Cocks, D.H. v Commissioner for Superannuation

[1990] FCA 429

JUDGMENT NO ........ ..,....... 42 9 y 90 ..- . ,

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. ~ 5 7 6 of 1989
)
GENERAL DIVISION	)

On appeal from the
General Division of the

Admlnlstratlve Appeal5 Trlbunal

BETWEEN: DAPHNE HELENE COCKS

~ppli cant

AND :	COMMISSIONER FOR
-
SUPERANNUATION

Respondent

corn:	Davies J.
DATE :	17 August 1990
PLACE:	Sydney

REASONS FOR JUDGMENT

superannuation benefits.

This is an appeal from a decision of the

Administrative Appeals Trlbunal, delivered 25 July 1989, which affirmed a decision of a delegate of the Conmissloner for Superannuatlon. The issue considered by the Tribunal was the proper content of a beneflt classification certificate and its effect on Mrs Cocks' entitlement to

9 9&

JUDGMENT NO. ..42 ..... :/ ......-.-

CATCHWORDS

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal - superannuation - retirement on the ground of invalidity - delegate of Commissioner for Superannuation

issued benefit classification certificate under s.184(2) Superannation Act 1976 (Cth) -'alleged previous benefit classlfication certificate - effect of certificate on

entitlement to superannuation benefits - difference between

medical condition and incapacity.

ADMINISTRATIVE LAW - Appeal from Administrative Appeals
Tribunal - whether breach of natural justice - whether

Tribunal took into account irrelevant considerations.

Administrative Appeals Tribunal Act 1975 (Cth) - s.37

Superannuation Act 1922 (Cth) - 5.5'
Superannuation Act 1976 (Cth) - ss.66, 184

Telecommunications Act 1975 (Cth) - s.56

DAPHNE HELENE COCKS

G 576 of 1989

Davies J.

17 August 1990

Sydney

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G576 of 1989
)
GENERAL DIVISION	)

eal from the

==e	Genera Division of the
Administrative Appeals Tribunal
BETWEEN'
I- DAPHNE HELENE COCKS

Applicant

AND :  COMMISSIONER FOR
SUPERANNUATION

Respondent

CORAM :	Davies J.
DATE :	17 August 1990
PLACE :	Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE :	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	)  NO. G576 of 1989
)
GENERAL DIVISION	)

eal from the

-	=	?d	i	-	Genera Division of the
Administrative Appeals Tribunal
BETWEEN: DAPHNE HELENE COCKS

Applicant

AND :  COMMISSIONER FOR
SUPERANNUATION

Respondent

CORM	:	Davies J.
DATE	:	17 August 1990

PLACE:  Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the

Administrative Appeals Tribunal, delivered 25 July 1989, which affirmed a decision of a delegate of the Commissioner for Superannuation. The issue considered by the Tribunal was the proper content of a benefit classification certificate and its effect on Mrs Cocks' entitlement to superannuation benefits.

Relevant provisions of the Superannuation Act 1976

(Cth) ("the Act") provide as follows:-

(2) Subject to sub-sections ( 3 ) , (3A) and (4)

of this section and section 79, where -

(a)	a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;
(b)	there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and
(C)	the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was
substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or 'conditions connected with such a condition or such conditions,

the person is entitled -

(e) where the period of contributory service

of the person is less than 8 years - to a

lump sum benefit in accordance with

section 73.

(2)    Subject to sub-section ( 4 ) , where -

(a)

a person to whom this section applies
who, immediately before the commencing
day, was (otherwise than because of an
election made under section 81 of the
superseded Act) a contributor to the
Provident Account -

(i)	ceases to be an eligible employee because of death or retirement on the ground of invalidity; or
(ii)	becomes entitled to partial invalidity pension under section 78 because of a decrease in the annual rate of the person's salary that the Commissioner is satisfied can properly be regarded as attributable to physical or mental incapacity;

(b)

at the time when the person so ceases to
be an eligible employee or becomes
entitled to partial invalidity pension,
as the case requires, the person's period
of contributory service is less than 20
years and the person has not attained the
person's maximum retiring age; and

(C)

the Commissioner is of the opinion that the death of the per'son, the incapacity which was the ground for the retirement of the person or the incapacity to which

the Commissioner was satisfied that the
decrease in the annual rate of salary of
the person could properly be regarded as
attributable, as the case requires, was
caused, or was substantially contributed
to -

(i) by the physical or mental condition of the person that was relevant for the purposes of the superseded Act

or, if there was more than one such
condition, by those conditions or

one or more of those conditions; or

(ii)	by a physical or mental condition or conditions of the person connected with the physical or mental
condition of the person that was
relevant for the purposes of the superseded Act or, if there was more than one such condition, with those conditions or one or more of those conditions,

the Commissioner shall issue in respect of the person a benefit classification certificate in which there is or are specified the physical

or mental condition or conditions of the person that was or were relevant for the purposes of the superseded Act and, for the

purposes of this Act, the certificate shall be

deemed to have been issued under sub-section

16(4) and to have been in force in respect of

the person immediately before his death or
retirement or immediately before the person
became entitled to partial invalidity pension
under section 78, as the case requires.

(4) The Commissioner shall not, under

sub-section (2) or ( 3 ) , issue a benefit
classification certificate in respect of a
person if there is a benefit classification
certificate in force in respect of the person

at that time.

(7)	In this section -
(a)	a reference to a contributor to the Fund shall be read as a reference to a contributor to the existing Fund under Part 111 of the superseded Act;
(b)	a reference to a contributor to the Provident Account shall be read as a reference to a contributor to the Provident Account established under the superseded Act; and
(c)	a reference to the physical or mental condition or conditions of a person that was or were relevant for the purposes of ,the superseded Act shall be read as a reference to the physical or mental condition or conditions of the person that, in the opinion of the Commissioner, was or were the physical or mental condition or conditions of the person by reason of which, at the time when the person became, or last became, a contributor to the Provident Account -
(i) the Superannuation Board was not

satisfied under sub-section 5(1) of
the superseded Act that the health
and physical fitness of the person
were such as to justify his being

accepted as a contributor to the Fund; or

(ii) the person was not, by virtue of a
provision of the superseded Act
(other than sub-section 5(1) or
79(2) of the superseded Act),
accepted as a contributor to the
Fund,

other than a physical or mental condition
that, in the opinion of the Commissioner, the
Superannuation Board was, as a result of a
medical examination under sub-section 79(2) of
the superseded Act, satisfied no longer
existed unless the Commissioner is satisfied
that, but for the failure of the person t o

give any information required to be given by
the person or the giving of false information
at or in connection with that medical
examination, the Board would not have been so
satisfied."

Nrs Cocks was employed as a telephonist by the

Postmaster General's Department during the years 1943 to
1947. In 1969 she rejoined the Department as a temporary
telephonist. On 19 August 1971, she was employed on a full

time basis. In 1972, she was approved for permanent

employment and, on 21 June 1973, was admitted as a
contributor to the Provident Fund. That step was taken

under s.5(1) of the Superannuation Act 1922 (Cth)("the 1922

~ c t " ) which conferred a discretion upon the Superannuation

Board in its discretion to accept an employee as a contributor to the Superannuation Fund or to the Provident Account having regard to the health and physical fitness of the employee.

On 8 January 1979, Mrs Cocks was involved in a motor vehicle accident whilst on her way to work.

Subsequently she had severe back pain and difficulty in performing her duties. Workersf compensation was paid for some time but was discontinued on 20 January 1980. Mrs Cocks made a claim for Workers' compensation and on 28 May 1981 the Workerst Compensation Commission of New South Wales found in her favour and held, inter a1ia:-

"(a)

The applicant suffered injury on 8th
January 1979 arising out of and in
the course of her employment by the
respondent whilst on a journey to
her employment by the respondent.

(b)

Such injury included the following -

(i)	intervertebral disc lesions at levels C4/5, C5/6 and C6/D1.
(ii)	intervertebral disc lesion at level L4/5.

(c)

As a result of the said injury the
applicant was totally incapacitated
until 15th January 1979 and was paid
compensation in respect of such
incapacity. The applicant was
totally incapacitated from 10th July
1979 to 19th January 1980 and was
paid compensation in respect of that
incapacity.

(d)

On and from 20th January 1980 the
applicant has remained totally
incapacitated for work.

(e)

Medical treatment has been
necessitated."

On 7 July 1981, Telecom retired Mrs Cocks on the ground of invalidity. The instrument issued pursuant to s.56(1) of the Telecommunications Act 1975 (Cth) read:-

"In accordance with the provisions of Section

56(l)(c)	of the Telecommunications Act of
1975, approval is given for the retirement of

DAPENE HELENE COCKS, Telephonist, Operations

Department, Lismore District
Telecommunications Branch, due to the

following medical condition:

Spinal Disc Disorder with Spondylitis 100%

Such retirement is to be effective as from close of business 6.7.81 as Mrs. Cocks has been on continuous sick leave/compensation for

the maximum period allowable."

On 26 November 1981, Mr D.N. Droop, a delegate of the Commissioner for Superannuation, issued the following determination under s.184(7):-

"When medically examined on 1 May 1972 it was
established that Daphne Helene Cocks had
suffered and was suffering from Symptoms of

Anxiety and Depression.

I am of the opinion pursuant to sub-section

184(7) that the physical or mental
condition(s), namely Symptoms of Anxiety and
Depression were relevant for the purposes of
the superseded Act and were the physical or
mental condition(s) by reason of which the
Superannuation Board was not satisfied under
sub-section 5(1) of the superseded Act that
the health or physical fitness of Mrs Cocks
were such as to justify acceptance as a
contributor to the Fund under Part I11 of the

Superannuation Act 1922."

Mr Droop then issued a benefit classification certificate

under s.184(2) which read:-

"This certificate is issued in respect of the abovenamed who was an 'existing contributor1 as defined in section 3 of the Superannuation Act 1976 and who, immediately before 1 July

1976, was (otherwise than by reason of an
election made under section 81 of the
Superannuation Act 1922) a contributor to the
Provident Account established under the

Superannation Act 1922.

I am of the opinion that the death, or the

incapacity which was the ground for the

retirement of the abovenamed was caused, or
was substantially contributed to:

(i)    by the physical or mental condition

or conditions that was or were

relevant for the purposes of the Superannuation Act 1922; or
(ii)	by a physical or mental condition or conditions connected with the physical or mental condition or conditions that was or were relevant for the purposes of that Act.

The relevant condition or conditions idare

specified hereunder.

Physical/Hental Condition(s)

Symptoms of anxiety and depression."

On the same day, Mr Droop issued a decision under s.66(2) which accorded with the above.

Some years later, Mrs Cocks sought, in accordance
with s.154 of the Act, reconsideration of those decisions.

On 27 June 1985, an offlcer of the Commissioner wrote to Telecom seeking further information:-

"Mrs Cocks was retired on the ground of

invalidity on 6 Jul 1981 due to the condition:

'Spinal Disc Disorder with Spondylitis 100%'.

2. Following her retirement she has been in

receipt of an invalidity pension which has been
payable at a reduced rate on the ground that her
retirement was caused or substantially
contributed to by a condition or conditions which
existed at the time she was accepted as a
contributor to the Provident Account in 1973,
namely 'Symptoms of Anxiety and Depression', or
by a condition or conditions connected with that

condition.

3. Mrs Cocks has appealed against the reduction

in her pension and in the course of subsequent

investigations the enclosed report was obtained

from Dr D. Bell which was based on available

medical reports and transcripts from her

compensation hearing.

4. In view of the opinions expressed by Dr Bell

it would appear that, if Mrs Cocks does have a
back problem it was not the sole condition which

caused her to be unable to perform her duties.

5 . Would you please consider the matters
canvassed by Dr Bell and advise whether you are
prepared to vary the description of the
condition(s) causing the incapacity which was the

ground for Mrs Cocks' retirement."

On 3 December 1985, Telecom responded as follows:-

"After viewing the medlcal evidence to hand it
is agreed that the description of the
condition(s) causing the incapacity which was
the ground for Mrs Cocks' retirement, namely
'Spinal Disc Disorder with Spondylitis 100%'
should vary to 'Spinal Disc Disorder with
Spondylitis and Symptoms of Anxiety and

Depression.'

Medical reports are attached in support of

this variation."

On 23 June 1986, a delegate of the Commissioner, Mr

R.C. Whithear, issued a decision as follows:-

"I, Ronald Charles WHITHEAR, Delegate of the

Commissioner for Superannuation (the
Commissioner), pursuant to sub-section 154(4)

of the Superannuation Act 1976 (the 1976 Act):

(i) VARY the decision of the delegate on

26 Nov 1981 to issue pursuant to
sub-section 184(2) of the Act in respect
of Mrs Cocks, a benefit classification
certificate specifying the condition
'Symptoms of Anxiety and Depression', by
SUBSTITUTING for that condition the
condition 'Personality Disorder', and by

adding the condition 'Diabetes Mellitusl.

(ii) CONFIRM the decision also taken by

a delegate on 26 Nov 1981 to be of the

opinion under paragraph 66(2)(c)	of the
Act that the incapacity which was the
ground for Mrs Cock's retirement was caused, or was substantially contributed to, by a condition or conditions specified in the benefit classification certificate or by a condition or conditions connected with such conditions."

The decision of the Tribunal was given after a hearing spread over six days. The reasons for decision appear as a careful, compassionate and responsible

consideration of the issues which were before the Tribunal. In its reasons, the Tribunal enunciated specific matters as

questions which it had to answer. It has not been alleged

that the Tribunal wrongly stated the issues which were
before it, or indeed that it made any error of law in its

interpretation of the 1976 Act.

The following are the present grounds of appeal:-

"1. The Tribunal erred in law in relying
upon a benefit classification
certificate wrongly issued by the
Commissioner for Superannuation
purportedly pursuant to s.184(2) of the
Superannuation Act 1976. The issuing
of thls certificate when a benefit
classification certificate was already
in force was contrary to the provisions
of s.184(4) of the Act and was ultra
vires the Commissioner's powers. The
Tribunal as an administrative body of
the Commonwealth is bound to uphold the
law of the Commonwealth and in this

' instance the Superannuation Act and
should not place itself in a position
of aiding and abetting the breach of
the Commonwealth Act which it appeared
to do when it relied upon a benefit
classification certificate created in
contravention of the Act.

2.      In the event that the benefit classification certificate was validly

issued, specifying 'personality

disorder and diabetes mellitusl as the
relevant conditions, the Tribunal erred
in law in failing to apply the
provisions of s.66(2) of the
Superannuation Act with respect to the
incapacity that was the ground for the
applicant's retirement.

Section 66(2) requires the Tribunal to
consider whether the incapacity which
was the ground for retirement was
caused, or was substantially
contributed to by a condition or
conditions specified in the benefit
classification certificate or by a
condition connected with such a
condition. This is as distinct from
the power to determine the grounds for
retirement. The legislature vests
Telecom alone with the power to retire
employees and determine the grounds for
retirement. Telecom validly determined

pursuant to s.56(l)(c) of the

Telecommunications Act 1975 that the
condition causing retirement was
'spinal disc disorder with spondylitis
100%'.(AB p.87).

The Tribunal was bound to apply the
ground validly determined by Telecom in
respect to the application of s.66(2)
of the Superannuation Act and did not
do so.

On 3.12.1985 Telecom varied the
description of the condition causing
the applicant's retirement to 'spinal
disc disorder with spondylitis and
symptoms of anxiety and depression'.

In the alternative to Ground 2, the Tribunal's reliance upon Telecomls altered description of the condition

causing the applicant's incapacity, amounts to an error of law. In the first place Telecom had no power to vary the description. In the second

place the alteration of the description
by Telecom in circumstances in which
the applicant was neither notified of
the alteration nor provided with an
opportunity to appeal against it, being
circumstances which the hearing before
the Tribunal could not cure,

justice.

constituted a breach of natural

In addition, Ground 2 is repeated,
replacing the original condition
specified by Telecom as causing
retirement with the altered ground
specified by Telecom.

The Tribunal misconceived its powers
and jurisdiction under s.25 of the
Administrative Appeals Act 1975 in
substituting its own finding on a
matter of fact being to change the
cause of the applicant's incapacity for
work after the parties before another
tribunal, being the Workers
Compensation Commission, had accepted
the determination and different
findings as to the cause of the
applicant's incapacity.

5. The Tribunal acted in breach of the
rules of natural justice and created
unfairness when it upheld the decision

of the Commissioner for Superannuation

in the face of the Commissioner's
obvious laches."

The present amended grounds of appeal were flled by leave after the conclusion of the hearing. The earlier amended notice of appeal was a complex document enunciating eleven

questions of law and eight grounds of appeal. As I

understood the argument, those~grounds fell into four main

categories and the questions of law were to be read as
supplementary to those grounds. The present relationship

between the new grounds of appeal and the questions of law

is not entirely clear. I have dealt with the matter in the

light of the arguments presented.

I do not propose to deal with each matter argued by

counsel for Mrs Cocks for each, in the terms in which it was

stated, was unfounded. However, I shall attempt to deal

with what I understand to be the general criticisms of the

Tribunal's decision.

First, it was alleged that the Tribunal should not

have received into evidence documents such as the benefit
classification certificate and the letter from Telecom of 3
December 1985. However, before the Tribunal, no objection
was taken to the admission of any of the documents
concerning which it was alleged that it should not have been
received. The challenge on this ground must fail.

Then it was said that, by admitting this evidence and taking it into account, the Tribunal took into account irrelevant consideratlons. I have not perceived in the

Tribunal's decision reference to any matter that was irrelevant. The benefit classification certificate which it was alleged the Commissioner should not have been permitted to produce for the purposes of the hearing was itself one of the decisions which was the subject of Nrs Cocks1 application before the Tribunal,. It and the letter from Telecom were relevant to its consideration.

Then it was submitted that there was a breach of

the principles of natural justice in that the Tribunal took
these matters into account when they were prejudicial to Mrs
Cocks1 case. I need not discuss this further. There was no
procedural unfairness in the manner in which the Tribunal
conducted its hearing. Six days were devoted to the hearing
and both parties were given a fair opportunity to put
whatever they wished to put.

It was then submitted that there was a breach of

natural justice in that, as the issue of injury and work had
been litigated before the Workerst Compensation Commission,
as Nrs Cocks had won her case agalnst Telecom and as Telecom
had retired Nrs Cocks on the ground of invalidity and had
specified in the decision to do so the medical condition of
"Spinal Disorder with Spondylitis loo%", an anxiety state
was irrelevant to what had occurred. As the Tribunal had
taken an anxiety state into account it had not given justice
to Mrs Cocks. That was, I think, the substance of the
argument. Natural justice is, of course, a matter concerned
with procedural unfairness and there was no such unfairness.
I shall subsequently explain why the anxiety state was a
matter relevant to be considered by the Tribunal.

It was further submitted that a breach of the rules

of natural justice or a breach of principles of justice
occurred because of the delay involved in the matter. It
was submitted that, if the matter had been heard in the late
70s or early 80s when the events had occurred, witnesses'
recollections would have been fresher. It was pointed out
that some evidence was unobtainable for the purpose of the
hearing, for example, that the record of Mrs Cocks'
employment with the Postmaster General's Department during
the years 1943 to 1947 could not be located. With respect
to this ground, I need do no more than point out that the
decision of Mr Droop in 1981 was taken promptly, that the

reconsideration which subsequently occurred under s.154 of

the Act was initiated by MrS Cocks and that the application
to the Administrative Appeals Tribunal was lodged by her.
Accordingly, it was the actions of Mrs Cocks that brought
about the hearing by the Tribunal in 1988. I see no
indication in the reasons for decision of the Tribunal that
the members of the Tribunal failed to take account of any

relevant lapse of time.

Those were, as I understand them, the challenges of

a general nature.

Ground 1 was intended to raise a specific point,

namely that s.184(4) provided that a benefit classifiation
certificate should not be issued under the provisions of
s.184(2) if a benefit classification certificate was already
in force.

The issue by Mr Droop of the benefit classification certificate in 1981 and the variation of that certificate by the decision of MC Whithear on 23 June 1986 proceeded upon

the footing that there was no previous certificate in force.
In the absence of any evidence that a previous benefit
classification certificate had been in force, the maxim
omnia praesumuntur legitime facta donec probetur in
contrarium would apply to presume the validity of those
actions and the absence of any prior benefit classification
certificate. In other words, there was no onus upon the

Commissioner to commence the proceedings by proving from

other sources that no prior benefit classification

certificate existed.

Moreover, s.37 of the Administrative Appeals

Tribunal Act 1975 (Cth) required the decision-maker to lodge with the Tribunal a statement setting out the reasons for the decision and "(b) every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the Tribunal." The documents so lodged were

given T numbers and all except one were received in evidence
by the Tribunal at the commencement of its proceedings.
They did not include any prior benefit classification
certificate. Again, the maxim would apply so as to presume,
in the absence of challenge or good reason to the contrary,
that the decision-maker had complied with the obligation
under s.37. The T documents would have been in the hands of
both parties well before the proceedings before the Tribunal
commenced.

Thus, the proceedings before the Tribunal commenced on the footing that the first benefit classification

certificate issued in respect of Mrs Cocks was the

certificate issued by Mr Droop on 26 November 1981. In his

opening address to the Tribunal, counsel for mrs Cocks did not contend to the contrary. However, in his closing address to the Tribunal, after many days of hearing, counsel for mrs Cocks pointed out that, in a medical certificate given by a Commonwealth medical officer to Telecom, after an	examination on 2 July 1980, the Commonwealth medical officer	had certified that he considered that Nrs Cocks was fit for
continued employment in the position presently occupied and had ticked the box "Yes" against the questlon "Benefit Classification Certificate in force in respect of examinee". Counsel in his final address to the Tribunal submitted that this report showed that there had been a prior benefit classification certificate in force and, accordingly, that the certificate of 26 November 1981 and the variation of 23 June 1986 were invalid.

That was a surprising submission to make at that

time. If the polnt had any val~dity, it ought to have been

raised at the beginning of the hearing. Natural justice demanded that the Commissioner for Superannuation should have notice of the point so that he could bring forward

evidence, if he wlshed to do so, that no such earlier
benefit classification certificate had been issued.

In any event, the medical report was not a document

prepared by any officer under the control of the
Commissioner for Superannuation or issued in relation to a

superannuation question. It was simply a document issued by

a Commonwealth medical officer who had been asked to report
by Telecom upon Mrs Cocks1 fitness for continued employment.
The tick could have been intended as no more than a
shorthand note that Nrs Cocks was in the Provident Account,
it could have resulted from the fact that, from 1976 to

1978, by virtue of the operation of Act No. 31 of 1976, Mrs

Cocks was deemed to be the subject of a benefit

classification certificate and her employment records may have noted that to be the position and failed to note the repeal of the relevant section, or the tick could have

represented a mistake on the doctor's behalf.

The tick on this report thus had little weight as

against the fact that no such benefit classification
certificate was contained in the relevant documents produced
from the office of the Commissioner of Superannuation and

the fact that delegates of the Commissioner had dealt with
the matter on the footing that no such certificate existed.

When the matter was raised before the Tribunal, Mr

B.C. Lock, a member of the Tribunal with considerable
experience in superannuation matters, expressed surprise.
In the course of discussion, Mr Lock said inter a1ia:-

"Are you relying on that tick for that?

But you would need the actual document. Where is the doctor, who put the tick there?

. . .

It is not the Board's document."

It is clear that Mr Lock, and presumably the other members

of the Tribunal, thought that the point had no merit. It

was not further developed by the Tribunal and it was not

referred to in the Tribunal's decision.

In my opinion, it is clear that the Tribunal

considered the point raised to be untenable. Had the point
been of significance, one with which the Tribunal should
deal in its decision, natural lustice would have required
the Tribunal then and there, in the course of the final
addresses, to advise the representative for the Commissioner
that it would consider this point and give him an
opportunity to call further evidence if he wished to do so.
As the Tribunal did not do so, it is clear that the
submission was thought be not worth further consideration.

In my opinion the Tribunal was justified in that

the first time in flnal addresses. When raised in final
addresses, it was not of sufficient merit to warrant further
consideration.

view. It was not a point that should have been raised for

That brings me to the substance of the case. The

first crucial question, which arose under s.184(7) of the
Act, was what "was or were the physical or mental condition
or conditions of the person by reason of which, at the time
when the person became, or last became, a contributor to the
Provident Account .... the Superannuation Board was not
satisfied under sub-section 5(1) of the superseded Act that
the health and physical fitness of the person were such as
to justify his being accepted as a contributor to the Fund".
On this point, the Tribunal affirmed the variation made in
1986 that that condition was diabetes with an associated
anxiety state. The Tribunal came to its finding on the

point after examining the medical history of Nrs Cocks prior

to the decislon that she qualified for the Provident

Account. The Tribunal concluded:-

"29. Bearing in mind that Mr Hennessy had no

personal recollection of what prompted him to
decide that Mrs Cocks should be in the
Provident Account but taking into account the
sequence of events, the date of medical
examinations and the medical evidence arising
from previously listed notes on Dr Greenberg's
letter made by Dr Byrne, Dr Slaughter's report
and the evidence before the Tribunal and the
guidelines set out in the Handbook for
Guidance of Medical Officers, we have formed
the opinion that diagnosed Diabetes Mellitus
and a history of some psychiatric illness,
however described, were the reasons why Mr
Hennessy as delegate of the Superannuation
Board decided to accept the applicant into the
Provident Account and not the Superannuation
Fund. We therefore are of the opinion that
the relevant condition or conditions for the
purpose of s.184(7) are 'Diabetes Mellitus'
and 'personality disorder'."

The grounds of appeal raise no challenge to that finding on the basis that it was not open to the Tribunal or that it involved an error of law or that, for any reason, it was wrong.

In the course of this present appeal, counsel for

~ r s Cocks, in answer to a question from the Bench, said that

the reason why Mrs Cocks was admitted to the provident Fund was because of her dlabetes mellitus and her then age. But that was no more than a contention from the Bar. The

Tribunal dealt with the matter on the evidence before it, after hearing from the representatives for both parties including counsel for Mrs Cocks. Its decision stands as a finding of fact and it is indeed not challenged.

The second crucial question arose under s.66(2) of

the Act, namely whether, as Nrs Cocks had been retired on
the ground of invalidity, "the incapacity which was the
ground for ... retirement was ... substantially contributed
to, by a physical or mental condition or conditions
specified in the certificate or by a physical or mental
condition or conditions connected with such a condition or
such conditions". On this point, the Tribunal found that
the incapacity which was the ground for Nrs Cocksr
retirement was substantially contributed to by her
personality disorder.

The first part of this lssue was what was the

incapacity which was the ground for Nrs Cocks1 retirement on
the ground of invalidity. Counsel for Mrs Cocks has
contended that the incapacity was her back injury. Counsel
relied upon the medical condition specified in the decision
issued under s.56(1) of the Telecommunications Act. But
there is a difference between a medical condition and an

incapacity.

Thus, in Commissioner for Superannuation v. Miller

(1985) 8 F.C.R.	153 at p.158, Mrs Miller had been retired in
these terms:-

"In accordance with the provisions of By-Law 156 of the Telecommunications Act of 1975, approval is given for the retirement of

HEATHER LYNETTE MILLER - TEMPORARY (scl. PERMANENT)

TELEPHONIST - KEMPSEY DTB

due to the following medical conditions:-

Bilateral simple mastectomy with prosthetic
replacement and adhesions loo%."

It was not this specified medical condition which was held to be the incapacity. At p.160, Beaumont J. said:-

"For the purposes of S 16(10)(b)	and s
66(2)(c),	the incapacity which was the ground

for the respondent's retirement was her
inability to elevate her arms by reason of the

adhesions. "

A t p.162, Pincus J. said:-

"Clearly, the adhesions were, or directly
caused, the incapacity which led to

retirement".

Thus the Tribunal had to consider what was the

incapacity. It held that "Her incapacity was her inability to perform the duties of a telephonist." In this approach, the Tribunal was correct. Her incapacity was not specified in the decision issued under s.56(1) of the

Telecommunications Act. What was there specified was a medical condition leading to that incapacity.

The letter from Telecom of 3 December 1985, which

accepted the condition "Spinal Disorder with Spondylitis and
Symptoms of Anxiety and Depression" now falls into place.
It was not an amendment of the decision under s.56(1) of the
Telecommunications Act. Therefore, the complaint by counsel
that it was not issued to Mrs Cocks and that Mrs Cocks had
not had an opportunity to appeal against it under s.56(2) of

the Telecommunications Act under the Telecommunications
Regulations has no merit.	It did not have that effect.

Anxiety and depression not being mentioned in the decision
of 7 July 1981, it was relevant for the Commissioner for
Superannuation to make enquiry of Telecom so as to satisfy
himself as to what had been the incapacity which had led to
retirement. Perhaps the matter was not quite put in that
way in the inquiry from the Commissioner but that is what in
substance occurred. Telecom accepted that the incapacity
resulting in the retirement was an incapacity based in part
on or involving psychological elements. ~t was then
relevant for Mr Whithear, the delegate of the Commissioner,
to take this into account in his 1986 reconsideration and it
was relevant for the Tribunal also to take it into account.

The second part of the issue was whether the

condition specified in the benefit classification
certificate, "personality disorder", substantially
contributed to Mrs Cocksr incapacity to perform the duties
of a telephonist. The Tribunal held that it did. Again,
there is no direct appeal against this finding on the basis
that it was not open on the evidence before the Tribunal or
that it involved an error of law or that it was wrong for
any other legal reason. The finding was a finding of fact
and was reached by the Tribunal after a lengthy hearing and
after full consideration of the material before the

Tribunal.

The argument put by counsel for Mrs Cocks was that

the decision issued under s.56(1) of the Telecommunications

- concluded the questions arising under the Act. Act Clearly,

it did not, as Miller's case demonstrates. The matters
arising under the Superannuation Act were matters for the
Commissioner for Superannuation. They were not determined
by an officer of Telecom, whose function was to decide
whether or not Mrs Cocks should be retired on the ground of
invalidity.

Counsel for Nrs Cocks also placed great weight upon the decision of the Workersr Compensation Commission.	~ u t
again, the Workers' Compensation Commission had no jurisdiction to deal with matters arising under the
Superannuation Act and did not purport to do so.	~ t s

function was to determine Hrs Cocks' entitlement to Workers'
compensation. That it did. The Tribunal correctly had
regard to the evidence before and the findings of the
Workersv Compensation Commission and properly accepted the
findings of the Commission that "the applicant suffered a
compensable back injury and that she was totally
incapacitated from 20 January 1980". The findings of the
Commission did not turn their attention to the issues
arising under s.66 of the Superannuation Act. The
determination of those issues was for the Commissioner for
Superannuation and, on application being made to it, for the

Tribunal.

I would add that the finding that there was a

compensable injury to Mrs Cocks' back and that she was

entitled to be compensated on the footing of total
incapacity did not constitute a flnding that no other
medical condition was a cause of or substantially
contributed to that incapacity. See, e.g, the discussion of
cause in Repatriation Commission v. Bendy (Davies J.,

unreported, 15 Hay 1989).

For these reasons, all the grounds of challenge which

were argued fail. The application must be dismissed with costs.

I certify that this and the 24

preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Associate: - r2--cr+ V

Date:	17 August 1990
Counsel for the applicant:	MS J. Mundey
Solicitors for the applicant:	Messrs Maurice May & Co.
Counsel for the respondent:	Mr A. Robertson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	11 July 1990
Date of judgment:	17 August 1990