Phillips v The Commonwealth

[1964] HCA 22

HIGH COURT OF AUSTRALIA

Kitto, Taylor and Owen JJ.

PHILLIPS v. THE COMMONWEALTH

(1964) 110 CLR 347

25 March 1964

Workers' Compensation

Workers' Compensation—Commonwealth Employees—Employee receiving compensation for total incapacity—Declaration that no longer entitled to payments for total incapacity—Appeal to County Court—Onus of proof of partial incapacity—Commonwealth Employees' Compensation Act 1930-1959 (Cth), s. 20 (1), First Schedule, pars. 1 (b), (c).

Decision

March 25.
THE COURT delivered the following written judgment: -
On 28th November 1956 the appellant was an "employee" to whom the provisions of the Commonwealth Employees' Compensation Act 1930-1956 (Cth) applied and on that date personal injury by accident arising out of or in the course of her employment was caused to her. During successive periods thereafter she received payments of compensation assessed pursuant to par. 1 (b) of the First Schedule to the Act, that is to say, on the basis that she was totally incapacitated for work. Her entitlement to compensation on this basis was established by a series of successive determinations of the delegate of the Commissioner for Commonwealth Employees' Compensation, the last of which was made on 22nd August 1961. In terms, this determination declared that as from 2nd February 1961 the appellant had been totally incapacitated for work as the result of personal injury by accident arising out of or in the course of her employment by the Commonwealth on 28th November 1956, namely aggravation of a pre-existing condition of brachial plexus lesion and that, in accordance with the provisions of par. 1 (b) of the First Schedule to the Act the appellant "is thereby entitled to the payment of compensation of 10 pounds per week from 2nd February 1961, until a date to be determined by the Commissioner". But on 8th December 1961 the delegate made a further determination by which it was declared that as from 16th November 1961 the appellant "has been able to earn, in some suitable employment or business, a weekly amount which is not less than her pay at the date of injury as since varied, and thereupon she ceased to be entitled to weekly payments of compensation under the said Act". From this determination a so-called appeal was taken to the County Court at Melbourne and upon the appeal being dismissed an appeal was brought to this Court. For the reasons appearing in the report of the case (1963) 36 ALJR 358 the order of the County Court was discharged and the appeal from the determination of the delegate was remitted to the County Court for rehearing. The rehearing, which has now taken place, again resulted in the dismissal of the appeal from the delegate and a further appeal is now brought to this Court. In substance the principal ground of appeal is that the learned County Court Judge misdirected himself as to the onus of proof in relation to the issue whether the appellant, in the language of par. 1 (c) of the First Schedule to the Act, was, after 16th November 1961, able to earn in some suitable employment or business, a weekly sum not less than her weekly pay at the date of the injury, as since varied. (at p349)

2. The appeal to the County Court was brought pursuant to s. 20 (1) of the Act which provides that: "Any person affected by any determination or action of the Commissioner under this Act may appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a re-hearing". The use of the word "may" in the concluding words of the sub-section is somewhat curious but it is clear enough that the form of proceeding for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances. This proposition was disputed by the Commonwealth on the authority of observations made in Pethick v. The Commonwealth of Australia (1960) 103 CLR 643, at p 649, but that case was not concerned with the termination of a right to compensation by reason of any change in material circumstances; it was concerned with the question whether the appellant ever had a right to compensation. On this aspect of the case we were referred to Quinn v. M'Callum (1908) 2 BwCC 339 and Smeaton &Sons, Ltd. v. Taylor (1933) 26 BwCC 369 and we, ourselves, have referred to the observations of the Master of the Rolls in Cory Brothers &Co. Ltd. v. Hughes (1911) 2 KB 738, at p 743 We do not doubt the authority of those cases and think that they clearly establish the validity of the propositions which we have set out. But it is, we think, equally clear that those propositions do not, as was contended, mean that this appeal must be determined in favour of the appellant. In the present case what had been initially established was that the appellant was totally incapacitated as, indeed, was the basis of her original claim for compensation, and immediately before the final determination of the delegate she held, in effect, an award establishing her entitlement to compensation in accordance with par. 1 (b) of the First Schedule to the Act. That award, however, could survive only so long as she remained totally incapacitated. Apparently the delegate of the Commissioner was satisfied that she did not so remain after 16th November 1961 and upon the rehearing of the appeal to the County Court it was found as a fact that she was not totally incapacitated after that date. This finding is not challenged in this Court and indeed it could not be challenged, for it was founded upon a certificate of a medical board which s. 19 (4) makes conclusive evidence of the matters certified. Accordingly, it is clear that the applicant has no further right to compensation under par. 1 (b). But it is contended on her behalf that in order to secure the dismissal of her appeal to the County Court it was incumbent upon the Commonwealth not only to establish that fact, but also that after the date in question she was not partially incapacitated or, alternatively, that any remaining residual incapacity did not diminish her earning capacity. That is to say, that it was the appellant's contention that the onus lay upon the Commonwealth of proving facts showing, not only an absence of liability on its part under par. 1 (b) of the First Schedule, but also an absence of liability under par. 1 (c). There is, we think, some confusion in this contention. It may be that the issues before the County Court were not precisely defined but that the appeal had dual aspects is beyond question. In the first place, there arose for determination the question whether the liability of the Commonwealth to pay compensation to the appellant as a totally incapacitated employee should be brought to an end. Upon this issue the onus rested fairly upon the Commonwealth but, as already appears, it was discharged and the finding of the County Court cannot be challenged. Then arose the question whether compensation should be awarded to the appellant as a person partially incapacitated and with a diminished earning capacity. This, in effect, constituted the basis of a new claim not previously pronounced upon before its rejection by the Commissioner. On this issue the onus was, we think, clearly upon the appellant. Accordingly, we do not think that the learned County Court Judge made any error of law upon this point. (at p351)

3. A further matter was but somewhat faintly argued on behalf of the appellant and this was to the effect that the evidence before the County Court Judge was all one way and that he should have found that after 16th November 1961, the appellant was partially incapacitated for work and that as a result her earning capacity was so diminished as to bring her case within par. 1 (c) of the First Schedule to the Act. Upon a consideration of the evidence we are satisfied that this contention is insupportable. (at p352)

4. Accordingly, we are of the opinion that the appeal should be dismissed. (at p352)

Orders

Appeal dismissed with costs.