Farah, J. v Australian Postal Corporation - [1994] FCA 725

JUDGMENT No. .... ?..&...l Lt

C A T C H W O R D S

ADMINISTRATIVE LAW - denial of natural justice - termination of workers compensation payments - whether person incapacitated - decisions of Administrative Appeals Tribunal based on own observations of person - failure to inform party of observations

Government Insurance Office of New South Wales v Bailey (1992)
27 NSWLR 304
Marelic v Comcare (1993) 18 AAR 392
Australian Postal Commission v Idriss (1992) 26 ALD 257
Australian and Overseas Telecommunications Corvoration Ltd v

McAuslan, (1993) 47 FCR 492

11 OCTOBER 1994

RECEIVED

No. NG 788 of 1993 11 OCT 1994

FEDERAL COURT OF

JOSEPH FARAH V AUSTRALIAN POSTAL CORPORATION AUSTRALIA
PRINCIPAL
REOISTP
MOORE J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NO 788 Of 1993
GENERAL DIVIBION

JOSEPH FARAH

Applicant

m: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE : noore J

PLACE: Sydney

DATE: 11 October 1994

ORDER OF THE COURT

THE COURT ORDERS THAT:
1. The proceedings stand over to a date to be
advised for the bringing in of short minutes to give
effect to the Reasons for Judgment delivered today.

NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
1

1 NO. NG 788 of 1993

1

GENERAL DIVISION 1

BETWEEN: JOSEPH FARM
Applicant
m: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE : Woore J

PLACE: Sydney

DATE: 11 October 1994

This is an application by way of appeal, so styled, under s44 of the Administrative Appeals Tribunal Act 1975 against a decision of the Administrative Appeals Tribunal ("the Tribunal8') of 15 September 1993. The decision affirmed a determination by a delegate of the Australian Postal

Corporation ("the respondent8*) that had terminated payments to

Mr Joseph Farah ("the applicant"), a former employee of the respondent. The applicant had injured his back at work in early 1987 for which he received worker's compensation payments until 1991 when the decision was made to terminate them. The payments were made by reference to the provisions of the Compensation (Commonwealth Government Employees) Act

The Tribunal had to determine whether the applicant continued to be incapacitated as a result of the work related injury. Its conclusion on that issue is found in the fourth sentence of the penultimate paragraph of its decision, paragraph 46, which reads:

"The Tribunal notes the opinions of Doctors Wurth and Patrrck that the Applicant magnified hie symptoms. Thzs 1s consistent with Dr Thomson's examination on 22 January 1991. On the basis of all the medical evidence and the Tribunal's observation of the Applicant at the hearing, we frnd that the Applicant is not disabled to the extent he would have us believe. We frnd that the effects of the work rncrdent on 14 January 1987 have ceased. The evidence eupports the frndrng that the Applicant is restricted to light work not involving bending or liftrng but any disability which now precludes the Applrcant from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] FCA 725
Decision Date: 11 Oct 1994

CaseChat Overview and Summary

In the Federal Court of Australia, Joseph Farah sought to appeal a decision of the Administrative Appeals Tribunal that had affirmed a determination by the Australian Postal Corporation to terminate his workers' compensation payments. The Tribunal had concluded that Farah was no longer incapacitated as a result of his work-related injury, relying in part on observations made during the three-day hearing. The central legal issue was whether the Tribunal's failure to disclose its observations to Farah and his counsel, thereby denying him procedural fairness, necessitated setting aside the Tribunal's decision. The court held that the Tribunal was obligated to disclose its observations as they were relied upon in reaching a conclusion about Farah's incapacity. Since it could not be confidently stated that the outcome would not have been different without these observations, the Tribunal's decision was set aside. The matter was to be remitted to the Tribunal for redetermination by a differently constituted panel, with the respondent to pay Farah's costs.

Orders