Telstra Corporation Ltd v Keen

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v Keen [2003] FCA 1440

ADMINISTRATIVE LAW – whether error of law in the decision of the Administrative Appeals Tribunal – whether disconformity between the Administrative Appeal Tribunal’s statement of reasons and its decision

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 21
Administrative Appeals Tribunal Act 1975 (Cth), ss 43AA, 44

Hazim v Secretary, Department of Family and Community Services (2002) 116 FCR 533 cited

Repatriation Commission v Nation (1995) 57 FCR 25 cited

TELSTRA CORPORATION LTD v LA-RAINE LESLEY KEEN
N 862 of 2003

SACKVILLE J
SYDNEY
9 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 862 OF 2003

BETWEEN:	TELSTRA CORPORATION LTD APPLICANT
AND:	LA-RAINE LESLEY KEEN RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	9 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs.

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 862 OF 2003

BETWEEN:	TELSTRA CORPORATION LTD APPLICANT
AND:	LA-RAINE LESLEY KEEN RESPONDENT

JUDGE:	SACKVILLE J
DATE:	9 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The only issue, apart from costs, in this matter concerns the form of an order made by the Administrative Appeals Tribunal (“AAT”) on an application by the present respondent for compensation by reason of incapacity flowing from an injury sustained by her in 1991.  The parties are in agreement as to the further course of the proceedings.  Their differences essentially concern whether the form of order made by the AAT achieves the result both parties intend.

2. The respondent was employed by Telstra or its predecessors from 1970 until 29 December 1997.  In August 1991, she sustained a workplace injury to her neck and shoulders.  By a determination made on 2 October 1991, the present applicant (“Telstra”) accepted liability to make compensation payments in respect of the respondent’s incapacity flowing from the injury.

3. On 6 March 2001, Telstra’s delegate determined that the respondent was not entitled to weekly incapacity payments from the date of termination of her employment.  On 10 May 2001, a Reconsiderations Officer affirmed the primary determination.  The respondent applied to the AAT for review of the latter’s decision.

4. The AAT, after hearing evidence and submissions, handed down its decision on 23 June 2003.  In its reasons, the AAT made the following observation:

   “The reviewable decision contemplated the applicability of s 21 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)], whereby the employee receives a lump sum benefit under a superannuation scheme on retiring from employment, voluntarily or otherwise. However, the parties elected not to make submissions on the applicability of this section, requesting the [AAT] to accept their agreement that this question be left open, as a question of fact, for consideration subsequent to the determination of the applicant’s entitlement to payment of compensation for incapacity. Accepting this agreement, the [AAT]…