The Commonwealth of Australia v Sciacca, A.N

Re: THE COMMONWEALTH OF AUSTRALIA
And: ANNUNZIATTA (NANCY) SCIACCA
No. ACT G 57 of 1988
FED No. 431
Workers' Compensation
96 ALR 455/12 AAR 234
23 IR 318

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Workers' Compensation - Commonwealth employees - Personal injury by accident arising out of or in the course of employment - Determinations providing for weekly payments of compensation - Payments made pursuant thereto - Subsequent reconsideration of determinations - Determination made revoking earlier determinations - Whether statute confers power to revoke retrospectively - Whether power of revocation properly exercised - Function of Commissioner for Employees' Compensation and of Administrative Appeals Tribunal on review of determination.

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1) Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss.20, 27, 45, 46.

HEARING

CANBERRA

#DATE 16:8:1990

Counsel for the applicant : Mr C.M. Erskine

Solicitor for the applicant : Australian Government Solicitor

Counsel for the respondent : Mr R.L. Crowe

Solicitors for the respondent : John Faulks and Co.

ORDER

The decision of the Administrative Appeals Tribunal given herein on 25 November 1988 be varied by deleting from par.1 thereof sub-par.(a).

The said decision be otherwise affirmed.

The respondent pay the applicant's costs of the application to this Court.

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

JUDGE1

The applicant, the Commonwealth of Australia, has applied to the Court by way of appeal pursuant to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision made on 25 November 1988 by the Administrative Appeals Tribunal ("the Tribunal") constituted by a Senior Member. The Tribunal had before it an application by Annunziatta (Nancy) Sciacca ("the respondent") to review a determination made under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") by a delegate of the Commissioner for Employees' Compensation ("the Commissioner") on 3 April 1986. That determination was in the following terms:

"DETERMINATION

1. On the evidence before me I find that:- a) the back condition suffered by the employee is not the result of -

(i) personal injury arising out of or in the course of her employment on 31 December 1976;

(ii) the contraction of a disease or aggravation acceleration or recurrence of a disease to which her employment on 31 December 1976 was a contributing factor. b) on and from 13 December 1978 the employee has been fit to undertake the duties of a tea lady.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to the determinations previously made in this matter, I hereby determine:-

a) in accordance with the provisions of paragraph 20(4)(a) of the said Act:-

(i) the determinations of 2 July 1979, 15 November 1979, 22 September 1980, 30 January 1981, 1 July 1981 and 5 July 1985 are hereby revoked;

(ii) the determination of 16 December 1977 is amended by deleting from paragraph (ii) the words 'until a date to be determined by the Commissioner or his Delegate' and inserting in lieu thereof the words 'until 12 December 1978, inclusive'.

(iii) the determination of 23 February 1979 is amended by deleting from paragraph (1) the words 'until a date to be determined by the Commissioner or his Delegate' and inserting in lieu thereof the words 'until 12 December 1978, inclusive'.

b) In accordance with the provisions of sub-section 37(7) of the said Act, compensation shall be paid in respect of transport costs amounting to $4.99 incurred in connection with obtaining medical treatment in relation to the injury -

26-8-80 Melba to John James Medical Centre and return $4.99 c) the Department of Finance is not liable to pay compensation in respect of any back condition suffered by the said employee.

d) the Department of Finance is not liable to pay weekly payments of compensation to the employee under sections 45 or 46 of the Act in respect of her total or partial incapacity for work on and from 13 December 1978."

Prior to the respondent making application to the Tribunal for a review of that determination, she had requested the Commissioner, pursuant to sub-s.20(4)(b) of the Act, to reconsider the determination. On 5 November 1986, after reconsideration of the matter, a delegate of the Commissioner, not being the delegate who had made the determination on 3 April 1986, declined to vary or revoke that determination. On 23 February 1987 the Tribunal extended until 5 March 1987 the time within which the respondent might apply for a review of the determination of 3 April 1986 and an application in that behalf was lodged by the respondent within the time as so extended.
The decision of the Tribunal from which the present appeal is brought is in the following terms:

"The Tribunal decides:-

1. to vary the determination in this matter by -

(a) deleting all references therein to '12 December 1978' and substituting therefor references to '5 November 1986' wherever it appears; and

(b) adding at the end thereof the following further paragraph to be lettered '(e)'; '(e) The Department of Finance is liable to pay the applicant $7,987.50 for the partial loss of use of both legs at the knee.'

2. to order that the respondent pay the applicant's costs at two thirds the Supreme Court scale with disbursements in full as agreed; to be taxed by the Registrar or a Deputy Registrar of the Tribunal in the absence of agreement.

3. to give to either party liberty to apply generally."

To appreciate the issue which now falls for decision it is necessary to refer to the history of the matter. That history begins on 31 December 1976 when the respondent, who was employed as a tea attendant in the Department of Finance in the Australian Capital Territory, fell down certain stairs at her place of employment. On or about 5 April 1977 the respondent made a claim for compensation and on 15 April 1977 a determination was made under the Act that the respondent "sustained personal injury arising out of or in the course of her employment on 31 December 1976 namely, strained ligaments of right knee", and that, in accordance with the provisions of the Act, the Department of Finance was liable to pay compensation in respect of that personal injury.
Thereafter, on various dates between 2 May 1977 and 21 October 1977 (both dates inclusive) determinations were made quantifying the amount of weekly payments of compensation to which the respondent was entitled under s.45 of the Act and providing for amounts to be paid under s.37 in respect of the cost of medical treatment and in respect of expenditure incurred in obtaining that treatment. The determinations reflected an acceptance of the situation, supported by medical reports, that the respondent was totally incapacitated for work by reason of the injury to her right knee sustained on 31 December 1976. The period in respect of which weekly payments of compensation were authorised by those determinations was the period from 27 April 1977 to 21 October 1977 (both dates inclusive).
On 16 December 1977 a determination was made amending the determination made on 15 April 1977 by adding after the words "strained ligaments in (sic) right knee" the words "and torn left medial meniscus". The determination also provided, inter alia, that the respondent was entitled to the payment of weekly amounts of compensation from 24 October 1977 "until a date to be determined by the Commissioner or his delegate". It may be mentioned here that the determination made on 3 April 1986 purported to amend the determination dated 16 December 1977 by substituting for the words in quotation marks the words and figures "until 12 December 1978, inclusive". The words in quotation marks had, however, already been deleted by a determination made on 15 November 1979 and the words and figures "until 31 August 1979" substituted (see later).
Between 16 December 1977 and 23 February 1979 various determinations were made authorising the payment of amounts under s.37 in respect of the cost of medical treatment in respect of the respondent's injuries. It may be noted that, by a report dated 13 December 1978 forwarded to the Department of Finance, Dr R.J. Kitchin, an orthopaedic surgeon to whom the respondent had been referred in May 1977 and who had performed an operation for the removal of the medial meniscus of the right knee on 18 August 1977 and had examined the respondent and reported on her condition on a number of occasions since the operation, reported that the respondent was able to peform the duties of a tea attendant and "should be back at work". The significance of this report becomes apparent when it is recalled that its date is the date referred to in pars 1(b) and 2(d) of the determination made on 3 April 1986. No steps were taken following the receipt of Dr Kitchin's report to terminate the payment of weekly compensation under the determination made on 16 December 1977.
On 23 February 1979 a determination was made under the Act that the respondent was entitled, under sub-s.45(4) of the Act, to additional compensation by way of weekly payments in respect of her children from 13 October 1978 "until a date to be determined by the Commissioner or his Delegate". This determination was also amended by the determination made on 3 April 1986 by substituting for the words quoted the words and figures "until 12 December 1978, inclusive".
On various dates between 23 February 1979 and 2 July 1979 further determinations were made auhorising payments representing the cost of medical treatment of the respondent.
On 2 July 1979 a determination was made in the following terms:

"(1) The said Nancy Sciacca sustained personal injury arising out of or in the course of her employment on 31 December 1976 namely lumbo-sacral disc protrusion.

(2) In accordance with the provisions of section 27 of the said Act the Department of Finance is liable to pay compensation in respect of the said personal injury."

This determination was revoked by the determination made on 3 April 1986.

On 15 November 1979 a determination was made amending the determination made on 16 December 1977. The effect of the amendment was to limit the period during which the amount of weekly compensation specified in the earlier determination was payable to the period ending on 31 August 1979. The determination also provided for the payment of an increased weekly amount from 1 September 1979 until a date to be determined by the Commissioner or his delegate. This determination was also revoked by the determination made on 3 April 1986.
The next determination to which it is necessary to refer is that made on 22 September 1980. By that determination the determination made on 15 November 1979 was amended. The effect of the amendment, so far as material for present purposes, was to limit the period during which the amount of weekly compensation specified in the determination so amended as payable from 1 September 1979 to the period from 1 September 1979 to 31 August 1980. The determination also provided for the payment of an increased weekly amount from 1 September 1980 until a date to be determined by the Commissioner or his delegate. The determination made on 22 September 1980 was also revoked by the determination made on 3 April 1986.
On 30 January 1981 a determination was made amending the determination made on 22 September 1980. The effect of that amendment was to limit the period within which the amount of weekly compensation specified in the earlier determination as payable from 1 September 1980 to the period from 1 September 1980 to 31 December 1980. The determination also provided for the payment of an increased weekly amount from 1 January 1981 to 14 January 1981 and a further increased amount from 15 January 1981 until a date to be determined by the Commissioner or his delegate. This determination was also revoked by the determination made on 3 April 1986, it apparently being overlooked that it had been revoked by a determination made on 1 July 1981 (see below).
On 1 July 1981 a determination further amended the determination made on 22 September 1980 and revoked the determination made on 30 January 1981. The effect of the amendments was to specify a weekly amount of compensation payable in respect of the period from 12 August 1980 to 31 August 1980 and an increased weekly amount in respect of the period from 1 September 1980 until 14 January 1981. The determination also provided for a further increased amount per week to be paid during the period from 15 January 1981 until a date to be determined by the Commissioner or his delegate. This determination was also revoked by the determination of 3 April 1986.
The last of the determinations revoked by the determination made on 3 April 1986 was a determination made on 5 July 1985. By that determination the determination made on 1 July 1981 was amended so as to limit the period during which the weekly amount of compensation specified in that determination as payable from 15 January 1981 to the period from 15 January 1981 to 31 March 1981. The determination also provided for specified amounts per week to be paid to the respondent in respect of the periods 1 April 1981 to 31 August 1981, 1 September 1981 to 30 April 1982, 1 May 1982 to 31 October 1982, 1 November 1982 to 30 April 1983, 1 May 1983 to 31 October 1983, 1 November 1983 to 30 April 1984 and 1 May 1985 until a date to be determined by the Commissioner or his delegate.
Various determinations other than those to which attention has been drawn were made from time to time providing, inter alia, for the payment of amounts representing the cost of medical treatment provided to the respondent. It is unnecessary to refer to these in detail.
It is apparent that the delegate of the Commissioner, when making the determination dated 3 April 1986, accepted that, notwithstanding the findings recorded in par.1 of that determination, the respondent had had, and continued to have, an entitlement in respect of the cost of medical treatment in respect of the injury to her knees and agreed that he should not embark on an inquiry to identify how much of the costs she had incurred was properly referable to the respondent's back condition and how much was properly referable to the injury to her knees. Hence, the determinations relating to the cost of medical treatment were not revoked or varied.
Notwithstanding that the language used by the delegate may be defective in the respects to which I have earlier referred, it may be accepted that the effect of the determination made on 3 April 1986 was to terminate the respondent's entitlement to the payment of weekly compensation on the basis of either total or partial incapacity on and from 13 December 1978.
It appears that on 24 May 1988 the Tribunal, pursuant to sub-s.41(2) of the Administrative Appeals Tribunal Act, ordered "that the operation of the determination of the delegate of the Commissioner for Employees' Compensation dated 3rd April 1986 be stayed from the date of this order until the 8th September 1988, or until further ordered". On 4 August 1988 a further order was made staying the operation of the determination from the date of that order "until the date of the decision in this matter or until further order". It may be presumed that, pursuant to those orders of the Tribunal, amounts of weekly compensation were paid to the respondent in respect of the period from 24 May 1988 until the date of the Tribunal's decision, namely 25 November 1988.
It should also be recorded that in 1980 the present respondent commenced an action in the Supreme Court of the Australian Capital Territory against the Commonwealth of Australia claiming damages in negligence in respect of the injuries alleged to have been suffered as a result of the accident at work on 31 December 1976. The action was heard by Gallop J. who gave judgment therein on 18 October 1985 holding that the respondent had failed to establish a breach by the Commonwealth of any duty of care it owed to the respondent. However, in case an appellate court might take a different view on liability, his Honour proceeded to assess damages. In doing so, his Honour made several findings, including a finding that any condition of the respondent's back had no causal relationship with the accident, and a further finding that by 13 December 1978 the respondent was fit to return to her duties as a tea attendant. Those findings did not give rise, however, to any issue estoppel in the proceeding before the Tribunal to review the determination made on 3 April 1986: Commonwealth of Australia v. Sciacca (1988) 17 FCR 476.
After judgment had been given in the action in the Supreme Court of the Australian Capital Territory, the Commissioner undertook of his own motion, pursuant to sub-s.20(4)(a) of the Act, a reconsideration of the respondent's entitlement to compensation, such review resulting in the making of the determination the subject of review by the Tribunal. As has already been mentioned, the matter was again reconsidered at the request of the respondent, the decision upon such further reconsideration being given on 5 November 1986.
The Tribunal, as appears from the reasons for its decision dated 25 November 1988, found both the respondent and her husband to be unsatisfactory witnesses and expressed itself as not being prepared to make findings of fact on their evidence. Nor was the Tribunal prepared to rely on the evidence given by the respondent's son. After reviewing the extensive medical evidence before it, the Tribunal found that any back condition from which the respondent was suffering, being a condition which was first complained of over two years after the injury on 31 December 1976, did not result from that injury. The Tribunal also found that the respondent did not suffer from any psychological condition. In relation to the injury to the respondent's knees, the Tribunal found that the respondent was not incapacitated for work totally or partially. The Tribunal further found that although the respondent had failed "to establish a claim for incapacity", she was entitled, pursuant to sub-s.39(3) of the Act, to compensation for a 15% loss of both legs at the knee. The Tribunal quantified the amount payable at $7,987.50, applying for this purpose the relevant percentages to the amount prescribed for the purposes of sub-s.39(3) of the Act as at 31 December 1981 (see Compensation (Commonwealth Government Employees) Regulations (Amendment) being Statutory Rules 1981 No.247), that date being accepted by the Tribunal as the date by which the injury to each knee had stabilized. There was no challenge before the Court by either party to any of these findings.

Some emphasis was placed during the hearing of the appeal on the circumstance that, in the reasons for its decision, the Tribunal expressed its finding that the respondent was not incapacitated for work either totally or partially as a result of the accident on 31 December 1976 in the present tense and did not expressly state the date upon which such incapacity had ceased. However, the use of the present tense is clearly explicable on the basis that the Tribunal was expressing a conclusion upon the case that had been put to it by the respondent. That case was that the respondent had been totally incapacitated for work at all times up to the date of the hearing before the Tribunal and that that incapacity was continuing. No case was put to the Tribunal that incapacity due to the injury to the knees continued after 12 December 1978 but ceased at some time prior to the date of the hearing before the Tribunal. The fact that the respondent's case was put in that way would not, of course, have precluded the Tribunal from concluding, if the material before it warranted such a conclusion, that the respondent had been, as a result of the accident on 31 December 1976, totally or partially incapacitated for work up to some date between 13 December 1978 and the date of the Tribunal's decision. The Tribunal did not, however, make any finding that incapacity continued after 12 December 1978. So much is clear from a consideration of the formal decision of the Tribunal for, although the Tribunal varied the determination by substituting the date 5 November 1986 for the date 12 December 1978 wherever appearing, it did not revoke or vary the finding of the delegate recorded in par.1(b) of the determination that "on and from 13 December 1978 the (respondent) has been fit to undertake the duties of a tea lady". Further, the Tribunal's approach to what it called "the question of retrospectivity" - see below - is consistent only with the conclusion that the Tribunal regarded the respondent as having ceased not later than 12 December 1978 to be incapacitated totally or partially as a result of the accident on 31 December 1976. If the Tribunal had found that incapacity continued beyond that date, it would have expressed the question of retrospectivity not in terms of the date 13 December 1978 but in terms of the date upon which it found incapacity to have ceased.
In the light of the findings it had made, the Tribunal turned to consider what it described as "The Retrospective Aspect of the Determination", noting that the respondent had "continued to receive compensation between 1978 (when the determination purports to cease payment) and 1986 (when the determination was made)".
In discussing this aspect of the matter, the Tribunal set out a passage from the judgment of Lord Shaw of Dunfermline in George Gibson and Co. v. Wishart (1915) AC 18 at p 30 and a passage from the judgment of Lowe J. in Victoria Railways Commissioners v. Wright (1938) VLR 312 at pp 325-6 and referred to its own decisions in Re Novak and Australian Telecommunications Commission (1988) 14 ALD 715 and Re Kime and Commonwealth of Australia (1988) 15 ALD 63. The reasons for decision continue:

"41. ... Fundamental to the Act is the requirement that the Commissioner and this Tribunal on review 'shall be guided by equity, good conscience on (sic) the substantial merits of the case without regard to technicalities' (see s.20 of the Act). Such a provision in a remedial statute seems to me to be totally inconsistent with the submission that (a) person receiving periodic payments may at any time have their rights determined away retrospectively with the consequence that they may be required to repay under section 119 of the Act moneys already lawfully paid to him and on the strength of which he may have entered into commitments. It is also relevant that under the Act reconsideration may be initiated either by the Commissioner (para 20(4)(a)) or a party (para 20(4)(b)) and this will affect the application of the principles in Wright's case.

42. In Novak's case and Kime's case the Tribunal sought to apply Wright's case. There is a clear requirement for consistency in the Tribunal's decisions per Brennan J. in Re Drake and Minister for Immigration and Ethnic Affairs

(No.2) 2 ALD 634 at 639 where his Honour said:- 'Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.'

43. Wright's case ... raised the possibility of termination 'when the incapacity ceases completely' under the particular agreement between the parties in that case. On the facts of this matter the decision of the Federal Court on the case stated precludes a determination applying the findings of the Supreme Court yet that is the effect of the determination in its choice of 13th December 1978 as the date of termination. In Wright's case there was continuing partial incapacity; that is not so on these facts but there is a continuing loss under section 39 of the Act. In all the circumstances it seems appropriate to apply the date of the reconsideration which was based on a consideration by the delegate of the facts themselves as opposed to (the) date found in the Supreme Court proceedings. I apply that date. On the basis of this finding, the date of termination of the (respondent's) entitlements to weekly payments under section 45 of the Act is 5th November 1986; I so find. If I am wrong in this, the appropriate date would seem to be the date of this decision."

It is curious that, having concluded that the date of termination of the respondent's entitlements to weekly payments of compensation was 5 November 1986, the Tribunal did not vary the determination made on 3 April 1986 by deleting so much of par.2(a) which revoked the determinations of 15 November 1979, 22 September 1980, 1 July 1981 and 5 July 1985 and the whole of par.4(d).

In support of the appeal counsel for the Commonwealth submitted that the Tribunal had erred in law in concluding that the determination under review could not validly operate to revoke determinations previously made which provided for the payment to the respondent of weekly amounts of compensation and in accordance with which payments had in fact been made. It was further submitted that, on the Tribunal's findings of fact, the only decision which was open to the Tribunal was one affirming the determination under review. Counsel drew attention to the circumstance that the decision of the Tribunal in the present case had been given at a time prior to the decision of this Court (Beaumont J.) on 14 March 1989 setting aside the decision of the Tribunal in Re Novak and Australian Telecommunications Commission (supra): see Australian Telecommunications Commission v. Novak (1989) 86 ALR 457. The possibility that, if the determination of 3 April 1986 were affirmed, the Commonwealth might be entitled under sub-s.119(1)(b) of the Act to recover by action in a court of competent jurisdiction the amount of compensation that had been paid to the respondent in respect of any period after 12 December 1978 on the basis that it represented an amount of compensation under the Act that should not have been paid was, so it was submitted, not a relevant matter for the Tribunal to take into account.
Counsel for the respondent did not seek to uphold the Tribunal's decision in so far as it was based on lack of power to make a determination speaking in respect of a period anterior to the date of the determination. Counsel sought, however, to support the decision of the Tribunal, or rather a variation of it, on the basis that, absent any suggestion of fraud, concealment or misrepresentation on the part of the respondent, the power was required to be exercised in such a way as to ensure that what were referred to as the respondent's accrued rights were not adversely affected. The respondent's accrued rights were said to have arisen under the determinations which the delegate of the Commissioner had purported to revoke. It was submitted that, on this basis, the Tribunal should have determined that the date of termination of the respondent's entitlement to weekly payments of compensation ceased not earlier than 2 July 1985, being the date of the most recent of the determinations which the delegate had purported to revoke.
It is fundamental to the resolution of the issue that arises on this appeal to have regard to the essential features of the legislation. Although the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), it is by reference to the provisions of the earlier Act that this appeal is to be determined.
Under the 1971 Act, liability in the Commonwealth to pay compensation arose in a variety of circumstances but it is sufficient, for present purposes, to refer to the following provisions. Section 27 provided that, if personal injury arising out of or in the course of the employment of an employee by the Commonwealth was caused to the employee, the Commonwealth was, subject to the Act, liable to pay compensation in respect of that injury in accordance with the Act. Weekly amounts of compensation were payable to the employee during any period of incapacity for work, whether total or partial, that resulted from the injury (ss.45 and 46). Sub-section (1) of s.20 provided that, subject to the Act, the function of the Commissioner under the Act was to determine all matters and questions arising under the Act, the Commissioner being empowered to do all things necessary for the carrying out of that function. Sub-sections (2), (3) and (4) of that section provided:

"(2) In determining any matter or question under this Act, the Commissioner -

(a) shall be guided by equity, good conscience and the substantial merits of the case without regard to technicalities; and

(b) is not required to hold a formal or oral hearing and is not bound by the rules of evidence but shall give to any person who will be directly affected by the determination a fair opportunity of presenting his case.

(3) A determination by the Commissioner shall be in writing.

(4) Where a determination has been made under this Act -

(a) the Commissioner may, of his own motion, whether or not a proceeding has been instituted or completed under Part V in respect of the determination, reconsider the determination and may, if he thinks fit, make a determination varying or revoking the first-mentioned determination; and

(b) the Commissioner shall, at the request of the Commonwealth or of the claimant or, where there is more than one claimant whose claim was dealt with by the determination, of any of the claimants, if a proceeding has not been instituted under Part V in respect of the determination, reconsider the determination and may, if he thinks fit, make a determination varying or revoking the first-mentioned determination."

Part V provided for review by the Administrative Appeals Tribunal of determinations made under the Act.

In Australian Telecommunications Commission v. Novak (supra) Beaumont J. said, at p 461, that "a distinction must be drawn, for present purposes, between the statutory source of the liability to pay compensation on the one hand and the machinery for determining the amount of that liability on the other". After referring to what was said by Lord Shaw of Dunfermline in Ocean Coal Co. Ltd v. Davies (1927) AC 271 at p 287, Beaumont J., at p 462, continued:

"Likewise, in the present case, a distinction should be recognised between the existence of a liability to pay compensation, which is created by virtue of the statute itself, on the one hand and, on the other, the function of the Commissioner in ascertaining whether facts exist which match the provisions of the statute, which is a machinery provision only. The former creates the substantive liability; the latter is adjectival only."

At p 463, his Honour said:

"As has been said, upon the lodgment of the initial claim for compensation, it was the function of the Commissioner to consider from time to time whether a particular liability existed under the Act, and if so, in respect of what period that liability existed. The Commissioner purported to perform this function by his determination made on 27 July 1987. It is true that the determination purported to speak in respect of a period ending before 27 July. But this was within the power of the Commissioner. Whether the decision was correct in terms of the merits of the matter is, of course, another question which is yet to be reviewed. With all respect to the tribunal, I cannot agree that it was beyond the powers of, or ultra vires, the Commissioner to make such a determination. It was then open to either party to apply to the tribunal to review the Commissioner's determination pursuant to s.63(1) of the Act."

Counsel for the respondent accepted that Australian Telecommunications Commission v. Novak (supra) had been correctly decided on its facts but sought to distinguish the present case on the basis that the determination under review in Novak's case, unlike the determination in the present case, did not have the effect of revoking an existing determination under which weekly amounts of compensation had been paid. An examination of the factual situation in that case supports the view that the later determination did not operate to revoke an existing determination, the situation being that the only existing determination provided for the payment of weekly amounts of compensation for a finite period which had expired prior to the date fixed by the later determination as the date upon which incapacity for work had ceased. It must be said, however, that the Tribunal had clearly dealt with the matter on the basis that the respondent had a continuing entitlement to the payment of compensation under the prior determination, an entitlement which had, on its view, been adversely affected by the later determination.
It was conceded on behalf of the respondent, somewhat illogically so it seems to me, that the delegate of the Commissioner would have been entitled, in making the determination of 3 April 1986, to vary the determination made on 5 July 1985 so as to terminate the respondent's entitlement to weekly payments of compensation on 5 July 1985 or, alternatively, on 2 May 1985. This was said to follow from the circumstance that the determination provided for weekly payments of compensation during an indefinite period commencing on 1 May 1985, such payments to continue "until a date to be determined by the Commissioner or his delegate".
But, whatever the factual situation in Novak's case may have been, the reasoning of Beaumont J. is, in my opinion, equally applicable whether what is in issue is the power of the Commissioner or his delegate to make a determination under sub-s.20(1) of the Act or the power to make a determination upon a reconsideration under par.(a) or (b) of sub-s.20(4). In either case the Commissioner's function is to determine, in a case such as the present, whether the employee has suffered personal injury in the course of his employment by the Commonwealth, whether that injury has resulted in total or partial incapacity for work and, if so, the period of such incapacity. The function of the Tribunal upon an application for the review of a determination may be similarly expressed. It is in the carrying out of that function, and not otherwise, that the Commissioner or his delegate, and the Tribunal upon a review, is enjoined by sub-s.20(2)(a) to be guided by equity, good conscience and the substantial merits of the case. The latter sub-section is not to be read, in a case such as this, as authorising the making of a determination entitling an employee of the Commonwealth to weekly payments of compensation otherwise than in respect of a period of incapacity resulting from personal injury suffered in the course of the employee's employment by the Commonwealth. To affirm the Tribunal's decision in the present case would have that result.
To accept the respondent's argument would require the conclusion to be reached that a determination under the Act gives rise to "accrued rights" independent of those created by the statute itself, rights which may not, in the absence of fraud, concealment or misrepresentation on the part of the employee, be adversely affected by a later determination. Such an argument is, in my opinion, untenable.
There is, in my view, no warrant for limiting in the manner suggested the power of review conferred by sub-s.20(4) of the Act. The situation is analogous to that considered in George Gibson and Co. v. Wishart (supra). In that case, Lord Sumner, speaking of the power of review contained in par.16 of Schedule I to the Workmen's Compensation Act, 1906 in force in Scotland, a statute which provided that the amount of compensation, where total or partial incapacity for work resulted from a relevant injury, was to be a weekly payment during the incapacity, said, at pp 43-4:

"There is nothing in the mere language of that paragraph to limit the power of review in respect of the date at which the decision on the review may begin to operate. The object of the power of review obviously is to enable the tribunal to adjust the payment to the incapacity from time to time, so that, as far as possible and for the sake of justice to both parties, the amount payable may increase or diminish as the incapacity increases and diminishes, and so that both may terminate together."

I am further of opinion that, in reviewing the determination of 3 April 1986, it was not relevant for the Tribunal to consider whether, in the event that the determination of 3 April 1986 were affirmed by the Tribunal, the Commonwealth might be entitled to seek recovery from the respondent under sub-s.119(1)(b) of the Act of any moneys that had been paid to the respondent by way of weekly compensation over and above those properly payable in accordance with that determination. It was no part of the Commissioner's function under the Act, or that of the Tribunal upon a review, to consider whether the Commonwealth might institute a proceeding in a court of competent jurisdiction pursuant to that sub-section or whether, if it did so, the proceeding might be successful: see Commonwealth of Australia v. Goodfellow (1980) 31 ALR 533.
The Tribunal also placed much reliance on what was said by the members of the Supreme Court of Victoria in Victorian Railways Commissioners v. Wright (supra). That case was, however, concerned with a statutory scheme differing markedly from that relevant to the present issue and I find nothing in the judgments in that case to support the Tribunal's decision.
In the result, I am of opinion that, given the Tribunal's findings of fact, its decision cannot be supported. Indeed, once it is accepted, as I think it must be, that the respondent was not at any time after 12 December 1978 incapacitated for work, either totally or partially, as a result of the accident on 31 December 1976, it was not open to the Tribunal to substitute in the determination the date 5 November 1986, or any other date, for the date 12 December 1978 appearing therein. The decision of the Tribunal is, therefore, varied by deleting from par.1 thereof sub-par.(a). Otherwise the determination is affirmed. The respondent must pay the applicant's costs of the application to this Court.

[1990] FCA 431

16 AUGUST 1990