Kedzierska, C. v Comcare

[1993] FCA 648

CECYLIA KEDZIERSKA v. COMCARE
No. NG398 of 1993
FED No. 648
Number of pages - 8
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW, O'CONNOR AND COOPER JJ

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal - necessity for a question of law.

Administrative Appeals Tribunal Act 1975

Safety Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971

HEARING

SYDNEY, 13 September 1993

#DATE 17:9:1993

The appellant appeared in person.

Appeared for the respondent: Miss Rhonda Henderson, instructed by

the Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed.

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

JUDGE1

GUMMOW, O'CONNOR AND COOPER JJ This is an appeal from the decision of a Judge of this Court dismissing an appeal by the present appellant which had been brought pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ("the A.A.T. Act"). The appellant appeared in person as she had done before the primary Judge. Section 44 provides for an appeal to this Court from a decision of the Administrative Appeals Tribunal ("the A.A.T.") in a proceeding to which the appellant was a party. But it is important to note that the appeal is limited to a question or questions of law. In particular, there is no fresh fact finding process, or review on the merits, by the Federal Court. The "appeal" referred to in s. 44 of the A.A.T. Act is, in truth, a proceeding in the original jurisdiction of this Court with a restricted subject matter, namely a question or questions of law raised by the decision of the A.A.T.

1. We mention these matters, which involve well settled propositions, to indicate, as will become apparent, that both before the primary Judge and on appeal from his decision, the appellant, Mrs Kedzierska, sought to put forward grounds which fell outside the limits imposed upon the jurisdiction of the Court by s. 44 of the A.A.T. Act.

2. It also is important to appreciate that, for its part, the function of the A.A.T. is to review decisions made under certain laws of the Commonwealth (see A.A.T. Act, s. 25). The A.A.T. does not deal with claims under the general law, such as damages claims for breach of contract or the setting aside of contracts on equitable grounds.

3. The respondent, Comcare, is the body established by s. 68 of the Safety Rehabilitation and Compensation Act 1988 (formerly the Commonwealth Employees' Rehabilitation and Compensation Act 1988) ("the 1988 Act"). One of the functions of Comcare is the making of determinations in relation to claims and requests made to it under the 1988 Act.

4. The decision of the A.A.T. which provided the subject matter for the proceeding heard by the primary Judge was delivered on 18 March 1993. As the very clearly and concisely expressed reasons for decision of the A.A.T. delivered on 18 March 1993 ("the second decision") indicate, they are to be understood in the light of the decision of a differently constituted tribunal on 17 February 1992 ("the first decision").

5. In the first decision, the A.A.T. set aside the affirmed determination of 23 March 1989 to cease compensation payments to Mrs Kedzierska with effect from 1 July 1987. The A.A.T. directed that the matter be remitted to Comcare to continue compensation payments for total incapacity from 1 July 1987, "these payments to continue to the present time". The A.A.T. accepted that Mrs Kedzierska had an anxiety condition which arose out of her employment with C.S.I.R.O., and that this anxiety condition continued to render her totally incapacitated.

6. In reaching that conclusion, the A.A.T. made various findings of fact.

7. Mrs Kedzierska was born in Poland. She is now 47 years of age. Mrs Kedzierska came to Australia on 15 October 1982, with her son. The son has since developed a serious condition of mental illness. Mrs Kedzierska entered Australia as a refugee, sponsored by the Uniting Church. In the course of 1983, she completed two English language courses and an introductory computer course. (We should add that, from our observation, Mrs Kedzierska is skilled in English written composition and also speaks good English.)

8. In February 1984, Mrs Kedzierska commenced employment with C.S.I.R.O. as a technical assistant/laboratory Grade 1, working at the Division of Mineralogy at North Ryde. Her salary on commencement was $16,150 p.a.

9. On 3 September 1984, there was a malfunction of the reaction vessel with which Mrs Kedzierska was working. She suffered a severe anxiety reaction. On 20 September 1984, Mrs Kedzierska first consulted Dr J. Woodforde, a psychiatrist. The A.A.T. found that in October 1984, whilst she was on sick leave, Mrs Kedzierska's contract of employment with the C.S.I.R.O. was brought to an end. At the time of these events, the relevant legislation in force was the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). Mrs Kedzierska was paid compensation pursuant to that statute for total incapacity from 7 September 1984. A report of 24 April 1985 from Dr Woodforde stated that Mrs Kedzierska was then suffering from an anxiety disorder which was connected to the problems which she had encountered whilst working at C.S.I.R.O.

10. However, further payments of compensation ceased after 30 June 1987. The first decision of the A.A.T. concerned an affirmed determination of 23 March 1989 to cease compensation payments to the applicant with effect 1 July 1987. The A.A.T. determined that the balance of evidence before it overwhelmingly supported the original opinion of Dr Woodforde that Mrs Kedzierska's anxiety was related to her employment with C.S.I.R.O. There was little before the A.A.T. to suggest or indicate any significant change or improvement in the applicant's condition since 1987. The A.A.T. concluded that Mrs Kedzierska still was in a very significant anxiety state of a degree which would make it extremely unlikely she could re-enter the workforce in any capacity, with the result that she remained totally incapacitated.

11. On 19 February 1992, Mrs Kedzierska lodged a claim for "permanent impairment" in respect of her injuries and those of her son. She claimed that the injuries to her son had arisen out of her own injury. On 8 April 1992, a delegate of Comcare issued a determination approving "total incapacity" payments to date and continuing. However, on 16 April 1992, Mrs Kedzierska requested a review of that decision on the footing that the amount of compensation payable to her was too low. The decision was affirmed on 22 April 1992. Another decision of 11 May 1992 affirmed a determination of 29 April 1992 that Comcare was not liable to pay to Mrs Kedzierska a lump sum in respect of her condition. It was the decisions of 22 April and 11 May which were the subject of the review by the A.A.T. which led to the second decision.

12. In the second decision (para. 6) the A.A.T. noted that Mrs Kedzierska's injury in September 1984 had occurred whilst the 1971 Act was in force and before the commencement of the 1988 Act. It continued:
    

"The applicant was not entitled to receive a lump sum payment under the 1971 Act, as there was no provision for such payments in relation to 'total incapacity'. The applicant, not unreasonably, appeared to equate the term 'permanent impairment' with 'totally incapacitated', although they are in fact not equivalent terms. The applicant was particularly seeking a lump sum payment in respect of her 'permanent impairment' in addition (emphasis added) to her weekly compensation payments. However, whilst the 1971 Act contains some provisions for the payment of lump sums where work related injuries result in certain types of 'permanent impairment' (for example loss of particular organs, blindness, loss of hearing, loss of speech) (section 39) or the redemption of compensation payments in respect of partial (emphasis added) incapacity into a lump sum payment (section 49), there is no provision for the payment of a 'total incapacity' or 'permanent incapacity' from the particular condition suffered by the applicant. There is however, provision under section 24 of the 1988 Act for the payment of a lump sum for injuries resulting in 'permanent impairment' both in respect of economic loss resulting from a work related injury and also for any non-economic loss resulting from such injury. However, the applicant's compensable injury occurred prior to the commencement of the 1988 Act on 1 December 1988 and thus she does not have the benefit of the provisions of the 1988 Act and, as noted above, the type of 'permanent impairment' which she claims is not specifically provided for in the 1971 Act."

The A.A.T. also noted that Mrs Kedzierska had applied for the payment of a lump sum amount in respect of the mental illness of her son. It continued (para 10):

"There are certain circumstances where the parent of a dependent child may receive periodic compensation payments at the rates prescribed by s. 45 (2) and 45 (4) of the 1971 Act. Such payments as were prescribed were paid to the applicant for her dependent son. However, as her son is not an employee of the Commonwealth, there is no provision under either the 1971 Act or the 1988 Act to pay the applicant's son a direct amount for any illness of the son, however caused, either as a periodic payment or as a lump sum."

The A.A.T. then dealt with the further submission by Mrs Kedzierska that Comcare's calculation of the compensation payable to her as a result of the first decision of 17 February 1992 was incorrect. It noted that there was not in issue before it the payment of compensation for the period 8 September 1984 to 30 June 1987. The first decision had concerned the resumption of payments with effect 1 July 1987. The A.A.T. examined the matter in considerable detail in its reasons, and concluded that the calculation was correct. The gross amount payable up to pay period 22 in 1992 was $66,691.58.

1. As we have indicated, it was from the second decision that the "appeal" was brought to this Court pursuant to s. 44 of the A.A.T. Act. On 20 May 1993, the primary Judge ordered that the proceeding be dismissed. His Honour pointed out, with reference to authority, that the existence of a question of law arising from the decision of the A.A.T. is a prerequisite to the existence of the jurisdiction of the Court under s. 44.

2. His Honour noted that the notice of appeal purported to identify three questions of law. We will deal with these in the same order as they appear in the reasons for judgment of the primary Judge.

3. The first point apparently concerned the rates of deductions pursuant to Division 2 of Part VI of the Income Tax Assessment Act 1936. Compensation payments for incapacity are included in the definition of "salary or wages" in sub-s. 221A (1). The primary Judge dealt with this matter as follows:
   

"It is apparent from the very nature of the proceedings before the (A.A.T.), and the decision of the (A.A.T.), that the subject of the rate of tax instalment deductions by

(Comcare) was not a matter that was in any respect before the (A.A.T.). It certainly had been raised in discussions before the (A.A.T.), but it was not a matter for their determination. The (A.A.T.) was simply concerned with the rates of compensation payable to (Mrs Kedzierska) under the (1971 Act and 1988 Act)."

1. As we understood the submissions made to us by Mrs Kedzierska, this issue was not reagitated on the appeal. In any event, we believe that what the primary Judge said on the point was clearly correct.

2. The second alleged question of law identified by the primary Judge was described by him as "the contract issue". He dealt with it as follows:
   

"In this respect (Mrs Kedzierska) drew to my attention the advice to claimants information in the prescribed claim form she completed in 1988 in relation to a claim for compensation and the fact that claims had to be in writing, though not necessarily in the prescribed form. (Mrs Kedzierska) developed for me the point that she asserted, that it was possible for her employer, the C.S.I.R.O., or (Comcare), to have entered into a contract with her, which gave her rights above and outside of the statutory scheme of compensation that obtained under the Acts. That may be so, but again the so-called question of law as formulated in para. 2.2 (of the notice of appeal) is not a matter that in any respect was before the Tribunal."

1. This matter was sought to be reagitated on the appeal. However, we agree here also with the reasons given in respect of it by the primary Judge. In particular, the A.A.T. would have had no authority to deal with a claim by Mrs Kedzierska that under some further contract between her and the C.S.I.R.O. she should receive payments to "top up" the maximum rates provided for under the Commonwealth legislation, and the A.A.T. did not purport to deal with any such claim.

2. The primary Judge said that he had great difficulty in understanding the formulation of the third question of law. He said:
   

"The suggestion in terms is that there was some deliberate behaviour on the part of (Comcare) which disadvantaged (Mrs Kedzierska) in the consideration of her claim. Again, as appears from the material before the (A.A.T.) and from its decision, this is not a matter which was in any way before the (A.A.T.)."

1. Before us, Mrs Kedzierska developed submissions designed to show that officers of Comcare had sought to deprive her of her common law rights in respect of any claim arising from her employment with C.S.I.R.O., and that Comcare had "deliberately extended" the litigation concerning her pension entitlement. She also referred us to authorities dealing with that branch of the equity jurisdiction which provides for the setting aside of contracts entered into by one party as a result of unconscientious behaviour of another.

2. We say nothing as to the substance which might exist or have existed in any of these allegations. It would be quite wrong for us to do so. The duty imposed upon us by the law is to deal with the appeal from the decision of the primary Judge and that, in turn, was limited by the nature of the proceeding before the A.A.T. which led to the second decision, and by the terms of s. 44 of the A.A.T. Act.

3. Finally, we should note that Mrs Kedzierska sought to have us take into account material which she read to us, on the footing that it was properly receivable as further evidence under O. 52 r. 36 of the Federal Court Rules. This material would not have been admissible before the primary Judge, going as it did to the merits of various points which did not comprise any question of law properly before this Court under s. 44 of the A.A.T. Act. It follows that any application under O. 52 r. 36 in respect of this material must fail.

4. The primary Judge correctly determined that the application in the form before him should be dismissed, by reason of non-compliance with s. 44 of the A.A.T. Act. The appeal from that decision must be dismissed. There are several matters which we should add.

5. The first is that as the primary Judge pointed out in his reasons, whilst he was delivering his judgment, ex tempore, Mrs Kedzierska left the court room despite his Honour's request that she remain. Mrs Kedzierska explained to us that she took that course for reasons largely concerned with her medical condition, and that she did not intend, and regrets, any discourtesy. Mrs Kedzierska presented her appeal to us quietly and courteously. But, for the reasons we have given, as a matter of law, the appeal must fail.

6. Our holding that the matters Mrs Kedzierska sought to raise as giving her and her son an entitlement to damages or other remedies at common law or in equity were matters which could not properly be raised before the A.A.T., the primary Judge or this Court, does not mean that the matters raised necessarily are without substance. As we have indicated, we express no opinion at all on that subject. These are complaints which, if they are to be litigated, may be pursued only in a court of competent jurisdiction. Before taking any such steps, Mrs Kedzierska, in her own interests, should take independent legal advice in relation to them.

7. Counsel for Comcare advised the Court that Comcare held a sum in excess of $52,000 in trust for Mrs Kedzierska being past entitlements which she had declined to accept. The Court was further told that she continues to decline to accept her entitlements and to execute a declaration for income tax purposes which would allow the amount of instalments of tax required to be deducted from her periodic entitlement to be reduced. These also are matters which do not arise for consideration on the appeal. However, they are matters in respect of which Mrs Kedzierska should take independent advice, so as not to deny herself the benefit of compensation the A.A.T. has confirmed she is entitled to receive.

8. The final matter is that the primary Judge noted what he described as the considerable concession by Comcare in not seeking an order for costs against Mrs Kedzierska.