Pulitano, Rocco v Telstra Corp Ltd - [1998] FCA 212

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 974 of 1996

BETWEEN:

ROCCO PULITANO
Applicant

AND:

TELSTRA CORPORATION LIMITED
Respondent

JUDGE:

EMMETT J

DATE:

16 FEBRUARY 1998

PLACE:

SYDNEY

THE COURT ORDERS:

That the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 974 of 1996

BETWEEN:

ROCCO PULITANO
Applicant

AND:

TELSTRA CORPORATION LIMITED
Respondent

JUDGE:

EMMETT J

DATE:

16 FEBRUARY 1998

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: There is before the court an appeal brought under the Administrative Appeals Tribunal Act 1975 (Cth)from a determination of the Administrative Appeals Tribunal of 15 November 1996. The decision concerns the entitlement of Rocco Pulitano (“the Applicant”) to compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") from Telstra Corporation (“Telstra”).

The dispute between the Applicant and Telstra is of some long standing. It arises out of an injury suffered by the Applicant to his shoulder on 2 January 1980 after slipping on a polished floor at the Annandale depot of Telstra. Liability for incapacity resulting from the injury was accepted by Telstra for a limited period.

However, a delegate of Telstra determined on 8 February 1989 that liability in respect of the sprained left shoulder ceased on 29 July 1988. That determination was revoked on 22 December 1989 and a determination was made that the effects of the injury of 2 January 1980 and a further injury which occured on 19 November 1987 ceased to exist not later than 28 July 1988. That decision was the subject of review by the Tribunal in respect of which a decision was given on 7 October 1994.

By that decision, the Tribunal set aside the decision under review and made a number of findings. The findings were that the effects of the work related left shoulder injury suffered by the Applicant had not ceased, that as a result of such injury the Applicant is unable to perform his pre-injury duties as a linesman and that the Applicant is fit to undertake work as a bowser attendant, work of a supervisory nature and work that does not require excessive use of the left arm or shoulder.

In the course of its reasons the Tribunal made a number of additional findings. On 8 December 1986 the Applicant was offered light duties as a bowser attendant. He was advised by letter that the work would involve serving petrol, dispensing oil and completing associated dockets. He apparently continued as a bowser attendant for four days before ceasing work on 12 December 1986. He then provided medical certificates certifying him unfit for work until 23 January 1987 as a result of an aggravated shoulder injury. He was directed to return to work on 8 January 1987 and on 27 May 1987 a Commonwealth Medical Officer reported the Applicant was fit to continue in his…

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.

Continue reading Pulitano, Rocco v Telstra Corp Ltd

Details

AGLC: Pulitano, Rocco v Telstra Corp Ltd [1998] FCA 212
Case: [1998] FCA 212
Decision Date: 16 FEBRUARY 1998

CaseChat Overview and Summary

Rocco Pulitano initiated an appeal against Telstra Corporation Limited, seeking compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) for an injury sustained at work. The dispute stems from a shoulder injury Pulitano suffered in 1980, which Telstra accepted liability for, albeit for a limited period. The core legal issue revolved around the interpretation of the Act, specifically sections 19(3) and 19(4), concerning Pulitano's entitlement to compensation. The crux of the dispute was whether the Tribunal's findings meant that Pulitano was able to continue working as a bowser attendant, a role deemed suitable employment under the Act.

Justice Emmett analyzed the Tribunal's findings, noting that while the Tribunal had concluded that Pulitano could perform the duties of a bowser attendant, there was ambiguity regarding whether this conclusion implied that Pulitano had actually continued in that employment. Telstra argued that Pulitano's employment had been terminated, thus he could not earn from suitable employment. Pulitano, on the other hand, argued that since his employment had been terminated, he could not earn from suitable employment as defined by the Act. The court examined the legislative intent and concluded that the Tribunal's findings were more aligned with Pulitano's failure to continue in suitable employment, thus making him ineligible for compensation under section 19(4)(c) of the Act.

The Federal Court upheld the Tribunal's decision, dismissing Pulitano's appeal and ordering him to pay costs. The reasoning hinged on the interpretation of the Tribunal's findings and the applicable sections of the Act. Justice Emmett determined that Pulitano's failure to continue in suitable employment, as found by the Tribunal, justified the delegate's decision, which was upheld by the Tribunal on review. The Court found no basis to depart from the usual rule that costs follow the event, thereby dismissing the appeal with costs.

Orders