Commonwealth of Australia v Hawkins, Kevin Patrick John

[1981] FCA 44

Re: COMMONWEALTH OF AUSTRALIA
And: KEVIN PATRICK JOHN HAWKINS (1981) 51 FLR 430
No. G1 of 1981
Compensation - Quasi-judicial Tribunals - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Compensation - Commonwealth employees - appeal from decision of Compensation Tribunal - power of Tribunal to reconsider earlier decision by Tribunal in absence of a reference of the matter to the Tribunal by the Commissioner for Employees' Compensation - whether any evidence that arthritis aggravated or accelerated by work - whether aggravation or acceleration "due to the nature of the employment" - Commonwealth Employees' Compensation Act 1930 - Compensation (Commonwealth Government Employees) Act 1971

Quasi-judicial Tribunals - Commonwealth Employees' Compensation Tribunal - Power of Tribunal to reconsider its own earlier decision - No reference by Commissioner for Employees' Compensation.

Workers' Compensation - Aggravation or acceleration of arthritic condition - Whether aggravation or acceleration "due to the nature of the employment" - Commonwealth Employees' Compensation Act 1930 (Cth), ss. 5, 20, 58, 63, 76, 83, 84, 85.

HEADNOTE

The appellant Commonwealth appealed against a decision of the Commonwealth Employees' Compensation Tribunal, by which compensation had been awarded to the respondent as a consequence of rheumatoid-arthritis, held by the Tribunal to have been aggravated and accelerated by the respondent's employment as a physical training instructor and boiler attendant with the R.A.A.F.

The appellant sought leave to amend its notice of appeal by adding a ground that the Tribunal had no jurisdiction to hear the matter and make the determination.

The Commissioner for Employees' Compensation had made a determination on 8th April, 1975, that the respondent was not entitled to compensation. On 19th March, 1976, the Tribunal heard and dismissed an appeal from the Commissioner's determination.

In 1980 the respondent asked the Tribunal to reconsider its decision, on the ground that certain medical records possessed by the employer had not been made available to it. The Tribunal acceded to that request and set aside its own earlier determination.

Held: (1) The Tribunal did not have jurisdiction to reconsider its own previous determinations except pursuant to a request by the Commissioner.

(2) There was evidence which justified the Tribunal's finding that there was a connexion between the acceleration and aggravation of the respondent's condition and the employment in virtue of its tendencies, incidents or characteristics. Powers of the Commissioner and the Tribunal discussed.

HEARING

Melbourne, 1981, April 1-2, 22. #DATE 22:4:1981

APPEAL.

R. I. Hanger, for the appellant.

A. K. Herbert, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Stephens & Tozer.

J. W. K. BURNSIDE

ORDER

1. The appellant be granted leave to amend the notice of appeal by deleting paragraph 2(c) and inserting the following ground as paragraph 2(c) of the amended notice of appeal:

"2(c) that the Compensation Tribunal was without jurisdiction in hearing the reference in that:-

(i) the Compensation Tribunal was functus officio in that the Compensation Tribunal gave a decision in writing on the question in issue on 19th March 1976; and/or

(ii) the Compensation Tribunal had no power to consider the Respondent's fresh evidence unless and until that fresh evidence had been considered by the Commissioner for Employees' Compensation."

2. The appeal be allowed.

3. The decision of the Commonwealth Employees' Compensation Tribunal of 15 December 1980 be set aside.

4. There be liberty to either party to apply.

Appeal allowed.

JUDGE1

This is an appeal by the Commonwealth of Australia (the appellant) from "those parts of the decision" of the Commonwealth Employees' Compensation Tribunal (the tribunal) on 15 December 1980 ". . . which are set out hereunder:

(a) that the employment of the Respondent as a P.T. Instructor and as a Boiler Attendant did aggravate his underlying arthritis;

(b) that the employment of the Respondent as a P.T. Instructor and as a Boiler Attendant did accelerate his underlying arthritis;

(c) that the employment of the Respondent as a P.T. Instructor and as a Boiler Attendant involved a special risk of aggravation or acceleration of arthritis in a person suffering from that disease;

(d) that the employment of the Respondent as a P.T. Instructor and as a Boiler Attendant had a tendency to expose the Respondent to the risk of aggravating or accelerating his underlying arthritis;

(e) that the Respondent's arthritis was due to the nature of his employment with the R.A.A.F.;

(f) that the Respondent was partially incapacitated while he was working as a Boiler Attendant with the R.A.A.F. by arthritis which was due to the nature of his employment;

(g) that the Respondent has been totally incapacitated since he ceased employment with the Commonwealth Bank due to arthritis which is due to the nature of his employment while working with the R.A.A.F.;"

Paragraphs (h) and (i) related to the orders sought by the appellant. The grounds of the appeal set out in the notice of appeal in the form in which it was originally filed, so far as presently material, were:

"(a) that the Compensation Tribunal erred in law in each case in making the findings set out in paragraphs 1(a), (b), (c), (d), (e), (f) and (g) of this Notice of Appeal in that in each case that finding was not open to the Tribunal on a proper consideration of the evidence;

(b) that the Compensation Tribunal erred in law in finding that the Respondent's arthritis was 'due to the nature of his employment' on the proper construction of Sections 29 and 104 of the Compensation (Commonwealth Government Employees) Act 1971 and Section 10 of the repealed Commonwealth Employees Compensation Act 1930;

. . . "

I shall refer later to the application for leave to amend the notice of appeal.

It will be seen that the "parts of the decision" set out earlier as (a), (b), (c), (d), (e), (f) and (g) constitute the "findings" which are the subject of the contention in ground (a) of the grounds of appeal that in each case the "finding was not open to the Tribunal on . . . the evidence".

Mr Hanger of counsel on behalf of the appellant placed considerable reliance upon ground (b), namely that, on the proper construction of the relevant statutory provisions, the tribunal erred in law in finding that the respondent's arthritis was "due to the nature of his employment".

Mr Herbert of counsel on behalf of Mr Hawkins (the respondent) specifically disowned any suggestion that it had ever been part of the respondent's case that the inception of the disease of rheumatoid-arthritis was due to the nature of the employment. It was his submission that the "findings" of the tribunal set out in paragraphs (e), (f) and (g) above were not intended by the tribunal as a finding that the disease of arthritis was "due to the nature of the employment". I accept his submission that, when the passages are read in the context of the tribunal's decision, the tribunal was intending to find as a fact that Mr Hawkins was suffering from a disease, namely rheumatoid-arthritis, the aggravation and acceleration of which disease was due to the nature of the employment in which he was engaged by the Commonwealth. It was common ground that Mr Hawkins' entitlement to compensation depended upon the terms of the Commonwealth Employees' Compensation Act 1930 which defined "disease" as including "the aggravation, acceleration or recurrence of a pre-existing disease".

In my opinion there was ample evidence before the tribunal to enable it to find that the existing disease of rheumatoid-arthritis had been aggravated and accelerated by the work performed by him whilst employed by the appellant. Mr Hanger contended that the aggravation or acceleration of the respondent's pre-existing disease could not, as a matter of law, be held to be "due to the nature of the employment". Relying upon Connair v. Frederiksen (1979) 25 A.L.R. 155 and in particular upon the reasons for judgment of Mason J. (at p.172), he submitted that it was necessary for the respondent to establish that the employment "involved some special risk of producing in a person" with rheumatoid-arthritis such an aggravation. He also submitted that such a finding could not be made unless there was evidence that the employment "had a tendency to aggravate or accelerate such a" pre-existing disease and that, although it was not necessary for "the tendency . . . to be exclusive to employment of the kind in question", it was necessary for the tendency to be one which "distinguishes the employment from most, if not all, other employments".

In my opinion there was evidence before the tribunal that the employment had such a tendency and also evidence as to the unusual nature of the employment from which the tribunal could conclude that the tendency "distinguishes the employment from most, if not all, other employments".

Further, I have already expressed the opinion that there was ample evidence before the tribunal to enable it to find that the existing disease of rheumatoid-arthritis had been aggravated and accelerated by the work performed by him whilst employed by the appellant. In Connair v. Frederiksen (supra) Gibbs J. (as he then was) held (at p.163) that such evidence was "relevant to the issue" and left open the question of "whether such evidence would alone have been sufficient", having said (at p.162):
"Although the test established by the English legislation was whether the disease was due to the nature of the employment, rather than whether it was due to the employment itself, the authorities are not opposed to the view that the fact that the disease was caused by the employment is in many, if not most, cases evidence that it was in the nature of the work to cause it. For although the eccentricities of animate behaviour may cause persons and animals to act contrary to their natures, the same is not true of employment, and when it is proved that a disease was caused by (and not merely contracted during) the employment, and it appears, either by proof or as a matter of common knowledge, that the incident, aspect or characteristic of the employment that caused the disease is one that would be expected to occur in employment of that class, it would seem to follow that the disease was due to the nature of the employment."
His Honour also referred to various dicta by Taylor and Menzies JJ. in earlier cases and said (at p.163):
"But if they intended to suggest that evidence that the disease was in fact caused, aggravated or accelerated by the employment is irrelevant to the question whether that test has been satisfied, or that in no case would such evidence be sufficient, I would respectfully disagree. If their remarks were intended to have that meaning they were no more than obiter, having regard to the facts to which I have already referred.
. . .
I would respectfully apply the tests suggested by Dixon CJ in Commonwealth v Bourne (104 CLR at 38-9): 'I do not think that the expression . . . "due to the nature of the employment in which the employee is engaged" covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course. . . . The word "nature" is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the "disease" in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics.' In the same case, Fullagar J (at 40) suggested that the workman must show that a characteristic or distinctive feature of the employment was a tendency to cause, aggravate or accelerate the disease, and added that the section only applies to cases where there is a special risk of contracting a particular disease or of suffering an aggravation or acceleration of a particular disease. He did not, however, suggest that the risk should be high, or that it was necessary that the employment should frequently or commonly cause the disease. The decision in Commonwealth v. Rutledge is opposed to any such notion, since it can hardly be suggested that a person serving as a clerical employee in the Postmaster-General's Department runs a high risk of contracting a severe psychotic disorder, or of suffering an aggravation or acceleration of an existing disorder of that kind, or that there are many cases in which service in that capacity results in mental disease."
Further, Murphy J. said (at p.173):
"I agree generally with what has been said by Mr Justice Gibbs.
. . .
In my opinion, it is sufficient but not necessary if the applicant shows that the disease was due to the employment. The contrary view would lead to the result that a disease which is not due to the employment may be held to be due to the nature of the employment and compensable, but one which is due to the employment may be held to be not due to the nature of the employment and not compensable. In workers' compensation legislation, this would be ludicrous."
Having regard to those statements by Gibbs and Murphy JJ. and to the passage quoted from Dixon C.J. in Commonwealth v. Bourne (supra), in my opinion there was evidence upon which the tribunal was entitled to find, in the words used by Dixon C.J., the "connexion between the 'disease' in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics". For the purpose of this appeal on a question of law it is not necessary to discuss the evidence in detail but it may be desirable to refer to some of it.

There was evidence that Mr Hawkins' work as a physical training instructor (P.T.I.) was "physically very strenuous" at a time when he was suffering pain from metatarsalgia. His work involved training national servicemen, trainee pilots, services policemen and others and included a 12 mile run which he found was "much too hard . . . I would go into a scalding hot shower and get it on the muscles . . . I had to think about giving it away and eventually I did". He taught them "every known sport, physical attack sport" including boxing and wrestling with young trainees who "want to beat the P.T.I.". The effect of this work was described by Mr Hawkins as "receiving a battering and buffeting" of his body. He had to have medical treatment for various matters including "lumps on his elbows" and a broken ankle. Later his duties as a boiler attendant included regular heavy lifting, including the lifting of 100 lb. bags of salt, which he had to do by himself at times, "especially at weekends" even though he "tried to get a man to give a hand, because it was murder by yourself".

He continued work as a boiler attendant until his discharge in 1964 and in that capacity he had to clean out individual fire tubes with a steel bar under "really hot" conditions. It was "physically strenuous to lift that bar" which had to be done 6 or 7 times up and down for 30 to 40 or more tubes. During this period he continued to have trouble with his elbows, the joints of his fingers and his feet and his "attendance at RAAF Hospitals increased noticeably".

He was also "granted special shoes by the RAAF" which helped the problem with his feet. Asked if he had any personal recollection about the healing process of the fracture of his right ankle, Mr Hawkins said "No, because it was just another one of my aches and pains, as far as I was concerned ". He required physiotherapy treatment on his arm and said that his hands "were always giving (me) trouble. When I tried opening the valves, they used to hurt". His elbows and fingers were getting worse at the time when he was doing this work. As to his hands, Mr Hawkins gave the following evidence:
"You have given evidence also of strenuous activity involved in that? (boiler attendant job)--- That is right, yes.

Did you ever find the rheumatoid arthritis affecting those activities?---Oh, yes, every morning, opening up those big - - -

Without using hand actions, can you tell the tribunal what the problem was with opening the valves?---Well, first of all was to get into position because generally they are up on top of a boiler, you have got to get up a ladder to get up the top; you swing across, get around there and then you have got to crack it open, and you apply more pressure until finally you open it up and - - -

How did your rheumatoid arthritis inhibit you in doing that?---Well, you cannot get a grip on the pipes, for one thing.

You could not clench your hands around it?---Cannot clench your hand, you have got to get your hand and push it on to it.

Well, this is what the tribunal wants to know?--- You have got to put your hand there and wrap your fingers around it. Sometimes I would even use - there are ways and means by putting two bolts and you get a piece of wood or metal and you can open it up that way, and I have used those means. You will do anything when you have to."

Just before Mr Hawkins' discharge from the R.A.A.F. in 1964 a Dr Hopkins, who had carried out extensive tests on him, said:
"'the patient has polyarthritis, affecting particularly the left hand, second and third metatarso-phalangeal joints, and causes him some disability. Both gout and rheumatoid arthritis - query particularly the latter.' His recommendation is fit class 2."
That recommendation, however, was overruled by the supervising medical officer and Mr Hawkins was classified as "fit class 1".

Dr William Douglas, M.B.B.S., F.R.A.C.P., M.R.C.P., a practising rheumatologist since 1964 with prior training overseas in rheumatology, had first seen Mr Hawkins in June 1973 and had examined the R.A.A.F. medical file. He gave evidence that Mr Hawkins had been under his care with rheumatoid arthritis.

Referring to the need for a patient suffering from arthritis to change to a lighter occupation, he said:
"If his feet were involved, for instance, perhaps it could be arranged that he be changed to a sitting position, possibly at some bench type of work.

If the man did not take that advice, what would be the likely consequences?---Rapid progression and aggravation of the disease and joint destruction.

Would you consider trauma such as you have described as aggravating rheumatoid arthritis would exist in an occupation such as physical training instructor?---Definitely, because as I understand it, a physical training instructor is constantly bouncing around on his feet, taking most of the weight on his metatarsal joints, as well as doing other physical tasks which would excessively aggravate any inflammation in the joints.

What about boxing? How would that affect an inflamed elbow?---If he had that, or infirm ankles, knocking and banging it all the time would make it much worse.

Would you consider an occupation such as a boiler attendant would have similar effects, where the occupation included such duties as lifting heavy bags up to 100 pounds in weight, turning on large valves, cleaning down the equipment, on your feet checking the equipment, up and down on the equipment to make sure the boilers are in good nick, those sorts of activities? What would you say to that?---Yes, the same principle applies. If a patient of mine were a boiler attendant doing heavy tasks, I would approach the employer to ensure a lighter task is provided for him."
In cross examination his evidence included the following statements:

"Rheumatoid arthritis could be defined as an inflammatory condition of the joints of the body. It occurs in approximately 1 percent of the population, so it is relatively common. It is characterised by progressive involvement of the peripheral joints, meaning the hands and feet and knees and elbows, rather than the spine.
. . .
The deformities will generally become worse if the inflamed joints are subjected to repetitive trauma and pressure.
. . .
. . . if you rest an inflamed joint, the rest is sufficient in many instances to settle the inflammatory process down. Conversely, if you do not rest that joint, the inflammation will be aggravated by it, and if that lack of rest is taken even further where you are actually traumatising the joint, the process will become accelerated and worsen. The end result will be more severe.
. . .
I am suggesting that (his symptoms) would have been much more easily controlled and in all likelihood the deformity would not have been nearly as severe as it is today."

In my opinion there was ample evidence to support the tribunal's finding that "continuing to work as a P.T.I. (and as a boiler attendant) . . . adversely affected the inflammatory process in the joints", that those employments "involved some special risk of aggravation or acceleration of arthritis" and that those "jobs, involving as they did strenuous physical exertion, had a tendency to expose the claimant (Mr Hawkins) to the risk of aggravating or accelerating the disease".

On the evidence, and in particular the evidence of Dr Douglas, in my opinion it was open to the tribunal to find (cp. paragraphs (b) and (c) of its "directions" to the commissioner) that the aggravation and acceleration of the rheumatoid arthritis had resulted in Mr Hawkins being partially incapacitated for work while working as a boiler attendant with the R.A.A.F. and had resulted in his total incapacity for work since he ceased employment with the Commonwealth Bank. On this aspect Mr Hanger sought to rely on the decision of the High court in McLaughlin & Co. Pty Ltd. v. Brinnand (1965) W.C.R. 112. However, in that case the evidence was that, irrespective of his work, the worker would have required the same treatment at about the same time - see per Menzies J. (p.116) and per Owen J. (p.120). In the present appeal there was clear evidence to the contrary - notwithstanding Dr Douglas' last answer to the tribunal that "the chances are that he almost certainly would have developed it at some stage or other". I reject the grounds of appeal set out in paragraphs 2(a) and 2(b) of the original notice of appeal.

The appellant sought leave to amend the notice of appeal:
"by deleting paragraph 2(c) and inserting the following ground as paragraph 2 (c) of the amended Notice of Appeal:

'2(c) that the Compensation Tribunal was without jurisdiction in hearing the reference in that:-

(i) the Compensation Tribunal was functus officio in that the Compensation Tribunal gave a decision in writing on the questions in issue on 19th March 1966; and/or

(ii) the Compensation Tribunal had no power to consider the Respondent's fresh evidence unless and until that fresh evidence had been considered by the Commissioner for Employees' Compensation.'"
It seems clear that the date set out in paragraph 2(c)(i) was intended to refer to the tribunal's decision in writing on 19 March 1976. The application was not opposed and is now granted - with the date in paragraph 2(c)(i) altered from 1966 to 1976. By consent the appellant was granted leave to place before the Court evidence additional to the evidence before the tribunal.

The commissioner had made a determination on 8 April 1975 that Mr Hawkins was not entitled to compensation and that determination had been affirmed by the tribunal (differently constituted) on 19 March 1976 in the decision referred to in paragraph 2(c)(i) of the amended grounds of appeal. On 10 March 1980 Mr Hawkins wrote to the tribunal in the following terms:
"Dear Mr. Ballard,

The Deputy Ombudsman, Mr. K.M. Crotty, has suggested that I write to you with a request for a re-consideration of a review of my claim which was heard in Brisbane on 19 Mar. 1976.

I first wrote to the Ombudsman on 28 Jun.1978.

Since that time it has been established that certain records were not made available to me prior to the Tribunal. In fact Mr. Crotty informs me that it is not clear if these records were made available to the Tribunal. I refer to the RAAF medical records which were compiled over a period of my 12 year service and which contained an absolute and unquestioned record of all facets of both symptoms and treatment for the period under contention.

It would appear that a medical file containing over 75 pages was reduced to a "Summary" containing some 20 lines. This was forwarded to and accepted by the Commissioner of Employees' Compensation apparently without question.

In reviewing my claim the C.E.C. went to extremes in securing complete details of all medical and vocational records from 5 and even up to 10 years after the time of my claim. Much of this was totally unnecessary as I can prove. His acceptance, therefore, of a 20 line "Summary" is not consistent.

In fact, sir, I claim that my claim should never have reached Tribunal level had it been treated on its merits in the first place.

If you decide that my case is eligible for re-consideration could you please inform me as to the correct procedure. For you information I sent a copy of the RAAF medical file to a specialist doctor who forwarded his summary to the Ombudsman. Naturally, my copy will be forwarded to you if requested.

Yours sincerely,

(signed)
(Kevin Patrick John Hawkins)"
Mr Hawkins' statement that certain medical records were not "made available to me prior to the Tribunal" hearing in 1976 was confirmed by the tribunal decision the subject of this appeal. It referred to various "RAAF Sick Parade Cards and Outpatient Records and RAAF medical records none of which had been available at the hearing in 1976" and added that the "full facts of his claim had never been heard before". As to the failure to place the full medical history before the tribunal in 1976, Mr Hanger, on behalf of the appellant Commonwealth, said "I cannot condone anything of that nature obviously . . . It is unfortunate that this man was not represented at the time".

The tribunal, in deciding to "reconsider its own decision" at the request of Mr Hawkins, referred to Commonwealth of Australia v. William Dawson Scott (1979) 1 C.C.D. 119. However, in that case (at p.122) the tribunal had:
"adjourned the hearing to a later date when it would 'then give appropriate directions for the continued reconsideration of this matter to enable a determination to be made in substitution for the determination set aside'."
The argument put to Fisher J. on this aspect of the appeal was that "the Tribunal had made a finding of partial incapacity for work, and that it could not go back on this decision" (at p.123). In dealing with this argument Fisher J. said (ibid):
"It is not in my view correct to say that the Tribunal had prior to the final hearing made a determination of partial incapacity for work. This I think is indicated by the concluding terms of the Tribunal's September 1977 and January 1978 reasons already quoted which make it clear that no determination, apart from that of the delegate in March 1977 was made until the one made in January 1978."
It is true that his Honour said that "all the powers conferred on the Commissioner by the Act (s.83(1)) . . . enure to the Tribunal" and "it was open to Tribunal to vary its determination of partial incapacity for work". However, that obiter dictum was in a context where the tribunal had not made a determination, had adjourned the hearing and, as his Honour expressly held, had not made the finding which the appellant contended (a) had been made and (b) could not be altered by the tribunal at the resumption of the hearing after the adjournment.

The respondent's letter of 10 March 1980 asked the tribunal for a reconsideration of its own decision given on 19 March 1976 (which the letter called "a review of my claim"). The tribunal's decision given on 15 December 1980, the subject of this appeal, purported to set aside the decision of the tribunal given on 19 March 1976 - and also the determination of the commissioner of 8 April 1975. Further, "the matter" was "remitted for redetermination by the Commissioner in accordance with" certain directions.

Mr Hanger submitted that the tribunal only had power to "reconsider" a determination of the commissioner and further that, even if it had power to reconsider its own decision, it could only do so if the commissioner had referred the matter or question to the tribunal. He relied upon the legislative scheme as a whole and upon particular sections of the Act. Since hearing the present appeal I have given judgment (16 April 1981) in Meni Roidoulis v. Australian Postal Commission - an appeal heard by me before the hearing of the present appeal. As I adhere to the views there expressed and, as they are not yet readily available to the parties in the present appeal, I shall repeat them at this point as part of these reasons for judgment.

The tribunal's jurisdiction to deal with the matter depended upon s.63(1)(a) of the Act which reads as follows:
"(1.) Subject to this Part, where a determination is made under this Act, a party to the determination may either -

(a) request the Commissioner in accordance with Division 3 to refer all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration; or
. . . "
It will be noted that, before a matter can be referred to the tribunal for reconsideration, it is necessary that "a determination (be) made under this Act" which "relates" to the matter. Further, only "a party to (a) determination" is given the right to request the Commissioner to refer a matter to a tribunal for reconsideration (s.63(1)).

"Determination" is not defined by the Act. However, various sections of the Act deal with the role of the commissioner in relation to claims for compensation. Section 54(1) provides that:
"(1.) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period."
Section 58(1) gives the commissioner power to require various medical examinations. Section 20 deals with the function and powers of the commissioner. Section 20(1) provides that:
"(1.) Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function."
Section 20(1) prescribes the manner in which the commissioner shall act in "determining any matter or question" under the Act. Section 20(3) of the Act requires that a "determination by the Commissioner shall be in writing". Section 20(4)(a) empowers the commissioner of his own motion to reconsider a determination. The introductory words of that sub-section are "where a determination has been made under this Act". They may be compared with the introductory words of s.63(1) which confers a right to seek a reference of a matter to a tribunal for reconsideration ". . . where a determination is made under this Act". Section 20(4)(b) imposes a duty upon the commissioner to reconsider a determination in certain circumstances.

Both s.84(1) and s.76 support the view that the Act requires that a request for a reference to the tribunal must be made by a party to a determination made by the commissioner and it must be a request for reference of a matter or question to which a determination, made by the commissioner, relates. In s.84(1)(a), (b) and (c) the powers of the tribunal are set out with detailed references to "the determination made by the Commissioner". Section 76(1) sets out detailed requirements prescribed by the Act in respect of a request by a party to a determination for the reference of a matter to the tribunal for reconsideration. Section 76(2) requires that a "copy of a request . . . shall . . . be served . . . on every other party to a determination" and s.76(3) contemplates that a person making a request for a reference under s.76 may have requested the commissioner to supply to him "the reasons for the determination".

Having regard to the legislative scheme of the Act, in my opinion the "determination" referred to in s.63(1) is a determination made by the commissioner.

Mr Herbert relied strongly upon s.83(1) and s.20(4)(a) of the Act. In his submission s.83(1) empowered the tribunal in this case to "exercise all the powers that are conferred on the Commissioner by this Act" - including the power conferred by s.20(4)(a) that:
"(a) the Commissioner may, of his own motion, whether or not a proceeding has been instituted or completed under Part V. in respect of the determination, reconsider the determination and may, if he thinks fit, make a determination varying or revoking the first-mentioned determination:".
Section 83(1) of the Act provides that:
"(1.) For the purpose of reconsidering a matter or question, a Compensation Tribunal may exercise all the powers that are conferred on the Commissioner by this Act in relation to the determination of matters and questions."
However, the power conferred upon the tribunal to "exercise all the powers that are conferred on the Commissioner" is expressed as a power that is conferred for "the purpose of reconsidering a matter or question . . . ". In my opinion those words refer to a matter or question which a party to a determination has requested (under sub-s.63(1)(a)) the commissioner to refer to the tribunal for reconsideration and do not refer to a case where the tribunal has been asked to reconsider its own decision. In addition, s.84(1) requires a tribunal "that reconsiders a matter or question" to:
". . . give a decision in writing -

(a) affirming the determination made by the Commissioner in respect of that matter or question:

(b) varying that determination; or

(c) setting aside that determination and -

(i) making a determination in substitution for the determination so set aside; or

(ii) remitting the case for re-determination by the Commissioner in accordance with the directions of the Tribunal."
I accept Mr Hanger's submission that that sub-section, by conferring upon a tribunal in express terms the power, inter alia, to affirm, vary or set aside a determination made by the commissioner, impliedly excludes the existence of any such power in relation to a decision of a tribunal. Section 85 is another section containing repeated references to a decision of the tribunal affirming, varying or setting aside "a determination of the Commissioner" - see sub-sections (2), (3) and (4) - but in my view it does not add any greater force to Mr Hanger's argument.

I also accept Mr Hanger's submission that his argument as to the intention of the legislative scheme gains further support from s.5(9) which, so far as material, reads as follows:
"(9.) Where a Compensation Tribunal or a Court varies a determination, . . . the determination as so varied . . . shall, for the purposes of this Act other than section 61 and Part V., unless the contrary intention appears, be deemed to be a determination of the Commissioner."
Part V of the Act is headed "References to compensation tribunals and applications to prescribed courts". It includes ss.63, 76, 83, 84 and 85 to which reference has already been made.

Accordingly, in my opinion the decision of the tribunal of 15 December 1980 was made without jurisdiction. The appeal is allowed, the decision of the tribunal is set aside and both parties have liberty to apply.

During the hearing of the appeal a question was raised as to whether, if the appellant's submissions as to jurisdiction were upheld, it would be open to Mr Hawkins to obtain an adjudication by the commissioner upon the merits of his claim, i.e. the claim which was put to and accepted by the tribunal (without jurisdiction in my opinion) in its decision of 15 December 1980. Mr Herbert expressed some concern that an attempt to put such a claim to the commissioner at this stage might be too late. Mr Hanger, after obtaining instructions, informed the Court that the appellant Commonwealth would not take any objection to the commissioner hearing the matter, and, more specifically, that the Commonwealth accepts that it "would not, by reason of the failure (to comply with the time limit prescribed by the Act) be prejudiced if the claim were treated as a sufficient claim" (s.54(6)(c)).

As to costs, Mr Hanger undertook on behalf of the appellant that, if it succeeded only on the question of jurisdiction (the grounds of appeal added by leave), it would pay Mr Hawkins' costs both for the hearing in this Court on appeal and also the hearing before the tribunal.