Telstra Corporation Ltd (Formerly Australian Telecommunications Corporation v Bonnici, J

TELSTRA CORPORATION LIMITED (Formerly Australian Telecommunications
Corporation) v. JOSEPH BONNICI
No. G654 of 1992 FED No. 616
Number of pages - 9
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART J

CATCHWORDS

Administrative Law - review of decision of Administrative Appeals Tribunal to grant compensation to Commonwealth Government employee injured in the course of his employment - legislative scheme for compensation discussed - whether Tribunal failed to consider relevant matters - whether Tribunal did not make findings on material questions of fact.

Commonwealth Employees' Compensation Act 1930

Compensation (Commonwealth Government Employees) Act 1971

Commonwealth Employees' Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

HEARING

SYDNEY, 20 August 1993

#DATE 3:9:1993

Counsel for the Applicant: G Johnson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: J P Hamilton QC and B Quinn

Solicitors for the Respondent: Matthews, Dooley and Gibson

ORDER

THE COURT ORDERS THAT:

1. The appeal from the decision of the Administrative Appeals Tribunal made on 10 August 1992 be dismissed.

2. The Tribunal's decision and directions be confirmed.

3. Telstra pay the costs of Mr Bonnici of the appeal to this Court.

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

JUDGE1

LOCKHART J Telstra Corporation Limited (formerly Australian Telecommunications Corporation) ("Telstra") appeals from the decision of the Administrative Appeals Tribunal, General Administrative Division, constituted by three members (Dr D J Grimes (Senior Member), Ms J Kalowski (Member) and Mr D D Coffey (Member) made on 10 August 1992.

The appeal raises questions of the entitlement of the respondent, Joseph Bonnici ("Mr Bonnici"), to payment of compensation from 19 December 1990 in respect of a back injury suffered in 1967.
Mr Bonnici was born in November 1934. He is now aged 58. He commenced employment with the Postmaster General's Department in 1957. During his employment with that Department as a sheet metal worker, he suffered a number of injuries on 23 August 1960. He fractured his right leg and was incapacitated for three months. Liability was accepted for this injury. On 7 February 1967 he injured his right leg at work and was away from work until 27 February 1967. Telstra (I use this expression to include Telstra and its predecessors Australian and Overseas Telecommunications Corporation and Postmaster General's Department) accepted liability for the aggravation of a pre-existing injury to the right leg pursuant to the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") in respect of this injury. Mr Bonnici sustained another injury on 1 March 1967 when his leg allegedly "gave way from under him" causing him to fall down some stairs. He resumed work on 11 March 1967.
Mr Bonnici was absent from work between 22 May and 9 June 1967 and between 10 August and 8 September 1967. Telstra accepted liability for those absences under the 1930 Act.
On 15 February 1968 Mr Bonnici lodged a claim for compensation under the 1930 Act claiming that he had also suffered a spinal injury in the February 1967 accident (the Tribunal referred to the claim as having been made in December 1967; but so far as I can discern from the material in the appeal book, the correct date is the date I have mentioned).
Telstra refused to accept liability for this condition and Mr Bonnici appealed to the District Court of New South Wales which found on 30 November 1970 that Mr Bonnici sustained injury by accident arising out of or in the course of his employment by Telstra as a result of his fall in 1967. The District Court (Judge Goran) found that there were inconsistencies in Mr Bonnici's account and that he regarded his evidence "with some suspicion". His Honour found that there was orthopaedic evidence that there was a small chip at the L-4 vertebra (which by the time his Honour considered the matter in November 1970 appeared to be united) due to a trauma. Despite the inconsistencies, his Honour held that "the appellant has present symptoms in the back and that they are the result of the fall in 1967".
The most reliable evidence available of the decision of Judge Goran is a letter of 2 December 1970 from the Deputy Crown Solicitor of the Commonwealth to the Commissioner for Employees' Compensation in which the writer of the letter summarized the findings of Judge Goran on 30 November 1970. No copy of any transcript of the proceeding could be found, if there ever was one. At any rate I have acted on the basis (as did the Tribunal) that the letter from the Deputy Crown Solicitor is the only evidence of any probative value of what occurred before his Honour; and that course was taken by me with the consent of both parties.
On 17 September 1970 Mr Bonnici was retired from the employment of Telstra on the ground that he was unfit for continued employment because of degenerative spinal changes and the presence of marked functional overlay.
Mr Bonnici is of Maltese extraction. He returned to Malta in June
1973 and married in December 1979. He has been a permanent resident of Malta since then, returning occasionally to visit specialists in Australia at the request and expense of Telstra. Whilst in Malta Mr Bonnici has been under the care of a Dr Zarb and has regularly sent medical certificates to Telstra to meet the requirements of documentation for ongoing compensation.
Delegates of the Commissioner for Employees' Compensation have made periodic determinations pursuant to the 1930 Act and the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), determining amounts of payments of compensation to Mr Bonnici.
Compensation benefits were awarded to Mr Bonnici from 7 February 1967 until a determination was made by a delegate of Telstra on 15 February 1991 determining that Telstra was not liable to pay compensation to Mr Bonnici on and from 19 December 1990. The delegate of Telstra determined that he was satisfied on the balance of probabilities that Mr Bonnici was not incapacitated for work or required medical treatment as a result of "a disease contracted, aggravated, accelerated, or which has recurred due to a material contribution by Mr Bonnici's employment with Telstra". It was common ground before the Court that this determination was made by the delegate of Telstra pursuant to s. 62 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act").
It was agreed that the 1988 Act applies to the present matter (see Part X of the 1988 Act which contains relevant transitional provisions, in particular s. 124). The 1988 Act is expressed to apply in relation to an injury suffered by an employee, whether before or after the commencing day of the 1988 Act. The eligibility of Mr Bonnici to compensation is to be determined by reference to s. 10 of the 1930 Act by virtue of the provisions of s. 124(1A) of the 1988 Act. (See also s. 19 of the 1988 Act and Behan v Australian Telecommunications Corporation (1991) 99 ALR 79.)
Mr Bonnici requested the delegate of Telstra to reconsider the determination of 15 February 1991. Another delegate of Telstra reconsidered that determination and made a determination on 8 May 1991, affirming the determination of 15 February 1991. Mr Bonnici then applied to the Tribunal for review of the decision of 8 May 1991 which affirmed the earlier decision of 15 February 1991.
The Tribunal heard oral evidence from Mr Bonnici and Dr T J Claffey, a medical practitioner called by Telstra. The Tribunal also received in evidence various documents as exhibits, including four medical reports from medical practitioners, one of whom was Dr Claffey; the other three were doctors who gave medical evidence at the behest of Mr Bonnici.
Mr Bonnici contended before the Tribunal that he suffered pain all over his back and that this was aggravated by cold weather. More specifically, he said that he had pain in his lower and middle spine and suffered pain in the neck and shoulders from time to time.
Certain of the findings of the Tribunal in its reasons for decision must be set out in full. The relevant paragraphs read as follows:

"11. Eligibility for compensation under the 1930 Act, is determined by section 10 which is set out as follows:

10(1)Where -

(a) an employee is suffering from a disease and is thereby incapacitated for work; or

(b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.

(2) If the Commissioner is satisfied that the employee, at the time of entering the employment of the Commonwealth, wilfully and falsely represented himself as not having previously suffered from the disease, the compensation shall not be payable.

(3) A claimant for compensation under this section shall, if so required, furnish the Commissioner with such information as to the names and addresses of other employers of the employee as the claimant possesses.

(4) If the disease is of such a nature as is contracted by a gradual process, the Commonwealth shall be entitled to be indemnified by any other employers (if those employers are also liable to pay compensation) who employed the employee prior to the incapacity in the employment to which the disease is due, and all questions as to the right to, and amount of, any such indemnity shall in default of agreement be settled by arbitration or by action in any County Court.

12. By virtue of this section, for the Applicant to be eligible for compensation in relation to his degenerative spinal condition, he must establish that the condition causing him incapacity is a 'disease' which arose 'due to the nature of the employment in which the employee was engaged'. The term disease is defined in section 4(1) of the 1930 Act which states that:

4(1) - 'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre- existing disease; It appears clear that the Applicant's degenerative spinal condition is within this definition. The Tribunal must consider whether the Applicant's spinal condition was due to the nature of his employment. ...

16. It is common ground that the Applicant has chronic degenerative disease of the spine at cervical, thoracic and lumbo-sacral levels which was detected when he was first x-rayed in the late 1960s. This condition is constitutional and progressive and the disease process itself is not work caused. All of the doctors who have examined the Applicant in recent times, with the exception of Dr Gonski, believe he is either totally unfit for work or fit for only limited work.

17. There is a difference of medical opinion as to whether the injury in 1967 has, or could have, aggravated his degenerative spinal condition. In 1970, when the Applicant was engaged in proceedings before the District Court, two specialists gave conflicting medical opinions. Both are now dead. The court held that his condition was work caused or aggravated by the accident at work but details of the case were unavailable to the Tribunal.

18. The applicant's treating doctors Dr Irani and Dr Grixti believe that he is not capable of work and that his condition will continue to deteriorate making return to work impossible. Dr Claffey considered that his chronic condition will continue to deteriorate and that this in combination with his psychological overlay mean that he cannot undertake productive work, but he does not consider this condition to be work caused.

19. Dr Gonski, a neurosurgeon, agrees with this diagnosis but considers that his symptoms are exaggerated. In a report of 26 March 1992, he stated that he believed that the Applicant should be fit to return to his normal duties but that 'I cannot see him return to work as he has not been employed for such a long time.'

20. Dr Conrad, a surgeon, opined in a report that the Applicant is only fit for very light cleaning work of no more than 20 hours per week.

21. The Respondent did not, on the evidence before the Tribunal, offer the Applicant rehabilitation or retraining at any stage of his long period on compensation.

22. The difficulty facing the Tribunal is that it must make a decision regarding the Applicant's incapacity more than twenty years after the incidents which led the Respondent to accept liability and pay compensation occurred and after a court decided that the condition was work caused.

23. In the intervening period, the original doctors whose reports were relied upon have since died, the details of the court case are not available and the original investigations are not extant. The length of time has also presented difficulties for the medical examiners who saw the Applicant for the first time two decades after the original incidents. As time has passed, the Applicant's degenerative spinal condition has inevitably deteriorated, thereby obscuring the clinical picture and making the distinction between the work injury and the disease process very difficult to determine.

24. The Tribunal notes that the Respondent has received progress reports of the Applicant's condition at regular intervals since 1970 and has continued to pay compensation until recently.

25. Faced with the conflicting evidence of current medical examiners who cannot agree on the severity of the disability or the causative connection with work, the Tribunal sees no reason to make a judgement different to that of the District Court, whose decision was made at a time closer to the dates of injury and made therefore, with the benefit of contemporaneous evidence.

26. In the Tribunal's opinion, the weight of medical evidence supports the conclusion that the Applicant is unfit for work and will continue to be so. The evidence which denies a connection between the Applicant's employment, the injuries suffered at work and the degenerative spinal disease, is based upon examinations which were made long after the injuries were incurred. The Tribunal prefers the opinions of the Applicant's treating doctors and therefore sets aside the decision under review, finding that the Applicant is incapacitated for work."

The Tribunal set aside the decision under review and remitted the matter to Telstra with the following directions:

"(i) The Applicant continues to be incapacitated for work as a result of disease which arose due to the nature of the employment in which he was engaged; and

(ii) The Applicant could not reasonably be expected to earn anything in suitable employment.

(iii) The Respondent shall pay the Applicant's costs

in these proceedings according to the appropriate scale of costs to be agreed between the parties' legal representatives and in the absence of such agreement, to be taxed by the Registrar or Deputy Registrar of the Administrative Appeals Tribunal."

It is from this decision of the Tribunal that Telstra appeals to the Court.
Before turning to the arguments of the parties with respect to the findings of the Tribunal it is necessary to state briefly the jurisdiction of the delegates of Telstra to make the determinations of 15 February and 8 May 1991 and of the Tribunal to exercise its powers of review.
The 1930 Act was repealed by s. 4 of the 1971 Act which in turn was repealed by s. 139 of the 1988 Act. Part X of the 1988 Act contains transitional provisions including s. 124. Section 124(1A) provides that subject to Part X a person is entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
By s. 127(2) any determination made by the Commissioner under the 1930 Act or the 1970 Act and having effect immediately before the commencing day of the 1988 Act, is taken to be a determination made by the relevant authority under the 1988 Act.
As the relevant incidents which are the foundation of Mr Bonnici's claim for compensation occurred during the operation of the 1930 Act, s. 124 of the 1988 Act required that the tests of liability to be applied are those which operated under the 1930 Act (see in particular s. 124(2)(b) and (4)(b) of the 1988 Act). See Esber v The Commonwealth (1992) 174 CLR 430 at 437 and Behan v Australian Telecommunications Corporation (1991) 99 ALR 79 at 84.
The power to make the determinations of 15 February and 8 May 1991 is to be found under the provisions of the 1988 Act. The power of the delegate of Telstra to reconsider earlier determinations is found in s. 62 of the 1988 Act and that section is the source of the authority of the delegate to make the determinations of February and May 1991. See in particular s. 62(1) and (5).
Section 62 of the 1988 Act is similar to s. 20 of the 1971 Act. As to the nature of this latter power and as to the role of the Tribunal when reviewing its exercise see Commonwealth v Sciacca (1990) 96 ALR 455 per Neaves J at 465-6.
The last determination of a delegate of Telstra before the determination of February 1991 was a determination in 1988 that Mr Bonnici was "entitled to the payment of compensation ... of ... $192.80 from 13.6.88 ..." The October 1988 determination continued until the determination of 15 February 1991. The October 1988 determination attracted the power of the delegate under s. 62 to vary it if appropriate.
The determinations made before 15 February 1991 had established Mr Bonnici's entitlement to payments for compensation. The Tribunal is in the same position when making a decision under s. 43 of the Administrative Appeals Tribunal Act 1975 in a compensation case as is a determining authority when making a decision under s. 62 of the 1988 Act. There is no onus of proof either before the administering authority or before the Tribunal. At both levels of the decision making process the decision maker must be positively satisfied as to the correct and preferable decision before a claim is determined: see Commonwealth v Borg, a judgment of a Full Court of this Court, 14 November 1991, unreported; Australian Telecommunications Commission v Barker (1990) 12 AAR 490 at 495. The Tribunal appears to have approached the matter by applying this principle to the present case, although on first reading paragraph 12 of its reasons, if read in isolation, they might suggest that the Tribunal adopted a more stringent approach to the matter.
At all relevant levels of the decision-making process the decision maker (and this includes the Tribunal) must be positively satisfied as to the correct and preferable decision before a claim is determined: see Phillips v The Commonwealth (1964) 110 CLR 347 at 350.
The Tribunal stood in the shoes of the decision maker with a duty to reach the correct decision upon the material before it at the time of its decision. The Tribunal had all the powers that reposed in the determining authority under s. 62 of the 1988 Act.
The case before Judge Goran in the District Court in 1970 appears to have been conducted on the basis that Mr Bonnici's claim was made under s. 9 of the 1930 Act, that is as a claim for compensation for personal injury by accident. The Tribunal approached the matter on the basis that the eligibility for compensation was to be determined by reference to the test to be found in s. 10 of the 1930 Act which related to compensation in respect of death of an employee through disease caused by employment. The Tribunal was not fettered in its consideration of the latter by reason of the fact that the District Court had in 1970 determined the matter on the footing of s. 9 of the 1930 Act (that is, as an injury). It was open to the Tribunal to consider the matter on the footing as a s. 10 case. Indeed, Mr Bonnici appears to have argued the case before the Tribunal as one in which there was an aggravation of the disease. Under the 1930 Act an injury was defined as including an aggravation of a pre-existing injury and a disease as including an aggravation or acceleration of a pre-existing disease (s. 4(1)). Neither party took issue with the approach of the Tribunal that eligibility for compensation was to be determined by reference to s. 10 of the 1930 Act, so I shall say no more about it.

I turn to the specific questions raised in argument on the hearing of the appeal. It was first argued on behalf of Telstra that the Tribunal failed to take into account a relevant consideration, namely, that, having correctly found that eligibility to compensation was to be determined by reference to s. 10 of the 1930 Act, the Tribunal "failed to consider the nature of the employment in which Mr Bonnici had been engaged". It was argued in particular that the Tribunal failed to consider whether on or after 19 December 1990 any incapacity suffered by him did in fact result from a disease due to the nature of his employment. The point is encapsulated in the written outline of Telstra's argument in this way:

"Having made findings in paragraphs 12 and 16 that Mr Bonnici suffered a degenerative spinal condition which was constitutional and progressive, the disease process itself not being work caused, and having accepted in paragraphs 11 and 12 that the test in s. 10 of the 1930 Act needed to be satisfied, the Tribunal was not entitled, at least in the absence of further findings, to accept liability on or after 19 December 1990 as it did. It must have taken into account irrelevant considerations or not tested liability according to law."

This criticism is misconceived.

The Tribunal did not set itself the task, nor was it bound to do so, of identifying the nature of the employment of Mr Bonnici when that question had been examined many years before and resulted in determinations in his favour. The point is also related to the second ground of attack made by Telstra upon the Tribunal's determination, namely, that the Tribunal is said to have taken into account an irrelevant consideration, namely, the decision of the District Court in 1970 and other material which led to the Tribunal's decision.
There is no substance in this contention because it proceeds on a misconception of the Tribunal's task.
This is a case where an entitlement of Mr Bonnici was established as long ago as 1970 by a decision of the District Court of New South Wales and not challenged thereafter until the determinations of 15 February and 8 May 1991. In the meantime there had been a series of determinations by Telstra all based on the fact that Mr Bonnici had sustained personal injury by accident arising out of or in the course of his employment in 1967. The determinations in the meantime were numerous and all proceeded on the assumption that Mr Bonnici has been totally incapacitated for work since 1967 or 1970 and as a result has received compensation. This is not a case of an earlier determination of total incapacity being supplanted by a subsequent determination of partial incapacity or a finding of no incapacity.
The Tribunal was required to satisfy itself of the elements necessary to establish Telstra's liability for compensation to Mr Bonnici. This did not require it, however, to obtain or have placed before it all the facts relating to the details of his employment in 1967 and the events from which the injury to his back arose; and then to decide afresh whether his initial injury arose out of or was attributable to his employment. It was entitled to have regard to the earlier determinations of delegates and the 1970 decision of the District Court as the starting point for its inquiry; and then to consider whether the back problems of Mr Bonnici as they existed in recent times arose out of or were attributable to his earlier employment by Telstra. This is what the Tribunal did.
Also the criticism that the Tribunal did not investigate the nature of Mr Bonnici's employment or consider its propensity to contribute to a disease is not well founded. There was evidence before the Tribunal from Mr Bonnici and the documents including medical evidence that Mr Bonnici suffered a number of incidents arising from the wheeling of heavy metal plates on a trolley that was part of the nature of the work and that the work would otherwise involve the handling of heavy metal plates. The Tribunal accepted in paragraph 26 the evidence of Mr Bonnici's doctors which linked his present condition with the work which he had undertaken earlier.
Then it was argued on behalf of Telstra that the Tribunal failed to comply with its obligations under s. 43 of the Administrative Appeals Tribunal Act 1975 in that it did not make findings on material questions of fact and refer to the material upon which those findings were based and provide reasons for its decision. Plainly, failure to observe the requirements of s. 43 constitutes an error of law. The matters relied upon in support of this argument were essentially those which I have already referred to, namely, the alleged failure of the Tribunal to make findings as to the nature of Mr Bonnici's employment and failure to make findings or give reasons as to whether the disease as found still resulted on or after 19 December 1990 from the nature of his employment. Again for the same reasons as mentioned earlier there is no substance in this contention.
Finally, it was argued that the Tribunal erred by finding, so it was submitted, in paragraph 26 of its reasons that Mr Bonnici will continue to be unfit for work. This was said to be a finding that was beyond the power of the Tribunal and therefore vitiated its decision.
This is not a fair assessment of what the Tribunal did. In paragraph 26 the Tribunal said:

"In the Tribunal's opinion, the weight of medical evidence supports the conclusion that the applicant is unfit for work and will continue to be so."

What the Tribunal was doing in this penultimate paragraph of its reasons was looking at the matter from the time it was before the Tribunal and concluding that the weight of the medical evidence supported the conclusion that Mr Bonnici was unfit for work at that time. Unfitness for work on a particular date will as a practical matter continue for some time thereafter. This explains in my view why the Tribunal added the words which it did. Strictly it was unnecessary for the Tribunal to do this; but it cannot be criticised in my opinion for making that statement. Certainly the Tribunal was not suggesting that it could bind subsequent decision makers from reviewing the determination of the Tribunal if the facts warranted it.

I would dismiss the appeal with costs.
The orders of the Court are that:

1. The appeal from the decision of the Administrative Appeals Tribunal made on 10 August 1992 is dismissed.

2. The Tribunal's decision and directions are confirmed.

3. Telstra shall pay the costs of Mr Bonnici of the appeal to this Court.

[1993] FCA 616

03 SEPTEMBER 1993