Owens, L. v Australian Postal Corporation

[1994] FCA 418

LEEANN OWENS v. AUSTRALIAN POSTAL CORPORATION
No. VG510 OF 1992
FED No. 418/94
Number of pages - 3
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
KEELY J

CATCHWORDS

Workers' Compensation - applicant's wilful and false representations - whether "superseded" by subsequent statement made by her treating medical practitioner

HEARING

MELBOURNE, 24 June 1994
#DATE 6:7:1994

Solicitors for the applicant: Scammell, Black and Co.

Counsel for the applicant: Mr A. D. B. Ingram

Solicitors for the respondent: Sparke Helmore Withycombe

Counsel for the respondent: Mr M. McInnis

ORDER

THE COURT ORDERS THAT:
1. The application be dismissed.

2. The applicant pay the costs of the respondent.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

KEELY J Mrs Leeann Owens ("the applicant") has appealed from a decision of the Administrative Appeals Tribunal ("the Tribunal"), given on 23 November 1992, affirming the decision of a delegate of the respondent, made on 1 April 1992 under s.62 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Act").

1. The Tribunal found that the applicant had "made wilful and false representations that she had not previously suffered from back pain of the kind which she suffered on 25 March 1991". It found that the back pain suffered by the applicant "on and after 25 March 1991, and on and after 27 August 1991, is, by virtue of sub-section 7(7) (of the Act), not an `injury' to her for the purposes of the Act, and thus she has no entitlement to compensation for that pain ...".
   

Sub-section 7(7) of the Act was in the following terms:

" A disease suffered by an employee, or an aggravation

of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed

corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease."

1. The first submission by the applicant's counsel was that any "representation" made by the applicant was "superseded" (or "altered" or "displaced") by "a contrary representation made by her treating medical practitioner, (Dr Spina, in his report dated 3 May 1991 to the respondent) and ceased to have effect after that time".

2. The applicant's counsel submitted that (1) the original representations by the applicant could be superseded by later statements to the respondent, (2) that such statements could be made by her agent, (3) that Dr Spina was her agent and (4) that he intended "to transfer the information (to the respondent "that she has suffered a previous lower back injury in 1993") and did so as agent and with the ability to bind, as it were, my client".

3. I accept the submission by the respondent's counsel that there was no evidence before the Tribunal that the applicant informed Dr Spina of her previous back injury "with a view that he would represent on her behalf to her employer that information". Further, there was no evidence that he was her agent or that she authorised him to "supersede" her earlier representations to the respondent employer or that she authorised him to make any representation on her behalf. There was no evidence to support the submission of the applicant's counsel that, in furnishing a report to the respondent's solicitors, he intended to act as the agent of the applicant or that he intended "to transfer the information" (as to her previous back injury) to her employer". The contentions of the applicant's counsel on those matters cannot be upheld. It may be added that the applicant's evidence before the Tribunal occupied more than 60 pages of transcript, including evidence when she was recalled on the day after her initial appearance as a witness. She did not give evidence that she had authorised Dr Spina to "supersede" her own representations to the respondent employer. The only authority given by her to Dr Spina that was in evidence (Exhibit A) was in the following terms:
   

"I hereby authorise you to release to the Delegate in

Australia Post all medical information in your possession

(including x-ray films, or reports, E.C.G. tracings etc.) in relation to my claim for compensation in respect of:-

(Handwritten) Back injury

(Nature of claimed condition)"

1. In those circumstances it is not necessary for me to express any opinion on the question whether an employee's earlier representations could be "superseded" by the employee or by an authorised agent in such a way as to overcome the consequences provided by sub-section 7(7) of the Act for an employee who has "made a wilful and false representation". It may be added that the answer to that question may well be that "a wilful and false representation" once made cannot be "superseded" although such a representation might not be held to be "wilful" if the employee immediately took steps to correct the false representation.

2. The second submission by the applicant's counsel was that it was not open to the Tribunal to find, on the evidence before it, that the material representations by the applicant were "wilful" within the meaning of sub-section 7(7). He accepted that, in completing forms "for purposes connected with ... her employment", she had made a number of statements which were false, in the sense that they were incorrect.

3. The applicant's evidence before the Tribunal included cross-examination at some length, which included questions as to whether she had "purposely lied" and whether she had "wilfully made a mis-statement on (a) claim form". The applicant answered "No" to both questions and gave certain explanations as to why she had made the false statements. The Tribunal, having heard her evidence, said in its decision "We do not accept her explanation of these matters . . . We do not believe that she misunderstood what was being asked of her, or that she failed to read the form carefully. We did not find her evidence on these matters convincing . . . we find that Mrs Owens did not disclose her previous back injuries at the medical examination".

4. The Tribunal, having decided that it did not believe her sworn explanations as to why she made the false statements, came to the conclusion that the material statements constituted "wilful" representations. In my opinion it was open to the Tribunal, on the evidence before it, to come to that conclusion.

5. As neither of the two submissions by the applicant's counsel has been upheld, the appeal must be dismissed and the applicant ordered to pay the costs of the respondent.