27. As will appear, I do not accept that Mr Freeman had a reasonable excuse. Nor do I accept that the duties he was required to perform caused an exacerbation of his pain. The contemporaneous documents tell against acceptance of such a proposition. I consider instead that the likelihood is that Mr Freeman was simply not interested in undertaking tasks allocated to him. I need not decide whether, as Mr Clark, counsel for Fleetmaster, suggested, he regarded the tasks as being beneath him. 28. There is agreement that Mr Freeman was asked to undertake two tasks, data input and checking tyre pressures. Mr Freeman says that, additionally, he was asked to undertake a further task involving the fixing of curtains on trailers. As to that latter task, both Mr Durbin and Mr Geary deny that he was asked to perform any task involving the fixing of curtains. I accept their evidence and reject that of Mr Freeman. 29. The data input task appears to have been the first one which Mr Freeman was asked to undertake. It involved him in [sic] using a computer and keyboard to input drivers' logs onto the computer. Mr Geary says that he asked Mr Freeman to undertake the task but that he refused, saying that he did not know how to do it. Mr Geary offered to show him what needed to be done, which was not complicated and which could be explained in 10 to 15 minutes, but Mr Freeman simply refused to even participate in that. 30. It was, in my view, unreasonable on the part of Mr Freeman to refuse to participate in this task. It is not to the point that he lacked computer skills, he refused even to participate in any explanation of the task. The evidence of Mr Geary satisfies me that the task was uncomplicated and needed no particular skill. What was required could have been readily conveyed to Mr Freeman had he wished to participate; he chose, unreasonably, not to do so. It was not open to Mr Freeman to simply refuse to receive training in a simple task. 31. The task of checking tyre pressures was quite basic. It involved the use of the gauge, capable of being used with one hand, to read tyre pressures and, where necessary, the use of a hose to inflate the tyre, again a task capable of being performed with one hand. It may well have been the case that Mr Freeman was required to use his right, injured, hand to perform these tasks but I do not accept that he was ever required to use that hand for weight-bearing tasks. As the medical evidence demonstrated, it was in Mr Freeman's interests to make some use of his injured hand; it was not as if the limb was hanging loosely by his side incapable of any use whatsoever. 32. Mr Durbin gained the impression from Mr Freeman that "he just did not want to be there". I see no reason to doubt that observation. It is consistent with the tone of subsequent correspondence from Mr Freeman to Fleetmaster, referred to below. 33. After a relatively short period of time Mr Freeman left the depot and went home. As I have said, he did not ever return. APPEAL TO THIS COURT 6 The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") which provides that "[a] party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding". 7 Rule 33.12 of the Federal Court Rules 2011 ("FCR") regulates the practice and procedure to be followed with respect to appeals from the Tribunal. It relevantly provides: (2) The notice of appeal must state: (a) the part of the decision the applicant appeals from or contends should be varied; and (b) the precise question or questions of law to be raised on the appeal; and (c) any findings of fact that the Court is asked to make; and (d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and (e) briefly but specifically, the grounds relied on in support of the relief or variation sought. Note: The Court can only make findings of fact in limited circumstances–see section 44(7) of the AAT Act. Rule 33.15 of the FCR provides: The applicant may apply to the Court for leave to raise, on the hearing of the appeal, a question of law that was not stated in the notice of appeal. 8 Rule 33.15 relates only to raising a new question of law. It makes no mention (as does the heading to it) of relying on other grounds. 9 Rule 33.12(2) of the FCR is the successor to O 53 r 3(2) of the Federal Court Rules 1979 ("old rules"). In reference to the requirements imposed by O 53 r 3(2) of the old rules, Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321, said (at [17] – [18]): [17] … Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal. [18] In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on the appeal from the tribunal should be stated with precision as a pure question of law. In other words, a question of mixed fact and law will not suffice to ground jurisdiction, nor will a question of fact. 10 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527, Ryan J indicated his view, undoubtedly correct, that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law. A little later his Honour said (at 527): [I]t simply begs the question of law to commence it with the words "Whether the Tribunal erred in law". If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. 11 Moreover, the question or questions of law must be engaged by the Tribunal in its reasons and decision such as to ground error, or not be so engaged by the Tribunal in error, to be "the subject matter of the appeal itself" in the sense referred to by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. 12 The applicant filed a notice of appeal dated 18 February 2013 in which one question, said to be a question of law, was raised, namely, whether s 37(7) of the Act involves an objective or a subjective test as to "reasonableness". 13 The applicant, with the leave of the Court, filed an amended notice of appeal dated 3 June 2013 in which a further question, said to be a question of law, was raised, namely, whether the question raised in the original notice of appeal ought to have involved a consideration of : (a) The view conducted in the proceeding below; and/or (b) the medical evidence adduced by the parties below as relevant considerations; and/or (c) submissions made in relation to the above matters. 14 Three of the grounds of appeal were also expanded on in the amended notice of appeal and two new grounds alleging error on the part of the Tribunal were also added. 15 The respondent filed a notice of objection to competency dated 18 June 2013 in response to the amended notice of appeal alleging that it did not state a precise question or questions of law to be raised on the appeal and, in substance, sought to revisit findings of fact made by the Tribunal. 16 At the commencement of the hearing of the appeal on 23 July 2013, the applicant sought leave to file and rely on a further amended notice of appeal in which two further questions, said to be questions of law, were raised, the first raising the question of whether the respondent's determination pursuant to s 37(1) of the Act was valid. The issue raised by this question was not raised before the Tribunal; indeed, the validity of the s 37(1) determination was a jurisdictional fact upon which the proceedings before the Tribunal were considered and its decision based; it could not have been raised before the Tribunal because if the s 37(1) determination was invalid, there was no reviewable decision. So much was conceded by the applicant. Apart from anything else, the Tribunal's decision could not be infected with error of law on an issue which was never before it. For these reasons, I refused the applicant leave to file and rely on the further amended notice of appeal and the hearing of the appeal proceeded by reference to the amended notice of appeal referred to in [13] above. COMPETENCY OF THE APPEAL 17 I am of the view that the first question raised in the amended notice of appeal, namely, that raised in the original notice of appeal (see [12] above) is a question of law, but that the Tribunal's decision is not, as alleged in ground 4 of the amended notice of appeal, infected with error on the issue so raised. The second question raised in the amended notice of appeal (see [13] above) is not a question of law and to this extent, the appeal is not competent. The relevant grounds, grounds 2, 3, 5 and 6, need not be addressed but, in any event, the Tribunal did not fail to consider the view, the medical evidence or the submissions made on behalf of the applicant in reaching its decisions (see [22] below). GROUNDS OF APPEAL Ground 4 18 Ground 4 of the amended notice of appeal alleges that the Tribunal erred by only applying an objective test in relation to reasonableness, without considering and weighing the subjective explanations given by the applicant. I reject this allegation. It is clear from the Tribunal's reasons that it took into account the applicant's explanations in this regard, but it did not accept them in the face of other evidence, in particular, that of Mr Durbin and Mr Geary: see the Tribunal's Reasons extracted at [5] above. 19 Moreover, as was pointed out by Jagot J in Comcare v Singh [2012] FCA 136 (24 February 2012) at [27], it would be wrong to construe the phrase "'without reasonable excuse' in the context of s 37(7), [as requiring] nothing more than an excuse which has some rational foundation, as opposed to one which is irrational, considered from the perspective of the employee". As her Honour went on to say: It cannot be … that the subjective state of mind of the employee is the sole dictate of what is a reasonable excuse provided that there is some rational foundation for the employee's state of mind. 20 The Tribunal's reasons disclose that the Tribunal considered and assessed the subjective explanation given by the applicant for not participating in the rehabilitation program as well as an objective assessment of the tasks required to be performed, bearing in mind the explanations given. 21 This aspect of the Tribunal's decision is not infected with error of law. Grounds 5 and 6 22 These grounds are not competent. They do not raise a question of law. In any event, the Tribunal clearly took into account its view of the depot at Grafton during the course of the hearing (R [4]); the medical evidence both before (R [9] – [17]) and after (R [36] and [37]) the applicant's abortive return to work on 15 November 2010; and the submissions made on his behalf. CONCLUSION 23 The appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 23 October 2013