Helen Rafferty v Commonwealth of Australia

[1985] FCA 300

IN THE FEDERP.L COURT OF AUSTRALIA 1

1

VICTORIAN	DISTRICT	REGISTRY	)	No. VG 176 of 1984
\

DIVISION	GENERAL	)
ON ?.€PEAL from the
Adminlstratlve Appeals Trlbunal
EETGuFEN : HELEN RAFFERTY

Appellant

.4IJD :

COM?IONNFXLTH OF AUSTW-LIA

Respondent

CORAM:	Fox, Sweeney and Jenkinson JJ.
:	-	D	21 June 1935

PLACE: Melbourne

The Court has considered thls matter and pald careful

attention to the submissions n f counsel. W e will deliver iudament forthwith. The ludament and reasons whlch I now deliver are those of the Court.

We have been hearlna an appeal from a decision of t h ~

Administrative Appeals Trlbunal (comprising a senior member and

two members) which afflrmed a determlnatlon respectinq the

appellant, thls havlnu been made on 8 January 1982 bp the

deleuate of the Commissloner f o r Employees' Compensation.

The appellant claims that she should be pald on the

footinu of total incapacity for work. while the respondent clalms

that as from 12 May 1981 to date and contlnuinu she has been fit

for clerical work. sometimes described as liuht clerical work.

She has received compensation on the basis of partlal

Incapacity since 12 May 19El. the payments belnq the amount of

the difference between what she would have received in her

pre-inlury capacity as a typlst urade 1 and what she would have

recelved a5 a clerical assistant in the public service. She was

a probationary employee and her appointment to the publlc service

was annulled as from 26 June 1981.

MISS Raffertp started work as a t -rplsc urade 1 at the

Ordnance Factory in Maribvrnonu on E; March 1 9 9 0 . She 673s encrauod

1q typlnq work on 11 April l980 when, after llftins a typewriter

from one position to another. she felt paln In or ahout her left

wrist. This 1 s her domlnant hand. She was dlacnosed as

suffermu from tenosvnovitis and	with some nuallfication this	has
remained the diaunosis.

3 .

Miss Raff?r-t--, while stlll in the p u b l x servlce,

reported to doctors on a number of occasions and received

certlficates from therr. By 12 May 1981 evidence had accumulated

that althouak she ~7a5 unfit for typinq while the condition

continued, she was flt for clerlcal duties. of the nature of

sorting and filinu documents. photocopymg, and answerina the telephone. She sags that after some attempts, she found herself

unable to do this work wlthout pain. She has been examlned by a

number of orthopaedlc speclalists. who uave evidence. Accordino

to one or two, there has lately been some evidence of the

presence of rheumatcld arthritis.

The Tribunal examined the evidence at lenuth and In

detail, and It is not necessarv for present purposes for us to

aive more than the short account of the facts that we have.

The appeal to this Court 1s on questions of law only.

The difficulty thar: counsel have had is in showinu to us that the

features which he Crltlcized 1:;mlved questions gf law. and thls

has proved an Insuperable problem.

The onlv criticisms counsel has been able to make uo to questions of fact; that is to sap. matters of iudument on the evidence. There has been th? added difficulty for th? ?pp?llant

that the Trlbunal, havinq heard the evidence. includlnu her own.

came to the conclusion that symptoms recited by her to a number of doctors were "substantlally exaugerated". Also, some evidence

4.

of hers a: t c ~-.?r ablllty to do clerical wcrt. was not accepted by

the Trlbunal.

P,? ultimate findng of the Trlbunai was a follows:

"We find on a balance of Zrobablllties that on

1 2 May l981 the appllcant, although partially

incapacitated for work, had capaclry to undertake the

work of a clerical assistant In the respondent's

enmloyment at the Ordnance Factory and that on that date

the respondent was willlna to employ her as such. If

she had accepted that employment, she should have been able to contlnue in it lndefinltely from that date

onwards. We find, therefore, that the delegate of the

Commissioner was correct when he determined that she was

able to earn the waues of a clerical assistant and would

have contlnued lndefmitely to be able to do s o . "

The notlce of appeal, as amended, set out a number of

findinus of the Tribunal which it was stated were not supported

by any evidence. In the course of aruument it appeared that the

challenue was reallv to the acceptance by the Trlbunal of some

evidence as aualnst other evidence, arislnq from a conflict	of
evidence. or otherwlse. Such matters are factual. Conclusions

of fact. Or inferences from facts are alsc matters of fact. We do

not our-sslves suuuezt that there were err'ors in the findinas of

fact. bur. provlded t3at h7hat	1 s found 1 s supported by evldense,
thev are nct, on the ?round	taken, open +,c challenue In thlc
Court.

It was also put that a failure to t3ke Into accouyt ? I

fact, reuarded as relevant. or the taklnu into account of one.

rerrarded as Irrelevant 1 s itself a matter of law. If thls Were

. L

5 .

9 0 . 2nd particularly if what 6125 or was not taken into account

was to be uleaned only from a wrltten statement of reasons, many,

perhaps most decisions would be oFen to cnallenae. The Court has

ldpnr-1 on a number of occasions therefore explained that It 1s not

a matter of lookinu for all that is relevant m the llteral sense. Some facts are of such materialilty that a fallure to take them Into account, if that is shown, mvolves error of law,

but the prlnciple does not, as we have sald. apply to every fact

whlch can be reuarded as relevant.

In the present case we are not satisfied that there was

a failure to take into account any material fact whlch had the

siunificance mentioned. In fact, it seems to us that the

Trlbunal looked at all that was of any substantial relevance, and

dld not take into account any matter	which it was not entitled to
consider.

It was subnitted that in view of the llmltatlon on her

capacity for work the appellant should be treated as an "odd lot"

In the enPlo:.m?nt fleld, o r alternatively. that secn.76 of the

Compensation (Cornonwealth Governm;.n+ Emplnvees) Act 1971 applie?.

t n her case. with the result that. in the absence of the proven

availability of sultable work'.. she should be deemed cc be totally incapacltated for work. The fact is that she was. on the flndino of the Tribunsl. capable of quite a wlde ranue of work. Moreover. that work had been avallable at the Ordnance Factorv.

2nd she had he-n offered an opportunlty of doina it, whlch she

had not accepted.

The Tribunal, correctlv. dld not flnd it necessary to

discuss the appllcatlon of the "c62 lot" doctrine. or of secn.2i..

or their inter-relation, and we do not do s o .

It is our view that the appllcaticn should be dismlssed.

I certify that this and the

five (5) preceding pages are

a true and accurate copy of

the Reasons for Judgment of

Fox, Sweeney and Jenklnson JJ.

A(ssociate

Dated: 21 June 1985