Australian Telecommunications Commission v Barker

Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
And: SHIRLEY ELSE BARKER
No. G220 of 1990
FED No. 700
Administrative Law
12 AAR 490

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Gummow(1) and Hill(1) JJ.

CATCHWORDS

Administrative Law - Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Administrative Appeals Tribunal affirmed a determination that the respondent not liable to pay compensation to the appellant - whether Tribunal failed to state reasons for its decision - whether error of law - trial judge found that appellant entitled to compensation - whether finding open on the evidence before the Tribunal - causation and onus of proof in administrative proceedings discussed.

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

HEARING

SYDNEY

#DATE 7:12:1990

Counsel for the appellant: Mr D.M. Bennett QC and Mr M.B. Smith

Solicitors for the appellant: Hunt and Hunt

Counsel for the respondent: Mr J. Anderson

Solicitors for the respondent: Steve Masselos and Co.

ORDER

The appeal be allowed.

Paragraphs 3, 4 and 5 of the orders made by the trial Judge be set aside and, in lieu thereof, the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a single judge of the Court on an appeal from the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal affirmed a decision of a delegate of the Commissioner for Employees' Compensation that the Australian Telecommunications Commission ("Telecom") was not liable to pay compensation to the applicant, Mrs S.E. Barker, on and from 29 October 1987. The learned trial Judge held that certain findings of fact of the Tribunal did not have a legal and evidentiary basis. His Honour set aside the conclusions and orders of the Tribunal. His Honour then went on to substitute therefor certain findings which favoured Mrs Barker's entitlement to compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 which his Honour considered necessarily flowed from findings of fact made by the Tribunal and from the evidence given.

1. Mrs Barker had been employed by Telecom. On 16 February 1981, she had struck the outside of her right elbow on a piece of equipment. On 18 March 1981, her right elbow was struck again, this time by a heavy door. Mrs Barker experienced pain in the elbow down through the arm extending into the fingers of the right hand and subsequently saw her local general practitioner. She was given a certificate to remain off work for two weeks. As the elbow remained sore and as Mrs Barker had pins and needles and swelling in her fingers, the practitioner arranged for Mrs Barker to see Dr G. Mahony, an orthopaedic surgeon. Dr Mahony diagnosed a right lateral epicondylitis and treated this condition by injecting anaesthetic and cortisone.

2. Subsequently, on 28 May 1981, Dr Mahony reported tenderness on…