Bray and Comcare

[2012] AATA 522

[2012] AATA  522

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4284, 2010/5071, 2010/5072, 2010/5493, 2010/5499,  2010/5500, 2012/2408
Re	MAREE BRAY
APPLICANT
And	COMCARE
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Professor RM Creyke, Senior Member
Date	8   August 2012
Place	Canberra

The proceedings in related compensation or entitlement matters are not rendered abortive under s 67(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) when a later reviewable decision is made relating to the original injury under ss 4, 5A, 14 of the Act.

..........................[sgd]..............................................

Professor RM Creyke, Senior Member

CATCHWORDS

NATURAL JUSTICE – bias - whether consideration of irrelevant issues imputes bias - whether reasonable apprehension of, or actual, bias – whether bias of a vicarious or imputed nature

PRACTICE AND PROCEDURE - jurisdiction - own motion reconsideration under Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 for initial acceptance of liability for injury to right arm before the Tribunal - other entitlements relating to conditions claimed to be linked to same initial injury also before Tribunal – other applications not withdrawn - whether reconsideration of s 14 liability in relation to initial injury renders other applications abortive – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 60, 62, 64, 67(2)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 3

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27, 29, 62, 64, 67

CASES

Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337

Hannaford v Telstra Corporation Ltd (2005) 88 ALD 702
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Lees v Comcare (1999) 54 ALD  84
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Power v Comcare (1998)  89 FCR 514 at 526-527
Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174
Re Hewett  and Australian Postal Corporation (unreported, No 9099, 29 October 1993)
Re Moggach and Comcare (1995) (unreported AATA 10611, 19 December 1995)
Re Warren De Courcy Brown and Comcare (1997) 49 ALD 766

Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263

SECONDARY MATERIALS

Federal Court Rules 2011

Macquarie Concise Dictionary (5th edn, 2009)

REASONS FOR INTERLOCUTORY DECISION

Professor RM Creyke, Senior Member  
Dr B Hughson, Member

BACKGROUND

1. Ms Maree Bray, the applicant, was a dental assistant employed by ACT Health.  On 2 February 1994 she reported a ‘scrunch’ in her right elbow and said she felt a ‘deep sharp pain’ while removing instruments from an autoclave.  Evidence before the Tribunal indicates that the tray may have weighed less than 1 kg or at most up to 2kgs.  She continued to work until 15 February 1994 when she was certified unfit for employment.  She has not worked since. Ms Bray was subsequently invalidity-retired from employment as from 8 November 2000. Her claim for an employment-related injury described as ‘right lateral epicondylitis’ (tennis elbow in the right arm) was accepted on 17 May 1994.

2. Ms Bray had previously suffered a motor vehicle accident in 1970, not related to work, in which she sustained whiplash injury and three crushed discs in the cervical spine. She underwent operations relating to the cervical, thoracic and lumbar regions of her spine.  Despite these operations, Ms Bray continued to suffer pain which led to increasing use of opioids, corticosteroids, and reliance on epidural injections, and to performance of further operations on her spine. There is medical evidence that Ms Bray was still suffering intermittent pain as late as 1992 when her surgeon noted ‘he hoped to repeat facet joint injections in the near future’ to alleviate pain.  

3. Subsequent to the 1994 work-related injury, an operation was performed on her right elbow but the operation did not succeed in reducing her pain. Ms Bray has continued to develop pain disorders in a number of parts of her body.  Comcare has progressively accepted as conditions secondary to her right tennis elbow injury: 

   ·tennis elbow in her left arm;

   ·frozen right and left shoulders;

   ·occipital neuralgia and headaches;

   ·problems in both hips and an injury to the right big toe (when she slipped at home, due she claimed to drowsiness or poor co-ordination caused by medication for her pain);

   ·cortisone induced soft tissue cataracts;

   ·hair thinning (for which wigs are supplied); and

   ·hypertension.

4. Ms Bray was treated by Dr Robert Champion, rheumatologist, from July 1995 until 2007 when he ceased clinical practice.  He diagnosed widespread regional pain syndrome, including from March 2005, in addition to the sites referred to earlier, pain in the back and below the left knee, cervicogenic headaches, the basal joints of thumbs, and at the L5/S1 site in the lower back.

5. Comcare accepted liability for additional conditions. In December 2008, Ms Bray developed a prolapse of her vaginal wall, attributed by a gynaecologist and Dr Welberry, Ms Bray’s then general practitioner, to her prolonged steroid use.  On 2 December 2008, Comcare accepted liability to pay for surgery to repair the condition. 

6. In August 2009, following two falls by Ms Bray, she was medically investigated for a likely re-tearing of her right hip. Liability for imaging costs was accepted by Comcare on 23 October 2009.  The suggested link to her original injury was the claim by Ms Bray that she had been dropped while in hospital following her operation for hip surgery in September 2007, that surgery having been accepted as related to her tennis elbow in the right arm. 

7. In 2001, a report by a rheumatologist, Dr McGill, considered Ms Bray was no longer suffering epicondylitis, but that she had chronic regional pain syndrome, triggered initially by the epicondylitis.  Comcare notified Ms Bray that it intended to cease liability for her conditions, but on receipt of objections, no further action was taken.

8. Subsequently in 2004, following further medical evidence, Comcare again ceased liability, but following a conciliation conference, the decision which had been affirmed on review, was reversed.  Later medical evidence from other specialists has doubted that Ms Bray continues to suffer injuries related to the events in 1994.  This evidence is contested by other medical specialists and is an issue for decision by the Tribunal.

9. In 2002, Ms Bray moved from Canberra, ACT to Wedderburn, in rural Victoria where she and her husband had purchased a miner’s cottage. Ms Bray commissioned and paid for alterations to her home in Wedderburn, the cost of which she claimed from Comcare.  The renovations carried out in November 2006 and September 2007, were, she said, to cover her increased immobility especially during the first three months following surgery on her left and right hips. Comcare had agreed to meet the cost of the surgery. The renovations included alterations to the back porch and laundry to create a bedroom and en suite bathroom for herself. This involved electrical and plumbing work, a new bed, carpet for the new bedroom, and fitting out the en suite.  Ms Bray claimed these renovations were need because her accepted conditions meant she could no longer share a bed with her husband, and also because she required a bedroom and en suite which were wheelchair accessible.   

10. Ms Bray used a wheelchair for a period after the operations in August 2006 and September 2007 respectively and subsequently has continued, on occasions, to use a wheelchair. As part of the renovations she also arranged to install ramps and paths to enable safe wheelchair access from the street, to the garage and from the front and rear entrances to the house, the laundry and new bedroom area.  In addition, the remodelling work involved modification of her kitchen to lower bench tops, sink and taps, to replace the stove with bench top hot plates and a wall oven, to place a dish-washer under the new benches, and to replace the kitchen cupboards with drawers. The Tribunal, on 8 April 2009, accepted that some but not all these alterations were reasonably required.

11. On 8 July 2005, the Tribunal also issued a consent decision capping the maximum rate for household services and attendant care services at 4 hours per week. Reasonable medical treatment was to include treatment by a local GP, rather than Dr Welberry in Canberra;  treatment by an appropriate specialist in Bendigo; treatment at the Geelong Pain Clinic rather than elsewhere; her treatment by Dr Champion at St Vincent’s, Sydney was limited to a maximum of two visits per year; the travelling expenses for Ms Bray’s husband were restricted to the occasions when Ms Bray travels to obtain reasonable medical treatment; and caps were placed on accommodation, meal and travel expenses.

    DECISIONS UNDER REVIEW

12. The seven applications currently before  the Tribunal for review of ‘reviewable decisions’ by Comcare relate respectively to decisions denying liability to pay compensation to Ms Bray:

    ·Under sections 4, 5A, 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), for an ‘injury’ to her right elbow (2012/2408).

    ·Under section 16 of the Act for ‘right sacroiliac arthrodesis with iliac osteotomy’ procedure, for a post-surgical ‘rehabilitation program’ at Hepburn Springs, Victoria, or post-surgical radiological investigations (2010/4284);

    ·Under section 29 of the Act for household services from 5 January to 28 July 2010 (2010/5071);

    ·Under section 16 of the Act for specific claims for medical treatment in August 2010, namely:

    oOpsite flexgrid (x 3) ($204 each); Kleenex travel pack (x 1) ($29.86);  Opsite Post op (x 2) ($285 each); Cellufresh eye drops (x 2) ($29.86 each); Alpha Kerri Lotion (x 2) ($19.95 each); Gastro stop loperamide (x 1) ($19.95); Urax cream 20gm (x 1) ($74.86); Vagisal powder 100gm ($18.76); Rectinol Ointment 50gm (x 1) ($38.97) (2010/5072); 

    ·Under section 16 of the Act for travel to Hepburn Springs on 4 occasions in 2005, 2006 and 2007 (2010/5493);

    ·Under section 16 of the Act for a consultation with Dr Paul Curnow (dermatologist) concerning a basal cell carcinoma on her nose (2010/5499);

    ·Under sections 16, 19, 24, 27, or 29 of the Act as at 20 October 2010 to decide whether Ms Bray presently suffers the effects of the accepted conditions of:

    oright lateral epicondylitis;

    oadhesive capsulitis of shoulder (right);

    oleft lateral epicondylitis;

    ooccipital neuralgia and headache;

    ounspecified injury to hip, thigh (left); and

    oadhesive capsulitis of shoulder (left). (2010/5500).

    PRELIMINARY MATTERS AT TRIBUNAL

13. Initially the last six of the listed reviewable decisions were set down for hearing at the Tribunal between 18 and 27 June 2012. The hearing was to involve 13 medical witnesses.  A series of telephone directions hearings commenced in November 2011 in order to arrange for concurrent evidence for two to three groups of medical witnesses. Management of the process involved protracted negotiations with the solicitors for both parties. As part of these processes, an attempt was made to obtain an agreed statement of facts to put to the medical witnesses.  That attempt was abandoned when the first draft exceeded 260 pages in length.  

    Issue of section 14 liability

14. In the course of these preliminary processes it became apparent that Comcare was contemplating submitting evidence which would cast doubt on whether Ms Bray’s condition of epicondylitis right arm was employment-related. It was initially not apparent whether the submission would involve only a denial of the facts on which the initial liability was accepted,[1] or whether Comcare intended to deny the correctness of the acceptance of liability under s 14.

    [1] Hannaford v Telstra Corporation Ltd (2005) 88 ALD 702.

15. Comcare’s amended statement of facts, issues and contentions, dated 7 May 2012, however, contended that ‘The Applicant did not suffer an ‘injury’ to her right elbow materially contributed to by her former employment with ACT Health, within the meaning of section 4 of the SRC Act’. In the alternative, the amended statement contended that ‘if the Tribunal finds that the Applicant did sustain an ‘injury’ to her right elbow, within the meaning of section 4 of the SRC Act’, the ‘reviewable decisions in applications 2010/4284, 5071, 5072, 5493, 5499 and 5500 are affirmed’.

16. The first of these alternative contentions indicated that Comcare intended to deny the correctness of its acceptance of liability for the initial injury. Accordingly, the Tribunal raised with the representative for Comcare the potential need for a decision by Comcare on this issue, in order that the Tribunal had jurisdiction to consider the contention.[2]

    [2] Lees v Comcare (1999) 54 ALD 84; Power v Comcare (1998) 89 FCR 514 at 526-527.

17. At a telephone directions hearing on 6 June 2012, the representative for Comcare undertook to make written submissions regarding the section 14 liability issue on or before 13 June. The solicitor for Comcare also agreed to obtain instructions as to whether Comcare needed to make an ‘own motion’ reconsideration concerning the section 14 liability issue to avoid any jurisdictional problem. The representative for Ms Bray objected to any such need, particularly at this late stage, due to the prejudice to his client.

18. On 6 June 2012, the representative for Comcare requested that an interlocutory hearing on the jurisdictional issue be held. That hearing was set down for 13 June 2012 and submissions were requested from both parties.  On 6 June 2012, the representative for Comcare provided a submission on the issue, maintaining that there was no need for an own motion reconsideration but said that ‘… in light of the Tribunal’s request, Comcare was prepared to issue a reconsideration of own motion, to remove any doubt about the jurisdictional issue’. No written submission was received from the representative for Ms Bray.

19. The submission on behalf of Comcare also noted:

    …that the Applicant has been on notice since December 2011 that the Respondent was investigating whether section 14 liability would be placed in issue. A statement was prepared by Kathy Zagar, [Ms Bray’s supervisor at the time of the initial injury] and filed and served by the Respondent on 3 February 2012.  The Respondent’s position was then formally confirmed via an amended statement of facts, issues and contentions filed and service on 7 May 2012.

    The Respondent considers that the Applicant has been sufficiently put on notice that the section 14 liability issues will be ventilated at the hearing.  However, we wish to hear the Applicant’s position in relation to prejudice, and reasons as to why an adjournment  may be necessary if the Respondent proceeds to issue a reconsideration of own motion.

20. On 13 June 2012, Comcare made an own motion reconsideration of section 14 liability in accordance with section 62 of the Act, denying liability under section 14 of the Act in respect of right lateral epicondylitis. On 14 June 2012 the representative for Ms Bray lodged an application for review of this decision with the Tribunal (2408/2012).

21. The interlocutory hearing was held on 13 June 2012.  Ms Bray was represented by counsel in person, and counsel for Comcare appeared by telephone. At the hearing, counsel for Comcare confirmed that the basis for the own motion reconsideration decision was that the original injury was never due to employment. Counsel for Ms Bray requested an adjournment of the substantive hearing for reasons of prejudice to her client. Counsel for Comcare agreed to the request.

22. Counsel for Ms Bray then raised the issue of costs, referring to section 67(2) of the Act. She said:

    … section 67 is quite clear on its face that … if … Comcare revokes a decision which renders abortive a process … the responsible authority is .. liable to pay the complainant’s costs in preparing their application.  On that basis, we would make an application for costs in that there has been extensive preparation for the eight-day hearing.  We say that it has been rendered abortive by the reconsideration of own motion two days out, and we say that section 67(2) is clear on its face in terms of awarding costs to the applicant.

23. The counsel for Comcare denied that the hearing of the six other review applications, apart from the section 14 liability review application, had been rendered abortive because they were linked to the acceptance of initial liability. She suggested ‘perhaps this matter can be dealt with at the end of the substantive hearing.  We say the proceedings are not abortive, they’re going to be continuing, just at a later date’.  The Tribunal accepted that submission, noting that the reconsideration decision was only requested to put it beyond doubt that the Tribunal could hear ‘all the matters that have been raised’.

24. The Tribunal ruled that :

    …whatever, the outcome of [the] section [14] liability issue, that was only one of the many issues which we will be dealing with at the hearing, that, in fact, until [the Tribunal] comes down … with our decision, there will be no definitive outcome on section 14, and certainly there will be no suggestion that the consideration of the other issues will be abortive’.

25. No issue of bias was raised at this hearing.

    Subsequent developments

26. At a telephone directions hearing on 28 June 2012, concerning the failure of the representative for Ms Bray to lodge a revised hearing certificate, and to clarify the reason for his claim that the Tribunal was now functus officio, the representative for Ms Bray referred to a letter to the Tribunal dated 26 June 2012 headed ‘Statement of Issues’.  The Presiding Member had not seen the letter in advance of the directions hearing.  The letter contained a claim that there was apprehended, or actual, bias on the part the Tribunal. The assertion appeared as the final issue on page 4 of the letter and  read:

    The Applicant considers that as it may be cogently argued that the Respondent has taken an irrelevant consideration into account, being the request by the Tribunal, that there is a perception of bias with respect to the Tribunal.

27. The representative for Ms Bray asked the Presiding Member to read the letter during the directions hearing.  She did so cursorily, but did not comment on the assertion of bias. Following that request by the representative for Ms Bray, counsel for Comcare commented that the suggestion as to bias was ‘rude and offensive and should be withdrawn’. The representative for Ms Bray made no further submission on the issue and the Tribunal then went on to discuss matters regarding the witness schedule. The other member of the Tribunal as constituted, Dr Bernard Hughson, a part-time member, was not present for this directions hearing since it was to deal with administrative matters.

28. On 4 July 2012, the representative for Ms Bray wrote to seek a ‘further hearing in relation to the issue of bias so that the other member of the Tribunal, Dr Hughson, may address the issue as to bias and make a decision in relation thereto’. In response, a letter dated 4 July 2012 was sent on behalf of the District Registrar, referring to the High Court’s decision on bias in Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd,[3] and noting that ‘in the absence of submissions addressing the criteria [in that case], the Tribunal did not consider there was a need for a directions hearing’.

    [3] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337.

1. In a further letter to the District Registrar received by the Tribunal on 5 July 2012, the representative for Ms Bray asserted that during the telephone directions hearing on 28 June 2012, he had:

   … made submissions [on the issue of bias] and, after Ms Ford of Counsel for the Respondent said that such a suggestion of bias was offensive, Senior Member  Creyke ruled that she would not disqualify herself due to any issue of bias.

   The letter also noted that since ‘Member Hughson constitutes the other person on the Tribunal, I considered that the same issue should be put to Dr Hughson’. The final paragraph of the letter then stated ‘I note that the Tribunal will not allow the Applicant to put this matter before Dr Hughson’.

2. On 5 July 2012, the representative for Comcare wrote to the District Registrar, noting that the representative for Ms Bray ‘has failed to provide submissions of substance that clearly outline the basis upon which he considers a perception of bias arises against the Tribunal’. The letter continued:

   The Respondent does not consider that the statement of issues filed by the Applicant on 26 June 2012 allows the Tribunal or Respondent to properly discern the basis upon which the Applicant alleges that a perception of bias arises.

   Until such time as the claim is properly substantiated, the Respondent submits that a directions hearing to address this issue would be futile.

   In the alternative, [the representative for Ms Bray] acknowledged in his correspondence of 5 July 2012 that the bias submission has been ruled upon by Senior Member Creyke.  If the Tribunal accepts that view, the Respondent submits that it would not be appropriate to allow the Applicant to reopen this issue, given it has been ruled upon by the presiding member.

3. On 5 July 2012 the representative for Ms Bray lodged an application for review with the Federal Court of Australia in the matter.  The Notice of Appeal claims there was error of law by the Tribunal:

   ·in setting  down for hearing matters 2010/4284, 5071, 5072, 5493, 5499 and 5500, notwithstanding that Comcare had made a decision that the Applicant had not suffered a work injury

   ·The reasons by which Senior Member Robin Creyke determined on 28 June 2012 that she was not required to disqualify herself on the basis of perceived or actual bias in relation to matters 2010/4284, 5071, 5072, 5493, 5499 and 5500, and matter 2012/2408

   ·The reasons by which the Tribunal determined that the Applicant was not allowed to appear before the other member of the Tribunal, Dr Bernard Hughson,, in order to put before him the issue of actual or perceived bias.

   CONSIDERATION

4. The Tribunal notes that there is ambiguity about any obligation to provide reasons for an interlocutory decision, or for a directions hearing of the Tribunal. However, as a matter of courtesy and in order to assist the hearing before the Federal Court, the Tribunal is providing a statement of reasons for both the interlocutory hearing and the directions hearings which took place after the hearing.

   Bias

5. The issue of bias was not raised at the interlocutory hearing, the reasons for which were requested.

6. The Tribunal notes that no direction or ruling was made by the Presiding Member as to the bias issue. Had the matter been pursued by the representative for Ms Bray, the Presiding member would have done so, following an opportunity to seek further submissions to clarify the substance of the claim. As drafted the assertion of bias does not appear to meet the tests for apprehended[4] or actual[5] bias. Moreover the bias claimed appears to give rise to a claim for bias that is vicarious in nature and the claim also did not refer to the tests for bias of that nature.[6] Taking an irrelevant consideration into account cannot be equated with bias. In those circumstances, the Tribunal, had it been asked to do so following further submissions on this issue, would have denied that a reasonable bystander would have perceived that the representative acting for Comcare was biased or that any such bias could have affected a member of the panel of the Tribunal.

   [4] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337 at 344-345.

   [5] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 per Gleeson CJ & Gummow J at 531.

   [6] Hot Holdings Pty Ltd v Creasy (2002) 201 CLR 438 at 447 per Gleeson CJ; at 461-462 per McHugh J.

   [6] Id at 462 per McHugh J.

   Whether proceedings in the six matters were rendered abortive

7. Section 62(1) of the Act provides that:

   “A determining authority may, on its own motion:

   (a) reconsider a determination made by it; or

   (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

   whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

8. Section 62(5) of the Act provides that:

   Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

9. Section 67(1) is the costs section in the Act and provides, as a foundation principle, that each party bears their own costs. However, there are exceptions to that principle. Section 67(2) of the Act outlines the procedure for payment of costs when the respondent reconsiders a determination on its own motion pursuant to s 62(1) of the Act. Section 67(2) of the Act states that:

   Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding. (emphasis added)

10. Relevant terms used in the above sections are defined in s 60(1) of the Act as follows:

    ‘reviewable decision’ means a decision made under subsection 38(4) or section 62.

    ‘determination’ means a determination, decision or requirement made under section  8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

    ‘determining authority’, in relation to a determination, means the person who made the determination.

    ‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975.

11. Section 64 of the Act grants jurisdiction to the Tribunal:

    64(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

    (a) the claimant; ...

    (3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.

12. Comcare has made ‘reviewable decisions’ on the seven matters before the Tribunal.  The ‘reviewable decision’ relating to section 14 liability was made in accordance with section 62 of the Act which permits a ‘determining authority’, in this case Comcare, to reconsider ‘on its own motion’  a ‘determination’ it has made.  In this case, the determination was made on 17 May 1994, that Comcare accepted liability for ‘epicondylitis right arm’ suffered by Ms Bray. Accordingly the Tribunal prima facie has jurisdiction to consider all seven matters before it.

13. In addition, in relation to decisions by Comcare to cease liability for a specific entitlement to compensation under the Act, or for original liability, it is clear that the scheme of the Act envisages ‘ongoing adjustment’ of outcomes and acceptance of liability ‘to accommodate changing circumstances inclusive, for instance (as here involved) of changing medical diagnosis’.[7]

    [7] Lees v Comcare (1999) 56 ALD 84 at [58].

14. As a preliminary matter, the Tribunal notes that the Tribunal’s jurisdiction is limited to reviewing ‘reviewable decisions’ (section 64 of the Act).[8] That does not mean that the Tribunal is not free to make findings of fact contrary to those on which section 14 liability is based.[9] If this latter course is adopted, no direct challenge to the liability under section 14 is required.

    [8] Lees v Comcare  (1999) 56 ALD 84 at [48].

    [9] Hannaford v Telstra Corporation Ltd (2005) 88 ALD 702.

15. In this instance, the Tribunal raised with the parties the possible need for a ‘reviewable decision’ in light of the indications by the representative for Comcare since November/December 2011 that the correctness of the acceptance of section 14 liability might be challenged, and its eventual statement in May 2012 of an intention to that effect. The Tribunal’s suggestion was made to avoid any doubt as to whether the Tribunal had jurisdiction to decide the section 14 liability issue. The Tribunal wished to avoid further extending an already lengthy hearing which had already been set down for 8 days, should a jurisdictional argument concerning section 14 be raised at the hearing.

16. Comcare responded to that suggestion by obtaining a reconsideration decision in relation to the section 14 liability issue, a decision which then came before the Tribunal when an application for its review was lodged by the representative for Ms Bray. Those actions occurred in the final week prior to the scheduled hearing. Accordingly, to avoid any prejudice to Ms Bray or her legal team, counsel for Comcare, at the interlocutory hearing, properly conceded that this late development did not give sufficient time for the preparation of Ms Bray’s case in response and willingly agreed to adjourn the hearing.

17. At the interlocutory hearing, following argument in relation to the course chosen, the Tribunal made a ruling that rejected the argument that the reconsideration decision in relation to section 14 liability rendered abortive the Tribunal’s jurisdiction in the other six matters with a resultant implication as to payment of Ms Bray’s costs.

18. The representative for Ms Bray did not withdraw the six applications for review initially before the Tribunal. The argument for Ms Bray was that there was no need formally to withdraw those matters since the consideration of those matters had been rendered abortive by the reconsideration. The argument was also that the reconsideration action had rendered the Tribunal functus officio. As the letter claiming that the Tribunal was functus did not distinguish between the matters as to which the Tribunal’s alleged lack of authority related, it would appear that the claim that the Tribunal was functus related to all seven matters. If that was the intention it appears to be inconsistent with the lodgement on 14 June 2012 by the representative for Ms Bray of the application for review of the section 14 liability matter.

19. That inconsistency aside, in light of the application for review by the Tribunal of the reconsideration decision, and the fact that the six other matters were not withdrawn, the Tribunal considered that all seven matters remained for review by the Tribunal. As Sackville J said in Power v Comcare, in words which are applicable to this matter, the decision-maker, including a tribunal ‘ha[s] to analyse all the necessary facts for [itself] to determine whether Comcare ha[s] a continuing liability’.[10]

    [10] Power v Comcare (1999) 89 FCR 514 at 526.

20. The Tribunal had other reasons for its ruling. In the first instance, as a matter of statutory construction, section 67(2) does not appear to apply to the circumstances. In its terms that section relates to the situation in which a matter already before the Tribunal is rendered ‘abortive’ by a later proceeding by a ‘determining authority’ which relates directly to the matter already before the Tribunal. To be ‘abortive’, according to the Macquarie Concise Dictionary is, as relevant, ‘1. Failing to succeed; miscarrying’.[11]  Whether a proceeding has been rendered abortive is a matter of fact in each case.[12]

    [11] Macquarie Concise Dictionary (5^th edn,  2009) 3.

    [12] Re Warren De Courcy Brown and Comcare (1997) 49 ALD 766 at [36].

21. The argument of counsel for Ms Bray was that Comcare’s decision to undertake an own motion reconsideration of the original decision accepting liability under section 14 rendered abortive the six other reviewable decisions. However, those other ‘reviewable decisions’ are not ‘the determination’ or ‘that determination’ referred to in section 67(2). The reconsideration by Comcare did not relate to those six decisions. Section 67(2) applies only when the reconsideration decision by Comcare affects a ‘determination’ already before the Tribunal and renders consideration of that ‘determination’ abortive.

22. The reconsideration decision of Comcare, the ‘determining authority’, related to section 14 liability. No application relating to section 14 liability was before the Tribunal at the time of the reconsideration decision on 13 June 2012. No application for review of that ‘reviewable decision’ was made until 14 June 2012. Hence, there was no ‘reviewable decision’ before the Tribunal which could fail to succeed or miscarry. This reading of section 67(2) is confirmed by other decisions in relation to that provision.[13] In other words, section 67(2) in its terms did not apply.

    [13] For example, Re Moggach and Comcare (1995) (unreported AATA 10611, 19 December 1995, Barnett DP); Re Warren De Courcy Brown and Comcare [1997] AATA 528.

23. A related argument of counsel for Ms Bray was that because section 14 is a foundation liability and payment of compensation for entitlements under other provisions of the Act is dependent on its existence, if section 14 liability is removed, this renders payment of compensation for entitlements under other sections of the Act abortive. Again, it is the Tribunal’s opinion that such a situation is not covered by section 67(2). The six other matters are separate but related proceedings.[14]

    [14] Lees v Comcare (1999) 56 ALD 54 at [27], [34], [35]. See also Re Carson and Telstra Corporation Ltd (2001) 33 AAR 351 at [46], [49], and [50].

24. Section 14 is a ‘necessary but not sufficient’ provision underpinning decisions relating to the liability to pay compensation. So much is conceded, but in its terms those related proceedings do not fall within the term ‘determination’ or ‘that determination’ as used in section 67(2). The reconsideration decision related to section 14, while the other six applications to the Tribunal arose under sections 16, 19, 24, 27 and 29 of the Act. There was no application under section 14 with the Tribunal at the time the reconsideration was issued. So section 67(2) in its terms did not cover them.

25. The cases have also established that proceedings will only be rendered ‘abortive’ in the terms of section 62(2) ‘if their continuation would be fruitless, in the sense that the applicant has already been granted everything she could gain by virtue of the revocation of the determination’.[15] It cannot be said that in this case that ‘if the application were to proceed to a hearing on the merits, any decision made by the Tribunal would not provide any more to the applicant than the terms of the further determination’.[16] Nor that ‘at the end of the hearing the Tribunal could not make a decision more favourable to the applicant than the determination as now varied’.[17]

    [15] Re Moggach and Comcare (1995) (unreported AATA 10611, 19 December 1995, Barnett DP) at [14].

    [16] Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174 per Forrest DP at p 177.

    [17] Re Hewett and Australian Postal Corporation (unreported, No 9099, 29 October 1993) at [10].

26. In this instance, the Tribunal has not yet made a decision in relation to the initial section 14 liability. It is premature to argue that the reviewable decisions have been rendered abortive. Until the Tribunal has considered all the evidence, heard the parties and their witnesses and come to a decision on that issue, there are no consequences which flow from that reconsideration decision. An interlocutory hearing or the direction hearings cannot result in such a finding.

27. Moreover, it is open to the Tribunal to find at the substantive hearing that the initial liability was correct and that the impairments suffered by Ms Bray relate to the initial injury. Alternatively, the Tribunal could find that although the initial liability was correctly accepted, the impairments arising from that original injury at some later point no longer resulted in incapacity for work, or that the initial acceptance of the injury was wrongly accepted by Comcare from the beginning.  Each of those three possibilities remains until the findings on the issues are made by the Tribunal.

28. Each of those possibilities also has implications for findings in relation to the six initial reviewable decisions before the Tribunal. For instance, if the Tribunal were to find that although the initial liability for Ms Bray’s condition was correctly accepted, but that the liability had ceased at some later point, some but not all Ms Bray’s claimed and related conditions may be affected, depending on when they arose.  For these reasons also it is premature to assert that the ‘reviewable decision’ by Comcare that Ms Bray’s initial injury was not employment-related has rendered any decisions by the Tribunal on the related matters ‘abortive’. The Tribunal maintains the view it expressed in the interlocutory proceeding that until it has made a determination on section 14 liability, all matters are still before it and that the reconsideration decision in matter 2012/2048 has not rendered abortive the applications in the other six matters before it.

I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member, and Dr B Hughson, Member.

...........................[sgd].............................................

Associate

Dated  8 August 2012

Date(s) of hearing	13 June 2012
Counsel for the Applicant	Clare Carnell
Advocate for the Applicant	Brian Hatch
Solicitors for the Applicant	Brian Hatch Solicitor
Counsel for the Respondent	Elenne Ford
Advocate for the Respondent	Luke Woolley
Solicitors for the Respondent	Sparke Helmore