Roidoulis, Meni v Australian Postal Commission

[1981] FCA 43

Re: MENI ROIDOULIS
And: AUSTRALIAN POSTAL COMMISSION
VG No. 152 of 1980
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Compensation - Commonwealth employees - appeal from decision of Compensation Tribunal - power of Tribunal in respect of failure to obtain determination by Commissioner for Employees' Compensation - power of Tribunal to deal with application for redemption not previously considered by Commissioner - power of Tribunal to direct that any further claim be heard by Tribunal and not Commissioner - Compensation (Commonwealth Government Employees) Act 1971

HEARING

MELBOURNE

#DATE 16:4:1981

ORDER

1. The appeal be allowed.

2. The decision of the Commonwealth Employees' Compensation Tribunal of 11 November 1980 be set aside.

3. There be liberty to either party to apply.

JUDGE1

This is an appeal by Meni Roidoulis (the appellant) from a decision of the Commonwealth Employees Compensation Tribunal (the tribunal) given on 11 November 1980. The appeal is brought under s.95 of the Compensation (Commonwealth Government Employees) Act 1971 (the Act) which allows an appeal on a question of law only. The tribunal gave written reasons for its decision "to make no determination varying or revoking those determinations" - referring to "determinations" of the tribunal made on 24 July 1979 and 24 August 1979 respectively on the application of the appellant.

In the proceedings before the tribunal the initiating document was signed on behalf of the appellant by her solicitor and, omitting formal parts, was in the following terms:

"APPLICATION FOR REFERENCE TO COMPENSATION TRIBUNAL TAKE NOTICE that the Claimant being dissatisfied and aggrieved at the failure of the Respondent to pay compensation in respect of an injury sustained in the course of her employment on 26th June, 1977: HEREBY APPLIES for a Determination by the Compensation Tribunal on the following grounds:

1. The Claimant suffered an injury in the course of her employment on 26th June, 1977.

2. Medical certificates have been supplied to Australia Post and to the Commissioner of Employees' Compensation supporting the Applicant's total and continuing incapacity.

3. Letters of claim have to date failed to produce any determination by the Commissioner for Employees' Compensation. AND IT IS HEREBY REQUESTED that the Tribunal make the following Determination:

1. That the Claimant be paid Compensation at the rate of $80.00 per week from 25th June, 1977 to date and continuing.

2. That the Claimant be granted the legal costs incurred.

3. Such other orders as the Tribunal considers fit and proper in the circumstances. DATED this 10th day of January 1979."

It was common ground that the statement, appearing twice in the application, that the date of the injury was 26 June 1977, was not correct and that the injury occurred on 31 March 1976.

At the commencement of the hearing of this appeal Mr Knott of counsel on behalf of the Australian Postal Commission (the respondent) drew the Court's attention to "a matter of jurisdiction" - a question of whether the tribunal had jurisdiction to make the decision the subject of this appeal. Mr Knott stated he was not formally submitting that the tribunal had no jurisdiction to make the decision but that he had "raised it as a problem". Presumably the decision not to put a formal submission was related to a statement by the tribunal, in its decision of 24 July 1979, that it had asked "the parties whether they considered that the tribunal had jurisdiction to reconsider the matter in the absence of a determination relating to continuing liability (and that) both parties agreed that the tribunal had jurisdiction to consider the matter . . . ". In referring to "the absence of a determination relating to continuing liability" the parties were referring to the absence of a determination made by the Commissioner for Employees' Compensation (the commissioner) as to the liability of the respondent to continue to make payments of an amount per week.

Determinations had been made previously by the commissioner in respect of periods of incapacity until 26 June 1977 resulting from the injury to the appellant and also in respect of her claims for medical expenses. However, as appears from the application for reference, the tribunal was not asked to reconsider any determination by the commissioner. The application for a reference to the tribunal was directed to "the failure of the Respondent to pay compensation" and its "grounds" expressly complained of the fact that the appellant's letters of claim had "to date failed to produce any determination by the Commissioner". It was this failure to obtain a determination by the commissioner which was advanced as a "ground" for applying for "a Determination by the Compensation Tribunal".

The tribunal's jurisdiction to deal with the matter depended upon s.63(1)(a) of the Act which reads as follows:

"(1.) Subject to this Part, where a determination is made under this Act, a party to the determination may either -

(a) request the Commissioner in accordance with Division 3 to refer all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration; or . . . "

It will be noted that, before a matter can be referred to the tribunal for reconsideration, it is necessary that "a determination (be) made under this Act" which "relates" to the matter. Further, only "a party to (a) determination" is given the right to request the Commissioner to refer a matter to a tribunal for reconsideration (s.63(1)).

"Determination" is not defined by the Act. However, various sections of the Act deal with the role of the commissioner in relation to claims for compensation. Section 54(1) provides that:

"(1.) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period."

Section 58(1) gives the Commissioner power to require various medical examinations. Section 20 deals with the function and powers of the commissioner. Section 20(1) provides that:

"(1.) Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function."

Section 20(2) prescribes the manner in which the commissioner shall act in "determining any matter or question" under the Act. Section 20(3) of the Act requires that a "determination by the Commissioner shall be in writing". Section 20(4)(a) empowers the commissioner of his own motion to reconsider a determination. The introductory words of that sub-section are "where a determination has been made under this Act". They may be compared with the introductory words of s.63(1) which confers a right to seek a reference of a matter to a tribunal for reconsideration ". . . where a determination is made under this Act". Section 20(4)(b) imposes a duty upon the commissioner to reconsider a determination in certain circumstances.

Both s.84(1) and s.76 support the view that the Act requires that a request for a reference to the tribunal must be made by a party to a determination made by the commissioner and must be a request for reference of a matter or question to which a determination, made by the commissioner, relates. In s.84(1)(a), (b) and (c) the powers of the tribunal are set out with detailed references to "the determination made by the Commissioner". Section 76(1) sets out detailed requirements prescribed by the Act in respect of a request by a party to a determination for the reference of a matter to the tribunal for reconsideration. Section 76(2) requires that a "copy of a request . . . shall . . . be served . . .' on every other party to a determination" and s.76(3) contemplates that a person making a request for a reference under s.76 may have requested the commissioner to supply to him "the reasons for the determination".

Having regard to the legislative scheme of the Act, in my opinion the "determination" referred to in s.63(1) is a determination made by the commissioner. It follows that in my opinion there was no "matter" properly before the tribunal which could be "reconsidered" by the tribunal and the decision against which the appeal is brought was made without jurisdiction. An appeal nonetheless lies to this Court from the decision of the tribunal purporting to exercise powers under the Act (see Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 24 A.L.R. 307).

It was argued by Mr Knott that, even if a reference was properly before the tribunal, its powers did not extend to the making of the purported order, on 24 August 1980, "that the compensation payable for one year from today's date pursuant to s.46 be redeemed in the sum of $3,999.08".

The tribunal in its decision of 24 August 1980 said:

"In my view the intention of s. 84, read together with sub-s. 83(1), is to give this Tribunal discretion, where such an application for redemption is made, to deal with that application or to remit that matter for redetermination by the Commissioner in accordance with the directions of the Tribunal."

Section 83(1) of the Act provides that:

"(1.) For the purpose of reconsidering a matter or question, a Compensation Tribunal may exercise all the powers that are conferred on the Commissioner by this Act in relation to the determination of matters and questions."

It will be noted that the power conferred upon the tribunal to "exercise all the powers" of the commissioner is expressly conferred for "the purpose of reconsidering a matter . . . ", i.e. a matter which a party to a determination has requested the commissioner to refer to the tribunal for reconsideration. Section 84 requires the tribunal to "give a decision in writing - (a) affirming the determination made by the Commissioner in respect of that matter or question; (b) varying that determination; or (c) setting aside that determination and . . . ".

I am unable to accept the tribunal's view that those sections are intended to give the tribunal a discretion to deal with an application for redemption which has never been made to the commissioner or considered by him. I have formed that opinion by reason of the wording of the two sections but I consider that it gains support from the terms of s.49 which deals with applications for redemption.

The right conferred upon an employee by s.49(1) to request "that the liability of the Commonwealth to make further payments to the employee under (s.46) be redeemed by the payment to the employee of a lump sum" is expressly a right to so request "the Commissioner" in writing. Section 49(3) imposes upon "the Commissioner" a duty to make a determination - unless the request by the employee is withdrawn. Section 49(4) deals with the duty of the commissioner in determining the amount of the lump sum. Section 49(5) expressly imposes a duty upon the commissioner that he "shall not make a determination that the liability of the Commonwealth . . . is to be redeemed unless he is satisfied" as to three specific matters.

For these reasons I have come to the conclusion that the Act does not confer power upon the tribunal to deal with an application for redemption which has never been considered by the commissioner under s.49 of the Act. Nor does the Act, in my opinion, confer any power upon the tribunal to "direct" that "any further claim for compensation on the grounds of continuing incapacity resulting from her injury" shall "be taken as part of these proceedings to this Tribunal and not as a further application to the Commissioner or his delegates".

Mr Knott sought and obtained instructions that "there will be no difficulty raised" by the respondent as to the matter being considered by the commissioner if the Court held that the tribunal had no power to make the decision the subject of this appeal. Although the merits of the appeal were argued I do not consider that I should express any view upon them as I have decided that the tribunal had no jurisdiction. In my view the commissioner's consideration of the appellant's claim should be uninhibited by any of the findings of fact or expressions of opinion contained in any of the three decisions of the tribunal. In this connection Mr Knott, after considering the matter overnight, was unable to find any evidence before the tribunal to support its finding "that what has been developing is the natural progression of her disease . . . ".

It follows from the foregoing that the decision of the tribunal given on 11 November 1980 was made without jurisdiction, the appeal must be allowed and the decision of the tribunal set aside. Each party shall have liberty to apply.

As to costs, Mr Knott submitted that the Court should leave each side to bear its own costs. Mr C. Wheeler of counsel on behalf of the appellant sought an order that the respondent pay the costs of the appellant in respect of both the proceedings in this Court and the hearing before the tribunal which led to its decision of 11 November 1980. As to the latter, he was unable to advance any submission that the Court had power to make such an order, having regard to the terms of s.85(1) of the Act. As to the former, although the appeal has been allowed, the Court has rejected the arguments advanced by Mr Wheeler in support of the tribunal's jurisdiction and has held that there was no matter properly before the tribunal which could be "reconsidered" by the tribunal.

It follows that the proceedings should not have been brought and that the appellant's legal advisers were in error in bringing them - a matter relevant to what costs should be charged. I should add that Mr Wheeler did not appear for the appellant in either the first or the second hearings before the tribunal. No substantial argument has been advanced - or in my view could have been advanced - as to why the Court should make an order against the respondent for the payment of the appellant's costs. The most that can be said is that the respondent agreed (at the hearing leading to the decision on 24 July 1979) that the tribunal had jurisdiction despite "the absence of determination relating to continuing liability".

In my opinion no order should be made as to the costs of this appeal. For the same reasons there should be no such order as to the hearing before the tribunal leading to the decision on 11 November 1980 even if the Court has power to make such an order.