Comcare v Rooney, P.W
[1994] FCA 147
•25 MARCH 1994
COMCARE v. PATRICK WILFRED ROONEY
No. ACTG115 of 1993
FED No. 147/94
Number of pages - 7
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NEAVES J
CATCHWORDS
Administrative Law - Administrative Appeals Tribunal - Application to review decision that compensation not payable in respect of a specified period - Employee directed to take sick leave on full pay during relevant period - Diagnosis subsequently not confirmed - Employee's sick leave credit restored - Agreement that application for review be dismissed and that Tribunal determine whether employee entitled to an order for costs - Tribunal without examining the merits of the application setting aside decision under review and remitting matter for further consideration by decision-maker - Order for costs made in favour of employee - Appeal - Whether it was open to the Tribunal to make such orders - Errors of law
Plumb v Comcare (1992) 39 FCR 236
HEARING
CANBERRA, 18 March 1994
#DATE 25:3:1994
Counsel for the applicant: Mrs J Bonsey
Solicitor for the applicant: Australian Government
Solicitor
Counsel for the respondent: Mr B. Hull
Solicitors for the respondent: Gary Robb and Associates
ORDER
The Court orders that:
1. The decision of the Administrative Appeals Tribunal made on 22 October 1993 be set aside and, in lieu thereof, it be decided that the application for review be dismissed and that there be no order as to the costs of the proceedings before the Tribunal.
2. There be no order as to the costs of the application to this Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NEAVES J Comcare, a body established by s.68 of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"), has applied to the Court by way of appeal, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 22 October 1993 in a proceeding in which Patrick Wilfred Rooney was the applicant and Comcare was the respondent. The application to the Tribunal was by way of review of a decision made on 8 May 1992 affirming that part of a decision made on 26 July 1991 that determined that compensation was not payable to Mr Rooney in respect of the period 20 June 1991 to 11 July 1991.
The application filed in this Court incorrectly named the applicant as "Comcare Australia". I directed that the proceedings be amended to name the applicant correctly.
When the application for review came on for hearing before the Tribunal on 20 October 1993, the Tribunal was informed that the parties had reached an agreement in terms of s.42C of the Administrative Appeals Tribunal Act and that, if the Tribunal were to make a decision in accordance with the agreement between the parties, the only outstanding matter would be the application by Mr Rooney that Comcare pay his costs of the proceedings in the Tribunal. A document dated 14 October 1992 and signed by the solicitors for Mr Rooney and Comcare was handed to the Tribunal. It read as follows:
"AGREEMENT PURSUANT TO SECTION 42C
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
1. The parties have reached agreement pursuant to Section 42C(3) of the Administrative Appeals Tribunal Act 1975 as to the terms of a decision of the Tribunal that would be acceptable to the parties.
2. The parties are satisfied that a decision as hereinafter set out would be within the powers of the Tribunal.
3. Now both parties request that the Tribunal make a decision in the following terms:
(a) Noting the Applicant made an application for review of a decision to affirm a determination which found the Applicant's incapacity for employment between 20 June 1991 to 11 July 1991 ('the relevant period') was not related to a compensable condition.
(b) Noting a preliminary conference was held on 27 April 1993 at the request of the Respondent.
(c) Noting the Applicant's employer, the Commonwealth Department of Administrative Services ('DAS'), although not a party to the proceedings, attended this conference.
(d) Noting subsequent to this conference DAS recredited the Applicant's sick leave for the relevant period.
(e) Noting the Applicant cannot receive any other benefit from this application as his sick leave has been recredited and he was paid his usual salary in the relevant period, the parties agree the application for review be dismissed.
(f) The issue of the costs of these proceedings be reserved for determination by the Tribunal."
An agreed statement of facts dated 14 October 1993 and signed by the solicitors for Mr Rooney and Comcare was also handed to the Tribunal. That statement read as follows:
"1. On 26 July 1991 the Respondent determined liability to the Applicant for dust exposure causing chest, skin, nose, ear and eye problems on 30 November 1990.
2. On 6 June 1991 Dr Owen Tinnion, Commonwealth Medical Officer, found the Applicant medically unfit to perform his normal duties because of evidence of coronary artery disease, and on the basis of this opinion the Department of Administrative Services ('DAS') directed the Applicant to proceed on sick leave from 1.10pm on 20 June 1991 until a suitable position was identified.
3. The Applicant was returned to work on 12 July 1991 following submissions from his treating doctor, Dr Kelly, and an inspection of his work site.
4. Dr David Coles reported on 18 September 1991 the diagnosis of coronary artery disease was not confirmed.
5. The Applicant sought the recrediting of his sick leave for the period 20 June 1991 to 11 July 1991 ('the relevant period') from DAS and also lodged an application in the Administrative Appeals Tribunal for review of the Respondent's decision he was not entitled to compensation for this period.
6. On or about 20 June 1993 DAS recredited the Applicant's sick leave for the relevant period.
7. The Applicant has incurred legal cost and expense in pursuing the recrediting of his sick leave.
8. The Respondent has incurred legal cost and expense in defending its decision to deny liability for compensation.
9. The Respondent has refused to meet the Applicant's costs in pursuing the recreditation of his sick leave."
The only other material before the Tribunal consisted of the documents lodged with the Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act and two further medical reports, one being a report dated 12 January 1992 by Dr S.G. Nogrady and the other a report dated 5 April 1993 by Dr G.D. Kelly.
Section 42C of the Administrative Appeals Tribunal Act provides:
"42C.(1) If, at any stage of a proceeding for a review of a decision:
(a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of a mediation under section 34A); and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
(3) If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates."
The Tribunal considered that it was more appropriate to treat the agreement reached by the parties as having been made under subs.42A(1). That subsection provides:
"(1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review."
Reference should also be made to s.43(1) of the Administrative Appeals Tribunal Act. That section provides:
"(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or
recommendations of the Tribunal."
It is also necessary to refer to certain of the provisions contained in s.67 of the Compensation Act. That section relevantly provides:
"67.(1) Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party. ...
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority. ...
(9) Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for redetermination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority.
..."
Notwithstanding the agreement between Mr Rooney and Comcare that the application to the Tribunal be dismissed, the Tribunal decided -
"(a) that the decision under review be set aside and the matter remitted to the respondent with a direction that it be reconsidered in the light of the decision by the Commonwealth to concede the claim; and
(b) that the respondent pay the applicant's costs of the proceedings before the Tribunal as agreed between the parties, or in the absence of such an agreement as to the amount of the costs, as taxed by a Deputy Registrar of this Tribunal at Canberra."
The Tribunal's reasons for decision begin with the following paragraph:
"The Commonwealth having conceded the claim for compensation the applicant seeks an order for costs pursuant to section 67 of the Safety Rehabilitation and Compensation Act 1988 ('the Act'). This matter has become complex because Comcare has not revoked its reviewable decision denying liability for compensation notwithstanding the concession by the Commonwealth".
Having then referred to s.67 of the Compensation Act, set out the material facts and referred to the submissions of counsel for the parties, the Tribunal continued:
"23. Although not the subject of argument before me, because the claim had been conceded, the report of Dr Kelly (Exhibit B) justifies a finding that the applicant's absence from work could be attributed to the condition of the applicant's lungs and also to allow for a workplace inspection before the applicant resumed work. Dr Nogrady expresses a contrary view in Exhibit 1. I make no finding as to which view should be preferred, only that Dr Kelly's report provides a basis for the concession by the Commonwealth."
Having expressed the view that s.42C of the Administrative Appeals Tribunal Act was not, but that s.42A(1) was, "the appropriate provision for dismissing an application by consent of the parties", the Tribunal expressed the further view that it was "not open to the Tribunal to make a direction (or a decision) which dismisses the application and then goes on to make a decision in relation to the costs of the proceedings". The Tribunal was satisfied on the material before it that Mr Rooney could not get an order for costs under s.67(8) of the Compensation Act. In reaching that conclusion, the Tribunal rejected the argument that had been advanced by the counsel who then appeared for Mr Rooney. Counsel had submitted that, if the Tribunal were to endorse the agreement reached by the parties, in particular that part of the agreement that referred to the recrediting of Mr Rooney's sick leave credits in respect of the period in question, the Tribunal, although in terms dismissing the application, would be varying the reviewable decision of Comcare in a manner favourable to Mr Rooney, thus bringing the matter within the terms of s.67(8)(a) of the Compensation Act. That argument was not advanced by counsel who appeared for Mr Rooney on the hearing of the present application. It may also be noted that counsel appearing for Mr Rooney before the Tribunal made no submission that the reviewable decision before the Tribunal should be set aside.
Mr Hull, who appeared for Mr Rooney on the hearing of the present application, made a valiant attempt to support the Tribunal's decision. He referred to that part of s.43(1) of the Administrative Appeals Tribunal Act that provides that the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision under review and to s.62(1) of the Compensation Act which provides:
"(1) 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."
He submitted that, by the combined operation of those provisions, the Tribunal was empowered, of its own motion and notwithstanding the agreement between the parties, to cause the reviewable decision to be reconsidered by Comcare or a delegate of Comcare. He sought support for this submission in what was said by Lockhart J (in whose judgment the other members of the Full Court Black CJ and Gummow J, agreed) in Plumb v Comcare (1992) 39 FCR 236 at pp.240-1.
I am unable to accept that submission. It is not, in my opinion, supported by anything that was said in the case cited. While the powers conferred on the Tribunal are wide, they do not extend to enable the Tribunal to set aside a decision under review unless grounds are established sufficient to warrant the Tribunal taking that course.
It is common ground that the Tribunal set aside the decision the subject of the application for review without embarking on an examination of the merits of that decision and, in particular, without examining whether Mr Rooney had suffered an injury, as defined, which resulted in incapacity for work during the relevant period (see Compensation Act, s.14). That the Tribunal did not embark on an examination of the merits is made abundantly clear by the statement in par.23 of the Tribunal's reasons for decision that the Tribunal made no finding upon the differing medical opinions.
The Tribunal set aside the decision under review solely on the basis that the Commonwealth had conceded the claim for compensation. What would have been the effect of such a concession, had it been made, I need not stay to consider, for I am satisfied that there was no evidence before the Tribunal of such a concession having been made.
All that was relevantly before the Tribunal was the statement in the document described as an "Agreement pursuant to section 42C Administrative Appeals Tribunal Act 1975" that Mr Rooney's employer, the Commonwealth Department of Administrative Services, had "recredited the Applicant's sick leave for the relevant period". That action on the part of the Department of Administrative Services was not equivalent to a decision that Mr Rooney was entitled to compensation in respect of the period in question. Indeed, the extent of an employee's sick leave credits is not a relevant matter to be taken into account in determining whether an entitlement to compensation under the Compensation Act has arisen.
There being no material before the Tribunal which will support its decision to set aside the decision under review, the Tribunal's decision must, itself, be set aside. Further, it was only because of the setting aside of the decision under review that it was open to the Tribunal to make the further decision that Comcare pay Mr Rooney's costs of the proceedings before the Tribunal (see s.67 of the Compensation Act and Plumb v Comcare (1992) 39 FCR 236 at p.240). Once the substratum for the first decision is removed, the decision in relation to costs must also be set aside.
It remains to consider whether the matter should be remitted to the Tribunal for further consideration or whether this Court may now make the decision that the Tribunal should have made. If the agreement between the parties is properly to be regarded as having been made under s.42C of the Administrative Appeals Tribunal Act, there can be no doubt that pars (a) and (b) of sub-s.(1) of that section are satisfied. Equally, there can be no doubt that a decision dismissing the application for review would be within the powers of the Tribunal (see s.42C(1)(c)). All that would remain would be for the Tribunal to be satisfied that it is appropriate to make a decision in those terms. On the other hand, if, as the Tribunal thought, the agreement is to be regarded as having been made under s.42A of the Administrative Appeals Tribunal Act, a residual discretion would remain with the Tribunal whether to give effect to the agreement that the application be dismissed. In either case, however, there are no considerations which could properly lead the Tribunal, if the matter were to be remitted to it, to decline to make a decision dismissing the application before it. In those circumstances, it is appropriate for this Court to make the decision which the Tribunal should have made.
The decision of the Tribunal made on 22 October 1993 is, therefore, set aside and in lieu thereof it is decided that the application for review be dismissed and that there be no order as to the costs of the proceedings before the Tribunal. In accordance with the position taken by Comcare, there will be no order as to the costs of the application to this Court.
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