Roderick, David James v Telstra Corporation Ltd

[1996] FCA 1019

CATCHWORDS

APPEAL - general principles - Administrative Appeals Tribunal Act 1975 s 44 - appeal from Tribunal restricted to matter of law.

Administrative Appeals Tribunal Act 1975 s 44

No SG 5 of 1995

DAVID JAMES RODERICK v TELSTRA CORPORATION LIMITED

Lee, O'Loughlin, Mansfield JJ
Adelaide
15 November 1996

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )    No SG 5 of 1995
  )
GENERAL DIVISION  )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

DAVID JAMES RODERICK

Appellant

- and -

TELSTRA CORPORATION LIMITED

Respondent

EX TEMPORE REASONS FOR JUDGMENT

CORAM:    Lee, O'Loughlin, Mansfield JJ
PLACE:    Adelaide
DATE:     15 November 1996

THE COURT: This appeal is brought pursuant to s44 of the Administrative Appeals Tribunal Act 1975 against a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 10 June 1994.  The Tribunal had reviewed a decision made by a delegate of the respondent of 28 May 1993 under s62 of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), which was in turn a review of the initial determination made on 4 September 1992 in respect of the appellant's claims for compensation under the Act against the respondent.

The Tribunal varied the decision under review and determined:

"(1)the applicant suffered an injury, namely symptoms of an Anxiety Disorder; and

(2)the applicant was incapacitated on 18, 19, 20 and 21 February 1991 as a result of that injury; and

(3)the matter is to be referred to the respondent for action, if appropriate, in accordance with paragraph 60 of this decision."

Paragraph (3) refers simply to the four days' incapacity as found; it was unclear whether the appellant had been paid for those days in any event.

Under s44 of the Administrative Appeals Tribunal Act the appeal from the Tribunal is on a matter of law only.

At the hearing of the appeal, the respondent acknowledged, as apparently it had earlier to the appellant, that the Tribunal had erred in law in determining that the appellant was not incapacitated for work between 22 February 1991 and 17 March 1991 simply because he was fit for alternative duties between those dates:  s19 of the Act justifies that acknowledgment.  The appellant did not, on the appeal, otherwise seek to challenge any findings of the Tribunal either as a matter of law or at all, including the finding that he had fully recovered from his injury by 17 March 1991.

That acknowledgment having been made, and in the absence of further contentions of law put by the appellant otherwise challenging the decision of the Tribunal in relation to his
claim for compensation, the Court considered it appropriate to allow the appeal and to make orders accordingly.  Those orders appear below.

It is however desirable to note one other aspect of the appellant's contentions. It arises out of his employment history with the respondent. He was first employed, on a probationary basis, as a radio lineman on 25 September 1989. That employment was terminated by the respondent on 19 November 1990, and after review by the Promotions Appeal Board was made effective from 22 February 1991. The appellant challenged that decision in this Court by proceedings under the Administrative Decisions (Judicial Review) Act 1977. His complaints in that proceeding included that his employment could not have been annulled and his employment terminated under s40 of the Telecommunications Act 1975 (as then relevantly in force) as his employment by the time of that decision was no longer probationary, and secondly because the Promotions Appeal Board had failed to accord him procedural justice. At first instance, the appellant failed in his application on both points. On appeal, the Full Court of this Court again rejected the submission that his employment by the time of its termination was no longer probationary, but allowed the application for review as it found that the Promotion Appeals Board had not properly afforded the appellant procedural fairness in its review hearing. The Full Court directed that the matter be referred back for review to a differently constituted Promotions Appeal Board. That newly constituted Promotions Appeal Board heard the review, and after a lengthy hearing determined on 1 September 1993 that the annulment of the appellant's probationary appointment and the termination of his employment was correct.

There is nothing to suggest that any further process was instituted by the appellant to challenge that decision.

The appellant, in his submissions on this appeal, sought to further ventilate the matters relating to his employment status, including the calling of further evidence directed to establishing that his employment by the respondent was no longer probationary by November 1990, and that the grounds given by the respondent for the termination of his employment were invalid.  His purpose, as he candidly acknowledged, was not to have the decision of the Tribunal relating to his compensation claim altered beyond correcting the error conceded by the respondent, but to have this Court on this appeal rehear and redetermine matters relating to his employment status with the respondent.  The question of whether he was entitled to do so was raised at the commencement of the hearing.  The brief description of the nature of this appeal, and of the history of the procedures followed by him in separate proceedings relating to his employment status and to the grounds of its termination by the respondent, are sufficient to indicate that this Court has no power on the hearing of this appeal to entertain such matters.  It is limited to correcting any errors of law in the decision
of the Tribunal on his compensation claim.

Initially, there was some factual overlap between the compensation claim and the grounds for his termination, as the respondent by its initial decision maker and the delegate's review of 28 May 1993 had determined that he had no entitlement to compensation because his anxiety disorder was caused by reasonable disciplinary action by the respondent, and so by reason of the definition of "injury" in s4(1) of the Act was not an injury at all.  That definition excludes any injury suffered by an employee as a result of reasonable disciplinary action taken against that employee in connection with his employment.  At that point, therefore, there was some overlap of circumstances relating to the reasons for his termination and to the conduct said by the respondent to amount to reasonable disciplinary action.  However, the appellant succeeded before the Tribunal on that matter; it rejected the response of the respondent to the appellant's compensation claim and found that the appellant had suffered an injury under the Act.  The respondent did not, on the appeal, seek to challenge that conclusion of the Tribunal.  That question was not therefore one which this Court was required to address on the appeal.

Having regard to the history, although the respondent had apparently acknowledged at an early stage to the appellant that the appeal should succeed to the extent specified above, the respondent quite properly in the view of the Court did not
press for costs on the appeal.

The order of the Court is that the appeal be allowed by varying the decision of the Administrative Appeals Tribunal of 10 June 1994 in the following respects:

1. by substituting for paragraph (2) of the order of the Tribunal an order declaring that the applicant was incapacitated between 18 February 1991 and 17 March 1991 inclusive as a result of the injury found by the Tribunal,

and

1. by substituting for paragraph (3) of the order of the Tribunal an order directing that the matter be referred to the respondent for calculation of, and payment to the appellant of, the appropriate sums payable to him pursuant to this order.

There is no order as to the costs of the appeal including any costs reserved on previous attendances.

I certify that this and the preceding        pages are a true copy of the Ex Tempore Reasons for Judgment of the Court.

Associate:

Dated:

Appellant appears in person

Counsel for the Respondent       :    Mr M J Roder
Solicitors for the Respondent        :    Norman Waterhouse

Hearing Date  :    15 November 1996