Hoyle v Telstra Corporation Ltd
[1997] FCA 527
•17 JUNE 1997
CATCHWORDS
WORKERS' COMPENSATION - Commonwealth employees - Permanent impairment occurring before commencement of the Safety Rehabilitation and Compensation Act 1988 (Cth) - - Whether liability is excluded by either section 124(3) or section 124(4) of the Safety Rehabilitation and Compensation Act 1988 - Operation of the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) in relation to section 39 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)
STATUTORY INTERPRETATION - Safety Rehabilitation and Compensation Act 1988 (Cth) s 124
Administrative Appeals Tribunal Act 1975 s 44
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 37, 39, 45, 46 50
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 17, 19, 20, 21, 21A, 22, 24, 27, 28, 29, 31, 44, 45, 68, 124
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297
Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139
NANCY DOROTHEA HOYLE v TELSTRA CORPORATION LTD
NG 332 OF 1997
ALEXANDER RAZMOVSKI v TELSTRA CORPORATION LTD
NG 339 OF 1997
WILCOX, LINDGREN AND EMMETT JJ
Sydney
17 June 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION )
No. NG 332 of 1997
BETWEEN: NANCY DOROTHEA HOYLE
AppellantAND: TELSTRA CORPORATION LIMITED
RespondentNo. NG 339 of 1997 BETWEEN: ALEXANDER RAZMOVSKI Appellant
AND: TELSTRA CORPORATION LIMITED
RespondentCORAM: WILCOX, LINDGREN AND EMMETT JJ PLACE: SYDNEY DATE: 17 JUNE 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The orders of Sackville J as to costs be set aside and in its place there be substituted an order that the parties bear their own costs at first instance.
The appeal be otherwise dismissed.
The appellants pay the 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 ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION )
No. NG 332 of 1997
BETWEEN: NANCY DOROTHEA HOYLE
AppellantAND: TELSTRA CORPORATION LIMITED
RespondentNo. NG 339 of 1997 BETWEEN: ALEXANDER RAZMOVSKI Appellant
AND: TELSTRA CORPORATION LIMITED
RespondentCORAM: WILCOX, LINDGREN AND EMMETT JJ PLACE: SYDNEY DATE: 17 JUNE 1997
REASONS FOR JUDGMENT
THE COURT:
Each of the appellants was an employee of the respondent (“Telstra”). Prior to 1 December 1988 (“the Commencing Day”), both appellants sustained injury in the course of their employment which left them totally incapacitated for work. Each received weekly payments of compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“1971 Act”). After the repeal of the 1971 Act by the Safety Rehabilitation and Compensation Act 1988 (Cth) (“Compensation Act”) with effect from the Commencing Day, each appellant made a claim for compensation under sections 24 and 27 of the Compensation Act. Each of the claims related to permanent impairment which had resulted from an “injury” as that term is used in sections 24 and 27. Decisions were made that neither of the appellants was entitled to compensation under sections 24 and 27.
Each appellant sought review by the Administrative Appeals Tribunal (“the Tribunal”) of, inter alia, the decisions concerning entitlement to compensation under sections 24 and 27. The Tribunal affirmed each of the decisions concerning sections 24 and 27 and each appellant then appealed to this court pursuant to section 44 of the Administrative Appeals Tribunal Act 1975. Those appeals were heard together by Sackville J on 25 March 1997. On 17 April 1997, his Honour ordered that each appeal be dismissed with costs. Both appellants appealed to the Full Court and the two appeals were, by consent, heard together.
The Compensation Act
By the operation of section 14 and Part VIIIB of the Compensation Act, an employer such as Telstra is liable to pay compensation, in accordance with the Compensation Act, in respect of an injury suffered by an employee. In particular, under section 24(1) of the Compensation Act, where an injury to an employee results in a permanent impairment, the employer is liable to pay an amount of compensation to the employee in respect of the injury. In such a case, by virtue of section 27(1), the employer is liable to pay an additional amount of compensation for any non-economic loss suffered by the employee as a result of the injury or impairment.
Section 24 requires the employer to determine the degree of impairment in accordance with “the approved Guide” as defined. Under section 28, the approved Guide is a document to be prepared by Comcare, a body established by section 68 of the Compensation Act and given powers and functions by that Act. The approved Guide sets out, inter alia, the criteria by reference to which the degree of the permanent impairment of an employee is to be determined. The degree of permanent impairment as determined under those criteria is to be expressed as a percentage and the amount of compensation payable under section 24 is to be that percentage of a sum fixed by the Compensation Act. The effect of those provisions is that a permanently impaired employee becomes entitled to receive a specific lump sum, on top of any other compensation to which he or she is entitled. It was common ground that the injury to each appellant resulted in a permanent impairment within the meaning of section 24(1) of the Compensation Act.
Part X of the Compensation Act is headed “Transitional Provisions, Consequential Amendments and Repeals” and contains section 124(1), the provision on which these appeals turn. Section 124(1) provides that, subject to Part X, the Compensation Act applies in relation to an injury suffered by an employee, whether before or after the Commencing Day. It will be apparent that, in the absence of a relevant exclusion in Part X, Telstra would be liable to pay amounts of compensation to each of the appellants under section 24 and, possibly, under section 27.
The question in these cases is whether liability is excluded by either or both of sub-sections 124(3) and 124(4). Sections 124(3) and 124(4), in so far as relevant to the appellants, provide as follows:
“(3) A person is not entitled to compensation under section 24....in respect of a permanent impairment,....being an impairment.....that occurred before the commencing date, if:
........ ........ ...
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment............
(iii).....under the 1971 Act as in force when the impairment..... occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24......in respect of a permanent impairment.....being an impairment....that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
........ .
(c) .......the 1971 Act as in force when the impairment .... occurred.”
Before considering the effect of sections 124(3) and 124(4) in the present context, it is desirable that we consider the scheme of section 124 generally.
Section 124(1A) of the Compensation Act provides that, subject to Part X, a person is entitled to compensation under that Act in respect of an injury suffered before the Commencing Day if compensation was, or would have been, payable to the person in respect of that injury under, inter alia, the 1971 Act. Section 124(2)(c), on the other hand, provides that a person is not entitled to compensation under the Compensation Act in respect of an injury suffered before the Commencing Day if compensation was not payable in respect of that injury under the 1971 Act as in force when the injury was suffered.
Those provisions are consistent with a general principle which appears to be discernible in sections 124(1A) and 124(2) that an employee should not be worse off as a result of the enactment of the Compensation Act and the repeal of the 1971 Act but, generally, should be no better off. The succeeding sub-sections in section 124 seem designed to give effect to that general principle.
Part II of the Compensation Act provides, in general terms, three heads of compensation. They correspond with similar heads of compensation under predecessor legislation, including the 1971 Act. Those heads are lump sum payments, weekly payments during periods of incapacity and reimbursement of certain out of pocket expenses. Sub-sections of section 124 deal specifically with those three heads.
There is a symmetry in the way in which sections 124(3) and 124(4), sections 124(6) and 124(7) and sections 124(8) and 124(9) deal respectively with those three heads. The first sub-section in each of those pairs of sub-sections is concerned with the existence of an entitlement under the 1971 Act. The second sub-section in each pair of sub-sections is concerned with the amount of compensation payable under the 1971 Act.
Thus, section 17(5) of the Compensation Act provides for weekly payments of compensation to or for the benefit of a dependant child of an employee where an injury to that employee results in death. Sections 19, 20, 21, 22 and 31 provide for weekly payments of compensation during specified periods of incapacity of an employee as a result of a work related injury. Section 124(6), however, provides that a person is not entitled to compensation under those sections in respect of the death of an employee or in respect of an incapacity, where the compensation relates to a period occurring before the Commencing Day if the person received weekly payments of compensation in respect of that death or incapacity in relation to that person under an earlier Act or was not entitled to receive weekly payments pursuant to the relevant earlier Act. Section 124(7) then provides that the amount of compensation (if any) that a person is entitled to receive under those sections, where the compensation relates to a period occurring before the Commencing Day, is to be the same as the rate of compensation that would have been payable to that person in relation to that period under the 1971 Act if the Compensation Act had not been enacted.
Sections 16 and 18 deal respectively with compensation in respect of medical expenses and funeral expenses. Section 124(8) provides that a person is not entitled to compensation under those sections in respect of any cost, the liability to pay which arose before the Commencing Day, or of any expenditure incurred before the Commencing Day, if an amount was paid or was not payable in respect of that cost under the 1971 Act. Section 124(9) then provides that the amount of compensation (if any) that is payable under those sections in respect of such cost is to be the same as that which would have been payable in respect of that cost under the 1971 Act if the Compensation Act had not been enacted.
Section 124(5) stands outside this symmetry, but not the apparent general principle. Section 29 of the Compensation Act provides for a new head of compensation. Where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, there is a liability to pay compensation in an amount determined in accordance with that section. However, under section 124(5), no compensation is payable under section 29 in respect of any period occurring before the Commencing Day.
Section 124 makes no reference to compensation under section 27. That section also introduced a new head of compensation. Under the 1971 Act there was no entitlement to compensation for non economic loss of the nature introduced by section 27. To be consistent with section 124(5) it might be expected that compensation under section 27 would have been excluded in relation to an injury which was sustained before the Commencement Day. However, that was probably thought unnecessary. As the Full Court of this Court held in Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139, once entitlement to compensation under section 24 is established, entitlement to compensation under section 27 follows. It seems that section 27 was inserted as part of the quid pro quo for the abolition of common law rights to sue for damages effected by section 44 of the Act (see per Sheppard J at 150). Reference is made to that provision below.
Sections 124(6) and 124(7) make no mention of section 21A which operates to reduce the weekly amount payable under section 19. Section 21A applies to an employee who, being incapacitated for work as a result of an injury, retires from his or her employment and, as a result of the retirement, receives both a pension, and a lump sum benefit, under a superannuation scheme. In those circumstances, there is to be deducted, from the compensation that would otherwise be payable under section 19, an amount equivalent to that part of the pension or lump sum benefit which is attributable to the contributions made to the relevant superannuation scheme by the employer.
Section 124(7) would operate to limit the weekly payment further. A question could perhaps arise as to whether section 21A applies to the reduced amount under section 124(7) or whether the limit imposed by section 124(7) only arises after the application of section 21A. That question does not arise in this case. Whatever may be the answer to the question, it does not appear to detract from the general principle to which we refer.
Upon analysis of the whole of section 124, we consider that it is clear that the Parliament proceeded on the basis that, where the entitlement to compensation under the Compensation Act has a relevant nexus with a period before the Commencing Day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under that Act.
The 1971 Act
Part III of the 1971 Act provided for the payment of compensation under the three heads referred to above. Thus, section 37 imposed a liability to pay compensation in respect of the cost of medical treatment obtained in relation to an injury. That section was the predecessor, generally, of section 16 of the Compensation Act. Section 45 of the 1971 Act provided for the payment of weekly compensation to an employee where an injury to the employee resulted in the employee’s being totally incapacitated for work. Section 46 provided for the payment of weekly compensation where an injury to an employee resulted in the employee’s being partially incapacitated for work. Those provisions are the predecessors, in general terms, of the provisions for compensation found in sections 19, 20, 21, 22 and 31 of the Compensation Act.
The provision of the 1971 Act which corresponded, in general terms, with section 24 of the Compensation Act, in providing for payment of a lump sum, was section 39. Section 39(3) provided that where an injury to an employee resulted in a loss specified in section 39(4), the compensation payable in respect of that injury was to be an amount equal to such percentage of the amount stated in section 39(3) as was specified in section 39(4) in relation to that loss.
Section 39(4) contained a table which specified, in one column, the nature of loss to be compensated and, in the second column, the relevant percentage. The nature of loss column comprised, for the most part, losses of parts of the body. It also contained reference to loss of sight, loss of hearing and loss of the power of speech. Clearly enough, those provisions created entitlements to receive compensation of a lump sum in respect of losses which could constitute permanent impairment within the meaning of section 124(3) of the Compensation Act.
However, section 39(14) provided that compensation under that section was not payable in respect of an injury:
“so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury.”
Further, sections 45(9) and 46(5) of the 1971 Act provided that, where a determination was made that an amount of compensation was payable under section 39, weekly compensation was not payable to the employee in respect of any period of incapacity for work resulting from that injury occurring after the date of the making of that determination. Under section 50(1), where an injury in respect of which a lump sum was paid to an employee in pursuance of section 39 resulted in the employee, at any time after the payment of that lump sum, being totally incapacitated for work, and the incapacity was likely to continue indefinitely, weekly compensation was to be payable in accordance with section 50 during the period of the total incapacity. The compensation was to be determined by reference to a formula, the effect of which was that the lump sum payment was to be treated as payment in advance of the weekly compensation payable under section 50.
The effect of sections 39(14), 45(9), 46(5) and 50, therefore, was that an employee could not retain the benefit of a lump sum payment and at the same time have the benefit of weekly compensation payments in respect a period of total incapacity. Consistently with that policy, and in order to prevent totally incapacitated employees taking a lump sum payment, section 39(14) of the 1971 Act made it clear that the lump sum provided for in section 39(3) was not to be payable so long as an employee was, or is likely to become, totally incapacitated for work, where the incapacity resulted or, would result, in whole or in part from that injury.
The question before Sackville J and before us was whether the limitation imposed by section 39(14) during the operation of the 1971 Act applied to the transitional provisions contained in section 124 of the Compensation Act; in particular, whether it was caught by section 124(3) or section 124(4). No finding has been made that either of the appellants had suffered any loss of a nature specified in section 39(4). Accordingly, if they were successful in their argument that the limitation did not apply, it may be necessary to remit the matter to the Tribunal for consideration of that question.
The appellants accept that it is necessary for them to show that the injury in question resulted in a loss specified in the table in section 39(4) but say that there was evidence before the Tribunal which was capable of supporting a finding that each appellant had sustained a relevant loss. The permanent impairment said to have resulted from the injury to Mr Razmovski related to the right leg or right big toe. The impairment said to have resulted from the injury to Mrs Hoyle related to her left arm. The difficulty, however, in the absence of any finding, is that we cannot determine whether or not that impairment, in either case, was within any of the items set out in the table in section 39(4).
Reasoning of Sackville J
Sackville J considered that section 124(3) did not exclude entitlement but concluded that the clear intention of section 124(4) was that a claimant who suffered a pre-Commencing Day permanent impairment should receive no lump sum compensation in respect of that impairment if, at the time of the claim, he or she was totally incapacitated for work. His Honour considered that that conclusion followed from the express recognition in section 124(4), by the use of the words “if any”, that the amount of compensation payable by virtue of section 124 may be nil. His Honour considered that he amount of compensation payable to a person under the 1971 Act in respect of an impairment covered by the table in section 39(4) could not be nil, unless section 39(14) applied to preclude payment. His Honour contrasted that situation with the position under the Compensation Act where, by operation of section 28(5), the degree of permanent impairment could be assessed at 0%.
The Effect of Sections 124(3) and 124(4)
The appellants’ argument in relation to section 124(3) is that its focus is on the entitlement of an employee to compensation under the 1971 Act. It is said that section 39(3) creates that entitlement and that section 39(14) was not intended to govern the basic medical and factual qualifications for a lump sum. It was intended to govern only the circumstances in which the payment could be made.
The appellants adopted the conclusion of Sackville J that section 124(3)(b) does not exclude from compensation persons suffering from pre-Commencing Day permanent impairment who are totally incapacitated. Sackville J considered that the language of section 124(3)(b) sits more comfortably with an intention to exclude from entitlement to compensation for permanent impairment only those persons whose pre-Commencing Day physical impairment was not specified in the table contained in section 39(4).
The appellants’ argument is based on the fact that section 124(3)(b) of the Compensation Act specifically refers to a person who was “not entitled to receive compensation” while section 124(4) emphasises that an employee is to be paid an amount of compensation under section 24 only if that amount would have been payable if the Compensation Act had not been enacted. The difficulty, however, is that both section 39(3) and section 39(14) employ the word “payable”. Section 39(3) makes no reference to entitlement but specifies that certain compensation is “payable”. Further, section 39(3) is expressed to be “subject to this section” and, accordingly, is subject to section 39(14). Section 39(14) then says that an amount of compensation referred to in the section “is not payable” in the circumstances therein specified.
The language of sections 39(3) and 39(14), therefore, does not support a distinction between entitlement to compensation, on the one hand, and the time when the compensation is payable, on the other hand. The effect of the two provisions is that there is no entitlement to compensation so long as an employee is, or is likely to become, totally incapacitated for work.
As appears from the analysis of the subsections of section 124 set out above, the distinction between sections 124(3) and 124(4) is that the former is concerned with entitlement in the sense of whether or not compensation is payable whereas section 124(4) is concerned only with the amount of the lump sum which is payable. That is to say, in the absence of a finding that an employee has ceased to be totally incapacitated, there is no entitlement to receive compensation, although the position may well be different if there were such a finding. We return to that question below.
The appellants also contend that section 124(3) and section 124(4) should be construed in the light of the significant changes in the scheme of compensation provided for under the Compensation Act as compared with the 1971 Act. There were several changes wrought by the Compensation Act. In some respects the entitlement of employees may have been enhanced. In other respects, however, they were restricted.
The most significant change for present purposes is that there is no provision in the Compensation Act equivalent to sections 39(14), 45(9), 46(5) and 50 of the 1971 Act. Rather, section 12 of the Compensation Act expressly provides that an amount of compensation payable under a provision of that Act in respect of an injury is, unless the contrary intention appears, in addition to an amount of compensation paid or payable under any other provision of the Act in respect of that injury. Thus, weekly compensation may be payable under section 19 of the Compensation Act and, in addition, compensation consisting of a lump sum may also be payable under sections 24 and 27.
Next, there is a difference in the scheme for lump sum payments under section 39 of the 1971 Act as compared with section 24 of the Compensation Act. As we have indicated above, section 39(4) sets out a table listing specific losses and a percentage applicable to each loss. On the other hand, section 24 of the Compensation Act provides for the determination, under the provisions of “the approved Guide”, of the degree of permanent impairment of the employee resulting from an injury. The distinction between section 39 of the 1971 Act and section 24 of the Compensation Act, therefore, is that under section 24, permanent impairment is not limited to loss of parts of the body or loss of the use of faculties whereas section 39 is concerned with those losses.
Third, section 19 of the Compensation Act provides for weekly compensation payments irrespective of the extent of incapacity. The distinction between total incapacity for work and partial incapacity for work, which exists under sections 45 and 46 of the 1971 Act, does not exist under the Compensation Act.
Finally, sections 44 and 45 of the Compensation Act are significant for the new regime. They apply whether injury occurred before or after the Commencing Day. Under the 1971 Act, an employee who suffered injury which gave rise to an entitlement under section 39 was also entitled to bring proceedings against the employer for recovery of damages at common law. However, section 44 of the Compensation Act has the effect that an action does not lie against Telstra in respect of an injury sustained by an employee in the course of his or her employment, whether the injury occurred before or after the commencement of section 44; however, see the decision of the High Court of Australia in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.
On the other hand, section 45 has the effect that where compensation is payable under section 24 or section 27, and Telstra would, but for section 44, be liable for damages for any non economic loss suffered by the employee as a result of the injury, the employee may elect to sue Telstra for damages for that non economic loss. In that event, no compensation is payable under section 24 or section 27. However, the court may not award damages of an amount exceeding the sum specified in the section.
Those changes in policy, so the appellants contend, indicate that the Parliament did not intend that the Compensation Act would import all of the concepts of the 1971 Act and, in particular, did not intend to import into the Compensation Act the concept to be found in sections 39(14), 45(9), 46(5) and 50 of the 1971 Act. It was said that if it had been intended that the effect of section 39(14), together with sections 45(9), 46(5) and 50, was to be imported into the regime under the Compensation Act, the Parliament would have provided some guidance on how the criterion referred to in section 39(14), which depended upon the concept of total incapacity recognised in section 45 of the 1971 Act, was to be assessed for the purposes of determining the entitlement which an employee has under section 19 of the Compensation Act.
The appellants contend that, because there is no clear mechanism provided in the Compensation Act for the importation of section 39(14), any attempt to import that provision creates irrational anomalies. However, they accept that section 124(4) requires that, in order to determine the amount of compensation to which an employee would be entitled under the 1971 Act, regard must be had to sections 39(3) and 39(4). There is no reason in principle why the provisions of sections 39(14), 45(9), 46(5) and 50 cannot also be given effect under section 124.
We are not persuaded that the changes in policy are sufficient to override the language of sections 124(3) and 124(4), read in the light of the general principle, discernible in section 124 as a whole, that an employee whose entitlement has a nexus with a period before the Commencing Day is not intended to be in a better position in respect of a permanent impairment simply because of the enactment of the Compensation Act and the repeal of the 1971 Act. The changes are not such as would indicate that there was a legislative intention to give to an employee who was totally incapacitated at the Commencement Day, the right to recover a lump sum payment under section 24 of the Compensation Act which that employee would not have been entitled to recover under section 39 of the 1971 Act if the Compensation Act had not been enacted.
The consequence of the appellants’ contentions, of course, would be that, upon the commencement of Part X of the Compensation Act, the appellants immediately became entitled to a lump sum payment under section 24 of an amount under section 39(3) to which they had not, because of the effect of section 39(14), previously been entitled. The scheme of section 124 suggests that it is improbable that that consequence was intended. For the reasons indicated above, the language of sections 124(3) and 124(4), read in the context of the whole of section 124, indicates the contrary.
It follows that the appellants have no entitlement to compensation under section 24 of the Compensation Act. Our reasoning in reaching that conclusion is not significantly different from the reasoning of Sackville J. His Honour concluded that effect must be given to section 39(14), being part of the 1971 Act at the time when the impairment occurred, in determining the employee’s entitlement to compensation of a lump sum for the purposes of section 124(3)(b). That is to say, there may be an entitlement to compensation but, on the findings made by the Tribunal, the amount of compensation payable is nil.
Accordingly, absent a finding that the appellants had ceased to be totally incapacitated for work, sections 124(3) and 124(4) preclude both appellants from having any entitlement to compensation under sections 24 and 27 of the Compensation Act. Since there has been no such finding, there is no entitlement under those sections. Both appeals must therefore be dismissed.
Termination of Total Incapacity
If, at some time before the Commencing Day, either of the appellants had ceased to be totally incapacitated for work, there would have been an entitlement to compensation under section 39(3) of the 1971 Act. Further, if either of the appellants ceased to be totally incapacitated at some time after the Commencement Day, section 124(3) might not preclude entitlement to compensation under section 24 of the Compensation Act. The factual issues arising in relation to that question were not fully investigated below and we do not decide that question.
In relation to Mrs Hoyle, the Tribunal specifically found that at all material times she was totally incapacitated for work. It follows that termination of total incapacity does not arise in her case. In the case of Mr Razmovski, the Tribunal did not find that he was totally incapacitated for work on the dates on which his claim was made and determined. The Tribunal found that he was totally incapacitated at the time of the making of the determination in 1984 from which the appeal was brought to the Tribunal, but did not consider the position at any later date.
However, it was apparently not suggested to the Tribunal that Mr Razmovski had ceased to be totally incapacitated at the time when he applied for the lump sum compensation under section 24 of the Compensation Act or at the time when the Tribunal made its determination. Nor did his counsel suggest to Sackville J that there was any material before the Tribunal which could have supported a finding that Mr Razmovski was only partially incapacitated on those dates. In those circumstances, Sackville J did not consider it appropriate to remit the matter to the Tribunal. It has not been suggested to us that any different course should be adopted in relation to that matter.
Costs
The question of costs remains. Sackville J ordered that each of the appellants pay Telstra’s costs of the proceedings before him. However, his Honour directed that the order be stayed for 14 days to provide the parties with an opportunity to make submissions on costs should they wish to do so. The appellants did not avail themselves of that opportunity. Rather, notices of appeal were filed promptly by both appellants and the hearing of the appeals was expedited. We were told by counsel that that course was adopted because of the grave state of the health of Mrs Hoyle (unrelated to her employment by Telstra).
It is apparent that his Honour considered that, having regard to the complexities of Part X, it might be appropriate that there be no order as to the costs of the initial proceeding. Because of the exigencies of the case, his Honour did not deal with that question. However, we have heard counsel on the matter. We agree with the apparent impression of Sackville J. We consider that it would be appropriate that the parties bear their own costs at first instance. Accordingly, we will set aside the orders as to costs made by Sackville J.
However, a different approach should be taken in relation to the costs of the appeal. Despite his Honour’s view, the appellants chose to pursue their claim in the Full Court. We consider that the usual rule should apply and that the appellants should pay Telstra’s costs of the appeals.
I certify that this and the preceding eighteen pages
are a true copy of the Reasons for Judgment of the CourtAssociate:
Dated: 17 June 1997
Counsel for the Appellants: L.T. Grey Solicitors for the Appellants: McClellands
Max Emanuel
Counsel for the Respondent: M. Joseph SC Solicitor for the Respondent: Sparke Helmore Date of Hearing: 28 May 1997
Place of Hearing: Sydney
Date of Decision: 17 June 1997
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