Re Fuad and Telstra Corporation Limited

[2004] AATA 1182

Administrative

Appeals

Tribunal

 

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2004] AATA 1182

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/920

GENERAL ADMINISTRATIVE DIVISION	)
Re	PAUL FUAD

Applicants

And TELSTRA CORPORATION LIMITED

Respondent

INTERLOCUTORY DECISION

Tribunal Justice Garry Downes, President

Date3 November 2004

PlaceSydney

Decision Refer the matter for conference before a conference registrar.

…......[sgd Garry Downes] …......

President

CATCHWORDS

ADMINISTRATIVE LAW – compensation of Commonwealth government employees – future liability to pay compensation – cessation of liability – respondent agrees to part decision being set aside – request for remittal to original decision-maker – other questions still to be decided – Tribunal to dispose of matter at hearing – Administrative Appeals Tribunal Act 1975 (Cth) s 42C

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42C, 42D

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 21, 62

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Kelleher and Telstra Corporation Limited [2004] AATA 1156

Liu and Comcare (2004) 79 ALD 119

Rosillo v Telstra Corporation Limited (2003) 77 ALD 396

REASONS FOR INTERLOCUTORY DECISION

3 November 2004 Justice Garry Downes, President

1. This matter is similar to, but not identical to, the matter of Kelleher and Telstra Corporation Limited [2004] AATA 1156 which I dealt with a few moments ago. Paul Fuad is an employee of Telstra Corporation Limited. He was injured at work. He made a claim under the Safety, Rehabilitation and Compensation Act 1988 for compensation as a result of his injury and that claim was admitted by Telstra or the Government Insurance Office acting on its behalf. It follows that a favourable decision to Mr Fuad under s 14 and possibly also under s 16 of the Act was made.

2. Mr Fuad subsequently made a particular claim for compensation.  This was ultimately dealt with by a decision under the Act made on 4 May 2004.  The decision accepted a number of claims made by Mr Fuad up until that date but rejected claims with respect to the future.  Paragraph 6 of the determination of the authorised officer is as follows:

   Telstra Corporation ceased to be liable to pay compensation in respect of said injury on and from 4 May 2004.

1. As a result of the combined effect of the decisions of the Federal Court in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Rosillo v Telstra Corporation Limited (2003) 77 ALD 396, and this Tribunal in Liu and Comcare (2004) 79 ALD 119, that decision is contrary to the Act. Once liability has been established under s 14, or for that matter under s 16, of the Act, although it is possible that, as a result of the injury resolving, there may be no actual entitlement to compensation for periods of time, even long periods of time, an employee can never be deprived of his entitlement to claim further compensation relating to the established injury if the injury again causes some incapacity. The question in this case, as in Kelleher and Telstra, is how this matter, which is accepted by the respondent, should be dealt with in the application for review before the Tribunal. 

2. The application for review before the Tribunal in this matter differs from the application in Kelleher and Telstra because Mr Fuad does wish to pursue claims which were before the decision-maker and which relate to incapacity not upheld in the decision under review.  These matters are not dealt with in the determination because of the decision that liability had ceased but, in my opinion, the effect of the decision in Oudyn is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.

3. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way.  That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem. 

4. The result in the present case is that, unlike Kelleher and Telstra, I cannot finally dispose of the matter in a way which satisfies the parties.  The matter must go forward in terms of preparation for hearing on the claims that were before the decision-maker which were rejected. 

5. It is always to be hoped that some resolution of the matter might be achieved before a hearing is necessary but the appropriate course for me is to proceed on the basis that the matter will go forward to a hearing. Again, there are issues before me as to whether the matter should be sent back for further decision under s 42D of the Administrative Appeals Tribunal Act 1975, or should be the subject of reconsideration under s 62 of the Act, or should be dealt with as the matter proceeds through the Tribunal. Just as in Kelleher, I think that the requirements of s 33 of the Tribunal Act can be best achieved by dealing with the matter as simply and as efficiently as possible within the Tribunal itself.

6. It will be necessary for the matter to go before a conference registrar at an early point of time as part of the ordinary process of the Tribunal of preparing these matters for hearing. The sensible course seems to me to be in this case, and in the other cases of a like kind which are pending before the Tribunal, that once a respondent has determined that it does not wish to maintain the validity of a decision that liability has ceased under either s 14 or s 16, and I add that it is a matter for the respondent in each case to make such a decision, the appropriate course is for the conference registrar dealing with the matter to record this matter prominently in the file and to note that no further consideration needs to be given that matter other than for the member or members hearing the matter to make an order setting aside the relevant part of the decision during the hearing. If the matter is resolved, then a similar decision can be incorporated in proposed terms of settlement for consideration under s 42C of the Tribunal Act.

7. Some issues of costs will arise.  Because it is now well established that, short of a successful challenge to at least the Full Federal Court and possibly the High Court of Australia, cease liability orders of the kind I am dealing with here cannot be made, applicants will incur very little costs in challenging those orders that are within the system and relate to decisions that were made either before the decisions in Oudyn and Rosillo or by a decision-maker who was not aware of them.  It follows that there may be very little, if any, costs of an applicant associated with that part of its application for review that relates to the cease liability order itself.  However, in principle, an argument can be mounted in favour of an order for costs and members of the Tribunal may consider that orders for costs relating to cease liability orders should be made from time to time.  Some of the argument before me this morning, particularly in the written submissions of the parties, addressed this issue of costs. 

8. It seems to me that where a decision not authorised by the Act is made, in most circumstances an applicant will be entitled to an order for costs associated with the making of that incorrect decision.  However, as I have said, the knowledge of applicants that such a decision is really unsustainable will mean that the costs that they incur will be slight and it seems to me that any costs they will be entitled to, although I cannot and do not attempt to bind the discretion of members of the Tribunal in the future, could not survive an unequivocal communication by a respondent to an applicant that the respondent did not seek to sustain the cease liability decision before the Tribunal.  It follows that whilst in many cases there will be a technical entitlement to costs, it may be that it proves not to be substantial.

9. It seems to me, therefore, that in this case and in the other cases before the Tribunal in the same category, the most convenient way for the issue to be dealt with by both the parties and by the Tribunal and particularly the conference registrars is in the way I have described. At the first conference the first matter to be discussed will be whether the respondent wishes to maintain the decision. If the respondent indicates that it does not wish to maintain the decision then that matter will be recorded by the conference registrar. The result will be that a decision setting aside that part of the decision will be made at the hearing, or, if the matter is compromised, by a decision under s 42C. Otherwise, after a very short period of time discussing this matter the conference registrar and the parties can get on with the real issues in the conference and prepare the substantive issues in the matter for a hearing.

10. This matter was listed before me at the behest of the Tribunal because it did raise some questions of principle which are present in a number of matters that are before the Tribunal or will come before the Tribunal in the future.  Through the Tribunal registry I made it clear to the parties that the Tribunal wished to receive substantive submissions as to the way in which the matter should be dealt with.  The applicant in those circumstances took the course of retaining counsel experienced in these matters to put the arguments appropriate to the issue in general as well as the issue so far as his client was concerned.

11. I am not this morning making any order for costs relating to this directions hearing or the circumstances surrounding it and preparation for it.  That will be a matter to be dealt with by the Tribunal as constituted for the hearing.  However, I do say that it seems to me that it was reasonable in all the circumstances, indeed encouraged by the Tribunal, that the parties should, as they were, both be well represented before the Tribunal for the hearing of the application.  Accordingly it would seem to me, although I cannot bind the Tribunal as subsequently constituted, that it would be reasonable for any order for costs that is ultimately made to include costs for counsel appearing before me.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed:     …......[sgd Shamus Toomey]…......

Associate

Date of Hearing  3 November 2004
Date of Decision  3 November 2004
Counsel for the Applicant                   Mr D Richards
Solicitor for the Applicant                   Slater & Gordon
Counsel for the Respondent             Mr B Kelly

Solicitor for the Respondent              Sparke Helmore