Goodfellow, Frederick William v Commonwealth of Australia

[1982] FCA 164

Re: FREDERICK WILLIAM GOODFELLOW
And: THE COMMONWEALTH OF AUSTRALIA
No. ACT G16 of 1980
Employees' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn J.
Keely J.
Ellicott J.

CATCHWORDS

Employees' Compensation - power of Commissioner to make determinations - power of Tribunal upon reference by Commissioner.

Federal Court of Australia - original jurisdiction - appeal under Compensation (Commonwealth Government Employees) Act 1971 - nature of appeal - "associated jurisdiction".

Compensation (Commonwealth Government Employees) Act 1971, ss.95, 99

Federal Court of Australia Act 1976, ss.19, 22, 32.

HEARING

CANBERRA

#DATE 10:6:1982

ORDER

1. The appeal be allowed.

2. The order of the Federal Court be varied by substituting, for each of the answers given to Questions 7,8 and 9 the answer "unnecessary to answer", but otherwise be affirmed.

JUDGE1

This is an unusual appeal, and it calls for an introductory explanation of an unusual kind.

We first give a much over-simplified account of the facts and the course of proceedings. The appellant, while an officer of the Royal Australian Navy, suffered injury arising out of or in the course of his employment by the Commonwealth. He recovered damages from the Commonwealth in the Supreme Court of New South Wales, for the negligence which had caused his injuries. Thereupon he became liable to repay to the Commonwealth money which had been paid to him by the Commonwealth by way of compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). The Deputy Chief Delegate of the Commissioner for Employees' Compensation, purporting to exercise a power under the Act, issued a determination fixing a sum of money as repayable by the appellant to the Commonwealth. The appellant thereupon, pursuant to the Act, requested the Commissioner to refer the matter to a Commonwealth Employees' Compensation Tribunal. On 7 May 1979 the Tribunal, purporting to exercise the powers conferred by the Act, made a determination which in substance fixed the amount repayable by the appellant at a somewhat smaller sum. Pursuant to s.95 of the Act the Commonwealth thereupon appealed to the Federal Court of Australia from the Tribunal's decision; this appeal was duly heard and determined in the original jurisdiction of this Court by Northrop J., and the present appeal is from the order of that learned judge, upholding the appeal from the decision of the Tribunal.

Section 95 of the Compensation Act provides that an appeal to the Federal Court shall be "on a question of law only". The notice of appeal from the Tribunal's decision to the Federal Court set out a number of questions of law. The first two of these questions related to the power of the Commissioner or his delegate under the Act to make determinations. Questions 3 and 4 related to the power of the Tribunal to reconsider a determination made by the Commissioner or his delegate, and to affirm, vary or set aside such a determination, respectively. Question 5 related to the Tribunal's power to determine whether it had jurisdiction to reconsider a matter referred to it by a party to a determination. Question 6 was whether the Tribunal was in error in deciding that it had jurisdiction to reconsider the matter referred to it by the appellant. Questions 7 and 8 related to the amount of compensation paid to the appellant which the appellant was liable to repay, and Question 9 asked whether the appellant had been duly paid the compensation to which he was entitled.

It will be seen that the first six questions all related to the jurisdiction or power of the Commissioner, or the Tribunal, respectively under the Act, whereas the seventh, eighth and ninth questions all related to the amount of money actually in issue between the appellant and the Commonwealth. These last three questions were referred to at the hearing as "the substantive questions". The learned judge, in his thorough and detailed reasons for judgment, gave answers to the first six questions; apart from the answer to Question 5, the answers may be comprehensively described as rulings that the Commissioner and the Tribunal had no power to do the things they had purported to do and that they had been in error in holding that they had such power. The result of these rulings was of course that the determination of the Tribunal, against which the Commonwealth had appealed, was null and void. That, in the view of the learned judge, was sufficient to determine the appeal. The effect of those answers was that no valid decisions, favourable or unfavourable to the appellant, had been given by the authorities under the Compensation Act, and the question of the amount of the appellant's liability for repayments to the Commonwealth was not, therefore, the subject of any judicial or quasi-judicial decision. Since, however, the substance of questions 7, 8 and 9, that is to say, the question of the amount, if any, which the appellant is liable to repay to the Commonwealth, or the Commonwealth to pay to the appellant, had been argued before him, the learned judge gave reasoned answers to those questions, after pointing out that it was unnecessary to do so for the determination of the appeal. The answers he gave were all unfavourable to the appellant; they were the answers for which the Commonwealth had contended.

In these circumstances the appellant brings this appeal from the order of the learned judge. Before us, the appellant contended that the answers given by the learned judge to questions 1 to 6 (except question 5) were incorrect, thus seeking to restore validity to the determination of the Tribunal. Furthermore, the appellant contended that the learned judge had had jurisdiction to give, and should have given, the answers to questions 7, 8 and 9, (the substantive questions), for which he contended. Moreover, he contended that this Court should in this appeal make declarations which in effect would give such answers.

It is thus apparent that the contentions of the parties before us were widely different in scope. The appellant is concerned to get declarations from this Court which in substance would determine and quantify a liability which he says the Commonwealth has to him. The Commonwealth is concerned to uphold the learned judge's decision that the Commissioner's Delegate, and the Tribunal, acted invalidly in making certain determinations.

The usual pattern of reasons for judgment in an appeal is that the facts are set out in detail and the contentions of the parties are explained. In this unusual appeal, to adhere to such a pattern would in our opinion be wasteful. The judgment of the learned judge sets out the elaborate facts in precise detail, and we could not improve on his account. Moreover, we agree so entirely in the learned judge's conclusions of law, and in his reasons for those conclusions, that to state them in our own words would be simply repetitious. We propose to confine ourselves to dealing with what we see as the principal grounds for rejecting the arguments put to the Court by the appellant.

We quote, from his written submission to this Court, the core of the appellant's argument. Before quoting it, we point out that by the words "his complaint" in the first sentence of the passage which follows, the appellant referred to what have been called "the substantive questions", i.e. his claim that a sum of money was due to him from the Commonwealth.

"The appellant wants his complaint decided. To achieve this, he must show that the Commissioner's determination, correct or otherwise, was a valid exercise of statutory power and then show that the Tribunal's decision, correct or otherwise, was also a valid exercise of statutory power. He must then show that because the Tribunal's decision was valid, original jurisdiction was vested in the Federal Court to review the merits of the decision and not merely an inherent jurisdiction to pronounce on the validity of the decision. It this is achieved then this appellate Court is vested with jurisdiction pursuant to s.28(1)(a) of the Federal Court Act to reverse the judgment appealed from and then pursuant to s.28(1)(b) to give its own judgment on the merits of the complaint. The Court can also set aside the judgment and remit the proceedings to the Court below pursuant to s.28(1)(c)."

The appellant's first contention related to the jurisdiction of the learned judge. He contended that the learned judge had had jurisdiction to hear an appeal on the merits of the Tribunal's decision, and that by ruling that the Commissioner's determination, and the Tribunal's reconsideration of the determination, were invalid as being made without power, the learned judge had deprived himself of jurisdiction to hear an appeal from the Tribunal's decision.

This argument cannot be supported. The decision of the Tribunal was one which purported to be validly made and from which there was an appeal "on a question of law only" to the Federal Court under s.95 of the Act. There is no reason why such an appeal should be confined to questions of law relating to the correctness of the decision, and not extend to questions of law relating to its validity. The possibility of the existence of other remedies (e.g. a prerogative writ) for a party who contends that the Tribunal's decision was invalid, does not entail that there is no such remedy under s.95. There is no principle under which a superior court of record (Federal Court of Australia Act, s.5(2)) is obliged to hold that a jurisdiction, granted to it by statute, to hear appeals from decisions of a statutory tribunal, is confined to appeals from such decisions as the tribunal could validly make.

In Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R. 307, this Court had to consider the meaning of s.25 of the Administrative Appeals Tribunal Act, which provided for review by the Administrative Appeals Tribunal of "decisions made in the exercise of powers conferred by that enactment" (i.e. any enactment providing for applications to the Tribunal for review). Bowen C.J. said at p.314:

"In the Administrative Appeals Tribunal Act a wide meaning is given to the word 'decision' by s.3(3). In s.25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision".

The learned Chief Judge proceeded to say that the words "in the exercise of powers conferred by that enactment" meant "in the purported exercise of powers conferred by the enactment" and went on (at p.317) to say:

". . . in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis (that) there was power to make the decision was right or wrong".

The opinion of Smithers J. was to the same effect. The dissenting opinion of Deane J. was on a special ground which was, in effect, that the decision which the Tribunal reviewed did not even purport to be made under the enactment. That dissenting opinion gives no support to the appellant's argument before this Court.

Views similar to those of the majority in that case were expressed by all the judges (Smithers, Franki and Keely JJ.) who decided Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1979) 28 A.L.R. 551.

In our opinion the same principle applies to the jurisdiction of the learned judge to review the decision of the Compensation Tribunal. That jurisdiction depended in no respect whatever upon the validity in law of the Tribunal's decision. It follows that the learned judge had jurisdiction and power to decide, as he did, that the decision of the Tribunal was invalid; and, as we have said, we agree with that decision and we could not improve upon the reasons given by the learned judge.

The learned judge during the hearing before him allowed a substantial amendment to the Commonwealth's notice of appeal, as a result of which it took the form of the nine questions above described.

The original notice was as follows:

"TAKE NOTICE that the Appellant hereby appeals to the Federal Court of Australia against the whole of the decision of the Commonwealth Employees' Compensation Tribunal at Canberra handed down on 7 May 1979 on the following grounds:

1. The Tribunal was in error in holding that it had power to reconsider the determination made by the Deputy Chief Delegate of the Commissioner for Employees Compensation and dated 14 February 1979.

2. The Tribunal was in error in holding that it had power to determine the amount of monies the Commonwealth of Australia could recover under Sub-Section 99(7) of the Compensation (Commonwealth Government Employees) Act 1971.

3. The Tribunal was in error in holding that the amount of monies the Commonwealth of Australia is entitled to recover under Sub-Section 99(7) of the Compensation (Commonwealth Government Employees) Act 1971 after the institution of the PAYE system is the amount of monies paid to the Claimant.

4. The Tribunal was in error in holding that it was not open to the Commonwealth of Australia to seek to recover a gross figure of compensation payments made subsequent to 21 February, 1974.

5. The Tribunal was in error in holding that the proper amount the Claimant should be required to repay to the Commonwealth of Australia is the net amount that the Claimant retained after payment of tax.

6. The Tribunal was in error in upholding the Applicant's request."

We now set out in full the notice as amended:

"TAKE NOTICE that the Appellant hereby appeals to the Federal Court of Australia against the whole of the decision of the Commonwealth Employees' Compensation Tribunal at Canberra handed down on 7 May, 1979. Those questions of law on which this appeal is brought are as following:

1. Does the Commissioner or his delegate have power of his own motion to make a determination?

2. Does the Commissioner or his delegate have power to make a determination under s.99(7) of the Act?

3. Does the Tribunal have power to reconsider a determination made by the Commissioner or his delegate under s.99(7) of the Act?

4. Does the Tribunal have power to affirm, vary or set aside a determination made by the Commissioner or his delegate under s.99(7) of the Act?

5. Does the Tribunal have power to determine whether it has jurisdiction to reconsider a matter referred to it by a party to a determination?

6. Was the Tribunal in error in deciding that it had jurisdiction to reconsider a matter referred to it by the respondent in this case?

7. Does the amount of compensation paid to the respondent that the respondent is liable to repay to the appellant pursuant to s.99(7) of the Act include the amount deducted by the appellant pursuant to Division 2 of Part VI of the Income Tax Assessment Act 1936?

8. Does the amount of compensation paid to the respondent that the respondent is liable to repay to the Commonwealth pursuant to s.99(7) of the Act equal the amount payable to the respondent under s.45 of the Act?

9. Has the respondent:

(a) in the period before 21 February, 1974, and

(b) after 21 February, 1974 been paid compensation by the Commonwealth in accordance with s.45 of the Act? The appellant seeks the following orders:

1. that the appeal be upheld and;

2. that the decision of the Tribunal of 7 May, 1979 be set aside; alternatively to (2.) above:

3. that the decision of the Tribunal be set aside and an order in the terms of the determination of the Deputy Chief Delegate of the Commission for Employees Compensation dated 14 February, 1979 be substituted in its stead; and

4. for such further and other order as the Court may deem fit."

When the question of amendment of the notice of appeal was before the learned judge, the appellant objected, on the ground that the notice as amended did not "say what is the question of law". The objection was over-ruled by the learned judge. The notice of appeal to this Court included this ground:

"The Court erred in allowing an amended NOTICE OF APPEAL dated 5 March 1980 in the manner of a case stated by reason that the questions asked did not allege or disclose any question of law arising out of the decision of the said Tribunal."

The appellant submitted to us that the amendment of the notice of appeal prejudiced him in that his argument was "structured" to meet the grounds set out in the original notice, but there cannot have been any real prejudice to him, since the amended notice covered all the matters to which he addressed himself in argument. His main contention on this aspect of the case was, however, that the amended notice of appeal took the form of a case stated, which is essentially a procedure used by a court exercising original jurisdiction for the purpose of seeking a ruling from an appellate court; that the adoption of this procedure by an "appellant" (i.e. the Commonwealth) which was in reality invoking the original jurisdiction of the Federal Court on appeal from the Tribunal, was an error of law justifying the setting aside of the learned judge's order.

This argument cannot succeed, in the first place because this whole issue is in the realm of procedure, not substantive law. The appeal under s.95 of the Act is "on a question of law only" and the difference between setting out the errors of law which the Commonwealth contended were made by the Tribunal, and asking questions of law the answers to which would be put in argument by the Commonwealth, is a formal, not a substantial difference. The appellant did not suggest that the amendment had the effect of concealing from him what the errors of law would be upon which the Commonwealth would rely. In the second place, the appellant's contention that the questions were not questions of law arising out of the decision of the Tribunal, is erroneous. The appellant's argument assumed that the "question of law" referred to in s.95 must be a question of law on which the Tribunal relied in the course of its decision on the merits of the claimant's case. But there is no reason to exclude the question whether the Tribunal had power to make the decision it purported to make, from the category of questions of law on which "a party to a proceeding . . . before a Compensation Tribunal" may appeal under s.95.

The appellant further contended that the amended notice of appeal did not raise certain issues all of which he advanced as relevant to the amount which he claimed was due to him from the Commonwealth. The short answers to this contention are two: first, the original notice of appeal did not raise those issues either; secondly, questions 7, 8 and 9 raise all matters going to the amount (if any) payable to the appellant by the Commonwealth, save two particular matters, which did not arise in the proceedings before the Tribunal, to which we refer later.

The appellant also contended that the hearing before the learned judge should have been a hearing de novo of the proceedings before the Tribunal. He supported this contention by two principal arguments. The first was that the position of the Federal Court hearing an "appeal" under s.95 was the same as that of a Supreme Court in hearing an appeal from a decision of a Taxation Board of Review under s.196(1) of the Income Tax Assessment Act. The appellant relied on Ruhamah Property Co. Ltd. v. Federal Commissioner of Taxation (1928) 41 C.L.R. 148. But it is clear that s.196 provides for an appeal, without limiting the scope of the appeal; the reference to "a question of law" is only to prescribe the category of decisions from which appeals may be brought, namely those decisions which involve a question of law. Once the decision comes into that category, an appeal lies from it, and there is no limit to the scope of the appeal. On the contrary, under s.95 of the Compensation Act there is no limit to the category of decisions from which appeals may be brought, but the scope of any such appeal is limited to questions of law.

The second argument on this topic was that the fact that the learned judge was exercising the original jurisdiction of the Court in itself implied that the whole substance of the appellant's complaint against the Commonwealth, facts and law, had to be inquired into. There was, he argued, no other way of exercising original jurisdiction. The answer to this is that the Court has (see s.19(1) of the Federal Court Act 1976) only such original jurisdiction as Parliament gives it. In the Compensation Act, s.95, Parliament says "appeal on a question of law only". It is impossible to construe those words as meaning "a hearing de novo on facts and law". The reason why the appeal under s.95 is heard in the Court's original jurisdiction is simply that it cannot be heard in the appellate jurisdiction, which is confined to the appeals specified in s.24 of the Federal Court Act. The rationale of conducting the hearing of such an appeal in the original jurisdiction is that the decision appealed from is not a judicial decision and therefore, at the time when the appeal is instituted in the Federal Court, the lis between the parties is, for the first time, a judicial proceeding.

We refer next to the appellant's substantive complaints - that the Commonwealth had wrongfully withheld from him money to which he was entitled by way of compensation; that, as determined in the Tribunal's decision, he was bound to repay to the Commonwealth only such amount as he had actually received after payment of tax and that in the result the Commonwealth owed money to him.

These matters were raised by questions 7, 8 and 9 in the notice of appeal. The learned judge was correct in holding that these questions did not arise in view of his answers to the earlier questions. With great sympathy for the appellant and with respect for the elaborate argument which he addressed to us, we are of opinion that we should not deal with these questions, on the ground that they do not arise in view of the learned judge's correct determination of the earlier questions.

There were two additional matters raised by the appellant before the learned judge and before this Court. One was the contention that he had suffered a "tax penalty". His argument was that between 30 March 1978 and 18 September 1978 $2,538 was overpaid to him by the Commonwealth in payments of compensation under the Compensation Act, and that these over-payments caused a total of $1,199.16 in income tax to be payable by him - an amount which he actually paid. He claimed that, should he not succeed in his substantive complaint, the Court had power to deal with this claim as a matter of "associated jurisdiction" under s.32(1) of the Federal Court Act; and that if this argument succeeded the claim should be remitted to the learned judge.

In our opinion it is unncessary to consider the question whether this contention of the appellant could have been dealt with by the learned judge as a matter of associated jurisdiction under s.32(1). The learned judge dealt with the questions which were properly before him on the notice of appeal from the Tribunal's decision. The "tax penalty" contention was formally not before him at all. The appellant conceded in his submission that the matter was:

"raised by the appellant in the Court below but not very well and it was not fully argued or replied to by the respondent Commonwealth since it was clear by his ruling that his Honour was limited to the question of law that arose out of the Tribunal decision."

In these circumstances it is not for this Court to say that there is a matter before it which should be remitted to the learned judge.

The other additional matter was a claim for interest upon the damages awarded by the Supreme Court of New South Wales. The appellant argued that interest was due to him because of a delay in the payment of the amount. He apparently justified his claim for such interest in the Federal Court alternatively under s.22 of the Federal Court Act or under s.32. Here also he asked that the matter be remitted to the learned judge.

It is clear that this claim cannot be brought within either s.22 or s.32. Section 22 is as follows:

"The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."

This section does not give the Court jurisdiction to award the appellant money to which he may be entitled under the law of New South Wales. What the appellant is here doing is not merely asking for a "remedy", but making a "claim", and it is a claim which is clearly not "properly brought forward by him in the matter". As for s.32, the same answer must be given as was given to the appellant's claim that the learned judge should have adjudicated on his claim for recovery of the "tax penalty", namely that even if it could be said to be an "associated matter" (which in our opinion it cannot) the matter was not before the learned judge and cannot properly be made the subject of appeal to this Court or be remitted to the learned judge.

The appeal must be allowed and the order of the learned judge varied by substituting, for each of the answers given to Questions 7, 8 and 9, the answer "unnecessary to answer", but that order is otherwise affirmed.