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Klinkert v Australian Postal Corporation

Klinkert v Australian Postal Corporation

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Re: JOHANNA HENDERIKA KLINKERT
And: AUSTRALIAN POSTAL CORPORATION
No. V G347 of 1991
FED No. 482
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - compensation claim by Commonwealth employee - accident on 12/2/1985 - law applicable to determine liability - law applicable to calculation of periodic compensation - whether wrong law applied - whether error of law immaterial to result

Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 26, 27, 46

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss 19, 124(1A)

HEARING

MELBOURNE

#DATE 26:6:1992

Counsel for the Applicant: A. Moulds

Instructed by: McMullin Coate and Co

Counsel for the Respondent: M. McInnis

Instructed by: Hall and Wilcox

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order of the Tribunal be varied by rescinding orders (ii) and

(iii) and replacing them with the following:

(ii) that the applicant has on and from that date been incapacitated for work; and

(iii) that the respondent assess the amount of compensation to be paid to the applicant pursuant to section 19 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 in accordance with the findings of fact set out in the Tribunal's reasons.

3. The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Ms Johanna Henderika Klinkert, appeals against the decision of the Administrative Appeals Tribunal constituted by a deputy president, Mr Forrest, which set aside a decision of the respondent, the Australian Postal Commission, and remitted that decision for reconsideration in accordance with certain directions. Those directions were in the following terms:

1. That the respondent is and has on and from 8 November 1990 remained liable to pay compensation to the applicant.

2. That the applicant has on and from that date been partially incapacitated for work; and

3. That on and from that date the amount which the applicant is able to earn in some suitable employment is the amount which would be paid to a shop assistant whose duties did not involve any heavy lifting, prolonged walking, standing or bending and whose hours of work did not exceed 30 per week.

Ms Klinkert suffered, while an employee of the respondent, a lower back problem. She claimed that it was work-related. That claim was initially accepted, and on 30 August 1985 a determination of liability was made in her favour for "chronic back strain" sustained in the course of her employment with the respondent or its statutory predecessor on 12 February 1985. The determination was made pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the old Act").
Thereafter determinations were made from time to time under the old Act. On 1 December 1988 the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") commenced. Determinations after that date were made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] FCA 482
Decision Date: 26 JUNE 1992

CaseChat Overview and Summary

In the matter of Klinkert v Australian Postal Corporation, the Federal Court considered an appeal against a decision of the Administrative Appeals Tribunal (AAT). The appellant, Klinkert, is a former employee of the respondent, Australian Postal Corporation, who suffered an accident on 12 February 1985. The primary issue before the court was whether the AAT erred in applying the wrong law in determining the respondent's liability and the calculation of periodic compensation. The court had to decide if these errors of law were material to the outcome of the case.

The court identified that the AAT had applied the wrong law in two respects. First, it had applied the wrong law in determining the respondent's liability for the accident, and second, it had applied the wrong law in calculating the periodic compensation owed to the appellant. The court examined whether these errors of law were material to the outcome of the case, and if not, whether the appeal should still be allowed. The court held that the errors of law were not material to the outcome because the AAT's findings of fact and the ultimate result would not have been different had the correct law been applied.

The court allowed the appeal and varied the order of the AAT. The court rescinded orders (ii) and (iii) and replaced them with new orders that the appellant had been incapacitated for work from the date of the accident and that the respondent must reassess the compensation payable to the appellant in accordance with the findings of fact set out in the Tribunal's reasons. The court also ordered the respondent to pay the appellant's costs. The court's decision was based on the premise that while the AAT had erred in applying the wrong law, these errors did not affect the outcome of the case.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order of the Tribunal be varied by rescinding orders (ii) and

(iii) and replacing them with the following:

(ii) that the applicant has on and from that date been incapacitated for work; and

(iii) that the respondent assess the amount of compensation to be paid to the applicant pursuant to section 19 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 in accordance with the findings of fact set out in the Tribunal's reasons.

3. The respondent pay the applicant's costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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