Arnotts Ltd v Trade Practices Commission

[1990] FCA 473

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )	1	No. VG 61 of 1990
1
GENERAL DIVISION	1

ON APPEAL from the Administrative Appeals Tribunal constituted by Mrs. H. E. Hallowes, Senior Member

B E T W E E N :

IRENE LUCIEW

Applicant

A N D :

Respondents

JUDGE MAKING ORDER:  KEELY J .

DATE ORDER MADE:	8 OCTOBER, 1990
PLACE ORDER MADE:	MELBOURNE
the Federal Court Rules.)
GENERAL DISTRIBUTION NOT REOUIRED

MINUTES OF ORDER

RECEIVED ,

THE COURT ORDERS THAT:	0 9 OCT 1990
FEDERAL COURT OF

1.     The appeal be dismissed.

The applicant pay the costs of the respondent.

(Note: Settlement and entry of orders is dealt in Order 36 of

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No. VG 61 of 1990
1
GENERAL DIVISION	1

ON APPEAL from the Administrative Appeals Tribunal constituted by Mrs. H. E. Hallowes, Senior Member

B E T W E E N :

IRENE LUCIEW

Applicant

A N D :

COMMONWEALTH 0 F

A U S T R A L I A a n d COMMISSION FOR THE SAFETY. REHABILITATION

AND COMPENSATION OF

COMMONWEALTH EMPLOYEES

Respondents

8 OCTOBER, 1990 KEELY J .

REASONS FOR JUDGMENT

This is an appeal by Irene Luciew ("the applicant") Tribunal"), given on 1 February 1990 which set aside a	from a decision of the Administrative Appeals Tribunal ("the
determination ("the Determination") of a Delegate of the Commissioner for Commonwealth Employees Compensation ("the Delegate"), made on 29 July 1988.

The Determination of the Delegate was in the following

Determination

1.   On the evidence before me, including specialist medical evidence, I find that the effects of the injury have now ceased.

2. Now therefore, in pursuance of the provisions o f the Compensation (Commonwealth Government Employees) Act 1971, I hereby determine:

On and from the date of this determination, the Australian Bureau of Statistics is not liable to pay compensation to Irene

Luciew . "

The grounds of the appeal, as amended by leave at the hearing, were in the following terms:

-

"(a) That the decision appealed against was

wrong in law.

(b)	The decision appealed against was one which on the whole of the evidence should not have been made.
(c)	The decision appealed against was one which was contrary to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 and the Commonwealth Employees' Rehabilitation and Compensation Act 1988.
(d)	That in coming to its decision the said Administrative Appeals Tribunal should have
suffer a compensable injury, the physical found that the Applicant continues to

and psychiatric effects of which have not ceased and in respect of which the Respondent continues to be liable pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 and the Commonwealth Employees' Rehabilitation and Compensation Act 1988.

(e)	That it was not open to the Tribunal, on the material before it, to find that the injury suffered by the Applicant was an aggravation, acceleration or recurrence of a disease.
(f)	That the Tribunal on the material before it was as a matter of law required to find that the Applicant suffered the contraction of a disease and not the aggravation, acceleration or recurrence of a disease.
(g)	That, having regard to its finding that the Applicant was genuine in her description of the history and symptoms of her injury, it was not open to the Tribunal to find that she was not incapacitated for work and that she would be capable of undertaking a range of full time employment.
(h)	That it was not open to the Tribunal to find, on the material before it, that by August 1988 the Applicant was no longer suffering the disease of tenosynovitis in her right arm to which her employment was a contributing factor."

An appeal to this court from the Tribunal is limited to an appeal on a "question of law" (S. 44 Administrative A D D ~ ~ ~ s

Tribunal Act 1975). In Waterford v Commonwealth (1987) 71 ALR

673 Brennan J. (at 689) said:

"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the tribunal in that proceeding' but only 'on a question of law'. The error of law which an

the facts as the AAT has found them to be or it	appellant must rely on to succeed must arise on
must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact."

In Azzo~ardi v Tasman UEB Industries Ltd. (1985) 4 NSWLR 139 Glass JA., at 155, said:

"The first ground challenges the conclusion below that the applicant failed to establish that he injured his knee on a periodic journey on 4 October 1975. There are authoritative pronouncements that such a contention involves no question of law:

"The question whether there is any evidence of a particular fact is also a question of law: - Sittinabourne Urban ~istrcct Council v Lipton Ltd. [l9311 1 KB 539 at 544 and Mersev Docks and Harbour Board v West Derbv Assessment Committee [l9321 1 KB 40 at 110,

111. But if there is evidence of the fact. ~~ -~ -~ ~ ~ ~ - ~ - - ~

the auestion whether that evidence ouaht to be acce~ted in whole or in part. or ouaht to be accepted as sufficient to establish the fact. is itself a auestion of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one wav. It can accept all, or some. or none of it. McPhee v S. Bennett Ltd. (1935) 52

WN(NSW) 8 at 9. (Emphasis supplied)."

In my opinion neither ground (b) nor ground (d) raised
a question of law. Each fails because it related to a matter

which was a matter of fact for the Tribunal to decide and

there was no error of law by the Tribunal.

Ground (e) cannot be upheld because it was open to the Tribunal to find, on the material before it, that the injury was an "aggravation, acceleration or recurrence of a disease". Ground (f) cannot be upheld because the Tribunal was not "as a matter of law, required to find that the Applicant suffered the contraction of a disease and not the aggravation, acceleration or recurrence of a disease". It may be added

S / .

that the Tribunal made a finding that the applicant's employment in 1982 "contributed to the contraction of her tenosynovitis". If also found that the applicant, by continuing "to work at her previous speed after her tendons became inflamed" aggravated her condition. In my view the Tribunal found that the employment contributed to the contraction of the disease and also found that that condition was aggravated by her continuing "to work at her previous speed" cp. ground of appeal (e).

It was contended under ground (f) (transcript p. 37), that the Tribunal misdirected itself as to the facts necessary to support "a conclusion that the effect of the injury had abated"; further, that it "misdirected itself as to what constituted the determination [of the Delegate]" (transcript p. 96). The applicant has failed to show any such misdirection on the part of the Tribunal and those contentions are both rejected.

Grounds (g) and (h) must also fail because it was open to the Tribunal, on the material before it, to make the findings challenged by them. In addition, the challenge in ground (h) to the Tribunal's finding that "by August 1988 the applicant was no longer suffering the disease of tenosynovitis in her right arm to which her employment was a contributing factor", is a challenge to a finding that, in my opinion, was not a necessary foundation to its conclusion that "she is not incapacitated for work".

6/.

On their face, grounds (a) and (c) appeared to be capable of raising a question of law, although they were so vaguely expressed that it was not clear that they did. Having considered the transcript of the submissions advanced in support of them, in my opinion neither of them raised a question of law.

The applicant's counsel sought to place some reliance upon the way in which the proceedings were conducted before the Tribunal. He said (transcript p. 20) that "the extent of her partial incapacity was not argued before the Tribunal". However, he accepted that it had been conceded before the Tribunal that the applicant was not totally incapacitated. Further, the Tribunal's reasons for decision stated that it was "the applicant's contention that she continues to be partially incapacitated for work because of her repetitive overuse injury which was contracted, aggravated and accelerated by her work with the respondent." The question of whether the applicant was partially incapacitated by the

injury was plainly a matter in issue before the Tribunal.

The Tribunal stated that the question before it was "whether the applicant continues to be incapacitated for work as a result of her disease after 29 July 1988." It answered that question by saying that, on the

"opinions expressed by the medical witnesses ... although it would be inadvisable for her to return to full-time repetitive work, in which she was required to meet certain deadlines, I am satisfied that she is not incapacitated for work and that she would be capable of undertaking a range of full time employment."

In my opinion that conclusion was open to the Tribunal on the material before it.

In my opinion the Tribunal, in deciding that the applicant was "not incapacitated for work", did not affirm or otherwise endorse the finding of the Delegate (set out earlier in these reasons for judgment) "that the effects of the injury have now ceased" - notwithstanding that it affirmed the decision (i.e. the Determination) made by the Delegate on 29 July 1988. It was open to the Tribunal to so affirm that Determination without accepting the Delegate's finding "that the effects of the injury have now ceased".

I have referred to the last matter because there appears to be some misconception as to it. The applicant's counsel (transcript p. 95-96) made the following statement:-

". . . it is clear on any reading of the material

that all the parties would appear to have formed the view that the ultimate determination of the tribunal is to the effect that this applicant is irrevocably stopped from making any further claim from the respondent for future compensation."

At an earlier stage (transcript p. 22) her counsel had said that, on one construction, the Tribunal's reasons for decision "may be construed [as deciding] that the effects of the injury have ceased and as such the applicant would no longer be

8/.

entitled to any compensation for that injury."

Had the Tribunal purported to affirm the Delegate's finding "that the effects of the injury have now ceased", a question might have arisen as to whether the Tribunal had power to do so. A question might also have arisen as to whether the Delegate had power to make the finding that "the effects of the injury have now ceased" if by that finding he intended to formally "determine" that (in the words of the applicant's counsel) the "applicant is irrevocably stopped from making any further claim ... for future compensation" i.e. in respect of any future incapacity that might be claimed to be attributable to the employment injury in 1982. The Delegate had power to decide, in respect of a particular date or period, that any incapacity did not result from a compensable injury. However, it is at least arguable that the Delegate did not have power to decide that an employee's future claim for incapacity, which incapacity had not occurred at the date of the Delegate's Determination, could not

succeed.

In the present case, in my opinion the Tribunal's decision, although affirming the Delegate's Determination, is not intended to operate in such a way as to preclude the making of a claim in respect of a period of incapacity in the future and does not, as a matter of law, operate as a bar to any such claim. However, such a claim would not succeed unless the applicant satisfied the appropriate tribunal that

9/.

she was incapacitated, wholly or partially, for work, that her employment by the Commonwealth was a contributing factor to the contraction of a disease, or to the aggravation of a disease, and that her incapacity resulted from that disease or aggravation (S. 29(l)(b)).

As each of the grounds of appeal has failed, the appeal must be dismissed and the applicant ordered to pay the costs of the respondent.

I hereby certify this and the eight preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice J. A. Keely delivered 8 October, 1990.

Associate:

Date: 8 October, 1990.

ATTACHMENT A

Dates of Hearing	: 2 and 3 October, 1990
Date of Judgment:	: 8 October, 1990
Solicitors for Applicant	: Slater & Gordon
Counsel for Applicant	: Mr. B. J. McCullagh
Solicitors for Respondent	: Australian Government

Solicitor

Counsel for Respondent : Mr. E. G. de Zilwa