In the matter of the Compensation (Commonwealth Government Employees) Act 1971 In the matter of a reference of a question of law by a Commonwealth Employees Compensation Tribunal In the matter of Determinations by..

[1981] FCA 73

Re: IN THE MATTER of the COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT
1971
And: IN THE MATTER of a REFERENCE OF A QUESTION OF LAW by a COMMONWEALTH
EMPLOYEES' COMPENSATION TRIBUNAL
And: IN THE MATTER of Determinations by the Commissioner for Employees'
Compensation dated 19 July 1979 and 31 March 1980 in which the claimant was
JOHN BAPTIST PORTELLI (1981) 53 FLR 78
V.G. No. 71 of 1981
Workers' Compensation - Special case - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Workers' Compensation - Commonwealth Government employee - Commonwealth Compensation Tribunal - reference of question of law - special case.

Special case - requirements, form and nature of.

Commonwealth Compensation Tribunal-jurisdiction and nature of proceedings.

Compensation (Commonwealth Government Employees) Act 1971 - Part 11, ss.9-24; Part 111, ss.25-52; Part IV, ss.53-61; and Part V, ss.62-95.

Federal Court of Australia Rules - 0.50.

Workers' Compensation - Commonwealth employee - Reconsideration by Tribunal of Commissioner's determination - Whether Tribunal can consider matters not being matters to which Commissioner's determination related - Special case - Reference of questions of law to court - Jurisdiction and nature of Tribunal's proceedings - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss. 20, 63, 76, 94A.

Practice - Requirements and form of special case - Federal Court Rules, O. 50.

HEADNOTE

The claimant was an employee of the Commonwealth. On 1st October, 1976, a delegate of the Commissioner made a determination in respect of a strained right ankle which arose out of the claimant's employment in September 1976 and found the Commonwealth liable to pay compensation for the injury. On 14th July, 1979, the delegate made a determination in relation to another injury to the same ankle and found that compensation should be paid on the basis of total incapacity for a limited specified period. Thereafter the delegate made a further determination on 31st March, 1980, "for compensation in respect of heart attack". The delegate found that the condition was not the result of or aggravated by the claimant's employment. The claimant then sought to exercise his rights under s. 63(1)(a) of the Compensation (Commonwealth Government Employees) Act 1971 (the Act) by requesting the Commissioner to refer the determinations made on 19th July, 1979, and 31st March, 1980, to the Commonwealth Employees' Compensation Tribunal (the Tribunal) for reconsideration. At the commencement of the hearing before the Tribunal, counsel for the claimant outlined a claim for total incapacity based upon the fact that the claimant's ankle injury resulted in the development of an hysterical state which incapacitated the worker for work and, secondly, that both ankle injuries including the hysterical condition contributed to the "aggravation and acceleration of the coronary artery disease and myocardial infarction". As these were not matters or questions to which a determination related pursuant to s. 63(1)(a), counsel for the Commonwealth objected to them on the basis that the Tribunal had no jurisdiction to consider them by way of reconsideration. Thereupon the Tribunal acting under s. 94A of the Act of its own motion referred the following questions of law to the court for decision, the form of the first two having been varied by consent of the parties: "1. Whether contentions that the injury to which the determination of 19th July, 1979, relates and that the effects thereof have resulted in an hysterical state are matters or questions which the Tribunal has the jurisdiction to reconsider pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act. 2. Whether contentions that the injuries referred to in determinations of 19th July, 1979, and 1st March, 1980, and that the injury of September 1976 to the claimant's ankle, including the resultant hysterical state, contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction are matters or questions which the Tribunal has jurisdiction to reconsider pursuant to the provisions of the said Act. 3. Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) Act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of s. 63(1)(a)."

Held: (1) The questions should be answered as follows - (1) Yes. (2) Yes. (3) It is not a question which the court should answer.

(2) The Tribunal is in the same position as the Commissioner being an administrative tribunal created to reconsider or review the matters or questions to which the determination of the Commissioner relates.

Shell Co. of Australia v. Federal Commissioner of Taxation, (1931) AC 275; Jolly v. Federal Commissioner of Taxation (1935), 53 CLR 206, referred to.

(3) The proceedings before the Tribunal constitute a complete rehearing of the matters or questions to which the determination relates and which have been made the subject for a request for reconsideration and the Tribunal in exercising its functions does not need to be satisfied that the Commissioner was in error.

(4) All issues relating to any of the matters referred to in the request for reconsideration have been made the subject of the request and, accordingly, the Tribunal has jurisdiction to hear and determine all those matters and questions.

HEARING

Melbourne, 1981, May 27-28; June 9. #DATE 9:6:1981

SPECIAL CASE.

The Tribunal of its own motion referred questions of law arising in a proceeding before it to the court for decision.

H.T. Nathan Q.C. and H.M. Knott, for the Commonwealth.

J.H. Tebbutt, for the claimant.

Cur. adv. vult.

Solicitor for the Commonwealth: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the claimant: Ryan Carlisle Needham Thomas.

J. ISLES

ORDER

The questions asked in the case stated are answered as follows -

1. Whether contentions that the injury to which the Determination of 19th July, 1979 relates and that the effects thereof have resulted in an hysterical state are matters or questions which the Tribunal has the jurisdiction to reconsider pursuant to the provisions of the Compensation (Commonwealth Employees) Act.

Answer: Yes.

1. Whether contentions that the injuries referred to in Determinations of 19th July, 1979 and 31st March, 1980 and that the injury of September 1976 to the Claimant's ankle including the resultant hysterical state contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction are matters or questions which the Tribunal has jurisdiction to reconsider pursuant to the provisions of the said Act.

Answer: Yes.

1. Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) Act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of para. 63(1)(a).

Answer: Not appropriate to answer.

Remit case to the Commonwealth Compensation Tribunal for determination in accordance with the answers given.

Commonwealth to pay the Claimant's costs of the Reference.

JUDGE1

Acting under s.94A Compensation (Commonwealth Government Employees) Act 1971, (the Act), a Commonwealth Employees' Compensation Tribunal (the Tribunal), of its own motion, has referred questions of law arising in a proceeding before it to this court for decision. Under 0.50 of the Rules of the Federal Court, the questions referred are to be in the form of a special case. Order 50, r.1(2) and (3) provide -

"(2) The special case shall be divided into paragraphs numbered consecutively and shall state concisely such facts and shall annex such documents as are necessary to enable the Court to decide the questions raised by the special case.

(3) The Court may draw from the facts stated and the documents annexed in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial."

These provisions are similar to those contained in 0.35, r.1 of the High Court Rules and 0.34, r.1 of the Supreme Court of Victoria Rules.

There are numerous authorities referring to the form of a special case, particularly with respect to the necessity that the facts upon which the questions of law arise must be stated clearly. The court hearing the case stated cannot determine questions of fact and, unless that court is expressly so authorized, cannot draw inferences of fact from the facts stated. In this regard, a distinction between "inference" and "implication" must be fully understood. For present purposes I do no more than refer to R. v. Rigby (1956) 100 C.L.R. 146 per Dixon C.J., McTiernan, Webb, Kitto and Taylor J.J. at pp. 150-2, and Mitchell v. Noble (1981) 7 N.T.R. 12 per Gallop J. at pp.22-3.

Unfortunately the form of the special case in the matter before the court does not comply with the requirements of 0.50. The two parties to the proceedings before the Tribunal appeared before the court by counsel. Counsel expressed the desire that the court should give guidance on the questions of law giving rise to the concern of the Tribunal. Counsel consented to some variations to the case stated and to the form of two of the questions asked. The matter was not made easier since the questions related to a preliminary issue going to what was described as the jurisdiction of the Tribunal and the questions of law were referred to the court before any evidence was heard by the Tribunal.

At all material times, John Baptist Portelli, hereinafter called "the employee", was an employee of the Commonwealth within the meaning of the Act. By a determination dated 1 October 1976 a delegate of the Commissioner for Employees' Compensation, hereinafter called "the Commissioner", determined that on 6 September 1976 the employee suffered personal injury, namely strained right ankle, arising out of or in the course of his employment by the Commonwealth and that the Commonwealth was liable to pay compensation to the employee in respect of that personal injury. Thereafter a number of determinations were made in relation to the liability of the Commonwealth to make weekly payments of compensation, payment of medical expenses and payment of travelling expenses incurred in obtaining medical treatment.

By a document dated 19 July 1979 a delegate made a determination in the matter of the claim by the employee "in respect of strained right ankle". The determination provided for the payment of compensation on the basis of total incapacity for work (s.45 of the Act) for specified periods ending at 3.18 p.m. on 30 March 1979, and for various other payments including the sum of $812.50 under s.39 of the Act for a percentage loss of the efficient use of the right leg below the knee. By a document dated 31 March 1980, a delegate made a determination in the matter of a claim by the employee "for compensation in respect of heart attack". The formal parts of the determination were -
" DETERMINATION.

1. Specialist medical opinion indicates that the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are due to the natural progression of a pre-existing or underlying condition.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sections 27 and 29 of that Act, I hereby determine:

(a) the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are not the result of personal injury arising out of or in the course of his employment;

(b) the employment of the said John Baptist Portelli was not a contributing factor to the contraction by him of the conditions of coronary sclerosis and myocardial infarction on 26 April, 1979 or to the aggravation, acceleration or recurrence of those conditions;

(c) the claim for compensation of the said John Baptist Portelli of 16 May 1979 is therefore disallowed."

From these determinations the court draws the inference that the employee had complied with the requirements of s.53 of the Act in serving notice of injury and notice of disease on the Commonwealth and with the requirements of s.54 in serving a claim for compensation on the Commissioner. The court draws a further inference that a delegate made the determinations in the exercise of powers conferred upon him by the Act as delegated by the Commissioner.

Thereafter the employee sought to exercise rights conferred on him by s.63 of the Act. That section is within Part V of the Act and sub-section (1) is as follows:
"63.(1) Subject to this Part, where a determination is made under this Act, a party to the determination may either -

(a) request the Commissioner in accordance with Division 3 to refer all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration; or

(b) apply to a prescribed Court in accordance with Division 4 for a judicial review of the determination."
The method of making a request under s.63 for a reference to a Tribunal is prescribed by s.76(1) which is as follows -
"76.(1) A request by a party to a determination for the reference of a matter or question to a Compensation Tribunal for reconsideration -

(a) shall be in writing signed by or on behalf of the person making the request;

(b) shall set out the grounds of the request; and

(c) shall, subject to this section and section 77, be lodged with the Clerk of the Tribunal within sixty days after the date of service of a copy of the determination on the person making the request."

The employee is a party to each of the determinations dated 19 July 1979 and 31 March 1980 respectively, see s.60. By letters dated 16 July 1980 and 28 July 1980 the employee requested a reference to a Tribunal with respect to those two determinations. No issue has been raised that the request was outside the time prescribed by s.76(1)(c) and no reference has been made to any extension of time granted under s.77. The terms of the two letters are not material since at the commencement of the hearing of the reference before the Tribunal, the request for reference was, by consent, replaced by a request as follows:
"On behalf of Mr. Portelli we request that his claim for compensation be referred to the Tribunal for assessment and we refer to the Determinations dated the 19th of July 1979 and the 31st of March 1980 which Mr. Portelli seeks to challenge on the basis that he has been totally incapacitated for work from the 26th April 1979 as the result of injuries received throughout the course of his employment with the Commonwealth Department of Productivity and more particularly on the following bases:-

1. Injury to Mr. Portelli's right leg is of sufficient severity to incapacitate the worker for work.

2. It is further alleged that the ankle injury with its resultant pain and limitation of movement with the resultant increase in weight and discomfort caused by the effects of the injury have caused aggravated and/or accelerated coronary artery disease and the development of myocardial infarction.

3. It is further alleged that his general employment stresses both physical and mental have caused aggravated and/or accelerated general coronary arterial degeneration with resultant myocardial degeneration and infarction.

4. It is further alleged that the work on the 26th April 1979 precipitated the myocardial infarction.

5. It is further alleged that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the worker for work.

6. It is further alleged that the injury of September 1976 to the worker's ankle including the resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction."
For the purposes of the case stated, that request has been treated as a request by the employee under s.63 of the Act and as having been made in accordance with s.76 of the Act. The "bases" referred to therein have been treated likewise as the grounds of the request.

At the commencement of the hearing of the proceedings before the Tribunal, counsel for the employee outlined the case to be presented by the employee. He outlined a claim for total incapacity based upon grounds including the following -
". that the ankle injury and its effects resulted in the development of an hysterical state which is incapacitating the worker for work

. that the injury of September 1976 to the claimant's ankle, including the hysterical condition resulting therefrom, contributed to aggravation and acceleration of coronary artery disease and myocardial infarction"
See also grounds 2, 5 and 6 of the grounds set out in the request for the reference. Thereupon counsel for the Commonwealth objected to the two grounds on the basis that as they were not matters or questions to which a determination related (s.63(1)(a)) the Tribunal had no jurisdiction to consider them by way of reconsideration.

In addition to the facts already set out, the parties consented that the following facts be added to the case stated -
"The Tribunal found as a fact that:

(a) The Claimant had been examined by a Psychiatrist at the request of the employer on the 30.11.78

(b) That Medical Reports available to the employer referred inter alia, to the mental condition of the claimant between 1977 and March 1979

(c) It had available to it the Statement of Reasons of the Commissioner referring to the determinations and attached hereto."
In addition, the parties consented that a statement of reasons for the determinations dated 19 July 1979 and 31 March 1980 should form part of the case stated. I do not find any of these additional facts relevant or of assistance in answering the questions of law referred to the court.

The first two questions asked, in the form as varied by consent of the parties, are as follows -
"1. Whether contentions that the injury to which the Determination of 19th July, 1979 relates and that the effects thereof have resulted in an hysterical state are matters or questions which the Tribunal has the jurisdiction to reconsider pursuant to the provisions of the Compensation (Commonwealth Employees) Act.

2. Whether contentions that the injuries referred to in Determinations of 19th July, 1979 and 31st March, 1980 and that the injury of September 1976 to the Claimant's ankle including the resultant hysterical state contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction are matters or questions which the Tribunal has jurisdiction to reconsider pursuant to the provisions of the said Act."
The third question asked is as follows -
"3. Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) Act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of para. 63(1)(a)."

The third question can be disposed of speedily. It purports to seek a general advisory opinion of the court concerning the general scope and purpose of the Act. It does not arise from the facts stated. Neither counsel requested that the court answer the question. It is not a question which the court should answer.

It is necessary to make brief reference to a number of provisions of the Act. Part 11, comprising ss.9-24, is headed "Commissioner for Employees' Compensation". The Commissioner is created a corporation sole, s.9. Section 20(1) provides -

"20.(1) Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function."
The following sub-sections prescribe a number of particular matters relating to the powers of the Commissioner. In determining any matter or question under the Act he is to be guided by equity, good conscience and the substantial merits of the case without regard to technicalities. He is not required to hold formal or oral hearings and is not bound by the rules of evidence. He is required to give any person who will be directly affected by the determination a fair opportunity of presenting his case. A determination by the Commissioner must be in writing. Where a determination has been made and irrespective of whether proceedings have been instituted under Part V of the Act, the Commissioner may, of his own motion, reconsider the determination and if he thinks fit may make a determination varying or revoking the first-mentioned determination. He has power, at the request of a party if a proceeding has not been instituted under Part V to reconsider the determination and may make a further determination varying or revoking the first-mentioned determination. Specific provisions are made with respect to the reimbursement of the costs of a claimant where a variation of a determination is made after proceedings have been instituted under Part V. Under s.24 the Commissioner may delegate any or all of his powers and functions under the Act to persons coming within classes of persons specified in the section and that delegate in performing those functions and exercising those powers has all the powers of the Commissioner except the power of delegation.

Part 111 of the Act, comprising ss.25-52 is headed "Compensation". These sections impose a liability on the Commonwealth to pay compensation to employees and describes the type and amount of compensation to be paid. Section 27(1) provides -
"27.(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."
Sections 29 - 31 make special provisions with respect to disease. Section 39 provides for amounts of compensation to be paid in respect of specified loss. Special reference should be made to s.39(14) -
"(14) An amount of compensation referred to in this section is 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."
Sections 45 and 46 make provision for weekly payments of compensation on the basis that an employee is totally incapacitated for work or partially incapacitated for work respectively. Special reference should be made to s.45(9) and s.46(5). Under s.49 the Commissioner has a specific power to redeem the liability of the Commonwealth to make further payments under s.46 provided he complies with the provisions of that section.

Part IV of the Act, comprising ss.53-61, is headed "Making and Determination of Claims". Sections 53 and 54 have been referred to earlier. The Commissioner has power to require a claimant to submit to a medical examination by a medical practitioner or a medical board at the cost of the Commonwealth and the uses to be made of certificates given are set out, ss.58 and 59. The Commonwealth has power to require an employee to be medically examined only after a determination has been made that the Commonwealth is liable to pay compensation or where the employee institutes a proceeding under Part V, s.60. Under s.61 the Commissioner is required to serve on the Commonwealth, and all claimants in a matter, specified documents. The effect of the section is that all parties affected by the determination are able to obtain copies of documents before the Commissioner and the reasons of the Commissioner for the making of the determination.

Counsel for the Commonwealth has characterised the function and powers of the Commissioner as being what may be described as "paternalistic" in favour of employees. In truth, the position is that when an employee serves the requisite notice of injury and claim for compensation under s.53 and s.54 respectively, the Commissioner is required to determine "all matters and questions arising under the Act" relating to that claim in accordance with the provisions of the Act, s.20. The Act does not specify that a separate claim must be made for each item of compensation for which the Commonwealth may become liable to pay to or on behalf of a claimant. In practice it may be advisable for a claimant to make requests to the Commissioner for particular types of compensation as this could initiate action by the Commissioner. Under the Act, the Commissioner, subject to any limitations expressly or impliedly affecting the exercise of his powers, is required to determine, in the sense of making a decision, on all matters and questions relating to the general claim made under s.54 of the Act. He gives effect to his decision by making a determination in writing, s.20(3), and it is that determination which determines the liability of the Commonwealth to pay compensation, the nature of the compensation to be paid and the amount of that compensation. Subject to the Act and to general principles of law, any matter which is relevant to the claim made is relevant for the Commissioner to consider in determining "all matters and questions arising under the Act". Of necessity, matters for consideration include for example, whether an injury resulted to an employee, whether the injury arose out of or in the course of the employment of the employee by the Commonwealth, the nature of the injury, the consequences and effect of the injury, whether the employee is or was incapacitated for work as a result of the injury and if so, whether totally or partially, and for what periods of time, what compensation arises, the amount of that compensation, and all of the many other matters arising under the Act. All of these are relevant to the making of a determination by the Commissioner.

Part V, comprising ss.62-95 is headed "References to Compensation Tribunals and Applications to Prescribed Courts". Reference has been made already to s.63. Tribunals are constituted under Division 2, comprising ss.64-75. Division 3 of Part V is headed "References to Compensation Tribunals" and comprises ss.76-89. Reference has been made already to ss.76 and 77. Copies of the request for reference are to be served on all parties to the determination and on the Commissioner, s.76(3). The Commissioner is required to forward to the Clerk of the Tribunal a copy of those documents. Sections 79-83 prescribe the procedures to be followed by the Tribunal. The Clerk of the Tribunal is required to fix a time and a place for the reconsideration of the matter or question and to give notice thereof to all parties to the determination, s.79 and s.62. The proceedings before the Tribunal are in the nature of a hearing, but the procedure is, subject to the Act and regulations, within the discretion of the Tribunal. The regulations do no assist in the determination of the questions asked in the case stated. The Tribunal is not bound by the rules of evidence and the proceedings are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters and questions before the Tribunal permit, s.80. The proceedings, subject to special circumstances, are to be in public, s.81. and parties may appear in person or be represented by another person, s.82. Section 83(1) is as follows -
"83.(1) For the purpose of reconsidering a matter or question, a Compensation Tribunal may exercise all the powers that are conferred on the Commissioner by this Act in relation to the determination of matters and questions."
Sub-section (2) contains a number of specific powers common to a statutory Tribunal exercising administrative or quasi judicial powers. Section 86 confers a legal protection on persons exercising the power of the Tribunal. Section 85 makes provision concerning the costs of parties before the Tribunal. Section 84(1) and (2) are as follows -
"84.(1) A Compensation Tribunal that reconsiders a matter or question shall, after due consideration of the matter or question, give a decision in writing -

(a) affirming the determination made by the Commissioner in respect of that matter or question;

(b) varying that determination; or

(c) setting aside that determination and -

(i) making a determination in substitution for the determination so set aside; or

(ii) remitting the case for re-determination by the Commissioner in accordance with the directions of the Tribunal.

(2) A Compensation Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact."

Division 4 of Part V is headed "Applications to Prescribed Courts". An application to a prescribed court for a judicial review of a determination is made under s.90 and, subject to the Constitution, the hearing is in the nature of a re-hearing, s.92(1), and the orders that can be made are specified in s.92(2). The jurisdiction of a court under provisions similar to s.90 and s.92(1) as contained in s.20(1) of the Commonwealth Employees' Compensation Act 1930-1959, namely -
"Any person affected by any determination . . . may appeal to a County Court against the determination . . . and such appeal may be in the nature of a re-hearing."
was considered in The Commonwealth v. Rutledge (1964) 111 C.L.R. 1. In that case Taylor J. said at p.8 -
"The so-called appeal for which s.20 provides is, in my view, intended as a vehicle by which, in the case of claims for compensation which have been determined adversely to an applicant, such claims may be carried to a County Court for rehearing and determination. Further, in disposing of any such appeal that court may determine any issue arising in relation to the claim just as the Commissioner might have done in the first instance."
His Honour distinguished Australian National Airlines Commission v. Cassidy (1964) 110 C.L.R. 172 since the determination in that appeal related to a preliminary matter only, namely whether an employee had given the requisite notice of injury which was a pre-condition of liability in the Commonwealth.

Counsel for the Commonwealth has contended that before a matter or question to which a determination relates could be reconsidered by the Tribunal, that very matter or question had to be considered by the Commissioner. He contended that where contentions are made to support a claim for compensation on a basis different from contentions that were considered by the Commissioner, a different claim was involved and that in the absence of a determination relating to that claim, no request for reconsideration could confer jurisdiction on the Tribunal. He contended further that the facts stated show that the employee was making a claim before the Tribunal which had never been considered by the Commissioner, namely the incapacity arising from the hysterical condition claimed to have resulted from the strained right ankle injury, and therefore the Tribunal had no jurisdiction to hear that claim. He relied upon opinions expressed by Keely J. in Roidoulis v. Australian Postal Commission, Federal Court of Australia 16 April 1981, unreported. In that case the request for reference was as follows:
"APPLICATION FOR REFERENCE TO COMPENSATION
TRIBUNAL

TAKE NOTICE that the Claimant being dissatisfied and aggrieved at the failure of the Respondent to pay compensation in respect of an injury sustained in the course of her employment on 26th June, 1977:

HEREBY APPLIES for a Determination by the Compensation Tribunal on the following grounds:

1. The Claimant suffered an injury in the course of her employment on 26th June, 1977.

2. Medical certificates have been supplied to Australia Post and to the Commissioner of Employees' Compensation supporting the Applicant's total and continuing incapacity.

3. Letters of claims have to date failed to produce any determination by the Commissioner for Employees' Compensation.

AND IT IS HEREBY REQUESTED that the Tribunal make the following Determination:

1. That the Claimant be paid Compensation at the rate of $80.00 per week from 25th June, 1977 to date and continuing.

2. That the Claimant be granted the legal costs incurred.

3. Such other orders as the Tribunal considers fit and proper in the circumstances."
Keely J. held that that request did not come within s.76. It was not and could not be a request for the reference of "all or any of the matters or questions to which the determination relates" since there was no relevant determination. Accordingly, His Honour held that the Tribunal had no jurisdiction to make a determination in favour of the applicant. The facts of that case are very different from the facts of the present case and the opinions expressed therein are not relevant to the resolution of the present case.

The contentions by counsel for the Commonwealth are rejected.

The Tribunal was first constituted by the Act in 1971. The Tribunal does not exercise judicial powers. It is in the same position as the Commissioner. It is an administrative tribunal created to reconsider or review, and I use the words as being synonymous, the matters and questions to which the determination of the Commissioner relates, cf. Shell Co. of Australia v. Federal Commissioner of Taxation (1931) A.C. 275 per Lord Sankey L.C. at p.298 when speaking about a Taxation Board of Review. In Jolly v. Federal Commissioner of Taxation (1935) 53 C.L.R. 206, Rich and Dixon J.J., in considering the nature of the powers of a Taxation Board of Review said at p.214 -
"The Board is only another executive body in an administrative hierarchy. The purpose of erecting it was to enable taxpayers to have a reconsideration or re-examination of the process by which liability had been imposed upon them, particularly in relation to matters where the Commissioner had a discretion."
With necessary adaptions the same can be said concerning the Tribunal.

A consideration of the Act makes it clear that the proceedings before the Tribunal constitute a complete re-hearing of the matters or questions to which the determination relates and which have been made the subject of a request for reconsideration. The Tribunal does not need to be satisfied that the Commissioner was in error. The party requestion the reconsideration is able to identify and, if thought necessary, to limit the matters or questions the subject of the request for reconsideration. This is achieved by the requirement that the party making the request must state the grounds of the request. Of necessity, the proceedings before the Tribunal must be somewhat more formal than the consideration of the matters and questions by the Commissioner. Before the Tribunal there are proceedings with identifiable parties who present the material to the Tribunal in support of their cases in a public hearing. The parties to the proceedings are free to lead any evidence they consider appropriate. Presumably they can make use of material that was before the Commissioner but that is for them to decide, cf. McCormack v. Commissioner of Taxation (1979) 53 A.L.J.R. 436, especially the sections dealing with the nature of the proceedings before a Board of Review and on "appeal" to a Supreme Court exercising original jurisdiction. In theory none of the material before the Commissioner need be placed before the Tribunal. The court expressly refrains from commenting on the effect of any certificate that may have been obtained by the Commissioner under s.59(3). The Tribunal must make its own findings of fact based on the material properly before it, and must give its reasons for decision, s.84(2). Having regard to the express provisions contained in Division 3 of Part V, some limitations may be placed upon powers conferred by s.83(1) on the Tribunal. For instance, the Tribunal may not have the power to reconsider a determination already made by the Tribunal, Commonwealth v. Goodfellow (1980) 43 F.L.R., per Northrop J. at p.78, Commonwealth v. Scott (1975) 1 C.C.D. 119 per Fisher J. at p.123, and Commonwealth v. Hawkins, Federal Court of Australia 22 April 1981, unreported, per Keely J. at pp.15-16. Likewise, the Tribunal may not have power under s.58 to require a party to proceedings before it to submit to a medical examination, cf. s.60. It is clear, however, that the powers of the Tribunal include the powers to decide in the sense of determining "all matters and questions arising under the Act", cf. s.20(1), and it is those powers which are conferred upon the Tribunal by s.83(1).

In the present case, the request for reconsideration is very wide. All matters and questions relating to the claims for compensation referred to in the determinations of 19 July 1979 and 31 March 1980 are made the subject of the request. This is made clear by a reference to the grounds stated for the request. The request extends to all matters and questions relating to the claim "in respect of strained ankle" and "in respect of heart attack". All issues relating to any of those matters have been made the subject of the request for reconsideration. They all relate to a determination by the Commissioner. In support of his case before the Tribunal, the employee is entitled to lead material directed to establishing a liability in the Commonwealth including the liability itself, the type of compensation to be paid and the amount of compensation to be paid. The Tribunal has jurisdiction to hear and determine all those matters and questions.

It follows that the questions asked should be answered as follows -

QUESTION 1: Whether contentions that the injury to which the Determination of 19th July, 1979 relates and that the effects thereof have resulted in an hysterical state are matters or questions which the Tribunal has the jurisdiction to reconsider pursuant to the provisions of the Compensation (Commonwealth Employees) Act.

ANSWER: Yes.

QUESTION 2: Whether contentions that the injuries referred to in Determinations of 19th July, 1979 and 31st March, 1980 and that the injury of September 1976 to the Claimant's ankle including the resultant hysterical state contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction are matters or questions which the Tribunal has jurisdiction to reconsider pursuant to the provisions of the said Act.

ANSWER: Yes.

QUESTION 3: Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) Act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of para. 63(1)(a).

ANSWER: Not appropriate to answer.

Commonwealth to pay the claimant's costs of the Reference.