Jensen v Comcare Australia

[2000] FCA 1684

FEDERAL COURT OF AUSTRALIA

Jensen v Comcare Australia [2000] FCA 1684

DOUGLAS JENSEN V COMCARE AUSTRALIA

V 365 OF 2000

NORTH J
3 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 365 OF 2000

BETWEEN:	DOUGLAS JENSEN APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	3 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS BY CONSENT THAT:

1.Any further questions arising under the appellant’s claim for compensation other than the question determined by the orders of the Administrative Appeals Tribunal made on 1 May 2000 are remitted for initial determination by the respondent.

AND FURTHER ORDERS THAT:

2.The respondent pay the appellant 90 percent of his taxed costs of and incidental to this appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 365 OF 2000

BETWEEN:	DOUGLAS JENSEN APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT

JUDGE:	NORTH J
DATE:	3 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. These reasons concern only the question of costs, as the substantive issues in this application were resolved by consent between the parties on the morning of the hearing.  However, in order to understand the costs issue to be determined, it is necessary to set out briefly the background to this application.

2. The appellant, Mr Jensen, has appealed against a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 May 2000.  In that decision, the Tribunal determined that:

   (1)the applicant had suffered a sequelae to the injuries of hearing loss and tinnitus, namely, reactive depression;

   (2)the respondent was liable for reasonable medical and like expenses arising out of the applicant's treatment for the injury; and

   (3)the respondent was liable to pay the applicant's costs of that application. 

3. The determination of the Tribunal appears to relate to the issue which has to be resolved under s 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act) which provides, relevantly, in subsection (1):

   “Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

4. The issue which the determination addresses is the issue which was at the centre of debate between the parties at the Tribunal hearing, namely, whether the reactive depression followed as a result of the hearing loss and tinnitus. In truth, the determination under s 14 is but a first step in the determination of various other rights under the Act. Two of those rights are relevant for present purposes. One is contained in s 16(1) of the Act which provides:

   “Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment …”

5. Second, the determination under s 14 is relevant to rights under s 19 of the Act, which provides for compensation by way of weekly payments for persons incapacitated for work as a result of an injury. Reading the order on its own, it appears to relate to the issue of the link between the initial injury and reactive depression, which issue must be determined for the purposes of s 14, and in order to determine the question of payment of medical expenses under s 16(1). What, however, has caused the appellant to institute these proceedings is the reference on several occassions by the Tribunal in its reasons for decision to the incapacity of the appellant for work. That is an issue that does not arise in the first instance under s 14, but arises for the purpose of consideration of an entitlement to weekly payments under s 19.

6. Having found that there was the relevant connection between the initial injury and the depression such as to give rise to the liability of Comcare under s 16 to pay medical expenses, the Tribunal said at par 110:

   “I am not satisfied, however, that there is incapacity by reason of the hearing loss, vertigo and tinnitus.”

7. This observation was further elaborated, for instance in par 113, where the Tribunal said:

   “All of this demonstrates to me the capacity to undertake a wide range of employment, all of which was within his capacity. …I cannot on the evidence be satisfied that [the injury] has precipitated a total incapacity.”

8. The appellant was understandably concerned to have the reasons concerning incapacity overturned.  His argument on the appeal was that the question of incapacity was a matter before the Tribunal but that it had not been addressed in the orders made by the Tribunal.  That, the appellant contended, was an error of law which should lead to the conclusion that the appeal should be allowed, and he contended that the matter should then be remitted for re-determination not by the Tribunal but rather by Comcare.

9. The respondent's argument was that the question of incapacity was not a matter dealt with by the original decision‑maker. The original decision‑maker determined that there was no sequelae from the original injuries to the reactive depression, and consequently, there was no further injury under s 14. The result was that the claim in relation to the depressive illness failed at the first stage. It was thus unnecessary for the original decision‑maker to go on to determine any further questions.

10. The respondent contended that the only reviewable decision brought before the Tribunal was the question of the link between the original injury and the reactive depression, and that the Tribunal determined that issue.  Its findings concerning total incapacity were therefore outside its jurisdiction and without legal effect.  As a result the appeal should be dismissed.  The respondent submitted that any claim for compensation for weekly payments was to be agitated by the appellant by application to Comcare.

11. Those positions having been outlined to the Court, it became obvious that, in the end both parties sought the same result, albeit by different routes.  Once that position became clear, it was agreed by the parties that the Court should order that all questions other than the question of the sequelae already determined by the Tribunal and the issue under s 16 should be remitted for determination by Comcare.  That resolution was sensible and proper and appropriate in the circumstances.  It leaves for determination the question of costs of this appeal.  I have heard arguments from both sides on this question. 

12. It is accepted that I have an unfettered discretion as to costs.  Mr Jewell, who appeared as counsel on behalf of the appellant, argued strongly that his client should have the costs of the appeal.  He contended that the issue of incapacity was raised in the opening of the case where it was made clear at the very end of the opening that the claim of the appellant was for weekly payments and that he also drew attention to the fact that there was no suggestion by counsel for the respondent before the Tribunal that the issue of weekly payments was not to be dealt with.  When the appellant called evidence, it involved evidence of incapacity, and extensive cross‑examination of the appellant and the medical witnesses relating to incapacity was undertaken by the respondent.

13. At the end of the case the appellant made submissions first and Mr Jewell contended that his submission before the Tribunal was strongly directed to the incapacity issue.  At that point Mr McInnes, then acting for the respondent, was asked by the Tribunal about the issues before the Tribunal as follows:

    “Is the claim only confined to incapacity payments?”

    Mr McInnes replied:

    “It's really a question of whether there is a liability for the sequelae, the psychological sequelae.  That's the issue.”

14. The reasons for decision of the Tribunal deal extensively with the question of incapacity.  Earlier in these reasons I have given some illustrations but the decision deals at length with the evidence, including evidence about the appellant's ability to work. 

15. Mr Wallace, who appears on behalf of the respondent, contended that the cross‑examination relating to incapacity was directed to issues concerning the credit of the appellant.  He said that the request for reconsideration which brought the matter before the decision‑maker whose decision was reviewed by the Tribunal did not place into contention the question of incapacity.  In the course of argument I sought to establish the precise ambit of the matter before the original decision‑maker.  It appears that the proceedings before the original decision‑maker were commenced by a letter from the appellant's solicitors dated 7 February 1997, to the Department of Defence, which stated:

    “We refer to your correspondence of 30 January 1997 and advise that Mr Jensen's psychological illness has developed as a sequelae to his hearing loss and the tinnitus injury he sustained whilst employed with the Department of Defence. 

    Consequently this is not a new injury, but forms part of the initial injury and as such it is not necessary that he lodge any new claim for psychological illness. 

    Your Department has been aware for almost 18 months, through the lodging of medical material and discussions with your Officers, that a psychological injury was part of his claim. 

    The medical material provided clearly establishes that Mr Jensen's psychological illness was caused by, or arose out of his employment.  Consequently we seek a final determination from your Department in relation to Mr Jensen's entitlement to weekly payments of compensation.”

16. In light of that letter, it appears to me relatively clear that the original decision-maker had before him claims including claims under s 19.  Upon the initial decision and reconsideration, the decision-maker found that the reactive depression was not a sequelae from the original injury.  Those decision-makers therefore did not need to proceed to determine any further issue under s 19.  That is not to say that the decision-makers did not have before them an application under s 19 and did not inferentially determine to reject the claim under s 19.  In my view, the decision-makers did so determine.

17. The result of that conclusion is that the matter under review by the Tribunal included, in part, the rejection of the claim under s 19.  Therefore the respondent’s submission that the incapacity question was not put in contention by the claim for reconsideration dated 13 March 1998 should not be upheld and should not be regarded as a factor disqualifying the appellant from an order for costs. 

18. That leaves for consideration the question whether the respondent had reason for thinking that incapacity was not relevant in the Tribunal proceeding, save on the question of credit.  I think on balance that is a proposition which I should not accept for the purposes of determining costs.  In my view, the appellant is entitled in large part to the costs of the proceedings before the Tribunal.  As there was a certain lack of clarity about the definition of the matter before the Tribunal the question arises whether some reduction should be made from the appellant's costs to take account of its contribution towards that situation.  Accordingly, I have determined that the appellant’s should have 90 percent of his taxed costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             23 November 2000

Counsel for the Applicant:	Mr P Jewell
Solicitor for the Applicant:	Stringer Clark
Counsel for the Respondent:	Mr J R Wallace
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 October 2000
Date of Judgment:	3 October 2000