Telstra Corporation Ltd v Aboushadi - [2004] FCA 811

FEDERAL COURT OF AUSTRALIA
Telstra Corporation Ltd v Aboushadi [2004] FCA 811
WORKERS COMPENSATION – Commonwealth employees – Appeal from decision of Administrative Appeals Tribunal (‘the Tribunal’) – Assessment of weekly compensation for incapacity for work in respect of an agreed period immediately following retirement of employee – Employee received superannuation pension on retirement – Effect of earlier consent orders made by the Tribunal – Whether later panel of the Tribunal erred in determining a second application for review on the basis that it had the power to substitute itself for decision-maker in relation to the earlier consent orders – Proper construction of terms of earlier consent orders – Whether the period of incapacity referred to in the consent orders should be regarded as an agreed definitive statement as to the total period of incapacity.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19, 20
Fletcher v Commissioner of Taxation (1988) 19 FCR 442 discussed
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 referred to
Repatriation Commission v O’Brien (1985) 155 CLR 422 applied
TELSTRA CORPORATION LIMITED v YOUSSEF ABOUSHADI
N 167 of 2004
WILCOX J
25 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 167 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

TELSTRA CORPORATION LIMITED
APPLICANT

AND:

YOUSSEF ABOUSHADI
RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

25 JUNE 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The order made by the Administrative Appeals Tribunal on 19 January 2004 be varied by deleting the words ‘and the time of his retirement coincided in time at 4.51 pm on 13 September 1999’ and substituting the words ‘was immediately after midnight on the evening of 13-14 September 1999, being after his retirement at 4.51 pm on 13 September 1999’.
2.The appeal be otherwise dismissed.
3.The applicant, Telstra Corporation Limited, pay the costs of the respondent, Youssef Aboushadi.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 167 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

TELSTRA CORPORATION LIMITED
APPLICANT

AND:

YOUSSEF ABOUSHADI
RESPONDENT

JUDGE:

WILCOX J

DATE:

25 JUNE 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
WILCOX J:

This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in relation to an assessment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).
The facts
The respondent to this appeal, Youssef Aboushadi, was employed as a property manager by the applicant, Telstra Corporation Limited (‘Telstra’), from 1977 until 13 September 1999. According to a claim for compensation made by Mr Aboushadi under the Act, an incident occurred on 8 March 1996 as a result of which he sought medical advice and took leave from work. He claimed to suffer from ‘work related…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 811
Decision Date: 25 JUNE 2004

CaseChat Overview and Summary

This case involves an appeal against a decision of the Administrative Appeals Tribunal in a matter concerning a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. The appellant, Telstra Corporation Limited, was the employer of the respondent, Youssef Aboushadi, who claimed compensation for incapacity for work due to work-related stress. The Tribunal found that Mr Aboushadi was entitled to compensation for the period of incapacity that occurred immediately after his retirement, which Telstra had not previously conceded. Telstra appealed to the Federal Court, challenging the Tribunal’s decision on the timing of Mr Aboushadi’s incapacity.

The legal issues before the court were whether the Tribunal had the power to vary the agreed orders and whether the Tribunal had erred in finding that Mr Aboushadi’s incapacity for work occurred immediately after his retirement. Telstra argued that the Tribunal did not have the authority to vary the agreed orders and that the incapacity for work did not occur immediately after retirement as it was found to have ceased on 14 September 2000, as per the agreed orders. Mr Aboushadi contended that the Tribunal had the power to vary the agreed orders and that the incapacity for work did indeed occur immediately after his retirement, as the agreed orders themselves provided for the cessation of incapacity on 14 September 2000.

The court held that the Tribunal did have the power to vary the agreed orders where necessary to give effect to the compromise between the parties. The court found that the agreed orders did not specify the exact moment of cessation of incapacity for work, and the Tribunal’s finding that incapacity occurred immediately after retirement was supported by the evidence. The court further held that the Tribunal was correct in finding that the incapacity for work occurred immediately after Mr Aboushadi’s retirement, as this was consistent with the cessation date of 14 September 2000 as agreed by the parties.

The appeal was dismissed with costs in favour of the respondent. The court ordered the Tribunal’s decision to be varied to reflect that Mr Aboushadi’s incapacity for work was immediately after his retirement, rather than coinciding with the time of his retirement.

Orders

Orders of the court

1. The order made by the Administrative Appeals Tribunal on 19 January 2004 be varied by deleting the words ‘and the time of his retirement coincided in time at 4.51 pm on 13 September 1999’ and substituting the words ‘was immediately after midnight on the evening of 13-14 September 1999, being after his retirement at 4.51 pm on 13 September 1999’.

2. The appeal be otherwise dismissed.

3. The applicant, Telstra Corporation Limited, pay the costs of the respondent, Youssef Aboushadi.

Background

Background to the litigation

This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in relation to an assessment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).The facts The respondent to this appeal, Youssef Aboushadi, was employed as a property manager by the applicant, Telstra Corporation Limited (‘Telstra’), from 1977 until 13 September 1999. According to a claim for compensation made by Mr Aboushadi under the Act, an incident occurred on 8 March 1996 as a result of which he sought medical advice and took leave from work. He claimed to suffer from ‘work related stress’. However, Telstra disputed that he was incapacitated for work by reason of an ‘injury’: see the definition of that term in s 4(1) of the Act. Consequently, the claim for compensation was rejected. Apparently, the period of Mr Aboushadi’s absence from work was treated as sick leave. Mr Aboushadi’s leave records suggest that, between 30 June 1998 and 13 September 1999, he had further time off work. On 13 July 1998, he claimed compensation under the Act on the basis of work-related stress. Once again, his claim was rejected. Apparently he received sick pay for some of the period for which he was on leave. It appears from Mr Aboushadi’s leave records that he did not return to work before 13 September 1999, the date upon which he was retired from his employment. The appeal book does not contain any documents concerning the circumstances of the retirement but it was agreed between counsel that the retirement took effect at the close of business on 13 September 1999. The available documents do not indicate whether Mr Aboushadi’s claim for compensation under the Act covered the months preceding his retirement on 13 September. He certainly made a claim for the period after that date, on the basis that he suffered a continuing incapacity for work. This claim was rejected and Mr Aboushadi sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’). On 17 January 2001, Mr Aboushadi also sought compensation for permanent impairment, pursuant to s 24 of the Act. This application was rejected and steps were taken to add that rejection to the pending application for review by the Tribunal. On 26 February 2001, the applications for review were compromised. Counsel for the parties each signed a document, penned by counsel for Telstra, setting out orders the Tribunal would be invited to make by consent. The orders dealt separately with the claims for weekly compensation and for permanent impairment. The weekly compensation agreed orders were as follows:‘1)The reviewable decision dated 25 November 1998, the subject of matter no N1999/60, be set aside and the determination dated 10 September 1998 be varied to read as follows:a)the applicant suffered an injury arising out of or in the course of his employment with the respondent, namely a chronic adjustment disorder;b)as a result of that injury the applicant was incapacitated for work during the period 13 September 1999 to 13 September 2000;c)the respondent is liable to pay compensation to the applicant in respect of such period of incapacity in accordance with the provisions of the Safety, Rehabilitation and Compensation Act, 1988;d)the respondent is liable to pay compensation to the applicant in respect of outstanding medical treatment expenses in the agreed sum of $9457.00, upon production of accounts and/or receipts, and inclusive of Health Insurance Commission notice of charge;e)the effects of the applicant’s work-related injury resulting in incapacity for work and need for medical or other treatment ceased on and from 14 September, 2000.’It is not necessary to set out the agreed orders concerning permanent impairment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 167 of 2004

BETWEEN:	TELSTRA CORPORATION LIMITED APPLICANT
AND:	YOUSSEF ABOUSHADI RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	SYDNEY

JUDGE:	WILCOX J
DATE:	25 JUNE 2004
PLACE:	SYDNEY