Comcare Australia v Woodbridge, Leslie Bruce
[1996] FCA 84
•13 FEBRUARY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION ) No. DG17 of 1995
B E T W E E N:
COMCARE AUSTRALIA
Applicant
- and -LESLIE BRUCE WOODBRIDGE
Respondent
REASONS FOR JUDGMENT
Coram: O'Loughlin J.
Place: Adelaide (Heard in Darwin)
Date : 13 February 1996
The respondent to these proceedings, Leslie Bruce Woodbridge, commenced working in 1972 at the age of eighteen, with the Commonwealth Department of Works in the Northern Territory. Thereafter, except for a short period in private enterprise, he worked for that department and other Commonwealth Authorities until November 1985. In that month he suffered a severe spinal injury which forced him to give up his employment. He received compensation in respect of his injury, first pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") and thereafter pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). It is common ground that his present circumstances are to be considered by having regard to the provisions of the SRC Act.
On 16 April 1993, the applicant, Comcare, cancelled Mr Woodbridge's compensation payments with effect as from 19 March 1993; that determination was affirmed by a later decision dated 19 May 1993. Comcare was of the opinion that Mr Woodbridge was no longer totally incapacitated for work and that he was able to earn income in some form of suitable employment. On Mr Woodbridge's application for review, the Administrative Appeals Tribunal ("the Tribunal") set aside the decision of 19 May; in substitution for it, the Tribunal entered a decision that at all relevant times Mr Woodbridge had remained entitled to receive compensation in respect of his injury. The Tribunal remitted the matter to Comcare for assessment and payment of compensation in accordance with the Tribunal's reasons. Comcare has now appealed against the Tribunal's decision.
In order to appreciate the issues that were argued during the course of the hearing, it is necessary to refer, in more detail, to Mr Woodbridge's history since the accident.
At first he was confined to his home, unable to engage in any meaningful form of activity; he became depressed and bordered on suicidal. However, in 1986, as a result of the help of a friend, he and his family set up a small boat-hire business, using a limited liability company, Bedwin Pty Ltd ("Bedwin"). The company purchased six dinghies and outboard motors and hired them out on the South Alligator River at
Kakadu Holiday Village. The dinghies and other equipment were housed and secured in a demountable shed on the banks of the river and other aspects of the business were conducted from the family home in Darwin. This project continued for about three years; Mr Woodbridge said that he was forced to sell the business as it was dependent on employees who failed to look after the equipment and he was unable to do so himself.
Later, in early 1990, Mr and Mrs Woodbridge and their two sons, using Bedwin, established a business that operated under the name "Top End Sport Fishing Safaris". Camps were established at various locations as far afield as King River in Arnhem land, 412 kilometres from Darwin. Although not the subject of mention by the Tribunal in its reasons, that business was still operational and Mr Woodbridge was still involved in its operations in August 1994 when the hearing before the Tribunal took place.
The principal findings of facts made by the Tribunal about the conduct of the fishing business and camping trips were as follows:
"Owned by the family company, this venture was operated on the basis of all family members contributing.
Mrs Woodbridge purchased all food and other requirements and pre-cooked all meals. Their sons maintained the vehicle. When a trip was due to be undertaken, the sons and Mrs Woodbridge loaded the vehicle and upon the party's return to Darwin they unloaded the vehicle and cleaned and vacuumed it.
Mrs Woodbridge did all the cleaning and washing and under the supervision of an accountant, a Mr Clarke, maintained the books. Mr Woodbridge took the clients on the fishing trip as tour guide. Whilst at the camp site, he said, he mostly was confined to base.
Mr Woodbridge was cross-examined at length by Mr Riley about the physical exigencies involved for him in performing the role of tour guide. He gave evidence-in-chief additionally about that aspect of things. The picture emerged that he had made equipment adjustments to the boat that was used and to the trailer. Equipment was changed in favour of equipment which he was able to operate with greater ease. A power-winch was fitted to the trailer, the boat was steered with a tiller, a rotating seat was fitted. The effect of his evidence was that though the pain was constant and his recourse to pain control medication necessary from time to time, in the interests of keeping himself busy he had managed to perform his part of the overall operation by the family of this business."
In assessing the significance of these findings it is important to bear in mind that the Tribunal recorded in its reasons that Mr Woodbridge and his wife were accepted as witnesses of truth.
These camping trips to the King River were conducted during the dry season - from June to November. In addition however, from March to May, Mr Woodbridge took customers fishing for barramundi in the billabongs and the local rivers around Darwin: (these activities were not, however, mentioned in the Tribunal's reasons). At the time of giving his evidence before the Tribunal in August 1994 Mr Woodbridge acknowledged that he had been performing this level of work from March through to November for the preceding three years.
The normal fishing and camping trip would involve Mr Woodbridge and two - perhaps three - customers. Despite his disabilities he was able to drive his motor vehicle, unload and load his boat at the base camp, steer and manoeuvre the boat, assist his customers with their fishing exploits, cook, care for the camp and care for his customers for periods ranging from a day up to a week. All this was achieved with almost no assistance from his customers. These activities were not mentioned in detail by the Tribunal in its reasons.
In 1990, and again in 1992, Mr Woodbridge visited the United States to promote tourism in the Northern Territory. His reputation in the tourist industry can be assessed by the fact that both trips were heavily subsidised - one by the Northern Territory Government and the other by private enterprise. In another activity, involving amateur fishing, Mr Woodbridge organised fishing competitions through the agency of Bedwin. Although the company charged contestants an entry fee, Mr Woodbridge said that the exercise was "more to help the local fishing club than anything else" and he only retained "a hundred dollars for local phone calls" and other incidental expenses. These activities were not mentioned by the Tribunal in its reasons.
In pars 67 and 69 its reasons, the Tribunal considered the role of Mr Woodbridge in the family business, concluding that it did not "disentitle him in compensation terms". It described his role as limited and defined, keeping to a minimum the physical demands that were made upon him. The Tribunal concluded in par67 that it did not "believe he is employable in the ordinary sense".
The Tribunal was of the opinion that the profitability of the family business was "largely irrelevant". Stating that the question for determination was whether Mr Woodbridge was "able to gain employment in the open market", the Tribunal said that there was no evidence that would justify a finding that he had the "capacity to find employment as a fishing tour guide". The assessment of the Tribunal, as set out in par69 of its reasons, was as follows:-
"(T)hat he found with the considerable support of his family a source of emotional therapy in a family business in which he played from time to time a restricted role of fishing tour guide, cannot with any sense of fairness or justice to him be adjudged to disentitle him as against (Comcare)".
Two issues were argued before the Tribunal; the first was whether there was any continuing incapacity resulting from the original injury or whether any such incapacity was related to an ongoing degenerative condition. That issue was resolved in Mr Woodbridge's favour and there is not now any challenge to the Tribunal's findings with respect to his medical condition. It was the second issue, which questioned Mr Woodbridge's ability to earn an income, and which was also decided in his favour, that is the subject of this appeal.
The decision of the Tribunal was as follows:
"The Tribunal sets aside the decision under review and in substitution for it the Tribunal enters a decision that at all relevant times the applicant has remained entitled to receive compensation in respect of an injury succinctly to be described as an injury to the spine. The matter is remitted to the respondent for assessment and payment of compensation accordingly..."
The Tribunal then proceeded to order Comcare to pay Mr Woodbridge's costs of and incidental to the proceedings before the Tribunal.
Comcare says that the language of the decision is ambiguous, that it cannot comprehend the intended scope of the words: "the applicant has remained entitled to receive compensation". Does it, asks Comcare rhetorically, determine the extent of Mr Woodbridge's ability to work and to earn income? The Tribunal's reason for its decision, including the findings that it made in support of its decision, appear to suggest, says Comcare, that it considers Mr Woodbridge to be totally incapacitated; but no such finding was expressly stated. Comcare claims that the remission of the matter to it for assessment and payment of compensation can mean one of two things: either it leaves it open to Comcare to make its own assessment in accordance with the SRC Act (in which case no difficulty arises) or, as is more likely the case, Comcare is to make its assessment upon the premise that Mr Woodbridge is not capable of engaging in any work. In the latter case, a question would arise, says Comcare, whether the Tribunal had adopted the correct test in arriving at its decision.
In my opinion, the position is quite clear. Although it is true that the Tribunal did not state precisely that it regarded Mr Woodbridge as permanently incapacitated, a fair and reasonable reading of its decision and the supporting reasons leaves no room for doubt. I propose to consider this matter upon the premise that the Tribunal's decision incorporated a finding of permanent incapacity. I so intimated at an early stage during the submissions of counsel for the applicant and both counsel thereafter fashioned their submissions accordingly.
These proceedings come before the court pursuant to the provisions of subs44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") which provide that a party to a proceeding before the Tribunal may appeal to this court "on a question of law" from any decision of the Tribunal in the proceeding. It therefore follows that an appeal to this court is limited to a question of law and this court is not at liberty to find for itself the relevant facts from which the question of law might emerge: Copperart Pty Ltd v Commissioner of Taxation (Cth) (1993) 30 ALD 377. In its grounds of appeal, Comcare has asserted that the following questions of law are
raised on the appeal:
"(a)The proper tests to be applied in determining the amount of compensation payable to a 'former employee' under sections 132 and 132A of the Safety Rehabilitation and Compensation Act 1988 ('the SRC Act').
(b)The proper meaning of 'not capable of engaging in any work' in section 132 of the SRC Act.
(c)The proper meaning of 'capable of earning an amount per week in suitable employment' in section 132A of the SRC Act."
Mr McDonald, counsel for Mr Woodbridge claimed that Comcare had shifted its ground and that it ought not now be permitted to conduct its case differently from the manner in which it presented argument before the Tribunal. He referred to authorities such as University of Wollongong v Metwally (No2) (1985) 59 ALJR 481 where the High Court in a joint judgment said at p483:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertance, he failed to put during the hearing when he had an opportunity to do so."
Mr McDonald submitted that the several issues of causation and capacity (or lack of capacity) to engage in any work were identified by counsel before the Tribunal without any reference to the governing legislative provisions: i.e. ss132, 132A, 19 and the definition of "suitable employment" in subs4(1) of the SRC Act. Accepting without deciding that that might have been the case, the fact remains that counsel for Comcare before the Tribunal said, after referring to the issue of causation:
"So that is the first issue, and the second issue, which will only arise if the first is resolved against us, is whether or not Mr Woodbridge now has a capacity to earn..."
There can be no doubt that the words "capacity to earn" are synonomous with "capable of earning" appearing in subs132A(1). I reject the proposition that Comcare has shifted ground on its argument.
The powers and duties of the Tribunal on its review of a decision, as contained in s43 of the AAT Act, include the power to affirm, vary or set aside the decision under review. There is an obligation on the Tribunal to give its reasons for its decision and those reasons "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based": subs43(2B) of the AAT Act. A failure on the part of the AAT to state those reasons or to refer to that evidence may constitute an error of law: Opitz v Repatriation Commission (1991) 29 FCR 50 at 60-61 per Hill J. Even so, the proper approach to the exercise of the court's jurisdiction under s44 of the AAT Act is one of restraint, recognising that only in exceptional circumstances, as when an error of law is identified, should the court intervene: Blackwood Hodge (Australia) Pty Ltd v
Collector of Customs (NSW) (1980) 47 FLR 131 at 145 per Fisher J; see also Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427, Federal Commissioner of Taxation v Swift (1989) 18 ALD 679. Furthermore, as Brennan J (as he then was) said in Waterford v Commonwealth (1987) 163 CLR 54 at 77:
"The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to made. There is no error in law simply in making a wrong finding of fact."
See also Repatriation Commission v Thompson (1988) 82 ALR 352 at 357, a decision of a Full Court of this court.
It is also important to bear in mind that the reasons of a Tribunal are to be read in their entirety; a passage should not be considered in isolation but within the context of which it forms part: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J; Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032 per Lockhart J. But the question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 at 355 per Mason CJ and the authorities there cited. Should it transpire that the Tribunal fell into error and made a finding of fact which was not supported by the evidence, it does not mean that this court must interfere as a matter of course. In Luu v Renevier (1989) 91 ALR 39 at 47 the court noted that if the finding related only to a matter of peripheral importance, the validity of the decision may remain unaffected. On the other hand, as the court said at 47: "... where the finding is critical to the ultimate decision, it is impossible to sustain the decision".
Counsel for Comcare submitted that the Tribunal erred in law when it made two findings of fact, allegedly based on evidence, when no such evidence had been adduced. These two matters were not identified as discrete grounds of appeal but they are, in my opinion, relevant in determining whether the Tribunal did apply the proper tests in determining the amount of compensation payable to a former employer under the relevant provisions of the SRC Act. The first of the challenged findings appears in par66 of the Tribunal's reasons:
"The fact is that Mr Woodbridge plays the role of tour guide in the family business activities. On all of the evidence his future in the discharge of that role, however, is extremely limited and may have already come to an end. Major spinal surgery is a matter of certainty for him." (see p138)
There was no evidence that would have justified the Tribunal finding that Mr Woodbridge's future "may have already come to an end". Counsel for Comcare submitted that the only passage in Mr Woodbridge's evidence that addressed his future activities in the business was that appearing in his evidence in chief.
"Turning towards the future, have you resolved what you are going to do in the future in relation to your business as yet?...Yes. I think my wife and I are at a point where, at the end of the season, we may sell the - sell the business."
Medical evidence on the same subject came from Mr Wright, a consulting surgeon, who interviewed and examined Mr Woodbridge at the Darwin Hospital on one occasion in about June 1993. He said that:
"... Mr Woodbridge is rapidly running out of stamina, endurance, and resiliency because of his back. The more careful he is with it, the longer it will last,but it won't last much longer to allow him to so anything repetitively arduous. It is inevitable that he will worsen to the extent that he will undergo a surgical intervention, and he will need to withdraw from any work which is - which overloads his back more than a little, and I see that prognosis affecting him within the next - according to the information on the later x-ray studies and the MR scan, I see that a major decision in his activity level will be made within the next couple of years."
The acceptance by the Tribunal of Mr Wright's opinion justified the Tribunal coming to the conclusion that "(M)ajor spinal surgery is a matter of certainty for him" but both the evidence of Mr Woodbridge as well as the evidence of Mr Wright contradicted the Tribunal's conclusion that "his future... may already have come to an end". There was no evidence that could justify such a conclusion. In any event, the task of the Tribunal was to determine whether Comcare's decision of 19 May 1993 (that Mr Woodbridge was then no longer totally incapacitated for work and that he was then able to earn income in some form of suitable employment) was or was not correct. A worker's medical condition at the date of the hearing before the Tribunal is not an irrelevant consideration but it is not determinative of his or her medical condition fifteen months earlier.
It would have been open to the Tribunal, based on Mr Woodbridge's evidence about his capabilities and Mr Wright's expert opinion, to assess whether there was in May 1993 and had been, at least for the three preceding years, a continuing capacity to engage in some form of work-related activity; it might well be that the capacity would not last for long but it had the potential, with care, to last for a few years. The responsibility of the Tribunal was to assess whether that work-related activity in 1993 amounted to a capability to earn an amount per week in suitable employment.
The Tribunal made a second finding of fact that was, in my opinion, unsupported by the evidence. It was a very important issue going to the crux of the matter. The Tribunal stated its conclusion in these terms:
"I have concluded that Mr Woodbridge's role in the family business does not disentitle him in compensation terms".
That statement is, of course, the genesis for the ultimate finding in favour of Mr Woodbridge. But the reasoning that supported that finding was as follows:
"His role has been limited and defined. The operation of the business has kept to a minimum the physical demands upon Mr Woodbridge. Additionally, the use of equipment adjustments - power winches, steering tillers, special boat - trailer - have minimised the demand upon him for physical exertion whilst in the field. I accept his evidence that in the main he is confined to camp site. I do not believe he is employable in the ordinary sense."
That was a fundamental mistake; the evidence did not suggest that "in the main he (was) confined to camp site". On the contrary, he took his customers, daily, on their fishing excursions doing such work as would be required of a tour guide.
The provisions of the SRC Act that are relevant to these proceedings include ss132 & 132A, both of which are contained in Div3 of PtX. The heading to that Division is entitled "Special transitional provisions relating to certain former employees". As Heerey J explained in Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 263, initially those "certain former employees" were former employees under 65 years of age on the commencing day of the SRC Act (which was 1 December 1988) who were unable to engage in work and who were either in receipt of a pension under a superannuation scheme (s131) or not in receipt of such a pension (s132). The Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1990 (Cth), introduced s132A to cover a former employee under 65 years of age on the commencing day who (unlike s131 and s132 former employees) is capable of earning an amount per week in suitable employment. His Honour went on to say, and I respectfully agree:
"Sections 131, 132 and 132A provide a regime for former employees under 65 on the commencing day, making specific provision for those who did, and those who did not, then receive a pension under a superannuation scheme. Thus ss131, 132 and 132A mirror ss19 and 20, which deal in similar respects with employees, that is to say those in employment on or after the commencing day." (at 264)
It was not suggested, either in the Tribunal's reasons or during the course of argument, that Mr Woodbridge had been in receipt of a pension at the relevant time. Hence it is not necessary to have regard to the provisions of s131.
Subsection 132(1) deals with the situation where the worker is "not capable of engaging in any work". Subsection 132A(1) however provides:
"132A. (1) This section applies to a former employee who was under 65 on the commencing day, and who is capable of earning an amount per week in suitable employment."
It is, in my opinion, axiomatic that if a worker is "not capable of engaging in any work" then that worker is not "capable of earning an amount per week in suitable employment". It is also, I suggest, equally axiomatic that if a worker is "capable of earning an amount per week in suitable employment" then it could not be said of that worker that he or she is "not capable of engaging in any work".
I return to the language of subs132A(1) and its use of the expression "suitable employment"; it is imperative that the fact-finding body have regard to the statutory definition of that term in s4 of the SRC Act (including its application to self employed persons). That definition provides as follows:
"'suitable employment', in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)."
Subsection 132A(2) can be ignored; it deals with a worker who was in receipt of a pension under a superannuation scheme on the commencing day of the SRC Act. Subsections (3) and (4) of s132A must be set out in full however:
"(3) Where a person to whom this section applies was not in receipt of a pension under a superannuation scheme on the commencing day, then, subject to this Division, the amount of compensation payable per week to the former employee is:
(a)the amount of compensation per week that would have been payable under section 132 if that section had applied to the former employee, less the amount per week that he or she is able to earn in suitable employment; or
(b)the amount of compensation per week that would have been payable under section 19 if that section had applied to the former employee, less an amount equal to 5% of his or her normal weekly earnings;
whichever is greater.
(4) In determining, for the purposes of this section, the amount per week a former employee is able to earn in suitable employment, Comcare must have regard to the factors mentioned in paragraphs 19(4)(a),(b),(c),(d),(e),(f) and (g) as if those paragraphs referred to the former employee."
The factors that are mentioned in the various paragraphs of subs19(4) include such matters as a failure to accept suitable employment or, having accepted it, a failure to continue with it; it also refers to rehabilitation and questions whether the injured worker has failed to seek suitable employment; none of those apply to Mr Woodbridge. The only paragraphs that are relevant to his circumstances are "where the employee is in employment - the amount per week that the employee is earning in that employment": (par19(4)(a)) and "any other matter that Comcare considers relevant": (par19(4)(g)).
Mr Woodbridge involved himself, perhaps, as an employee of Bedwin; on the other hand, passages in the evidence suggest that he might have regarded himself as a self-employed person; it does not really matter; either way the question that was material was whether the activities upon which Mr Woodbridge was engaged were of such a nature that it could properly be said that he was, in 1993, capable of earning an amount per week in "suitable employment" (as that term is defined). If he earned it as an employee, Comcare will have regard to it under par19(4)(a); if he earned it as a self-employed person, it would be a matter that Comcare would properly consider relevant in terms of par19(4)(g).
As Comcare had challenged Mr Woodbridge's assertion that he was not capable of engaging in any work, the primary question that should have been asked by the Tribunal with respect to Mr Woodbridge was what amount per week (if any) was he capable of earning in suitable employment. As previously outlined this meant employment, including self-employment, for which Mr Woodbridge was suited having regard to his "age, experience, training, language and other skills" as well as the other matters that are referred to in the definition. If the answer was nil then the Tribunal would revert back to s132 and do an assessment upon the premise that Mr Woodbridge was "not capable of engaging in any work": (par132(1)(b)). But the first inquiry must be directed towards the issue of the injured person's ability to earn in suitable employment and if there is such an ability, to quantify it in terms consistent with the legislation.
In my opinion, the decision of the High Court in Cage Developments Pty Ltd v Schubert (1983) 151 CLR 585 governs the circumstances of Mr Woodbridge. In that case a workman was injured during the course of his employment as the driver of a machine known as a concrete agitator. During his period of
partial incapacity, the workman and his wife carried on, in partnership, a business of carting fuel in a road tanker which was owned by the partnership and ordinarily driven by him. The High Court held that the Workers' Compensation Commission was correct when it assessed compensation "by considering what services the worker actually performed in the business and what those services would have been worth if, instead of serving himself, he had been serving an employer, or, put in another way, what he would have had to pay another for those services" (p586).
However, the court went on to point out that the approach adopted by the Commission was not necessarily "the only appropriate one in every case in which a former worker was, during the relevant period of partial incapacity, working in a business of which he was the owner or one of the owners..." (p587). The court noted that it was "undesirable to confine the Commission within the strict limits of artificial rules laid down in advance by an appellate court". It gave the example of a business consisting essentially of the provision of personal services by the former worker with no significant investment of capital. In these circumstances the court said that the actual net earnings of the business might properly be seen as representing the actual reward for the labour of the former worker:
"In such a case, if the former worker is carrying on business solely on his own account, the net earnings of the business might properly be seen as representing the 'amount he is earning' in a
business; if he is carrying on business in partnership or as an employee of a family company, the net earnings might properly be seen as representing the 'amount he... is able to earn' either in employment or in a business."
Naturally, if, as may be the case with Mr Woodbridge and his family's business, there is a significant investment of capital, some discounting factor might have to be applied so that proper consideration is given to effect of that investment on the earnings that might otherwise be regarded as "his earnings". In addition, there was evidence in this case that was accepted by the Tribunal that established that "his earnings" would be further affected by the value of the services of his wife and his two sons. They are also matters that would have to be taken into account.
The Tribunal did not refer to the contents of s132A during the course of its reasons nor did it refer to the definition of "suitable employment". A failure to set out the relevant legal principles in the reasons of the tribunal does not necessarily constitute a breach of the obligations imposed by s43(2B) of the AAT Act. As von Doussa J said in McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462 at 469 of s43(2B) of the Act:
"It will be noted that the subsection does not expressly require the Tribunal to include, or even to make reference to, the law or legal principles material to the decision. Often the legal principles relevant to the decision will not be contentious, and the decision will turn entirely on matters of fact. In such cases the reasons for the decision are likely to be clear enough even if there
is little or no reference to the relevant law."
Although it is not necessary for a Tribunal to refer to all relevant legislation when stating its reasons - indeed, in many cases it is quite appropriate to assume that the fact- finding body would be fully cognisant of the governing authorities - in this case the absence of reference to the relevant provisions in the legislation is accompanied by an absence of reference to those matters (including the issue of self-employment) that are encompassed by the definition of suitable employment. The fault in the Tribunal's reasoning is to be found in the emphasis that is given in such passages as:
"The central question of law is one of capacity to earn a living in the open labour market."
and
"I do not believe he is employable in the ordinary sense."
and
"The question for determination involves whether or not the claimant for compensation is able to gain employment on the open market."
Those matters are all important matters and are properly to be taken into consideration; but they are some only of the matters to which the Tribunal must have regard. Other matters that are just as important are the ability of a worker (even though he or she may still suffer an incapacity from the original injury) to earn an income in "suitable employment" which includes a consideration of the worker's ability to engage in some form of self-employment.
Counsel for Mr Woodbridge argued that the Tribunal's decision was "unmistakably a finding under s132 of the (SRC) Act". So much may be accepted in the sense that the Tribunal's finding was consistent with a finding that Mr Woodbridge was "not capable of engaging in any work" (they being the relevant words in subs132(1). But, in my opinion such a proposition misses the point; it does not cover the Tribunal's omission to have regard to the matters that are covered by s132A, s19 and the definition of "suitable employment" and the Tribunal's failure to explain why those matters do not affect Mr Woodbridge's rights to ongoing compensation. I have referred to the two factual inaccuracies in the Tribunal's findings because they lend strong support to a proposition that the Tribunal considered it unnecessary to consider these provisions. I have also drawn attention to passages in the evidence such as Mr Woodbridge's ongoing activities in a nine month period each year for three years, his visits to the United States and his organisation of the fishing competitions. They are factors that one might have expected the Tribunal to comment upon before concluding that he was "not capable of engaging in any work". Despite the strictures that are contained in the authorities and to which I have earlier made reference, these inaccuracies and omissions point to the Tribunal having failed to give adequate attention to its obligation, as contained in subs132A(1), to investigate whether Mr Woodbridge was "capable of earning an amount per week in suitable employment".
The members of Mr Woodbridge's family are to be commended for the way in which they have helped him: his rehabilitation and his return to the workforce (however limited) would have obvious therapeutic value. But if that return is successful to a degree that it can properly be said that Mr Woodbridge has become capable of earning an amount per week in suitable employment, due account must be taken of that fact when assessing his entitlement to on-going compensation. In my opinion, the Tribunal failed to address that issue.
I turn then to the six grounds of appeal and set out my conclusions with respect to each of them.
GROUNDS:
(a)The Tribunal erred in law in deciding that the respondent's "ability to sell his labours in the open market was a relevant consideration to the respondent's entitlement to compensation.
I do not consider that the Tribunal erred in having regard to Mr Woodbridge's "ability to sell his labours in the open market". That is a time-honoured phrase and is to be found in many cases. I do believe, however, that the Tribunal erred in having insufficient regard to what constitutes "suitable employment"; as I interpret it, that phrase does not require a standard that is equivalent to a worker selling his labours in the open market. "Suitable employment" could, in appropriate circumstances, encompass some form of family assisted employment of the type enjoyed by Mr Woodbridge.
(b)The Tribunal erred in law in deciding that the profitability of the Respondent's fishing business was largely irrelevant to the respondent's entitlement to compensation.
and
(d)The Tribunal erred in law in failing to take into account a material fact being the profitability of the respondent's business and the amount per week that the respondent was earning in that business.
The profitability of the fishing business had the potential to be relevant if it markedly reflected the abilities and the activities of Mr Woodbridge. It was wrong of the Tribunal to dismiss this issue in such an arbitrary manner.
(c)The Tribunal erred in law in applying a test of employability 'in the ordinary sense' in deciding that the respondent was entitled to compensation.
As with ground (a), I consider that the Tribunal was entitled to have regard to this issue but not at the expense of ignoring the provisions of the SRC Act to which I have already referred.
(e)The Tribunal erred in law in failing to apply the provisions of sections 132 and 132A of the SRC Act.
and
(f)The Tribunal erred in law in failing to have regard to the matters specified in paragraphs 19(4)(a) to (g) inclusive of the SRC Act and/or the matters specified in subparagraphs (a)(i) to (iv) inclusive of the definition of "suitable employment" in subsection 4(1) of the Act.
As to these grounds of appeal I am of the opinion, for the reason already given that the Tribunal failed to have adequate regard to the provisions of:
(a)s132A of the SRC Act;
(b)pars19(4)(a) and 19(4)(g) of the SRC Act and;
(c)the definition of the phrase "suitable employment" in subs4(1) of the SRC Act.
In my opinion, there are justifiable reasons for this court to intervene. The Tribunal remitted the matter to Comcare for assessment and payment of compensation; I will not interfere with the order for remitter but I direct that Comcare assess Mr Woodbridge's entitlement (if any) to compensation in accordance with these reasons. I further set aside the Tribunal's order that Comcare pay Mr Woodbridge's costs of and incidental to the proceedings before the Tribunal. I will hear the parties on the question of costs before this court and there will be liberty to apply generally. Either party may bring the matter on for further argument on seven day's notice.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.
Associate
Dated:
Counsel for the Applicant : Mr T J Riley QC and
Ms C Cameron
Solicitor for the Applicant : Australian Government
Solicitor
Counsel for the Respondent : Mr C McDonald and
Mr A H Silvester
Solicitor for the Respondent : Tony Crane
Date of Hearing : 10 November 1995
CATCHWORDS
ADMINISTRATIVE LAW - Worker's Compensation - consideration of transitional provisions of legislation - consequence of Tribunal not referring to that legislation - factual inaccuracies and omissions in Tribunal's reasons.
Safety Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Copperart Pty Ltd v Commissioner of Taxation (Cth) (1993) 30 ALD 377
Opitz v Repatriation Commission (1991) 29 FCR 50
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131
Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427, Federal Commissioner of Taxation v Swift (1989) 18 ALD 679
Waterford v Commonwealth (1987) 163 CLR 54
Repatriation Commission v Thompson (1988) 82 ALR 352
Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132
Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029
Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321
Luu v Renevier (1991) 91 ALR 39
Telstra Corporation Ltd v Warner (1994) 20 AAR
Cage Developments Pty Ltd v Schubert (1983) 151 CLR 585
No. DG17 of 1995
COMCARE AUSTRALIA Applicant
- and -
LESLIE BRUCE WOODBRIDGE Respondent
O'LOUGHLIN J.
ADELAIDE (Heard in Darwin)
13 FEBRUARY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION ) No. DG17 of 1995
B E T W E E N:
COMCARE AUSTRALIA
Applicant
- and -
LESLIE BRUCE WOODBRIDGE
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : O'LOUGHLIN J.
WHERE MADE : ADELAIDE (Heard in Darwin)
DATE OF ORDER : 13 FEBRUARY 1996
THE COURT ORDERS THAT:
The appeal be allowed.
Comcare assess the respondent's entitlement (if any) to compensation in accordance with these reasons.
The Tribunal's order that Comcare pay Mr Woodbridge's costs before the Tribunal be set aside.
The parties have liberty to bring on this matter on for further argument on the question of costs and generally on seven day's notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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