FEDERAL COURT OF AUSTRALIA Jensen v Military Rehabilitation and Compensation Commission [2015] FCA 209 Citation: Jensen v Military Rehabilitation and Compensation Commission [2015] FCA 209 Appeal from: Jensen v Military Rehabilitation and Compensation Commission [2014] AATA 807 Parties: MATTHEW JENSEN v MILITARY REHABILITATION AND COMPENSATION COMMISSION File number: QUD 621 of 2014 Judge: LOGAN J Date of judgment: 2 March 2015 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Military Rehabilitation and Compensation Commission – where Commission accepted liability for injury and controversy concerned entitlement to compensation for incapacity for particular period – parties consented to matter being remitted to Tribunal – whether Court's has jurisdiction to make orders under s 44(4) and s 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth) invoked Held: consent not determinative but appeal did raise question of law that the Tribunal failed to consider a relevant consideration – matter remitted Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Military Compensation and Rehabilitation Act 2004 (Cth) s 23 Cases cited: Jensen v Military Rehabilitation and Compensation Commission [2014] AATA 807 cited Date of hearing: 2 March 2015 Place: Brisbane (via video-link to Cairns) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: The Applicant appeared in person via video-link Solicitor for the Respondent: Moray & Agnew Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 621 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MATTHEW JENSEN Applicant AND: MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent JUDGE: LOGAN J DATE OF ORDER: 2 MARCH 2015 WHERE MADE: BRISBANE (VIA VIDEO-LINK TO CAIRNS) THE COURT ORDERS THAT: 1. The appeal is allowed. The decision of the Administrative Appeals Tribunal (Tribunal) dated 30 October 2014 is set aside. 2. The matter be remitted to the Tribunal for consideration and determination of the amount of the applicant's entitlement to compensation under Chapter 4 Part 3 of the Military Compensation and Rehabilitation Act 2004 (Cth) (MRCA) for the period 2 August 2011 to 13 March 2012 inclusive, including the following: (a) whether section 89 and section 179 of the MRCA are applicable in respect of identifying the applicant's normal earnings; (b) whether section 98(4) of the MRCA is applicable to the applicant in determining the civilian component of the applicant's normal earnings, and if so, what impact this has (if any) in terms of the operation of section 99 of the MRCA when calculating the applicant's normal earnings; (c) whether section 89 and section 179 of the MRCA give rise to a situation where an injured reservist who was paid the National Minimum Wage would be in a better position than before they were injured; and (d) whether the applicant was incapacitated for service as well as incapacitated for work. 3. On the further hearing of the matter in the Tribunal, each party may with the leave of the Tribunal, adduce further evidence. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 621 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MATTHEW JENSEN Applicant AND: MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent JUDGE: LOGAN J DATE: 2 MARCH 2015 PLACE: BRISBANE (VIA VIDEO-LINK TO CAIRNS) REASONS FOR JUDGMENT 1 This appeal from the Administrative Appeals Tribunal (Tribunal) in a military compensation matter (see Jensen v Military Rehabilitation and Compensation Commission [2014] AATA 807) was listed for hearing before me today. On 26 February 2015, Mr Jensen, who acts for himself in the appeal, and the respondent, the Military Rehabilitation and Compensation Commission (Commission), reached agreement as to orders which, in their view, ought to be made in respect of the appeal. Those proposed orders were reduced to writing in the form of what is entitled "Consent Order", dated 26 February 2015, filed today by leave in copy form. Also filed with this was a separate document, also dated 26 February 2015, entitled "Statement Accompanying Consent Order". 2 That entitlement "Consent Order" is, without any disrespect to the parties, strictly a misnomer. I say that because the court, in my view, has to be satisfied that it has jurisdiction before it can make orders under s 44(4) and s 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the appeal. The terms of the Statement Accompanying Consent Order are instructive on the subject of whether there is, indeed, a question of law entailed in the matter. An appeal to the Court from the Tribunal lies only on a question of law. The very essence of the matter is the question of law. In the statement the following is recited: Before the Administrative Appeals Tribunal ("the Tribunal"), the Applicant made submissions regarding: (a) the construction of the Military Rehabilitation and Compensation Act 2004 ("MRCA"); in particular, the operation of section 89 and section 179 as it applied to his circumstances; and (b) whether the evidence established that he was incapacitated for service in the relevant period. Both aspects of those submissions were submissions that were seriously put and worthy of consideration. The Tribunal's reasons demonstrate that the Tribunal did not consider those submissions. A consideration of the matters to be determined by the Tribunal on remission will require findings of fact to be made by the Tribunal and may involve the presentation of additional evidence by both parties. 3 Mr Jensen had the misfortune to be injured in the course of an Army Reserve training activity in 2011. There is a controversy as to the amount of his entitlement to compensation under Ch 4, Pt 3 of the Military Rehabilitation and Compensation Act 2004 (MRCA) for the period 2 August 2011 to 13 March 2012 inclusive. The Tribunal's reasons of 30 October 2014 recite, and it was confirmed today in the course of submissions, that the Commission has accepted liability under s 23(1) of the MRCA for supraspinatus tendinitis, and subcapularis of the left shoulder. It is against the background of that conceded liability that the controversy concerning entitlement to compensation for incapacity for the period mentioned arises. 4 Mr Jensen's notice of appeal was drawn without the benefit of legal advice. Even so, it is apparent that the questions recited in the Statement Accompanying the Consent Order, from which I have quoted, are raised by the notice of appeal. I am satisfied that they do raise a question of law. It is an error of law on the part of any administrative decision-maker to fail to take into account a relevant consideration. 5 Mr Jensen's circumstances were unusual in relation to his work history prior to being injured in the course of the Army Reserve training activity. The issues set out in the statement were, indeed, raised before the Tribunal, but not addressed. In the circumstances of the present case, and with respect to the Tribunal, they ought to have been addressed. I am satisfied, therefore, that the Court has jurisdiction in respect of the matter. 6 The orders that are promoted by the parties in the so-called Consent Order do engage with the notice of appeal, and with the conceded failure on the Tribunal's part. Out of an abundance of caution, I propose to add a more general question to those which are set out in the Consent Order. That more general question is to make it plain that the task of the Tribunal in reviewing the decision under review is to consider and determine the amount of Mr Jensen's entitlement to compensation under Ch 4 Pt 3 of the MRCA. In that consideration the more particular questions set out in paragraph 1(a) through to 1(d) of the consent will have to be addressed. Taking up the sentiment in the Statement Accompanying Consent Order, I also propose to add to the orders today a further order that, on the further hearing of the matter in the Tribunal, each party may, with the leave of the Tribunal, adduce further evidence. It is agreed between the parties that each party should bear their own costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 12 March 2015