O'Rourke, R.A. v Commonwealth of Australia

[1990] FCA 303

JUDGMENT No. ..30.3.%..?5 i:; -.

-

-

-

GENERAL DISTRIBUTION NOT REOUIRED -

IN THE FEDERAL-COURT OF AUSTRALIA ) I

-

\	8	,
!

VICTORIA DISTRICT REGISTRY	i	VG NO. 96. of 1988	.	-	I :
1	! I

GENERAL DIVISION	-	1	I
!
I.
B E T W E E N :	: i

.-

.. . ,+L-

ROBERT ARTHUR O~ROURKE	:
f '

Appellant

RECEIVED A N D : t' ;

- 9 JUL1990

FEDERAL COURT OF COMMONWEALTH 0 F

AUSTRALIA l

PRINCIPAL AUSTRALIA -

-

REQISTRY

Respondent:  ! .:

- I .

-. , ..>

-

,
, .

4 JULY, 1990 KEELY J. ,..'

- I .

- I

REASONS FOR JUDGMENT

-

Mr. OrRourke has appealed from a decision of the Administrative Appeals Tribunal ('Lthe Tribunal") which i. :

--

affirmed a determination of a delegate of the Commissioner for -

-

Employees' Compensation ("the Commissioner"), made on 2	--
January 1985, under the ~orn~ensation	(Commonwealth Government

this court. In the original notice of appeal, dated and filed 1 ' .

- ,-

-

Emplovees \ Act 1971. Mr. McInnis, of counsel, on. behalf of !

the respondent, informed the court (transcript p. :99) that . j

. . 1

- the decision was given on 15 September 1987 but that the

:  .,

Tribunal's reasons -for decision were delivered on 15 December	I :
! .i
Mr. O'Rourke, who was represented at the hearing before the Tribunal by counsel, prepared his own notice of appeal to	I ~

I , 1 .

I	I
: j

_ L ,

-

2 .

-

10 March 1988, the question of law was stated as being	1:
gtlwhether]	the decision is cohtrary to the evidence before the

.Tribunalu .

In my opinion it is quite clear that Mr. O'Rourkers appeal could not succeed if that were the only	1 .
! : .
! -
I
question raised, because it is not a "question of law" within	l I,
-	1

-

the meaning of the Administrative Apueals Tribunal Act -1975.	I .
, ~
Mr. O'Rourke represented himself at the hearing before this court and said that he now has greater familiarity with	: '
!- I :
, ,.
, '

- [..

-	the law and its processes than he had when he prepared and	I-,(
b
filed his notice of appeal. He sought and was granted leave	:  L - a
-

- to amend his notice of appeal. The respondent's counsel -

.. commendably did not take any "technical objection" to the I :

grant of leave and stated that he was "certainly anxious -

-

[that] he have his . . . say and . . . have his day. in court" but

made it clear that in its submission, the proposed new grounds did not disclose any error of law (transcript p. 3 - see also

- p. 69). It may be added that Mr. O'Rourke has demonstrated, --

-

- by the manner in which he presented his appeal, that he has -

carefully studied .- the relevant papers, including medical reports and the transcript of the evidence given before the

- Tribunal; -

An appeal to this court from the Tribunal is limited to an appeal on a "question of law" (S. 4 4 Administrative Appeal

I

I .

Tribunal Act 1975). Mr. McInnis rel-ied upon the dec-ision in

Waterford v Commonwealth (1987) 71 ALR 673 where Brennan J.

- (at 689) said:

-

3.

-

"A f i n d i n g by the AAT on a m a t t e r o f f a c t c a n n o t -

be r e v i e w e d on appeal u n l e s s the f i n d i n g i s

v i t i a t e d by a n error o f l aw . S e c t i o n 44 o f Ehe.

AAT Act confers on a p a r t y t o a p r o c e e d i n g

' b e f o r e the- AAT a r i g h t o f appea l t o the F e d e r a l

C o u r t	o f	A u s t r a l i a	' f r o m	a n y	d e c i s i o n	o f	the
t r i b u n a l	i n	t h a t	proceeding'	b u t	only	'on	a

question o f l a w ' . The error o f l a w which an

a p p e l l a n t m u s t rely on t o s u c c e e d m u s t a r i s e on

the f a c t s a s the AAT h a s found them t o be or it

m u s t	v i t i a t e the	f i n d i n g s	made	or	it m u s t	h a v e
l e d the AAT	t o o m i t	t o make	a	f i n d i n g	i t	was

l e g a l l y r e q u i r e d t o make. T h e r e i s no error o f

l a w s i m p l y i n mak ing a wrong f i n d i n g o f f a c t .

T h e r e f o r e a n a p p e l l a n t c a n n o t s u p p l e m e n t the

r e c o r d by a d d u c i n g f r e s h e v i d e n c e m e r e l y i n

. order t o d e m o n s t r a t e an error o f f a c t . "

-

-

That- passage was quoted by Davies, Sheppard and Ryan JJ. in .-

- ...

Commonwealth Bankina Cor~oration v Percival (1988) 82 ALR 54

-

As already stated, the only question of law in the original notice of appeal (which is now the first of three

questions-of law in the amended notice) did not constitute a	i
!"

.	.
' _
1 -
,-

ques t-ion of law-. -

m,.

I

The second matter raised by the amended notice of appeal is a question of law. I ~

-

It read as follows:-

.	-
-

-

" t h a t p r o c e d u r e s t h a t were requ l i red by l a w t o be

o b s e r v e d i n connexion w i t h the m a k i n g o f the

d e c i s i o n w e r e not o b s e r v e d . "

Mr. O'Rourke, in addressing the court, examined in detail the

transcript of the hearing before the Tribunal and urged that there were errors in the procedure followed. Having carefully considered everything that he has said on this matter, I am

- unable to uphold his. contention. On my examination of the transcript of the proceedings' before the Tribunal, it is not correct to say that procedures required by law were not observed.

The third question 'of law stated in the amended notice of appeal was that "the decision was induced or affected by fraud". Again, I have considered everything that Mr. OrRourke

-

has said on this matter but fhere-is no evidence before the -

I am completely

,.. court which supports his contention. - -

-

-	satisfied that none of the conduct relied upon by Mr. O'Rourke constitutes "fraud" by any person; the contention that the decision of the Tribunal was induced or affected by fraud is-
rejected.

. -

-

Mr. OIRourke criticised his couns&lps conduct of the case before the Tribunal; he contendedthat he would have been -

-

more -likely to succeed -if- his case had been presented to the

-

-

Tribunal in a-different manner. A barrister presenting a case

before a tribunal or a court has to make decisions as to . -

whether to tender particular 'matters in evidence. - 1n so deciding he has to exercise his professional judgment, taking into account all the circumstances of the case, including his assessment of what matters are likely to assist - and what

- matters may harm - the cause-of the person for whom he is appearing; the one document may help a party on one aspect of

the case but may harm him on another aspect of the case. It is not possible for a court to know all of the circumstances

-

which are considered by the barrister in deciding those - -

-

questions. In the present appeal I cannot accept- M r . -

OIRourke's contention that the ~ribunal would have been more likely to decide the case in his favour if it had been

--

conducted in the way in which, in his view, it should have

been conducted.

It should be added that, during the hearing in this -

-

court, Mr. O'Rourke handed up certain documents. which were -

- --

said Eo be "fresh evidence", although, as was pointgd out by -.-

-

the respondent's .counsel, some of those documents were already

-

in the appeal book. counsel quite properly raised the

question of whether those 'documents, which had not -been -

tendered before the Tribunal, could be tendered in evidence

before the court - having regard to the limited nature of an

appeal to the court (see the last sentence in- the above

quotation from Waterford's Case). It is not necessary for m5

. .

to decide t5at question because, having-examined - - carefully the	new material, in my opinion. it could not give any -support to
Mr. OIRourke's appeal. The documents related to matters of . .
fact and to the question whether one medical opinion should be preferred to that of another. Those questions were matters for decision by the Tribunal - not by this court, the function of which is limited to deciding questions of law.-

-

-

It follows that the appeal.must be dismissed.

6.   -

The respondent's counsel has sought an order for its costs. Although it is true that costs normally follow the	i! 1	I.
L I
event, this appeal has been unusual. Mr.. O'Rourke made it	I'
! :
clear that, in bringing this appeal at considerable expense
r , 1. ,
(notwithstanding his appearance in person), it was a matter of	L l 3
"great concern" to him that the wording of the determination	i::
I /
would prevent him "from even'making a claim again if [he] had	1
a period of incapacity at some stage in the future".

The wording of the determination of the delegate of the Commissioner, which was affirmed by the Tribunal, is relevant; -

. i .

it was in the following terms:  . - [

- I-

- 1,'-

"On the evidence before me, -including specialist	! ,
medical opinion I find the condition of	I .
recurrent muscular ligamentous strain of the -
cervical spine, suffered by the said Robert	-
Arthur O'Rourke, is due to the natural

.,

progression of a pre-existing condition of minor-

-	cervical spondylosis, and is not the result of:-	U	I-:
, ,

-

(a) personal injury arising out of or in - - - ! :

the course of his employment; . -

t -l

(b)	contraction of a disease, or the	-
aggravation, - acceleration or

recurrence of a disease to which . . , 1.:

his employment was a	. ,
contributing factor.	;'.
i

NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, I hereby determine:

the Department of Defence Support is not liable to pay compensation to the sai-d Robert Arthur O'Rourke in respect -of recurrent muscular ligamentous strain of the cervical spine."

-

-

- The question of the meaning and the effect of that determination occupied a considerable portion of the hearing on each of the three days of the hearing of this appeal. On the first-day Mr. O'Rourke said "I doubt if I have lost a week's pay in isolated days". He was concerned that the determination was so worded that it would operate in such a way as to prevent him from successfully pursuing a claim to .-

- entitlement -

to compensation in respect of a period of (future) incapacity, even if his claim was supported by medical -

..

eviaence'that that incapacity was attributable to the-original

-	compensible injury.
The respondent's submissions as to the meani-ng - and the effect - of the determination occupied considerable time on-the second day of the hearing. On that day Mr. McInnis said that, as a matter of practice, the respondent "would not - entertain an application if the application were baspd on the

. .

- -same grounds which have already been considered in- the

determinations which were made on 26 ~pri1- 1983. and the one

. .	- under review dated 2. January 1985, and the second of which has been affirmed by the Administrative Appeals Tribunal" (transcript p. 184). Further submissions were heard from the respondent on the third day, after the adjournment from 29
. March to 8 May. The transcript of the latter day records the

-

-

following:-

" H i s Honour:  But h i s concern, a s I understand

-

- 8.

i t , o r recollect it, i s what i f n o t h i n g f u r t h e r

happens a t work a t a l l , he does n o t do a n y h e a v y

l i f t i n g , he .does n o t do a n y t h i n g t h a t appears t o

t r i g g e r	a n y	f u t u r e	i n c a p a c i t y	a t	a l l .	Indeed,
you	r e c a l l	the	i n c x d e n t	about	the home	event

when he was t o u s l i n g h i s h a i r under the shower

a n d - h e go t some pa in . Now, he i s concerned t h a t

i f someth ing l i ke t h a t happens i n the f u t u r e and

i f , a s a r e s u l t o f t h a t , he h a s t o go o f f work

. . . w i l l he be s h u t o u t from b r i n g i n g a c l a i m i n

r e s p e c t	o f t h a t i n c a p a c i t y	(page 210-211)
....
H i s Honour:	. . . I	can remember p r e s s i n g you on

the l a s t o c c a s i o n on a number o f these m a t t e r s

because it seemed t o me i t was an unusual ca se .

Mr. McInnis: Y e s . - -

H i s Honour:  I t looked a t one s t a g e a s though i t

was a l o n g c a s e w i t h great e x p e n d i t u r e o f money

and about a f ew &ys compensation, b u t t h e n i t

became c l e a r d u r i n g something Mr. O'Rourke s a i d

-

t h a t	h i s	concern	was	p r i m a r i l y	w i t h	the	f u t u r e ,
and	t h a t - seemed	to	me	t o	l e a d	i n t o	the

d i s c u s s i o n t h a t you and I had here i n c o u r t l a s t

- time about th i s i d e a o f the commiss ioner making -

what a r e c a l l e d c e a s e - e f f e c t d e t e n n i n a t i o n s . "

(page 212-213)

. -

; 1 w i l l be no t ed t h a t -it was o n l y o n the t h i r d day o f

the	hear ing	t h a t	the	r e s p o n d e n t ' s	k o u n s e l ,	a f t e r hav ing	t i m e
t o	r e c o n s i d e r	the	m a t t e r	and	o b t a i n	s p e c i f i c	i n s t r u c t i o n s
- .

dur ing the 5 week adjournment , e x p r e s s l y s t a t e d t h a t Mr.

OtRourke would	be	a b l e t o make	a	claim- i n r e s p e c t o f f u t u r e
i n c a p a c i t y and	have	it-	cons idered pn	i t s m e r i t s .

- A t p . 212 o f

-

the t r a n s c r i p t M r . McInnes, i n answer t o s p e c i f i c q u e s t i o n s

from the c o u r t as t o Mr . O'Rourke's r i g h t t o c l a i m

compensation i n r e s p e c t o f f u t u r e i n c a p a c i t y , a r i s i n g w i t h o u t

any f r e s h injury a t work , s a i d :

"... i n the event t h a t Mr. O'Rourke s u f f e r s from

i n c a p a c i t y , he i s e n t i t l e d t o make a c l a i m and

t h a t c l a i m w i l l be d e a l t w i t h a s i t shou ld be on

- -

its merits at the time when it is made. And I cannot see, your Honour, any legislative basis

-.	that would entitle the Commonwealth, or Comcare
-	as it now is, to simply reject out 'of hand that

. .

application without considering it on- its merit.

- -

. . . But I cannot see how, .if he becomes totally

incapacitated, he ought not to have his claim

properly considered." -

. .

-. Although Mr. O'Rourke has failed in his appeal, I have
decided that in all the circumstances, it would-not be an
appropriate exercise of the court's discretion to order him to

. .

pay the whole of the costs of the respondent. Those

- - i

- -

:

circumstances include the way in which the-determination	, .
i

(which was affirmed . . by the Tribunal) was worded arid-the length 1.-

. -

i

of time spent .in this court in considering the meaning of that

-

determination and its effect upon Mr. O'RourkePs right to	.	t	:
, .

future compensation. In my opinion the appropriate order is :.

.	-
that he pay one-third of the costs of the respondent. The	I
L
nature and effect of a "cease-effect" determination was the	( , ~

subject of submissions from the respondent's cpunsel in -khis - 1, . . .

. -

. .

appeal. It is accepted that the present-determination did not !

- -

. - 1:

I

use those words. However, it stated that 'the Department was . - 1 ;'

.-

"not liable to pay corr$ensation to [him] in respect of" the I ., ' _

injury under consideration here. The determination was likely 1

-

. - I .
- -

to convey to g . OrRourke that his claim failed because the -

delegate of the Commissioner had found that "the condition .	. .	I .
,

is due to the natural progression of a pre-existing condition

;-

of minor cervical spondylosis, and is not the result of . . .

1

. .-

personal-injury arising out of or in the course of his	i " , .
.-

employment	. . .	" .	Having regard to ,the wording of the	I ?
i.

determination it is understandable that Mr. OtRourke was I; I

- l ..

10.

- I

- [:

concerned that it would operate to prevent him from making a

- ! :

claim in respect of future incapacity.	! ;
For these reasons the appeal is dismissed and- the appellant is ordered to pay one-third of the costs of the	! y
! I
1 ,
respondent.	) . ,
I hereby certify that this and
the nine preceding pages are a true copy of the Reasons for-
Judment herein of his Honour Mr ~~ ~
~ustice Keely delivered on 4 July, 1990.

-

-

Associate:

Date: 4 July, 1990.

Applicant in person:

-

Counsel for the Respondent:	Mr M ~ c ~ n n d s
Solicitors for the Respondent:	Australian Government Splici tor
Dates of hearing:	28 & 29 March and 8 May 1990