Federal Court of Australia Cleanaway Operations Pty Ltd v Torr [2022] FCA 1172 File number: VID 416 of 2022 Judgment of: MCEVOY J Date of judgment: 30 September 2022 Catchwords: INDUSTRIAL LAW – parties promoted consent orders setting aside decision of the Administrative Appeals Tribunal which set aside a reviewable decision made by the applicant denying the respondent's claim for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – orders of Tribunal made in error – consent orders made COSTS – certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Proceedings (Costs) Act 1981 (Cth) s 6 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 14 Cases cited: Bradken Limited v Norcast S.ár.L (2013) 219 FCR 101; [2013] FCAFC 123 Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 Telstra Corporation Limited v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7 VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 7 Date of hearing: 30 September 2022 Place: Melbourne Counsel for the Applicant: Mr Clark Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the Respondent: Mr Pattenden Solicitor for the Respondent: Maurice Blackburn ORDERS VID 416 of 2022 BETWEEN: CLEANAWAY OPERATIONS PTY LTD Applicant AND: ROBERT TORR Respondent order made by: MCEVOY J DATE OF ORDER: 30 SEPTEMBER 2022 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal dated 30 June 2022 be set aside. 3. The matter is remitted to the Administrative Appeals Tribunal to make a decision according to law. 4. The respondent pay the applicant's costs agreed in the sum of $16,910.00. 5. The respondent be granted a costs certificate in respect of the appeal, the certificate to state that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal, and (b) the costs incurred by the applicant in relation to that appeal ($16,910.00) that are required to be paid by the respondent to the applicant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCEVOY J 1 The parties to this appeal have promoted, by consent, orders pursuant to which the appeal be allowed, the decision of the Administrative Appeals Tribunal (the Tribunal) dated 30 June 2022 be set aside, and the matter be remitted to the Tribunal for determination according to law. The exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appeallable error in the decision below: see generally Bradken Limited v Norcast S.ár.L (2013) 219 FCR 101 at 102 [2] (Allsop CJ, Mansfield and Jacobson JJ); Telstra Corporation Limited v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 at 77 [51] (French, Weinberg and Greenwood JJ); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[5] (Colvin J). 2 In this proceeding the applicant, Cleanaway Operations Pty Ltd, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal which set aside a reviewable decision made by the applicant denying the respondent's claim for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal found that the respondent suffered incapacity and impairment as a result of a left shoulder condition which arose out of or in the course of his employment with the applicant on or about 3 March 2020. 3 The parties have jointly submitted that: (a) the Tribunal considered the evidence of the applicant and the medical practitioners, and reached the conclusion that, consistent with the opinions Drs Iqbal, Jackson and Grossbard, the respondent's condition arose out of or in the course of his employment; (b) in reaching its decision, the Tribunal did not: (i) make a distinction between an 'injury' and a 'disease' for the purposes of the SRC Act, or apply the relevant principles articulated in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; (ii) make a finding as to the specific nature of the respondent's shoulder condition or articulate how this satisfied the definition of "injury" for the purposes of s 5A(1) of the SRC Act; and (iii) identify how the respondent's injury resulted in incapacity or impairment for the purposes of enlivening s 14 of the SRC Act; (c) the Tribunal further misdirected itself insofar as it made reference to the oral testimony of Dr Jackson, which had never been provided; and (d) the Tribunal, having not addressed the issues raised in paragraphs 3(b) and (c) above, did therefore not make the appropriate findings in relation to the causal relationship between injury and employment which is required in order to satisfy s 5A(1) of the SRC Act. 4 Thus the parties submit that it is appropriate for the Court to make orders allowing the appeal and remitting the decision. 5 The Court notes the concession made by the respondent that these joint submissions represent. Further, the Court is satisfied, for the reasons identified by the parties and set out above, that there has been appealable error on the part of the Tribunal and that the appeal should be allowed and the matter remitted. 6 It follows that there will be orders allowing the appeal, setting aside the Tribunal's decision, and remitting the matter to the Tribunal to be determined according to law. The respondent will pay the applicant's costs agreed in the sum of $16,910.00. 7 The respondent invites the Court to grant a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act). In all the circumstances I am satisfied that this is a suitable occasion for the grant of a costs certificate pursuant to s 6 of the Costs Act, and there will be orders accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate: Dated: 30 September 2022