Reitano, Frederick Victor v Commonwealth of Australia

[1983] FCA 175

Re: FREDERICK VICTOR REITANO
And: THE COMMONWEALTH OF AUSTRALIA
No. G28 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
Morling J.
Neaves J.

CATCHWORDS

Administrative law - Commonwealth Employees Compensation - Application for redemption of liability of Commonwealth to make further payments to employee by payment of lump sum - Whether Commissioner may vary or revoke a determination under which weekly payments are made once application is made for redemption of Commonwealth's liability to make further weekly payments.

Compensation (Commonwealth Government Employees) Act 1971 ss. 20, 46, 49

Administrative Appeals Tribunal Act 1975 s.44

HEARING

BRISBANE

#DATE 5:8:1983

ORDER

1. Order No. 5 of the Orders made by Fitzgerald J. on 27 October 1982 be varied by deleting therefrom the following:- ". . . , and the determination of 3 April 1981 of a delegate of the Commissioner that the applicant is entitled to compensation from 1 September 1980 until a date to be determined by the Commissioner or his Delegate of payment of $105.00 per week in respect of compensation for partial incapacity."

2. Otherwise the appeal be dismissed.

3. The appellant pay the respondents costs of this appeal.

JUDGE1

This is an appeal by Frederick Victor Reitano ("the appellant") from so much of the judgment and order given and made by a single Judge of this Court (Fitzgerald J.) on 27 October 1982 as directed that the matter before him be remitted to the Commissioner for Employees' Compensation ("the Commissioner") for the reconsideration of certain questions to which it will be necessary to refer.

The facts necessary for the determination of this appeal may be shortly stated. On 3 April 1981 a delegate of the Commissioner determined, in accordance with paragraph 46(2)(a) of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"), that the appellant was entitled to the payment of compensation of $90 per week from 5 February 1980 to 31 August 1980, both dates inclusive, and $105 per week from 1 September 1980 until a date to be determined by the Commissioner or his delegate. This determination was made following a decision of Mr J.O. Ballard of 17 February 1981 sitting as the Commonwealth Employees' Compensation Tribunal.

By letter dated 30 April 1981 the appellant's then solicitors applied on his behalf pursuant to s.49 of the Act for the liability of the Commonwealth to make further payments to the appellant under s.46 of the Act to be redeemed by the payment to him of a lump sum.

Section 49 of the Act, so far as material for present purposes, provides:

"49. (1) Subject to this section, where payments of compensation in respect of an injury have been made to an employee under section 46 for a continuous period of not less than six months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum.
(2) A request under the last preceding sub-section shall be in writing and shall specify the manner in which the employee intends to use the lump sum if the request is granted.
(3) Where a request is made under sub-section (1), the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine -
(a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and"

The appellant then applied to the Administrative Appeals Tribunal for a review of the determination so made. The Tribunal affirmed the decision under review though for reasons other than those given by the primary decision maker. The Tribunal concluded that the reasons given by the delegate for his decision could not be supported and, in accordance with the requirements of the Administrative Appeals Tribunal Act 1975, considered what was the preferable decision having regard to the relevant facts in evidence and the provisions of the Act. The Tribunal expressed the view that, although it was satisfied as to the matters set out in sub-s. 49(5), those were not the only matters to be considered as s.49 conferred a wider discretion. The Tribunal held that

". . . the Commissioner has a discretion which he must exercise in accordance with the express dictates of Parliament laid down in s.20(2) of the Compensation Act and having regard to the scope and object of that Act."

The Tribunal, having considered the material before it, refused the appellant's application for redemption, affirming the decision under review.

From that decision the appellant appealed to this Court under s.44 of the Administrative Appeals Tribunal Act which provides for such an appeal on a question of law. Fitzgerald J., who heard the appeal, set aside the decisions of the Tribunal and of the Commissioner refusing the appellant's application under s.49 of the Act. Order No. 5 of the orders made by Fitzgerald J. was in the following terms:-

"5. the matter be remitted to the Commissioner for Employees' Compensation to reconsider the applicant's request made under s.49 of the Compensation (Commonwealth Government Employees) Act 1971 to have payment of compensation in respect of his partial incapacity redeemed by payment to him of a lump sum, and the determination of 3 April 1981 of a delegate of the Commissioner that the applicant is entitled to compensation from 1 September 1980 until a date to be determined by the Commissioner or his Delegate of payment of $105.00 per week in respect of compensation for partial incapacity."

No appeal from the judgment and orders given and made by Fitzgerald J. was taken within the time prescribed but the Court, by order made on 22 April 1983 upon application made on behalf of the appellant, gave leave to him to file and serve a notice of appeal from Order No. 5 referred to above. Notice of appeal was filed on 27 April 1983.

Although Order No. 5 is expressed in terms of a reconsideration by the Commissioner of the determination of 3 April 1981 that the appellant is entitled to compensation from 1 September 1980 until a date to be determined by the Commissioner or his delegate, it is clear from the reasons for judgment given by Fitzgerald J. that his Honour intended to remit to the Commissioner the question whether the appellant continues to be partially incapacitated and entitled to compensation.

During the course of argument it became apparent that the real issue between the parties was whether it was still competent for the Commissioner to consider whether the appellant continues to be partially incapacitated for work. Mr Callinan Q.C., who appeard for the appellant, argued that, once an application was made under s.49 of the Act for the liability to make further weekly payments of compensation to be redeemed, it was not competent for the Commissioner to take any action under sub-s. 20(4) of the Act varying or revoking the determination under which those weekly payments were made. We can see no basis for this submission and, indeed, apart from asserting the proposition, Mr Callinan was unable to point to any reason why the plain words of sub-s. 20(4) should be read down in the way that he suggested. It would be extraordinary if the mere making of an application for redemption were to deprive the Commissioner of the power to reconsider the question whether the employee is entitled to continue to receive the weekly payments which are the subject of the redemption application. In the present case under the determination of 3 April 1981 the weekly payments were expressed to continue "until a date to be determined by the Commissioner or his Delegate". Plainly it was contemplated that consideration might be required at some time in the future of the question whether the payments should continue. We reject Mr Callinan's argument.

We should say that, in any event, it would be relevant in determining the amount of any lump sum payable under sub-s. 49(4) of the Act to have regard to the prospect of the employee ceasing to be entitled to payments of compensation under s.46. In determining the value of the right of the employee to receive further payments of compensation it would be relevant, in our opinion, to have regard to any matter which might affect the continuation of those payments. What sub-s. 49(4) requires to be valued is the right of the employee to receive further payments of compensation under s. 46. The right which that section confers is a right to receive compensation only during the period during which the employee is partially incapacitated for work due to injury. Clearly, if it be shown that an employee is no longer partially incapacitated for work, this circumstance would need to be taken into account in assessing whether the Commonwealth's liability should be redeemed and, if so, the value of the employee's right to receive further payments of compensation: see Heath v Commonwealth of Australia, (1982) 43 A.L.R. 673 at p.678.

Mr Callinan presented an alternative argument that the appellant's entitlement to continuing payments of compensation on the basis of partial incapacity for work was no longer open to question because, so it was said, that very question had already been determined by Mr Ballard, sitting as the Commonwealth Employees' Compensation Tribunal. The determination of 3 April 1981 was made consequent upon Mr Ballard's decision of 17 February 1981. In the course of giving his reasons for that decision, Mr Ballard, apparently as a matter of convenience to the parties, expressed some views as to the likely outcome of a redemption application were it to be made in the future. But it is plain that the remarks which he made on the question of redemption were in no sense intended to be, nor were they, a formal determination under s. 49. Indeed, the application for redemption of weekly payments was not made until 30 April 1981. In these circumstances there is no substance in the argument that Mr Ballard's decision precludes consideration of the question of the appellant's continuing partial incapacity for work.

We have already referred to the orders made by Fitzgerald J. It was only the second part of Order No. 5 which the appellant sought to have set aside. It was argued that his Honour had no power to make the second part of the order because all that was before the Court was the decision of the Administrative Appeals Tribunal affirming the decision of the Commissioner refusing the appellant's request under s. 49 of the Act to have the Commonwealth's liability to make further payments of compensation to him redeemed. It was argued that, as the determination dated 3 April 1981 was not before the Court, it had no power to remit to the Commissioner the question whether he should exercise his power under sub-s. 20(4) of the Act.

His Honour's decision was given on 27 October 1982. The appeal against his decision was brought, by leave of the Court, out of time. The appeal was not commenced until 27 April 1983. By that time the second part of Order No. 5 had been partially carried into effect. We were informed that more than six months before the appeal to this Court came on for hearing and more than three months before the appeal was instituted the Commissioner had, in fact, taken action under sub-s. 20(4) to reconsider the determination of 3 April 1981. As we have already indicated, we think that it was competent for the Commissioner to reconsider the earlier determination, notwithstanding the making of the redemption application. In these circumstances the question whether his Honour had power to make the second part of Order No. 5 is an arid question. We are inclined to think that his Honour probably included the latter part of that order for more abundant caution to make plain his view that the question of the appellant's continuing partial incapacity for work could still be reconsidered. For the reasons we have already given we think that his Honour was correct in holding that view.

We have no doubt that had the Commissioner embarked under sub-s. 20(4) upon a reconsideration of the prior determination before his Honour gave his decision, the latter part of Order No. 5 would not have been made because it would have been unnecessary. In the light of the action which the Commissioner has taken there is no purpose to be served by the retention of this part of the Order. In these circumstances and, without deciding whether his Honour had power to make the order, we think the convenient course is to vary it. We should add that counsel for the respondent did not seek to retain the whole of Order No. 5 in the event that the Court decided the substantive point in the appeal in the respondent's favour.

In the result, Order No. 5 should be varied by deleting therefrom the words "and the determination of 3 April 1981 of a delegate of the Commissioner that the applicant is entitled to compensation from 1 September 1980 until a date to be determined by the Commissioner or his Delegate of payment of $105 per week in respect of compensation for partial incapacity". Otherwise the appeal should be dismissed. The appellant must pay the respondent's costs.