Costa, G.M. v Commonwealth Banking Co

[1990] FCA 611

JUDGMENT No. ........ -....... l..- 611

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 214 of 1989
)
BNERAL DIVISION	1

DN APPEAL from the General Division of the

Administrative Appeals Tribunal

B E T W E E N :

GLORIA MERCEDES COSTA

Applicant

A N D :

Respondents

JUDGE WING ORDER: KEELY J

DATE ORDER MADE:	2 NOVEMBER, r990
PLACE ORDER MADE:	MELBOURNE
NINUTES OF ORDER
THE COURT ORDERS THAT:
36 of the Federal Court Rules.)
GENERAL DISTRIBUTION NOT REOUIRED

1.    The appeal be dismissed.

(Note:  Settlement and entry of orders is dealt with in Order

THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT R E G I m No. VG 214 of 1989

1

QN APPEAL from the General ~ivisibn of the

Administrative Appeals Tribunal

B E T W E E N :

GLORIA MERCEDES COSTA

Applicant

A N D :

COMMONWEALTH BANKING CORPORATION and THE COMMISSION FOR THE SAFETY REHABILITATION AND COMPENSATION OF COMMONWEALTH EMPLOYEES

Respondents

2 NOVEMBER, 1990 KEELY J.

REASONS FOR JUDGMENT

This is an appeal by Gloria Mercedes Costa ("the

applicant") from a decision of- the Administrative Appeals

Tribunal ("the Tribunal"), given on 2 June 1989, which	affirmed a determination ("the determination") of a delegate
of the Commissioner for Commonwealth Employees Compensation
("he Delegate") made on 29 July, 1986 under the Dm~ensation
JCommonwealth C~vernment EIIID~ov~~S) ~ c t 1971.

The determination of the Delegate was in the following

terms :

"In pursuance of the provisions of the said Act,
I hereby determiner-

(1) The said employee suffered an aggravation of a disease, namely musculo-ligamentous strain of neck and left arm, and her employment was a contributing factor to the aggravation of that disease (pub- section 24(1)) [sic].

(2) The said employee first obtained medical

treatment in relation to the aggravation
on 31 July 1985.

(3) The aggravation is therefore deemed to be

. a personal injury to the said employee arising out of the employment and 31 July 1985 .is deemed to be the date of the injury (sub-section 29(2)).

( 4 )	Act, the Commonwealth Banking Corporation In accordance with section 27 of the said
is liable to pay compensation in respect of the said personal injury.

(5) In accordance with the provisions of sub- section 45(2A) of the said Act, she is entitled to the payment of compensation equivalent to full sick leave pay for the period.31 July 1985 to 9 September 1985, inclusive.

(6) In accordance with the provisions of section 37 of the Act, the cost of medical treatment amounting to $139.00 in relation to the injury is payabler

Dr. D. Barraclough

(9/9/85)

Isabelle Britt
(18/7, 24/7, 29/7/85)

(7) On the evidence ;.t--.- 2 me, including

- - - . .a- . - S .

. .- ' ~ : z l c a ~ oplnion, I find that

the eifects of the incident of 31 July

- . 1985 ceased on or by the 9 September 1985. Now therefore, the Commonwealth Banking

Corporation is not liable to pay	-
compensation in respect of the incident of	*
31 July 1985 on and from 10 September

1985. "

That determination was amended by the Delegate on 19 September 2

1986. In substance the amendment deleted the words "(sub-
section 24(1))" appearing in paragraph 1 of the Delegate's
determination and substituting for them the words "(sub-
section 29C1))" and by deleting the words "31 July 1985"
appearing in paragraph 2 of the determination and substituting

for them the words "February 1985".

The applicant's amended grounds of appeal were as

follows :  -

That the Tribunal denied to the Applicant natural justice and/or procedural fairness;

That on the whole of the evidence it was not open to the Tribunal to conclude that Dr. Low thought that the Applicant's employment was contributing to her symptoms on only a transient basis.

That the fact that the medical certificate certified the Applicant was unfit for work for only one week does not permit the conclusion that, when issuing the medical certificate, Dr. Low was of the opinion that the Applicant's employment was only contributing to her symptoms on a

transient basis.

That the Tribunal failed to give any or any sufficient weight to the fact that Dr. Low had continued to certify the Applicant as being unfit for work since the 31st of July 1985;

That the decision appealed against was
wrong in law;

That the decision appealed against was one of which that on the whole of the evidence should not have been made [sic];

That in coming to its decision the Tribunal should have found that the Applicant continues to suffer a cornpensable injury in respect of which the Respondent was and continues to be liable -pursuant to the provisions of the .Com~ensation (Commonwealth Government mlovees') Act 1971."

It was accepted by the applicant's counsel (transcript p. 13) that on the evidence it was open to the Tribunal "to make a finding of fact that by 9 September [l9851 the [employment] contribution had ceased".

It is convenient to deal first with grounds (b) and (c) of the amended grounds of appeal. The applicant's counsel submitted that the ~ribunal wrongly concluded "that Dr. Low thought that the Applicant's employment was contributing to

her symptoms on only a transient basis" (ground (b) - see also

ground (c)). He submitted that that conclusion of the Tribunal "was important, if not crucial" to the decision, and sought to rely upon the following passage in the Tribunal's reasons for decision:-

"26. On 31 July 1985 Dr Low gave Mrs Costa a

medical certificate that she was unfit for work	for only one week which suggests to the Tribunal
that Dr Low did not consider that Mrs Costa's employment was contributing to her symptoms other than on a transient basis. It is for these reasons that we are satisfied that after 9 September 1985 the Commonwealth was no longer liable to pay compensation to Mrs Costa pursuant

- to the provisions of the 1971 Act."

If the Tribunal's decision had been based upon a conclusion that Dr. Low considered that the employment contribution was

"only ... transient", then the applicant's contention that it

5/.

had had regard to an irrelevant consideration would have been

successful.

The respondents' counsel submitted that that passage
must be read in its context and, in particular, in the light
of the immediately preceding paragraph (paragraph 25) which

"We find that her employment contributed to her symptoms until 9 September -1985. However by that date any contribution to her symptoms by her employment ceased. We accept her-evidence that she continues to have some symptoms but they are -not caused or aggravated by her employment, nor were they so severe that she was unable to complete her qualifications to become a barber. "

In that passage the Tribunal specifically stated its findings on the evidence, which it .had already reviewed in paragraphs 15, 17 and 21 respectively of its reasons for decision. In so doing it had referred to evidence that (1)

"any aggravation ... would have ceased by 9 September 1985"

(2) "her pain would have resolved given rest over two or three	(Dr. Barraclough - paragraph 15 of the Tr~bunal's reasons),
months" (Mr. Rustomjee - paragraph 17), (3) "this history did not point to her employment being the cause of her symptoms
. . . [he] could find no anatomical .basis for [her] . . . pain"
(Mr. Stephens - paragraph 21) and (4 ) . "her original symptoms
... would be transitory in nature" (Mr. Bryant Curtis -
paragraph 21).

The Tribunal's findings in the passage in paragraph 25,

6/.

namely, that "by 19 September 19851 any contribution-to her symptoms by her employment [had] ceased" and that her

"symptoms ... are not caused or aggravated by her employment", had been made before the Tribunal said (in paragraph 26) -that the medical certificate "suggests to the ~ribunal that Dr. Low did not consider that Mrs. Costa's employment was contributing to her symptoms other than on a transient basis" (and see amended ground (c)).

In my opinion, on a fair reading of the Tribunal's reasons as a whole, those findings, (which were the basis of the decision affirming the determination) were made upon the medical evidence of the doctors referred to above.

The first sentence in paragraph 26 (set out earlier) in my opinion represented no more than a passing reference by the Tribunal to the fact that Dr. Low's certificate of 31 July 1985 was for "only one week"; further, it was a reference made after the Tribunal had formulated its findings of fact in

word "suggests" supports the view that its decision was not	paragraph 25. It may be added that the Tribunal's use of the
based in any way upon that certificate, dated 31 July 1985. Although the Tribunal's reference to "only" one week may be thought to be somewhat surprising, in my opinion the Tribunal's decision was not based at all upon the certificate, nor upon any misapprehension by the Tribunal as to the opinion of Dr. Low.

7/.

Accordingly; amended grounds (b) and (c) must fail. Amended ground (a) must also fail because the alleged denial of natural justice was that "the applicant was never given a chance to deal with" the matters raised by grounds (b) and (c) (transcript p. 19) i.e.. whether Dr. Low was of the opinion that the "employment was only contributing to her symptoms on a transient basis".	-
As to ground (d),.the Tribunal's reasons for decision expressly referred (paragraph 10) to the fact that Dr. Low had "continued to provide the applicant with medical certificates". The question of what weight should be given to those additional medical certificates was a matter for the Tribunal to determine and does not constitute a ground of appeal in this court, which is limited to hearing appeals "on a question of law" (S. 44(1) of the Administrative ADDealS Tribunal Act 1975).
No separate submission was advanced by the applicant's counsel in respect of ground (e). Grounds (f) and (g) are not	grounds that are open to the applicant on an appeal to this
court because of the provisions of S. 44 to which reference
has been made in dealing with ground (d)	.

For the reasons given the appeal must be dismissed.

I hereby certify that this and the six
preceding pages are a true copy of the
Reasons for Judgment herein-of his Honour
Mt. Justice Keely delivered on 2 November,

1990.

Associate: W G flC-.

Date: 2 November, 1990. U

ATTACHMENT A

Dates of Hearing	l5 October, 1990
Date of Judgment	2 November, 1990
Solicitors for the ~ ~ ~ l i c a n t	C. V. Kay
Counsel for the Applicant	Mr. J. Richards
Solicitors for the Respondent	Australian Government Solicitor
Counsel for the Respondent	Mr. J. Lenczner