Commonwealth of Australia v Angel, R.J

[1992] FCA 102

Re: COMMONWEALTH OF AUSTRALIA
And: RAYMOND JOHN ANGEL
No. G373 of 1990
FED No. 102
Administrative Law
(1992) 15 AAR 205
(1992) 34 FCR 313
(1992) 110 ALR 695

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - appeal from the AAT - review of a decision as to the rate of workers's compensation that the applicant be paid by the Commonwealth - whether the Tribunal's findings as to the applicant's earnings were open on the evidence - whether the Tribunal was in error in finding that certain earnings were "agreed" - whether the Tribunal applied the wrong law - effect of the commencement of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 on entitlements under the Compensation (Commonwealth Government Employees) Act 1971 - whether appropriate to allow the notice of appeal to be amended.

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s.46

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) - ss.19, 124

Commonwealth of Australia v. Esber (1991) 101 ALR 36

Electricity Commission of New South Wales v. Yates (NSW Court of Appeal, 26 November 1991, unreported)

HEARING

SYDNEY

#DATE 5:3:1992

Counsel for the applicant: Miss R. Henderson

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr J.P. Phillips

Solicitor for the respondent: Watts McKinnon and Miller

ORDER

1. Leave to amend the notice of appeal be granted.

2. The application be allowed to the extent necessary to reflect the operation of the Commonwealth Government Employees' Rehabilitation and Compensation Act 1988 (Cth).

3. The decision of the Administrative Appeals Tribunal of 4 April 1990 be varied by substituting for the first three paragraphs the following:-
   

"THAT, the determination under review be reversed and that the applicant is entitled to be paid compensation on the basis that he is partially incapacitated for carrying out his work as a cook from 10 September 1987 to this day.

Further direct that the matter be referred to the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees to calculate the applicant's entitlement to compensation in respect of the period prior to 1 December 1988 accordance with s.46(2) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and in respect of the period on and from 1 December 1988 in accordance with s.19 of the Commonwealth Employees Rehabilitation and Compensation Act 1988

(Cth) and upon the basis that the amount the applicant has been able to earn in some suitable employment or business over the period 10 September 1987 to this day is to be calculated during each of the periods set out hereunder at the amount placed opposite thereto in the Schedule hereunder. SCHEDULE

10 September 1987 to Nil 23 December 1988 inclusive 23 December 1988 to $190 per 22 January 1989 fortnight 23 January 1989 to $190 per 30 June 1989 inclusive week 1 July 1989 to this day $480 per week Further direct that compensation be paid to the applicant on the basis of the above findings."

1. The application be otherwise dismissed.

2. The Applicant pay the Respondent's costs of the application.
   NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This matter has had a long history. It commenced with an application lodged on 13 November 1987 by the respondent, Raymond John Angel, with the Administrative Appeals Tribunal ("the Tribunal") seeking a review of a decision by the Commissioner for Employees' Compensation or his delegate that Mr Angel was not entitled as from 10 September 1987 to be paid compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act").

1. In a decision given on 15 November 1988, the Tribunal found that Mr Angel had been partially incapacitated from 10 September 1987 and was entitled to receive compensation accordingly. A remission of the matter thereafter to the Commissioner for Employees' Compensation to calculate the rate of compensation would have accorded with the usual practice of the Administrative Appeals Tribunal. The Administrative Appeals Tribunal rarely has issues relating to the rate of compensation well presented to it, at least when the issue of liability is also contested. However, the Tribunal itself went on to find that Mr Angel's incapacity was 40% and remitted the matter for reconsideration on that basis. This direction did not answer the tests provided by s.46 of the 1971 Act. An appeal being brought to this Court, Wilcox J. set aside the finding and remitted the matter to the Tribunal for reconsideration (15 May 1989, unreported).

2. On 4 April 1990, after a further hearing and reconsideration, the Tribunal ordered:-
   

"THAT, the determination under review be reversed and that the applicant is entitled to be paid compensation on the basis that he is partially incapacitated for carrying out his work as a cook from 10 September 1987 to this day.

Further direct that the matter be referred to the Commissioner to calculate the applicant's entitlement to compensation pursuant to s.46(2) of the Compensation (Commonwealth Government Employees) Act, 1971 (Cth.) upon the basis that the amount the applicant has been able to earn in some suitable employment or business over the period 10 September 1987 to this day is to be calculated during each of the periods set out hereunder at the amount placed opposite thereto in the Schedule hereunder. SCHEDULE

10 September 1987 to Nil 23 December 1988 inclusive 23 December 1988 to $190 per 22 January 1989 fortnight 23 January 1989 to $190 per 30 June 1989 inclusive week 1 July 1989 to this day $480 per week

Further direct that the Commissioner carry out the calculation prescribed by s.46(2) of the said Act and pay compensation to the applicant on the basis of the above findings."

This appeal is brought from that decision. As the appeal is brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), it raises only questions of law.

1. The Tribunal applied the provisions of s.46 of the 1971 Act, including sub-s.(4A) which was inserted into that Act effective from 1 July 1986. Section 46 applied to an employee who was partially incapacitated for work.

2. I shall deal first with the issues which were raised by the notice of appeal when the appeal first came on for hearing.

3. The Tribunal's crucial findings of fact appear in the following paragraphs:-
   

"I accept that the applicant is unable to carry out the ordinary duties of a cook. I also accept the fact that he did not work, and was unable to obtain work, during the period 10 September 1987 to 23 December 1988. After that period he obtained part-time work for four weeks as a doorman at the South West Rocks Country Club, earning approximately $190 per fortnight. From then until the end of June 1989 he was paid $190 per week by that Club, working four to five days per week. Since that date he has been given full-time employment by the Club as a barman supervisor, and his average gross wages are agreed between the parties as being $480 per week.

A letter was tendered on behalf of the applicant from his employer as to his total earnings (Exhibit G) and I see no reason why I should not accept that document as being correct, although Miss R. Henderson, for the respondent, made a proper criticism that certain documents he had been asked to produce, had not been produced."

1. Counsel for the Commonwealth criticised these findings in a number of respects. However, the Tribunal's task was not an easy one even though this was the second time in which the quantum of Mr Angel's claim for compensation has been considered by the Tribunal. As counsel conceded before me, "the evidence before the Deputy President was pretty unsatisfactory as to quantum" and "the matter did go back to the Tribunal in a state of inadequate preparation for both parties." There had not even been particulars requested and given of Mr Angel's claim, which emphasises the point I made earlier that quantum cases are rarely well presented before the Administrative Appeals Tribunal.

2. The first challenge made by counsel for the Commonwealth was that the Tribunal gave no adequate reasons for finding that Mr Angel had not been able to earn any sum from suitable employment from 10 September 1987 to 23 December 1988, particularly in the light of the evidence of a licensed private inquiry agent, Mr A.J. Ciardi. Mr Ciardi had given evidence to the Tribunal that, on 31 July 1988, he had observed Mr Angel working as a cook in the bistro of the Seabreeze Hotel and had obtained several minutes of video film which showed Mr Angel intermittently coming into view through a doorway, where he was sighted "bending over picking up pots and pans, stirring maybe soup or something". Mr Ciardi said that, earlier in the day, Mr Angel had prepared the meal that he, Mr Ciardi, had been served at the Seabreeze Bistro. The Tribunal did not refer to this particular evidence in its reasons for decision.

3. However, the evidence of Mr Ciardi contradicted that of Mr Angel who said that he did not work during this period. Mr Angel gave evidence that he had sought work in the Campsie district in which he resided, but was unable to obtain employment until he obtained work at the Southwest Rocks Country Club, the employment which the Tribunal took into account. The only specific question put to Mr Angel in cross-examination about the alleged events at the Seabreeze Hotel was this question:-
   

"Is it not the case that you were working at the Seabreeze Hotel as a cook this year?---No."

This answer was given before Mr Ciardi was called. The substance of the evidence proposed to be given by Mr Ciardi was not put to Mr Angel.

1. In the circumstances, the Tribunal was entitled to accept Mr Angel's evidence that he did not work as a cook at the Seabreeze Hotel during this period. The evidence either of Mr Angel or of Mr Ciardi had to be rejected. Mr Ciardi's evidence was challenged in cross-examination whilst the cross-examination of Mr Angel on the matter was inconsequential. In my view, there was no error of law in the Tribunal's finding. The Tribunal was not bound to discuss, in its reasons for decision, every conflict in the evidence. The Tribunal made it clear that it accepted the substance of Mr Angel's evidence.

2. The next challenge made was to the Tribunal's finding that, from 23 December 1988 until 22 January 1989, Mr Angel had been able to earn only $190 a fortnight while, from 23 January 1989 until 30 June 1990, he had been able to earn $190 per week. It was submitted that there was an error of law in that the Tribunal found that Mr Angel was able to earn different amounts during different periods yet made no finding that Mr Angel's level of incapacity had varied during this time.

3. There was, however, no error of law in this respect. The differing levels of earnings resulted not from any change in Mr Angel's physical capacity but from the fact that, after searching for work, he was able to obtain a part-time position. After a few weeks in this position, Mr Angel's workload increased and ultimately he was given full-time employment. The Tribunal's approach to this question was not incorrect.

4. The words "able to earn" in s.46(2) did not look primarily to the level of physical disability but to the question of what remunerative work the worker was able to obtain in the light of his physical disability. The Tribunal was entitled to accept Mr Angel's evidence as to the efforts he made to obtain work and his evidence that, when he had the opportunity to obtain employment, he did so. What Mr Angel was able to earn from that employment satisfied the test laid down by s.46.

5. The next point raised by counsel for the Commonwealth was that the $480 per week earnings from 1 July 1989 onwards were not "agreed", the term used by the Tribunal in the passage set out above. However, the $480 per week was stated by Mr Angel in his evidence. Cross-examination on this point by counsel for the Commonwealth went as follows:-
   

"And you would agree with me that your gross pay shown on this pay advice is - which is dated 1.4.1990, indicates a gross pay of $480.58. Is that right?---I think that is what it said, yes. And you say from that that your net pay is $350. Is that right?---That pay I only got $305. Yes. But you say that your ordinary week is $350. Is that right?---That is correct."

Counsel for Mr Angel, Mr Tubb, asked these questions in re-examination:-

"Just in relation to your current employment so we are clear on your present income. Your ordinary weekly wage, without overtime, is what?---If I did not work weekends, Monday to Friday, $350 and ---

And that is gross?---Gross. And you would have a take home wage of what?---I am not sure on the tax scale but - Well approximately, what do you take home?--- $280 I presume.

Well, for instance, your slip here that you gave my learned friend, shows $305 take home, but that is with overtime?---With overtime and weekend shift penalties.

With - and penalty rates, yes?---Penalty rates etcetera, yes.

But taking your 350 which is your ordinary weekly wage without any additions, what would you take home from that 350?---270, 280. 280?---Dollars a week, yes."

The Deputy President himself asked these questions:-

"THE D.PRESIDENT: Can I take it you do get a fair bit of overtime?---Yes, well overtime is there, yes.

What does that bring you up to normally, I mean I know that the one that (counsel for the Commonwealth) singled out was a gross pay of $480?

---Yes.

What was the - what is your average, what is the average amount do you get?---That is fairly well an average weekly gross.

That would be an average, would it?---Yes. $480?---Yes.

Alright."

1. This being the evidence, I see no error in the Tribunal's finding that the earnings during the period were $480 per week gross. There was no error of law in the Tribunal's use of the word "agreed". If counsel for the Commonwealth had wished to challenge the evidence as to the $480 per week gross, more cross-examination was required.

2. Finally, challenge was made to the fact that a letter from the employer, the Southwest Rocks Country Club, which was tendered in evidence, stated that Mr Angel's gross wage from 23 December 1988 until 21 January 1990 was $25,118, which did not accord with the figures adopted by the Tribunal which totalled for the period a gross of $18,670.

3. The point of the inconsistency is obvious when it is pointed out. But again this is a matter which should have been put by counsel for the Commissioner to Mr Angel in the course of the evidence. If there was an error in the Tribunal's findings, it was an error of fact. The Tribunal's findings were not perverse but were based upon Mr Angel's evidence which, in respect of the monetary income, was largely untested in cross-examination.

4. I would therefore dismiss all grounds of appeal raised in the original notice of appeal.

5. However, during the course of the hearing of the appeal, it appeared to me that the Tribunal had applied the wrong law. I pointed out during the course of the hearing that in relation to the period from and after 1 December 1988, the date on which the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") came into force, it appeared that compensation should be assessed not in accordance with s.46 of the 1971 Act but in accordance with s.19 of the 1988 Act.

6. Subsequently, counsel for the Commonwealth sought leave to amend the notice of appeal by, inter alia, adding the following grounds:-
   

"4. GROUNDS

...

(b) the Tribunal erred in remitting the matter to the Commissioner for Employees' Compensation, as that office ceased to exist on 1 December 1988, when the repeal of the Compensation (Commonwealth Government Employees) Act 1971 was effected by s.139 Commonwealth Employees Rehabilitation and Compensation Act 1988.

(c) the Tribunal erred in directing that the whole of the respondent's claim be reconsidered in accordance with the provisions of s.46(2) Compensation (Commonwealth Government Employees) Act 1971 as that Act ceased to be in force on 1 December 1988 and any entitlements the respondent may have in relation to the period commencing 1 December 1988 should have been determined by the Tribunal in accordance with the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988."

A further hearing was appointed to consider whether leave to amend should be granted and if so, whether the proposed grounds were valid and what effect if any the 1988 Act had upon the Tribunal's decision.

1. Section 124 of the 1988 Act provides, inter alia:-
   

"(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered." ...

(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:

(a) where the period occurred before the commencement of the 1930 Act - the 1912 Act;

(b) where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force during the period; or

(c) in any other case - the 1971 Act as

in force during the period."

1. In my opinion, these provisions make it clear that, from the date of the commencement of the 1988 Act, the rates of compensation in respect of incapacity are to be assessed as from the commencing day in accordance with the provisions of the 1988 Act but as to the period before the commencing day at the rate that would have been payable under the appropriate earlier Act. See Commonwealth of Australia v. Esber (1991) 101 ALR 35. In my opinion, the 1988 Act is in this respect specific and unambiguous. This interpretation is not affected by s.129 of the Act which continues proceedings before the Administrative Appeals Tribunal but does so without specifying the statutory provisions to be applied.

1. Counsel for the Commonwealth drew the Court's attention to the fact that the opening paragraph of the reasons for judgment of Wilcox J. in the first appeal read:-
   

"There is before the Court an appeal under s.44 of the Administrative Appeals Tribunal Act 1975 against a decision made by the Administrative Appeals Tribunal -- Mr C J Bannon QC, Deputy President, on 15 November 1988 -- in respect of an application for review of a determination made by a delegate of the Commissioner for Employees' Compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971. That Act was repealed, as from 1 December 1988 at the time of the enactment of the Commonwealth Employees' Rehabilitation and Compensation Act 1988. However, it is clear that the present case is unaffected by that repeal: see s.129 of the latter Act and s.8 of the Acts Interpretation Act 1901."

However, his Honour's remarks dealt with a different point. His Honour pointed out that the decision of the Tribunal, delivered on 15 November 1988 before the 1988 Act came into operation, was a decision under the 1971 Act respecting a period to which that Act applied. The appeal therefore had to be considered in accordance with the law as stated in the 1971 Act.

1. However, by the time the matter came on again for reconsideration by the Tribunal, time had passed and the Tribunal had to deal with the matter in accordance with the 1988 Act, that is to say, as to the period prior to 1 December 1988 in accordance with s.46 of the 1971 Act and, as to the period on and from 1 December 1988, in accordance with s.19 of the 1988 Act.

2. In the circumstances, the notice of appeal should be amended to raise the point. It would not be appropriate to permit the Tribunal's decision to stand when it remits the matter to the Commissioner for Employees' Compensation, whose office has been abolished, for reconsideration under a statutory provision which has been repealed. Leave to amend a notice of appeal was granted in similar circumstances by the New South Wales Court of Appeal (Clarke, Meagher and Handley JJ.A.) in Electricity Commission of New South Wales v. Yates (unreported, 26 November 1991).

3. However, the Tribunal's findings of fact need not be disturbed for the provisions of s.19(4) of the 1988 Act are sufficiently similar to the provisions of s.46(4A) of the 1971 Act to make the findings applicable to a part of the calculation for which s.19 of the 1988 Act provides.

4. Accordingly, leave to amend should be granted and the application should be allowed to the extent necessary to reflect the operation of the 1988 Act. The decision o the Tribunal should be varied by substituting for the paragraphs of its decision set out above the following:-
   

"THAT, the determination under review be reversed and that the applicant is entitled to be paid compensation on the basis that he is partially incapacitated for carrying out his work as a cook from 10 September 1987 to this day.

Further direct that the matter be referred to the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees to calculate the applicant's entitlement to compensation in respect of the period prior to 1 December 1988 accordance with s.46(2) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and in respect of the period on and from 1 December 1988 in accordance with s.19 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) and upon the basis that the amount the applicant has been able to earn in some suitable employment or business over the period 10 September 1987 to this day is to be calculated during each of the periods set out hereunder at the amount placed opposite thereto in the Schedule hereunder. SCHEDULE

10 September 1987 to Nil 23 December 1988 inclusive 23 December 1988 to $190 per 22 January 1989 fortnight 23 January 1989 to $190 per 30 June 1989 inclusive week 1 July 1989 to this day $480 per week Further direct that compensation be paid to the applicant on the basis of the above findings."

The application should be otherwise dismissed. The applicant, the Commonwealth of Australia, should pay the costs of the application. In respect of costs, I agree with and follow the approach taken by Clarke, Meagher and Handley JJ.A. in Electricity Commission of NSW v. Yates.