CTC Resources NL v Commissioner of Taxation

[1994] FCA 947

JUDGMENT No. ...,., ' " J ..,,.... . -... % ...

CATCHWORDS

ADMIIISTRATIVE LAW - rules of natural justice and breach thereof - right of party affected to be heard - opportunity to present case - claim for compensation by Commonwealth Government employee - applicant prevented from giving oral evidence concerning facts relevant to his claim for compensation.

WORKERS' CObIPEUSATIOW - miscellaneous matters - Commonwealth

Government Employees compensation - applicability of

provisions under

1971 to claim brought after commencement of

sation Act 1988.

th G o v e r n m e n t v e e s l Act 1971,

RODNEY v-	!xNCuE
No. QG 26 of 1994

PRlNaCu.

SHEPPARD, JENRINSON AND SPENDER JJ
BRISBANE

26 OCTOBER 1994

FEDERAL COURT OF
A U S W

ERAL COURT OF AUSTRALIA 1

ICT REGISTRY	1	No. QG26 of 1994
)

On APPEAL from the ADMINISTRATIVE APPEALS TRIBUNAL

BElTmN: -

Applicant

m:  COnCARg

Respondent

Sheppard, Jenkinson and Spender JJ.

Brisbane

26 October 1994

1.         The appeal be allowed.

2.         The decision of the Administrative Appeals Tribunal

be set aside.

3 .          The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

4.         The respondent pay the applicant's costs of the appeal.

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

Order 36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	No QC 26 of 1994

GENERAL DIVISION 1

On APPEAL from the ADMINISTRATIVE APPEALS TRIBUNAL

BeTWEEN: -

Applicant

m: COnCARE

Respondent

Sheppard, Jenkinson and Spender JJ.

Brisbane

26 October 1994 . -

Sheppard JI	In this matter I have had the advantage of
reading the judgment to be delivered by Jenkinson J.	I am in
agreement with his Honour's reasons and conclurio~	and with
the orders which he proposes.
The only matter upon which I wish to colaent ir the matter of coats. The decision of the High Court in m	V

(1994) 179 CLR 403 has raised the question whether it is
ever appropriate to make an order for costs in favour of a

successful but unrepresented party. There ir a question

whether the decision of the High Court har qualified or cut down the effect of the decision of this Court in Secre-

t of P O r i P f d a g f a r o and TIPPd v &xmU [no. 2 )

(1992) 39 PCR 288. The majority of the High Court do not suggest that it has been affected at least in express term: see note (46) at 417. The minority (Toohey and Gaudron JJ) apparently approved the decision; see at 423. Despite some misgivings about the matter, I have agreed in the order for costs which Jenkinson J has proposed. I have done this

( because the utter was not the aubject of argument and, in any : event, it will be for the taxing officer, guided by the

I principles propounded in the authorities, to determine what

mount, if any, the applicant is entitled to recover under the
order.

I c e r t r f y t h a t t h e preceding page is a t r u e copy o f

t h e Reasons f o r Judgment o f t h e Honourable J u s t l c e

Sheppard .

A s s o c i a t e :

b

Date :  26 October 1 9 9 4 .

THE FEDERAL COURT OF AUSTRALIA 1

- I	1	No. QG26 of 1994
W E N	DIV-	1

On APPEAL from the ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: -

Applicant

m:  !mEA&B

Reapondent

cQR&B:  Sheppard, Jenkinson and Spender JJ.

uLC.E: Briabane

PhTE:  26 October 1994

-

IIwmwLL

Appeal from a decision of the Administrative Appealr Tribunal affirming a determination by a delegate of Comcarr that the applicant's claim for compensation under the

and 1988 be denied.

The applicant, who was born in 1947, war at material times employed in the Auetralian Taxation Office in Brisbane. He and hie wife also had an interest in a fa- businerr. A family trust income tax return in reapect of the year ended 30 June 1982, in which the applicant and him wife were interested, was lodged at the Brisbane office in that year, but no asaeasment had been notified. In November 1985 the applicant lodged a written request that an asaeament be made, a course of action for which s.171 of the &come

Assessment Act 1936 makes provision. Thereafter disputation and complaint concerning the handling within the Australian Taxation Office of that and other income tax returns by the applicant and his wife and the trustee continued for years. In 1986, on 19 July, rhortly after the applicant rtarted hie working day in the Brisbane office he was asked by one of the officers handling his income tax returns to produce documents relating to the transfer by the applicant and hi8 wife of the farm they owned to the trustee of the family trust, which war a company they controlled. When the applicant raid that he - - .. --

would produce the document8 the next day he war arked to go to the off ice of a more senior officer, Mr. Daniel. Ilr. Daniel demanded, according to the applicant's evidmce, that the documents ba produced i d i a t e l y . T h e n was much argument and when the applicant left the Brirbane office to fetch tha documents he was followed by other officers to his h o w and thereafter to another place to collect another document which b. had been asked to produce. At about 3 p,.. that day photocopier of the documents were delivered by the applicant

When in April 1989 the applicant submitted a claim for

to the officer who had first arked him for them that morning.

compenration he specified "anxiety depressionw as the condition in respect of which the claim wan made and 3 p. on , 29 July 1986 as the time at which he became ill. But it ir clear that the painful relationships between the applicant and several officers who were concerned in the handling of his tax affairr, including in those affairr return. of the family trust and hi8 wife, extended over a period of yearr of which

29 July 1986 constituted neither the beginning nor the end.

At the hearing before the Administrative Appeals Tribunal a number of medical reports on the applicant's condition was tendered, but only one doctor gave oral evidence, Dr. Raymond Jamer, a psychiatrist. Having examined the applicant on 29 Wrch 1990, Dr. James furnished a report dated 5 April 1990, part of which the Tribunal quoted in its reasons for decision, and the medical opinions in which the Tribunal accepted. That part of-the peport reads:

He feels very resentful about what he considers is a degroo of persecution Of hir by the Australian Taxation office, after h. raised matters h. had noted in the clairr for tax deduction8 made by a senior official, this issue began in 1981.

He worked for the Australian Taxation
Office until August 1988 and then took rick
leave. Re was paid sick leave until about June

1989. Since that t i n he has not r0Ceiv.d any payment and ham been receiving sickness

hnef	its. Re says he does not want to work in the
Taxation Office again. He raid their attitude	towards him has made it fairly impossible for
him to work for t h u again. Ik think8 they would like him to resign but he is not prepared to do so. He would k willing to work in another Government departaont.
EXAMINATION
He gave a detailed account of his work history and of his difficulties with the Department. I thought he discussod these problems in a reasonable way.
No abnormality of mood war notod and in particular, he was not clinically anxious or depressed.

Thm was no dirorder of the stream of

thought, or the form or content of his thought processes. He did not express any delusional ideas.

OPINION

In all the circumstances, it seem perfectly understandable that . Rettke ham developed an antipathy towards his employer. He is currently unhappy about what he perceives as hir mistreat-ment by the Australian Taxation off ice.

But his feelings of resentment and unhappiness do not represent a psychiatric illness.

He was not clinically depressed or anxious when I saw him, there iS no history of any

treatment such as - psychotherapy or drug	- -
treatment8 which would be appropriate for a significant anxiety or depressive neurosis, and he says that he ir willing to return to work if only rome suitable employment in another Government departnnt can be found for him.
Therefore it is y opinion that Nr Rettke does not suffer from anxiety depression, and h. ir not suffering from any other type of psychiatric illnesr.

The other quertions are therefore not

applicable.

Nr Rettke is capable of working at th. present tin. Naturally he would prefer not to

Office, but he could do so, if he were work in the Office of the Australian Taxation	rufficiently motivated. It would be easier for
him to return to work with another ComMmealth Government department.

Rettke does not require prychiatric

treatment."

he applicant conducted the appeal, ar he had conducted the hearing before the Tribunal, on hi8 own behalf. In the Tribunal's reasons for decision ir this observation:

"[Dr. James'r] evidence war probed during

cross-examination. However he held fast to his opinions as provided in his written report and in responses to specific questions."

The applicant submitted that the observation was erroneour because Dr. Jamer had in oral evidence agreed that his own ndical opinion concerning that applicant "could be wrong" and had stated that the reliability of such an opinion which 18 based, as his was, on only one examination of the patient war limited in a case such a8 the applicant'r. The applicant rubmitted further that the-Tribunal had erred in resting it8 conclusion that the applicant was not entitled to compensation on evidence of ruch a tenor.

A reading of the whole of the oral evidence of Dr.

Jamor doer not in my opinion ju8tify the applicantmr rubmissionr concerning that evidence or concerning the Tribunal's reliance on it.

On a number of occasions the applicant war medically examined by a Commonwealth Medical Officer, who furnished on	oach occasion a written report and assessment of the
applicantmm medical condition to the Aurtralian Taxation Office. some of the reports described the applicantm# condition as "anxiety depressionn and "mental depressionn and
"mood disturbance with some depressionM, and certified him
unfit for work. Those reports were in evidence before the Tribunal. The applicant submitted to the Tribunal that, kcaure the responsible officer8 of the Australian Taxation

Office had accepted the certificates and granted him leave from work for the several periods specified in the certificates, Comcare should not be permitted to contradict, in the proceeding before the Tribunal, the conclusions stated in the certificates. The applicant treated, in his suhisrion to the Tribunal and to this Court, both the responsible officers of the Australian Taxation Office and Comcare a# representative8 or agents of his employer, the Commonwealth of Australia. ~t was further submitted that the legislative regime of colamonwealth Government emplopent laid down in..-t-h.-

public Service Act 1922 and the regulations and instructions

under that ~ c t gave to the medical opinion of the Coa~wnwealth

)(.dical officer a determinative effect, subject to correction

by a medical review panel, so that such an opinion could not

b. contradicted by Comcare or the Tribunal. And it -8
further submitted to be in violation of natural jumtice that
the employer, by its agents in the Australian Taxation Office,

should grant leave, including leave without pay, in reliance

on the certificates and then deny, by its agent Comcare,	entitlement to compensation in accordance with the
certificates. These submissions the Tribunal faild to mention in its reasons for deciaion and the applicant contended that the failure constituted an error of law.
Comcare is a corporation sole constituted by the Safety Rehabilitation and ComDensation Act 1988, and h.8 conferred upon it by that Act the function of determining
claims to compenration under the Act : as. 68, 69(a), 72 and

74. In performing that function, whether by itself or by an officer of, or a person employed by, the Commonwealth to whom in a particular case it has delegated the function, Comcare stands between the employer, the Commonwealth of Australia, and the claimant as an entirely independent determining body, obliged by s.72(2) of the Act to "be guided by equity, good conscience and the substantial merits of the care, without regard to technicalities". Comcare is required to accord to certificates and opinions of Commonwealth Medical Off icers no more or less weight in its determination of a claim than it would accord them if they had no legal significance at all under the Public Service Act 1922 or the regulations or instructions thereunder. And when the Administrative Appeals Tribunal reviws a determination by Comcare the Tribunal is under the same duty. The legislative regin established by and under the Public Service Act 1922 to which the applicant referred relates to the granting of rick leave and other leave and to retirelent from the service. Any 1.gl significance accorded the medical opinion of a Commonwealth Medical Officer	by that legislation is only in relation to the granting of	leave and to retirement and doer not have any place in the
determination of claim to compensation. The applicant's submissions to the contrary cannot be accepted. The Tribunal's failure to mention those submissions is
understandable : the submissions are based on misconceptions.
Even if the failure constituted a legal error, as a failure to comply with the requirement of s.43(2) of the Administrative
Appeals Tribunal Act 1975 to "give reason8 .... for its
decision", no advantage could be derived by the applicant, because the Tribunal would be legally obliged to reject the applicant's submissions.
~t war submitted that the Tribunal'r failure to mention the Commonwealth Medical Officerr' reportr in itr rearonr for its decision indicates a failure to conrider them and that that failure war an error of law.

After rtating its acceptance of the evldence of Dr. --

Jamer and of another prychiatrirt, Dr. Artill, whore written report war in evidence, the Tribunal made there obrervationr:

"(38) There ir other medical evidence in

variour foru ruppliod rmlative to th. quution of i(r Rettke'r State of health at various tiur. We have read and considered all this evidence. However w reg8td the evidence of Drr. Astill and Jamer to k the m c t corp.lling on the topic. Drm. Astill and J a n r mpecialire in pmychiatq thir king the dircipliru most apporite to the type of illnerr or injoxy which is claimed by Nr Rottke. ?tarther the

Jamer took place at a t i w when Mr Rettke war	examination# of Xr Rettke by Drr. -till and
claiming to be ruffering from an illness or injury and so this evidence im paIrticululy apporite from that rtand point.
other than that rupplied by Drm. Astill and (39 In relation to the nedical evidence
Jamem we agree with the deficientr in the acceptability of it ar dercribed by W Holmes for the respondent in her final addrerm. Thir description has been recorded. We do not propose to repeat it here. However we incorporate it in there Rearonr."

Mirs Holmer had pointed out in her final addrerr to the Tribunal that the period when rtresr induced by concern about

his own tax affairs might have been expected to be greateat, during 1986 and 1987, was not the period during which medical certificates referred to anxiety and depression. She submitted to the Tribunal as follows:

"men, of course, there is the question of causation of any condition. The audit, of course, was not contemporaneous with the period for which Mr Rettke war off work and was getting medical certificates to say that he was suffering from anxiety and depression. That did not occur, it seems, until towards the end of 1989. I think the first medical certificate from a general practitioner appearr a about September 1989. The audit took place,

effectively, over 1986 -and into- 1981 ." - ...__. _

The Commonwealth Medical Officers' reports were made in and after January 1989. The law did not require that the Tribunal discuss in its reasons each item of medical evidence and it.

failure to make any more particular reference to the report.
than appears in paragraph (38) does not in my opinion

demonstrate an error of law.

One of the grounds of the applicant's appoal to thir court was in substance that he had been denied procedural	fairness by being prevented from giving his oral evidence
concerning facts relevant to the determination of his claim for compensation. In order to deal with thir ground it is necessary to give some account of the history Of the claim and of its consideration by Corncare.

Both before and after the original dete~lrination by a delegate of Comcare had been notified to the applicant in a writing dated 22 June 1989 he furnished a written statement in support of the claim. The first conaisted of 20 typed folios and the second consisted of 5 handwritten folios. The delegate of Comcare by whom the original determination was reconsidered and on 8 November 1989 affirmed had before him several medical certificates, dated in and after September 1988 and given by Dr. J.W. Saba, who was the applicant's doctor, that on the dates stated in the certificate the

applicant was suffering from "anxiety - depression" and would

ba unfit for duty for a specified period. neither in the letter from the delegate to the applicant giving reasons for the original determination nor in the statement, 1odg.d with the Tribunal in coapli.nc@ with 837(1)() of the Administrative Appeals Tribunal Act 1975, of the roasonm for the determination made on reconsideration (th. wrovi.wable decisionw within the meaning of that expression in Part V1 of the Safety Rehabilitation and COmDen8ation Act 1988) is any suggestion made that the applicant had not suffered an

Indeed tho section 37 statement includes the following	"injury", within the meaning of that word in the latter Act.
paragraph:

"Reports were received from the Commonwealth Medical Officer dated 7 December 1988 and 23 January 1989 (document T5). These reports confirm the diagnosir of anxiety depreaaion/situational crisis."

The statements by the delegates, like the written rtatements of the applicant, are wholly directed to the quertionr whether the handling of the income tax affairs of the applicant by officers of the Australian Taxation Office was improper or unfair and whether any unfairnesr or impropriety which did occur was a consequence of the applicant1# employment in that Office. Although the delegatere statements do not exprerrly refer to the provision8 of the Safety Rehabilitation and Compensation Act 1988 their preoccupation with those two questions war no doubt caused by the requirement that to be

compensable under that Act an injury other t h n a diream mrt - -

arise "out of, or in the courre of, the employee'r employmentn and a diseare must have been "contributed to in a material degree by the employeolr employmentn, or if the Contraction of the diseare occurred kfore the c m n c m n t of Part X of that Act on 1 December 1988 'any employment of the e8ploy.. by the Coaonwealthm aunt have been "a contributing factor to the contraction of the diseare". (See 88. 123, 123A and 124 of the Safety Rehabilitation and Corwnration Act 1988 and 8.29

of the Compensation (Cormonwealth Government Employeer) Act

1971.)

When in January 1994 the hearing by the Administrative Appeals Tribunal commenced the applicant tendered a folder of documentr, concerning which he said to the Tribunal:

"What I have done is gone through and copied a11 of the docurentary evidence in respect of each major point and in respect of each witness and put it in there in an order so that - it im

a very complex matter, and as we go through it, there is a section that, hopefully, will cover everything in respect of each point or each witness. That did necessitate a little bit of duplication in some circumstances, but I thought that that made it easier to refer the tribunal, because from what I have seen of it, it can be a difficulty running back and forwards through the file. So that everything is there and it is indexed that will be

referred to. "

The folder of document6 was thereupon made exhibit 2 in the

proceeding. (The section 37 statement was made exhibit 1.)

The documents run from page 56 to page 520 in-the.app241 book..	.
Fewer than 100 pages of exhibit 2 relate to the applicant's state of health. The rest relates to the handling of the applicant's income tax affairs. Apart from a few records of statement8 by the applicant to medical practitioner8 and psychologists as to his feelings and records of hi8 absencu from work which state the reason for the absence in one or two words, there is nothing relevant to his stet. of hoaltb in exhibit 2 except statements of opinion by ..dice1
practitioners and psychologists. An emendation of revera1	transcripts of conversations about the applicant'r incoma tax
affairs was then received as exhibit 2A. The applicant then
named witnesses he proposed to call as well as indicating that
he would give oral evidence. The transcript of the proceeding before the Tribunal records that the following dialogue then followed:

"HIS HONOUR: Yes. Well, MS Holmer, do you wish to cross-examine Mr Rettke now, or - how is it proposed to proceed at thir point in time?

MS HOLMES: Yen, your Honour, if that would be appropriate.

HIS HONOUR: All right. Would you like to come to the witness stand then, Mr Rettke, and take with you whatever documents you think you may need.

Rodney Noel Rettke, rworn:

HIS HONOUR:  Mr. Rettke, would you state your

full nam., please?---Rodney Noel Rettke.

Your addreart---Vorr Road, Clamorganvale, 43 -

- -

Thank you. And your occupation?---Officially,
an auditor in the Tax Office.

Thank you. Perhapa this IB nomething-I -should have asked you when you were at the bar table, but preclrely what are you reeking in these proceedings, ilr - thin application, nr Rettke?- --I lodged an application for compensation for a period that 1 was off work for approximately

2 i years.

I think those period. are set out in the material sanwhera .or0 preciselyi i8 that right?---They are #et out. We - w1ll get

through to th-. YeS.

Well, that is what you are seeking, is it?---

Sorry - thates what I'm seeking.

That is what you are reeking?---Thate@ what I'm

Yes .	seeking, yes, compenration for that poriod.
For the period you were off work?---Thate# right.
All right. Now, is there anything you want to add to what you - what is already before the tribunal in term6 of exhibits 1, 2, and 213--- yes.
In terms of evidence, I mean?---Yes. Well, before we rtart on the evidence can I put up a couple of subaissiona to the court, please?
Well, no, you cannot, ilr Rettk*. At this point in t i n all I am intereatad in is hearing any further evidence you want to put before the
court from your lips or from your documents?--- Okay.
~ u t you will have plenty of opportunity
subsequently to make submissions, Mr Rettke?--- okay. If you'd bear with me just for one second then, pleare, your Honour?
Yes, certainly?---Okay. In respect of section 3 of exhibit 2 that I have sukitted to you there are copies of a number of medical certificates from Dr Saba. Dr Saba is my local
GP.
Yes?---I think they all refer to anxiety depression. They were all as a consequence of various complaints that I went to him with or consulted him over in that period. There is also folio 3-12. Dr Saba referred me to a heart specialist as a rerult of recurring chest pain. There is a copy of the report to Dr Saba from that heart specialist.
yes. well, kIr Rettke, I do not want you to repeat anything that is already h e m that you will make comments on?---That's - that's there.
YOU will have an opportunity aftenard. to make c m n t s on all the widenca; a11 right?--- Okay, your Honour.
I would have thought this is fairly e x t e ~ i v a -
very extensive, or course?---It is.
~t is just that W. Holmas has an opportunity to cross-examine you with respoct to all thim, you sea, and that is why substantially you an in
to answer her quertioru. But if there is the witness stand at the present tin, you see,
anything that has happened since, or sonthing you have forgotten, I will give you an opportunity of putting that before us, you see. AE I ray, it seem to k fairly e x t e ~ i v e - very extensive. SO if there is nothing further you want to mention I will - - -1--- There is - one natter I should obviously raise is the 80-
of symptoms that I have nuffered over the period. It has included a feeling of tension, aches and pains, the chest pain that I referred to, difficulty getting to sleep, difficulty getting back to sleep when you wake up during the night. It's one of thore unfortumte things that's on your mind the whole time. Row, none of these things are continuous, but they come and go. There's been quite a number of occasions over - and in this rerpmct I don't

only refer to the period of leave which was from late 1988 until early "91 but they are continuing - there have been occasions when I've burst into tears for no reason. That's probably been the most crazy part about it. It happened at one of the preliminary conferences where I, more or less, kept the tears under control until I got outside but the voice went, and it's one of those things where there's no - there seems to k no logic to it. At that particular preliminary conference therm was no rurprises; there were no adverse comentrj no adverse rulings; there was no reason to get upset about anything and I'm nor sure whether that was the one inunediately prior to the directions hearing or two prior to the directions hearing. ~ u t we went to the directions hearing; I had sprung on me out of the blue the section 16 arguments. I didn't

have a clue that they were coming up and ymt I	handled it magnificently, I thought. Logically ..
- or to me, at least, anyway - logically that
was something to get upset about and nothing happened. Probably makes it onm of the hard things - there's no cause and effect. In a lot of this getting uwet it seeu to D@ l i b you cut your finger, it hurt8 next week, and it
bleed. a week after, after ite# h 1 . d up.
a t crazy, but there reeu to be no - no relationship betweon caure and effect a8 far a8
the emotions are concerned. 1.'told thereed
been lot of probleu about w king intolerant relative to the way I urad to be, anyway.
I interrupt you, i(r Rettkm: I think, substantially, this 18 in the material. I know you are really omphasiring the point and I accept what you are saying and you will have an opportunity to make these comments later but it really is not further evidence, to y rind?---
Well, I would've thought it war necerrary that I state, under oath, what's been wrong with w.
well, everything in exhibit 2 and exhibit 2A that pertains to you, you regard a8 the truth?- --As - as evidence, although they at. all somebody else's opinions. ~ h e r i U. no rtatemntr of mine in there.
Well, there are statements repeated by the doctors, are not then, of what you have said to them?---Oh, yes, yes, yms, most certainly.
And thosm statements you regard a8 accurate that you gave to those doctorrl---Yes. There'r
a couple of points in there that aren't - they haven't mentioned.
I propose to invite Ms Holmes to cross-examine
you now, Mr Rettke." The emphasis is added.
The word "disease" is defined in the Safety

Rehabilitation and Compensation Act 1988 to include any

physical or mental ailment, dirorder, defect or morbid condition whether of sudden onset or gradual development, being a physical or mental ailment, disorder, defect or morbid condition that war contributed to in a material degree by the employee's employment. A very similar criterion is to be found in the Compensation (Commonwealth Government Employeer~

~ c t - 1971 (ss. 5(1) and 29(l)(b)). Even if those words of definition a n to k given such a conatructfon aa would require that in order to fall within the M i n g of mdiroaaon a mental ailment, disorder, defect or morbld condition constitute a wpsychiatric illnessn, as Fr. Jamas re- to have thought, evidence by tho employee, the applicant, of his feelings and state of mind would clearly be rolevant to a determination as to whether he had suffered a direase. The

Tribunal was required to make that determination. The passage quoted from the transcript shows, in my opinion, that the Tribunal prevented the applicant, at that tim, from giving that evidence.

When cross-examination of the applicant concluded the following dialogue occurred:

"HIS HONOUR: You can stand down, Ur Rettke7--- With respect, your Honour, should not I get a chance to comment in respect of a lot of those thlnqs?

Well, I thought you had given your answers completely, but if there are any answers you feel you have not clarified or stated fully enough, then you go right ahead, W r Rettke7--- well, I think there ir a great deal, particularly within the inference - innuendo in which the question war asked, yea.

I am concerned about your answer, not

inferences or i~uendO?---UO, no.

please understand, )Ir Rettke, that you will have ample opportunity in your final address to speak on all or any matters which are relevant to there proceedingr7---Any matters, but not under oath. The things that I- think - ry views

should be stated under oath, othemise - - -

Well, if it is a factual matter that you feel you have not given a rufficient anrwer or have not have an opportunity of giving r rufficient answer to, you go right ahead." Again the empharir is added.

The only question8 concerning the applicant'r feelingm during his cross-examination, which occ-ipid most of one and r half dayr, were a few quertionr about the stress of him separation fro9 his wife in January 1989 and the rtnrr of dirputea

between them following the reparation. Upon receiving from	the presidential member of the Tribunal the invitation with
which the passage from the transcript last quoted concluder the applicant gave further evidence on the subject with which
his cross-examination had been almst exclusively concerned :
the handling of his income tax affairs. It was pointed out to him by the presidential member several timer that he war repeating evidence he had already given. The conclusion of his evidence is recorded in the transcript thus:

U Rettke, you are not giving evidence; you are making submissions. And I have told you

more than once?--- - - - Well - - -

will you listen to me, for once, Mr Rettkel---

Sorry.

I have told you more than once you will have every opportunity in your final addrers to make comments and to make submirrions along those liner?---Okay. Thank you, your Honour.

I M not meaning to atop you, but I want you - if you have anything new arising out of the questions and the answers that you ave, please tell us about it now. It has got to be new and it has got to be factual; not opinions or submiasionr. Do you understand the dirtinction, Ur. Rettke7---I don't, to some

extent, but I accept p r - rulf ng, your Honour- -

Yes, a11 right. Thank you. Would you like to stand down.

The witness withdrew."

1t war submittad on behalf of the respondent that it was not inappropriate or a denial of procedural fairness to direct, as the Tribunal did, that the applicant's evidence commence by way of cross-examination, having rogud to tho very detailad statements of his which wen containad in	exhibit 2 and having regard to the likelihood that the	applicant, lacking legal qualification and forensic
experience, would be prone to irrelevance if he gave evidence in chief. But the detailed rtatements in exhibit 2 related
only to one aspect of the care : the handling of his income
tax affairs and his dealings with other officers of the
Australian Taxation Office. The other aspect of the care - whether the applicant had suffered an injury or a direare - was the subject of hardly any statement8 by him in exhibit 2.

He had indicated his wish to give oral evidence on that latter aspect. If the course taken by the Tribunal at the

commencement of his evidence were permissible - as to which it is perhaps unnecessary to express a concluded opinion - it was

a course justifiable only on the basis that at the end of the cross-examination the Tribunal should remind the applicant of hi8 statement that he wished to give evidence about what he had called his "symptom" and should invite him to embark on that evidence, either before or after he had given whatever evidence he desired to give which he thought aroae out of the cross-examination.

1t was submitted for the respondent that what was raid by the presidential menkr of the Tribunal immediately before the applicant left the witnerr box providod the applicant with the opportunity to give evidenc* about hir feelings and rtate of mind at relevant timer. But, even if it

k assumed that the applicant was not dirtractod nor

distressed by what had jurt been said to him, the invitation

to give further evidence was limit4 to matter "arising out of the questions and the answers you gave* during crorr-	examination. That cannot be regarded a8 the offer of an
opportunity to give evidence of feelings or *aymptoman, caused by'his dealings with other officers in relation to hi8 income tax affairs, for he had been askod no questions on that subject.

ny conclusion is that the applicant war denied

procedural fairness. The difficulties inherent in conducting a hearing of the kind undertaken by the Tribunal when an applicant lacks legal knowledge and is unrepresented by a legal practitloner are very great. But if in a particular case of that kind a denial Of procedural fairness occurs, error of law is established and must be declared.

The applicant made submismions that the Tribunal had erred in construction of certain provisions of the Safety Rehabilitation and Com~ensation Act 1988. The provisionr to

be considered should be set out. Section 14(1) provides:

**Subject to this Part, Coacare ir liable to pay compensation in accordancr with thir Act in respect of an injury 8uffer.d by an aployea if the injury rerultr in death, incapacity for work, or impaiment."

The word "injury" is def1n.d in 8.4(1) te man, unless the

contrary intention appears -

"(a) a disease suffered by an employee; or
(b)	an injury (other than a disease) mufferad

by an employee, being a physical or mental

injury arising out of, or in the courme
of, the employee's employment; or

(C) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such diseasr, injury or aggravation sufferad by an employee as a result of reasonable disciplinary action taken against

the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

Section 6 provides:

"(l) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the courre of, his or her employment, an injury shall, for the purposes of this Act, be treated ar having so arisen if it war rurtained:

(a)	as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or
(b)	while the employee:
(i) war at hi8 or her place of work, for the purpores of that employment, or was teaporarily abrent from that place during

m ordinary recers in that

emplownt ;

(ii was travelling between his or her place of residence and place of work, other than during an ordinary recesr in that employment;

(iii)     was travelling betwoon the place where he or rho normally resides and another place, k i n g a place where he or she resides temporarily, as a matter of necessity or convenience, for the purpose8 of hir or her employment;

(iv)      was travelling between one of his or her places of work and another of his or her placer of work;

(V)        was travelling between his or her place of work or place of residence and a place of education for the purpose of

attending that place i n
accordance wlth:

(A) a condition of hlr or her employment by the Commonwealth or a licenred corporation; or

(B) a request or direction of

the Commonwealth or a
licenred corporation;

or for the putpore of attending that place wlth the approval of the Commonwealth or the licenred corporation, am the care may be, unlearn he or rhe war so travelling while on leave without pay;

(Vi)	war at a place of education, except while on leave without pay, for a purpore referrod to in rubparagraph (v);
(vii)	war travelling between him or hot placa of work or placo of reridenca and any other place
for the pupor. of l
(A) obtaining a 8edic.l

certificate for the

purporer of thin Act;

(B) r e c e i v i n g m e d i c a l

treatment for an injury;

(C) u n d e r g o i n g a

rehabilitation program
provided under thir Act;

(D) receiving a payment of

componration under this
Act;

(E) undergoing a medical e x a m i n a t i o n o r rehabilitation arrerrwnt in accordance with a requirement made under thin Act; or

(F) receiving money due to the employee under the term of him or her employment, being money

that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensed corporation, is available, or reasonably expected by the employee to be available, for collection at that place; or

(viii)   war at a place for a purpose referred to in rubparagraph

(vii) .

( 2 ) Subparagraph (l)(b)(ii), (iii), (iv), (v) or (vii) doer not apply where the travel:

(a)	war by a route that rubrtantially increased the rirk of rurtaining an injury when compared with a more direct route; or
(b)	war interrupted in a way that rubrtantially increased the rirk of rurtaining an injury.

(3) Subrrction (1) doer not apply where an

employae sustains an injury:

(a)	while at a place referred to in that rubrectionj or
(b)	during an ordinary recars in hi8 or her
employment r

it the employee 8urtain.d the injury because he or rho voluntarily and unreasonably subrittod

to an abnormal risk of injury."

In its reasons for decirion the Tribunal stated:

" ( 1 4 ) As we understand it ilr Rettke suhitr

that his claim for compenration i? coverod by

paragraph (a) of the definition of injury'."

he applicant rubmitted that nothing he had raid or had done

indicated a limitation of hi8 claim in that way. The Tribunal

stated in its reasons for decision a submission advanced again

by him to this Court. The reasons include the following:

"(18) In his final address to this Tribunal m Rettke submitted what he described as a technical argument based on the provisioru of sec. 6(l)(b) (i) of the Act. The provision

reads as follows 8

'6(1) W i t h o u t l i m i t i n g t h e

circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purpose8 of thir Act, be treated

as having so arisen if it was sustained:	.
........ ........ ........ ..

(b)	while the employee:
(i) was at his or her place of work, for the purposes of that

erploy.ent, or was

temporarily absent from that placa during an ordinary rmco8s in that

omplopnt; .-

(19) The audit of the applicanth* taxation affairs was carried out from July 1986 to Itarch 1987. Throughout thir period Nr httke war at his place of work in the Taxation Offica for the purposes of that employnnt. WO alleges

that his injury king anxiety depression was

sustained during the period of that audit.
Rettke's argument proceeds that because of the
provisions of sec. 6(l)(b)(i) of the Act it is
not necessary to establish that his injury war

work related.

(20) We do not accept this argument. he

definition of 'injury' in paragraph (a) refers to a 'disease' and as set out above (in Clause {IS) of these Reaaonr) the definition of

diseasee means an ailment or aggravation of any such ailment that then must be contributd to in a material degree by the employee's employment by the Commonwealth. Thus to this extent it is necessary to establish that the injury was work related."

Thus the Tribunal disposed of the submission by confining the

claim to one for disease.

Neither the parties nor the Tribunal adverted to the provisions of Part X of the Safety Rehabilitation and Compensation Act 1988, by which the Compensation (Commonwealth Government Employees) Act l971 war repealod on the commencement of that Part on 1 December 1988. In that Part ir prercribed what the High Court described as "a complex rcheme in relation to injuries sustained and payment8 of compensation

made before the 1988 Act commenced". (Erber v. The - - . Commonwealth (1992) 174 C.L.R. 430 at 4 6 Section 124, which is in Part X, provider in part:

"(l) Subject to thir Part, thir Act app1i.r in relation to an injury, 1008 or damgo rufferod by an employee, whether before or after the commencing day.

(1A) Subject to thir Part, a porron ir entitled to compenration under thir Act in respect of an injury, lorr or damage 8uff.r.d
before the commencing day if compenration war, or would have been, payable to the porron in respect of that injury, lorr or damago under

under thir Act in respect of an injury, lorr or

the 1912 Act, the 1930 Act or the 1971 Act. (2) A person is not entitled to compensation

damage ruffered before the commencing day if compensation war not payable in rerpoct of that injury, lorr or damage:

(a)	where the injury, 1008 or damage was ruffered before the commencement of the 1930 Act - under the 1912 Act;
(b)	where the injury, 10 or damage war rufferod after the commencement of the 1930 Act but before the commncemont of the 1971 Act - under the 1930 Act am in force when the injury, lorr or damage war suffered; or
(c)	in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered."

The expression "the 1971 Act" ir defined to mean the Cornpenration (Commonwealth Government Employee81 Act 1971. The exprerrion "commencing dayn ir defined to mean the day on which Part X commenced. Section 123A provider:

"A reference in this Part to an injury ruffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act war in force when the injury war ruffered, a8 that Act war then in force."

The Tribunal rocognirod that the applicant war nintaining, a8

.	hhad originally claimd, that he had rufferd an injury on
19 July 1986 in respect of which compenration war payable. The provision8 of 8.124 which I have quoted required that the Tribunal determine whether or not on or after 1 9 July 1986 and before 1 Decembor 1988 the applicant had ruffend an injury in respect of which compenration would have been payable under the l971 Act as in force when the injury war muffered. Only

if and when the Tribunal came to consider whether on or after 1 December 1988 the applicant ruffered an injury would tho provisions of 6 of the Safety Rehabilitation and Compensation Act 1988 have fallen for consideration, (See Australian Telecommunication8 Corporation v. Willir (1993) 17 A.A.R. 88; Blackman v. Australian Telecommunicationm Corporation (1990) 11 A.A.R. 11)

The criteria of liability to pay compensation ordained by the 1971 Act are similar to those ordained by the present Act. But they are not identical. It is not clear to me that on the application Of the criteria ordained by the 1971 Act the Tribunal's stated findings must have led to affirmation of the decision under review by the Tribunal. The applicant having been denied procedural fairness, the appropriate order that this court ought to make is, in my opinion, that the appeal be allowed and the decision of the Tribunal be set aside and the matter the subject of the proceeding in the Tribunal be remitted to be heard and decided again according to law. In the circumstances it is in my opinion not appropriate that this court should express an opinion on the submission with which the Tribunal dealt in paragraphs (18 ) , (19) and (20) of its reasons. Nor do I think it appropriate to deal with other submissions advanced by the applicant in criticism of findings of fact made by the Tribunal.

The applicant's costs should be ordered to be paid

by the respondent.

I certify that this and the 26 preceding Pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

1

1     No. QG26 of 1994

1  

On APPEAt from the ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN :  -

Applicant

AND :  COMCARE

Respondent

GQRbU:  Sheppard, Jenkinson and Spender JJ

PIdGE: Brisbane

m:  26 October 1994

M S O N S FOR JUD-

sEw2ELL

I have had the benefit of reading fn draft fonn the reasons for judgment of Jenkinson J. I agree with those reasons and with the orders he proposes.

I c e r t i f y that t h i s i s a true

copy o f the reasons f o r judgment herein o f the Honourable Just ice SNnder .

Associa e

Date: 26 October 1994

Applicant in Person

Counsel for the Respondent: Ms. C.E. Holmes

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 August, 1994