Australian Postal Corporation v Sellick

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FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Sellick [2008] FCA 236

ADMINISTRATIVE LAW – decision of Administrative Appeals Tribunal setting aside two reviewable decisions under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal made findings of fact in support of which there was no evidence or forgot or ignored evidence – Tribunal did not make findings of fact in support of which there was no evidence or forget evidence in relation to first reviewable decision – whether Tribunal failed to consider submissions of substance – Tribunal not obliged to refer to every aspect of evidence or submissions supporting its view – whether compensable injuries found were properly the subject of a claim under the Safety, Rehabilitation and Compensation Act or properly considered to be the same injury as that originally notified – Tribunal did not explain how additional conditions arose out of claimed injury – Tribunal accepted respondent no longer suffered from effects of injury as originally notified and claimed – Tribunal did not give sufficient reasons for decision that compensable injuries were related to claimed injury – Tribunal failed to consider important alternative explanation in relation to second reviewable decision – finding of material fact for which there was no evidence – both reviewable decisions to be remitted to Tribunal

ADMINISTRATIVE LAW – applicant appeals under s 44 of Administrative Appeals Tribunal Act 1975 (Cth), s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of Judiciary Act 1903 (Cth) – grounds of appeal same – whether Court has jurisdiction under both applications – whether judicial review be limited to question of law – whether Court should exercise discretion to restrict to questions of law – Comcare v Etheridge (2006) applied – applications heard simultaneously

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(4), 7(6), 53, 54, 60, 62, 64

Abrahams v Comcare (2006) 93 ALD 147 considered
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed
Australian Postal Corporation v Barry [2006] 44 AAR 186 cited
Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 cited
Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 considered
Brown v Repatriation Commission [2006] FCA 914 considered
Casarotto v Australian Postal Corporation (1989) 86 ALR 399 cited
Chowdhary v Bayne (1999) 29 AAR 100 cited
Comcare Australia v Rowe (2002) 35 AAR 410 cited
Comcare v Etheridge (2006) 149 FCR 522 followed
Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 cited
Duong v Australian Postal Corporation (2005) 41 AAR 288 considered
East Australia Pipeline Pty Ltd v ACCC (2007) 239 ALR 50 cited
Griffith University v Tang (2005) 221 CLR 99 cited
Hannaford v Telstra Corp Ltd (2005) 88 ALD 702 cited

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Details
Case
[2008] FCA 236
Decision Date

CaseChat Overview and Summary

In the case of Australian Postal Corporation v Sellick, the appellant, Australia Post, challenged a decision of the Administrative Appeals Tribunal (AAT) concerning the appellant's liability for compensation to the respondent, Mr Sellick. Mr Sellick had claimed compensation for pain in his right shoulder and bilateral hernias, both of which were allegedly caused by his employment with Australia Post. The AAT had rejected the claims, and Australia Post sought judicial review of the AAT's decision. The primary legal issue before the court was whether the AAT had erred in its assessment of the medical evidence and whether the AAT had overlooked or misapplied certain evidence in reaching its decision.

The court examined the AAT's handling of the medical evidence, particularly the oral evidence provided by Dr Burke and Dr McGill, and the written reports of several other medical practitioners. Australia Post argued that the AAT had failed to properly consider the oral evidence provided by Dr Burke and Dr McGill, and that this constituted a jurisdictional error. The court found that while the AAT had made a reference to Dr Burke's oral evidence, it had not adequately evaluated it in the context of the claims. However, the court was not prepared to conclude that the AAT had entirely forgotten Dr Burke's evidence. The court noted that the AAT had made reference to Dr Burke's evidence under the section discussing bilateral hernias, indicating some level of consideration.

The court further held that the AAT had not adequately addressed the evidence regarding the degenerative condition of Mr Sellick's thoracic spine, which was relevant to his claims. The court concluded that the AAT had failed to properly consider and evaluate the medical evidence, leading to a decision that could not be sustained. As a result, the court found that the AAT had erred in law and that the decision was remitted back to the AAT for reconsideration.

The court ordered that the application be allowed, the decision of the AAT be remitted to be decided according to law, and the parties submit consent orders regarding costs within seven days, or otherwise approach the associate to Justice Bennett to list the matter for argument on costs.

Orders

Orders of the court

1. The application is allowed.

2. The decision regarding each reviewable decision is remitted to the Tribunal to be decided according to law.

3. The parties are to send to chambers consent orders regarding costs within seven (7) days. If the parties are unable to agree, the parties are to approach the associate to Justice Bennett within seven (7) days to list the matter for argument on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Australia Post contends that the Tribunal’s decision was based on findings of fact in support of which there was no evidence and that further, the Tribunal forgot or ignored other evidence in coming to its decision. The failure to deal with the oral evidence of Dr Burke and/or Dr McGill – no evidence to support findings in respect of their evidence In its decision, the Tribunal made reference to the doctors whose reports and/or oral evidence were before it: Drs Shroot, Bills, Griffith, Cassar, McGill, Elder, Eaton, Chew, Whittaker and Burke and Mr Wisdom with respect to the right shoulder and upper back and Drs Bills, Tran, McMahon, Griffith, Endrey-Walder and Burke with respect to the bilateral hernias. Australia Post contends that the Tribunal forgot or overlooked the fact that Dr Burke and Dr McGill gave oral evidence, did not therefore deal with that evidence and accordingly failed to consider the case put by Australia Post. The evidence was referred to in submissions to the Tribunal. The Tribunal made no reference to the oral evidence of Dr Burke or Dr McGill. Australia Post submits that the Tribunal may have forgotten about the evidence in view of the time that elapsed between the evidence and the decision. Australia Post says that this gives rise to jurisdictional error or denial of natural justice because of the risk that the capacity of the Tribunal for competent evaluation of the evidence was diminished by the timeframe and the delay between the evidence and the decision (NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [10]-[11] per Gleeson CJ, [106] per Kirby J, [172] per Callinan and Heydon JJ). This would also give rise to an error of law. In relation to these issues Australia Post also argues that there was no evidence to support one of the Tribunal’s findings regarding the evidence of Dr Cassar. The evidence of Dr Cassar will be addressed in relation to issues 3 and 4. Dr Burke The evidence of Dr Burke and Dr McGill was referred to in the Tribunal’s reasons concerning the shoulder/upper back injury. Australia Post refers to the observation at [50] of the Tribunal’s reasons that Dr Burke was not required for cross-examination and did not give evidence. That was incorrect. Dr Burke was cross-examined and did give oral evidence. Australia Post contends that the Tribunal forgot Dr Burke’s evidence and failed to evaluate it. However, the Tribunal’s observation was in respect of the claimed injury to the right shoulder. The Tribunal did refer to Dr Burke’s disinclination to comment on possible causes of the shoulder injury. At [78], the Tribunal commented on Dr Burke’s evidence in a context that connotes his oral evidence under the heading “Medical evidence in relation to bilateral hernias”. A Tribunal may be taken to have considered the whole of the evidence although its conclusions are stated shortly (Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [111] per Gleeson CJ, Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [59] per Weinberg J). I am not prepared to conclude that the Tribunal forgot Dr Burke’s oral evidence. I accept Mr Sellick’s characterisation of the Tribunal’s reasons at [50] as referring only to the absence of Dr Burke’s oral evidence concerning the shoulder/upper back claim and not the hernia claim. Dr McGill

Decision

Reasons for decision

BENNETT J
There is no dispute between the parties that the Court has jurisdiction under each of the AAT Act, s 39B of the Judiciary Act and the ADJR Act. Mr Sellick says, however, that the AAT Act is intended to cover the field. Accordingly, he says, only grounds that come within permissible grounds under that Act should be argued. That is, he says that only questions of law are available to set aside the decision of the Tribunal. I will address this issue further below. THE REVIEWABLE DECISIONSThe pain in the right shoulder – the injury of 2002 On 3 November 2002 Mr Sellick lodged a claim for rehabilitation and compensation associated with his duties of V-sorting of mail and delivery of mail by motorcycle for ‘pain in right shoulder’. No other injury to any other part of the body was identified in that claim form. It is agreed that the form of claim for compensation which Mr Sellick filled out was the form of claim for compensation approved by Comcare at the time. The medical diagnosis of 8 November 2002 was ‘Right interscapular stabiliser strain/shoulder and upper back pain’. On 22 November 2002, this was presented in a medical report as a history of having sustained ‘a soft tissue injury of the right shoulder girdle musculature’ (‘the right shoulder injury’) and, on examination, there was said to be tenderness in the upper thoracic area. Subsequent medical certificates and reports referred to upper back strain as well as shoulder pain. Australia Post accepted liability under s 14(1) of the SRC Act for the right shoulder injury on 28 November 2002. By March 2003 Mr Sellick was pain and symptom-free and performing normal duties. On 7 September 2004 Australia Post wrote to Mr Sellick and referred to his claim in respect of the right shoulder injury. The letter then referred to a report of Dr Chew to the effect that the compensable condition had ceased in April 2004 and that on-going pain ‘is more than likely to be the result of your pre-accident condition in the form of degenerative spinal disease’. The letter stated the intention to cease further payments of compensation. It provided the opportunity to provide evidence to refute that opinion and to explain the relationship between the condition and Mr Sellick’s employment. Mr Sellick submitted a report by Dr Bills supporting his claim which was received by Australia Post on 11 October 2004. On 15 October 2004 Australia Post decided that, based on medical evidence, the effects of the right shoulder injury had ceased and that Australia Post had no present liability in respect of that injury pursuant to the SRC Act (‘the determination’). On 19 October 2004 Mr Sellick requested a reconsideration of the determination as being incorrect in fact and law. On 27 October 2004, in the first reviewable decision, Australia Post reconsidered its liability for the right shoulder injury. The decision-maker considered that Mr Sellick was no longer suffering any effects of that injury, that he was not presently entitled to payment of compensation, and affirmed the determination. The first reviewable decision referred to the compensable injury of the right shoulder injury and the claimed injury of pain in the right shoulder. It made reference to the medical diagnosis of right shoulder/upper back pain as well as that of the right shoulder injury. It referred to Dr Chew’s diagnosis of a “minor” soft tissue injury to the thoracic spine which had resolved, to an underlying constitutional degenerative thoracic spine disease and to a degenerative spinal disease which had not been caused, accelerated or aggravated by Mr Sellick’s employment. Australia Post agrees that the decision-maker accepted that the medical evidence supported the existence of an underlying degenerative disease of the thoracic spine but confined herself to the claim with respect to the shoulder, which had resolved, in the absence of a separate claim for compensation for the degenerative condition.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

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