Commonwealth of Australia v Turnbull, P

[1990] FCA 393

JUDGMENT No. ...3..?.3./-.X

GENERAL DISTRIBUTION NOT REWIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	NO. VG 78 OF 1989
1
GENERAL DIVISION	1

ON APPEAL from the Victorian Division of the Administrative

Appeals Tribunal

B E T W E E N :

T H E S A F E T Y .
REHABILITATION
AND COMPENSATION
OF COMMONWEALTH

EMPLOYEES

Applicants

A N D :

P. TURNBULL

Respondent

JUDGE MAXING ORDER:	KEELY J.
PLACE ORDER MADE:	MELBOURNE
25 JULY, 1990  RECEIVED

' 0 DATE ORDER MADE:	9 AUG 1990
!	(Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.)

m= COURT OF

MINUTES OF ORDER AUS-

THE COURT ORDERS THAT:

j 1. The decision of the Administrative Appeals Tribunal be set aside.

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	NO. VG 78 OF 1989
1
GENERAL DIVISION	1

ON APPEAL from the Victorian Division of the Administrative

Appeals Tribunal

B E T W E E N :

COMMONWEALTH OF

Applicants

A N D :

P. TURNBULL

Respondent

25 JULY, 1990 KEELY J.

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), given on 9 March 1989,

which set aside a determination ("the determination") of the Delegate of the Commissioner for Commonwealth Employees' Compensation ("the Delegate"), made on 11 February 1988.

At the hearing before this court it was common ground

that the matter came under the Commonwealth E ~ D ~ o v ~ ~ s ' which applied the provisions of the Com~ensation (Commonwealth

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Government Emplovees) Act	1971 ( " t h e 1971 Act") t o the matters
under consideration.

I t i s convenient t o deal f i r s t with the following

ground o f appeal:

"That the Tribunal erred i n Law i n deciding -

E

That the Tribunal was entit led t o award lump sum Compensation i n respect o f the in jury t o the Respondent's right leg below the knee i n the absence o f request -

( a ) To the Commission for Commonwealth Employees' Compensation;

(b) To the Tribunal;

that the Respondent be awarded lump sum

Compensation i n respect o f the said loss."

Counsel for the applicants pointed out that the

Commissioner had never been requested by the respondent

# employee t o award a lump sum, assessed i n accordance with the provisions o f S . 39 o f the 1 9 7 1 Act. The Delegate o f the

Commissioner i n a l e t t e r t o the employee's sol ici tors on 4

November 1987 stated that :

S . . .

I f weekly compensation payments t o your c l ient are ceased your cl ient w i l l formally be offered a lump sum payment o f $ under section 39 o f the

Act.	That amount has been calculated on 15 per
cent	l o s s o f e f f i c i e n t use o f the r ight l eg

below the knee.

The solicitors replied on 9 November 1987 in the following terms :

"We r e f e r t o y o u r l e t ter o f the 4 t h November

l a s t and r e t u r n a c o p y o f same. W e note t h a t on

Page 2 the l u m p sum s a i d t o be o f f e r e d was l e f t

b l a n k . K i n d l y a d v i s e u s o f the d e t a i l s and we

w i l l seek i n s t r u c t i o n s . "

The Delegate in a letter to the solicitors, dated 18 December

1987, stated:

"We a p o l o g i s e f o r the o m i s s i o n o f the lump sum

amount from o u r le t ter d a t e d 4 November 1987.

The amount of the lump sum payment f o r m a l l y

o f f e r e d t o y o u r c l ient i s $5,325.45 u n d e r

S e c t i o n 39 o f the s a i d A c t . "

In the present hearing it was common ground (transcript 150) that the employee's solicitors did not reply to that letter - notwithstanding the fact that in their letter, dated 9 November 1987, -the terms of which are set out earlier, they had stated that "we will seek instructions".

In the light of the above correspondence with the employee's solicitors, in my opinion it was appropriate for	the Delegate to treat their failure to reply to his letter,
dated 18 December 1987, as showing a desire by the employee that, at that stage, the Delegate should only determine the question of her entitlement to weekly payments. The Delegate may well have considered that, in the absence of a reply, it would be undesirable for him to determine the question of a S. 39'1ump sum payment, having regard to the decision of the High

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Court in Heath v Commonwealth of Australia (1982) 151 CLR 76.

In the result, there was never any request to the Commissioner by the employee for the award of a lump sum; further, there was no response by her solicitors to the Commissioner's formal offer of a lump sum. In those circumstances, in my opinion there was no duty on the Delegate to decide whether any S. 39 lump sum should be awarded. In this court, senior counsel for the respondent employee stated (transcript 154) that, if the court decided that the Commissioner was not under any such duty, "then we would concede that the AAT was wrong in the way it went about doing what it did."

It is clear that the Delegate made no determination on the question of whether a S. 39 lump sum should be awarded to the employee. His determination, dated 11 February 1988, was in the following terms:

"The Department o f Defence i s not l i a b l e t o pay compensation under sec t ion 4 5 on and from 4

February 1988."

The employee's application to the Tribunal was for review of that determination - which did not determine any question as to her entitlement to a S. 39 lump sum.

In my opinion in those circumstances it was not open to
the Tribunal to decide whether the employee was entitled to a
lump sum amount assessed in accordance with the provisions of

7 5 .

S. 39. The applicants' counsel pointed out that the

employee's counsel had not asked the Tribunal to deal with that question. Further, that the Tribunal had not heard any submissions from the parties as to (a) whether a lump sum should be awarded and, if so, (b) the appropriate amount of any compensation assessed in accordance with S. 39 of the 1971 Act (as applied by the 1988 Act).

It follows that the decision of the Tribunal must be set aside. Having regard to the reason for so deciding, the matter should not be remitted to the Tribunal; the question of a S. 39 lump sum payment has not been determined by the Commissioner.

In the light of the foregoing it is not necessary to deal with any of the other grounds of appeal. Grounds A, B and C related to the question of whether there was evidence before the Tribunal upon which it was open to the Tribunal to

a	conclude, as it did, "that the injury resulted in the
efficient use ... of the [employee's] right leg below the knee, for the purposes of her employment immediately before the injury, being reduced by 100 per cent in terms of sub-
section 39(11)(b) of the 1971 Act."
In the circumstances it is undesirable that the court should express any view upon the evidence, which was carefully analysed before this court by senior counsel for the respondent employee. However, as the matter has been argued,

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I should say that, in my opinion, having regard to the reasons

for judgment in The Commonwealth v Matheson (1955) 93 CLR 403 at 411-413 (per Williams J.) and at 414 (per Kitto J.), it was not open to the Tribunal, as a matter of law, to conclude, even on the most favourable view of all of the evidence, that the injury had resulted in the efficient use of the employee's

right leg below the knee, for the purposes of her employment
immediately before the injury, being reduced by 100%.

I do not consider that the court should express any opinion as to ground D, which was that the Tribunal erred in law in deciding that the proper date for assessment of the amount of compensation payable was 4 February 1988.

I hereby certify that this and

the foregoing five pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Keely delivered on 25 July, 1990.

Associate: m G. /vi

Date: 25 July, 1990