Re Commonwealth of Australia v John Baptist Portelli Vg [1982] FCA 15 (19 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: COMMONWEALTH OF AUSTRALIA
And: JOHN BAPTIST PORTELLI
VG No. 111 of 1981
Workers Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
Keely J.
McGregor J.

CATCHWORDS

Workers Compensation - Commonwealth employee - separate determinations by Commissioner in respect of different injuries and/or disease - reference to Compensation Tribunal of matters or questions to which the determinations related - jurisdiction of Tribunal to "reconsider" claim for incapacity of employee resulting from the physical injuries and/or disease including any hysterical condition and its effect - whether such incapacity for work is "a matter or question to which the determinations related" - reference of questions of law by Tribunal of its own motion to Federal Court - determination by court of such questions as varied by consent of parties before trial judge - whether Court had power to so vary such questions - appeal to Full Court - Compensation (Commonwealth Government Employees) Act 1971 ss.5(11)(a), 63, 83(1), 94A and Federal Court of Australia Act 1976 ss.24 and 28

HEARING

MELBOURNE
19:2:1982

ORDER

1. The appeal be allowed.

2. The order of Northrop J., dated 9 June 1981, be set aside.

3. The first and second questions referred to the court by the Commonwealth Employees' Compensation Tribunal in the case stated be answered as follows:

Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the claimant for work having regard, inter alia, to the fact that medical reports concerning this claim appear from the documents forwarded to the Clerk of the Tribunal under s.78 to have been before the delegate at the time the determinations were made but were not referred to in those determinations.

Answer: Yes

Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction having regard, inter alia, to the facts the documents under s.78 indicate that this claim was not before the delegate at the time the determinations were made and was not referred to in the determination.

Answer: Yes

4. The case be remitted to the said Tribunal for determination in accordance with the answers given herein.

5. The Commonwealth of Australia pay the respondent's, John B Baptist

Portelli, costs of the appeal, together with his costs of the reference before Northrop J.

DECISION

I have had the opportunity of reading the reasons for judgment herein of both Keely J. and McGregor J.

The learned trial judge in his reasons for judgment (35 A.L.R. 206) has made a detailed analysis of the relevant parts of the Compensation (Commonwealth Government Employees) Act 1971. I am in complete agreement with such analysis.

For my part I would have considered that it was in order for the learned trial judge to amend by consent of the parties the two questions of law referred to the Court by the Commonwealth Employees Compensation Tribunal. It would seem that in all the circumstances the parties were at liberty to consent to the amendment to the two particular questions referred by the Tribunal in order that the issue which had been raised before it would be squarely raised for determination by the Court. Each of the questions as so varied do no more than raise in a clearer form that which had been raised in the case stated (cf. Commonwealth of Australia -v- Beattie [1981] FCA 88; 35 A.L.R. 369). But as both Keely and McGregor JJ. are of the opinion that the learned trial judge had no power to so amend the two questions referred to the Court and as their Honours thereafter have arrived at different determinations on other matters raised on the appeal, I am content in all the circumstances to say that the particular questions referred to the Court, being questions formulated by the Tribunal of its own motion, should have been answered by the Court.

In this regard I am of the opinion that those questions should be answered in the affirmative for the reasons set out in the reasons for judgment of Keely J. I agree with the orders proposed by him.

I would only add that had the questions as amended before the learned trial judge been the questions referred by the Tribunal, then those questions should have been answered in the affirmative for the reasons expressed by the learned trial judge in his reasons for judgment.

The Commonwealth of Australia (the Commonwealth) appeals from the whole of the judgment of a single judge of this court (Northrop J.) given on 9 June 1981 in proceedings relating to questions of law referred by the Commonwealth Employees' Compensation Tribunal (the tribunal) under s.94A of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). The questions of law were referred in proceedings brought by John Baptist Portelli (the employee) who was an employee of the Commonwealth within the meaning of the Act at all material times.

On 1 October 1976 a delegate of the Commissioner for Employees' Compensation (the commissioner) made a determination that the employee on 6 September 1976 suffered personal injury arising out of or in the course of his employment by the Commonwealth and that the Commonwealth was liable to pay compensation to the employee in respect of that personal injury. The injury the subject of that determination was a strained right ankle. At times it was described by both the commissioner and the tribunal as a "sprained" right ankle, but it seems that nothing turns on that discrepancy. Thereafter determinations were made by the commissioner in relation to the liability of the Commonwealth to make weekly payments of compensation, and to pay for medical treatment and for travelling expenses incurred in obtaining medical treatment in respect of the injury to the right ankle.

On 19 July 1979 the commissioner made a determination as to a claim by the employee "in respect of strained right ankle". The determination provided for the payment of compensation under s.45 of the Act on the basis of total incapacity for work for specified periods ending on 30 March 1979, and for various other payments including the sum of $812.50 under s.39 of the Act for a "5% loss of efficient use of the right leg below the knee".

On 31 March 1980 the commissioner made a determination "in the matter" of a claim by the employee "for compensation in respect of heart attack". That determination read:

"Determination

1. Specialist medical opinion indicates that the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are due to the natural progression of a pre-existing or underlying condition.

2. Now therefore, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sections 27 and 29 of that Act, I hereby determine:

(a) the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are not the result of personal injury arising out of or in the course of his employment;

(b) the employment of the said John Baptist Portelli was not a contributing factor to the contraction by him of the conditions of coronary sclerosis and myocardial infarction on 26 April, 1979 or to the aggravation, acceleration or recurrence of those conditions;

(c) the claim for compensation of the said John Baptist Portelli of 16 May 1979 is therefore disallowed."

Following these determinations the employee sought to exercise the rights conferred on him by s.63 of the Act by requesting that the commissioner refer certain matters to the tribunal. By consent of the parties at the commencement of the hearing before the tribunal, the terms of the employee's request were "replaced by a request as follows":

"On behalf of Mr. Portelli we request that his claim for compensation be referred to the Tribunal for assessment and we refer to the Determinations dated the 19th July 1979 and the 31st of March 1980 which Mr. Portelli seeks to challenge in the basis that he has been totally incapacitated for work from the 26th April 1979 as the result of injuries received throughout the course of his employment with the Commonwealth Department

of Productivity and more particularly on the following bases:-

1. Injury to Mr. Portelli's right leg is of suffiecient severity to incapacitate the worker for work.

2. It is further alleged that the ankle injury with its resultant pain and limitation of movement with the resultant increase in weight and discomfort caused by the effects of the injury have caused aggravated and/or accelerated coronary artery disease and the development of myocardial infarction.

3. It is further alleged that his general employment stresses both physical and mental have caused aggravated and/or accelerated general coronary arterial degeneration with resultant myocardial degeneration and infarction.

4. It is further alleged that the work on the 26th of April 1979 precipitated the myocardial infarction.

5. It is further alleged that the ankle injury and its effects resulted in the development of an hysterical state which has (sic) and is incapacitating the worker for work.

6. It is further alleged that the injury of September 1976 to the worker's ankle including the resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction."

The reasons for judgment of the learned judge stated that the "bases" referred to in the above request for reference by the commissioner to the tribunal had been treated as "the grounds of the request" required by s.76(1)(b) of the Act.

Counsel for the employee outlined the case to be presented to the tribunal as a claim for total incapacity based upon grounds including two grounds which were almost identical with grounds 5 and 6 of the "bases" of the request for reference to the tribunal set out above. They read as follows:

". that the ankle injury and its effects resulted in the development of an

hysterical state which is incapacitating the worker for work

. that the injury of September 1976 to the claimant's ankle, including the hysterical condition resulting therefrom, contributed to aggravation and acceleration of coronary artery disease and myocardial infarction."

In its reference of questions of law to the court the tribunal stated that

in the hearing before it counsel for the Commonwealth objected to these two grounds, contending "that as they were not matters or questions to which a determination related (s.63(1)(a)) the Tribunal had no jurisdiction to consider those matters by way of reconsideration".

The learned judge said in his reasons for judgment that "the parties consented that the following facts be added to the case stated -

The Tribunal found as a fact that:

(a) The Claimant had been examined by a Psychiatrist at the request of the

employer on the 30.11.78.

(b) That Medical Reports available to the employer referred inter alia, to the mental condition of the claimant between 1977 and March 1979.

(c) It had available to it the Statement of Reasons of the Commissioner referring to the determinations and attached hereto."

His Honour also said that, in addition, "the parties consented that a

statement of reasons for the determinations dated 19 July 1979 and 31 March 1980 (by the commissioner) should form part of the case stated". They were in the following terms:

"The determination of 19 July 1979 made in connection with Mr Portelli's right ankle injury claim awarded Mr Portelli $812.50 under section 39 of the Act in force prior to 1 September 1979 in respect of 5% loss of efficient use of the right leg below the knee. The determination of 19 July 1979 involved a request for reconsideration under paragraph 20(4)(b) of the Act and the reasons for determination are indicated in the commissioner's letter of 21 January 1980 to Mr Portelli's solicitors."

(not contained in appeal book)

"The determination of 31 March 1980 made in connection with Mr Portelli's claim in respect of 'heart attack' was made in the light of a report provided by specialist medical referee, Dr H.B. Kay, following his examination of the claimant on 26 November 1979. It was Dr Kay's opinion that Mr Portelli was suffering from coronary sclerosis and on 26 April 1979 at work had suffered a myocardial infarction. Dr Kay noted the problems the employee encountered at work and expressed the opinion that they did not have any significant effect in the onset of the myocardial infarction. Treating specialist Dr P.A. Valentine in a report dated 23 July 1979 also didn't support the contention that any stress at work contributed to the myocardial infarction suffered by Mr Portelli."

The learned judge stated in his reasons for judgment that he did "not find any of these additional facts relevant or of assistance in answering the questions of law referred to the court". Accordingly, it is not necessary to decide whether it was open to his Honour to permit the parties to add facts to the case stated by the tribunal of its own motion, the tribunal not being represented before his Honour.

The questions referred by the tribunal were in the following terms:

"1. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the claimant for work having regard, inter alia, to the fact that medical reports concerning this claim appear from the documents forwarded to the Clerk of the Tribunal under s.78 to have been before the delegate at the time the determinations were made but were not referred to in those

determinations.

2. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction having regard, inter alia, to the facts the documents under s. 78 indicate that this claim was not before the delegate at the time the determinations were made and was not referred to in the determination.

3. Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) Act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of para. 63(1)(a)."

It is noted that his Honour considered that the third question was "not

appropriate to answer" as it sought "a general advisory opinion" concerning the general scope and purpose of the Act. The notice of appeal to this court seeks an order that the answer to that question should be "not applicable". In my view the third question referred by the tribunal was not a question of law arising in a proceeding before the tribunal within the meaning of s.94A(1) of the Act and accordingly did not arise for decision by the court.

His Honour's reasons for judgment state that the first and second questions of law referred by the tribunal were varied "by consent of the parties". No argument was advanced on the hearing of this appeal as to his Honour's power to vary the questions. However, the court's jurisdiction under s.94A(2) of the Act was "to hear and determine a question of law referred to it under this section". The questions of law had been formulated by the tribunal and referred by it "of its own motion" in accordance with the power to do so conferred by s.94A(1). Accordingly, in my opinion the court had no power to vary the terms of those questions of law.

The two questions as "varied by consent" were in the following terms:

"1. Whether contentions that the injury to which the determination of 19th July, 1979 relates and that the effects thereof have resulted in an hysterical state are matters or questions which the Tribunal has the jurisdiction to reconsider pursuant to the provisions of the Compensation

(Commonwealth Employees) Act?

2. Whether contentions that the injuries referred to in determinations of 19th July, 1979 and 31st March, 1980 and that the injury of September 1976 to the claimant's ankle including the resultant hysterical state contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction are matters or questions which the Tribunal has jurisdiction to reconsider pursuant to the provisions of the said Act?"

His Honour's answer to each of those questions was "Yes". In my opinion the order of the learned judge answering those questions, which were not in the form referred to the court by the tribunal, must be set aside and this court should answer the first and second questions referred by the tribunal.

Mr Nathan Q.C., who appeared with Mr Knott for the appellant, formulated the question of law raised by this appeal as being whether sections 63 and 83(1) of the Act "permit the tribunal to decide whether an employee is entitled to compensation pursuant to the terms of the said Act in respect of injuries or diseases not the subject of determinations made by the commissioner". However, neither the order nor his Honour's reasons for judgment express the view that the tribunal has power to so decide "in respect of injuries or diseases not the subject of determinations made by the commissioner".

His Honour's judgment, which is reported in (1981) 35 A.L.R. 207, referred in some detail to various provisions of the Act, and it is only necessary to set out some of them here. Section 63(1) of the Act provided as follows:

"63. (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

(b) apply to a prescribed Court in accordance with Division 4 for a judicial review of the determination."

It will be noted that the section conferred upon the employee a right to "request the Comissioner . . . to refer all or any of the matters or questions to which the determination relates" to the tribunal. The right is not limited to the claim considered by the commissioner. The right is wider than the claim where the commissioner's determination is expressed in such a way (as occurred with the commissioner's determination upon the employee's claim "for compensation in respect of heart attack") that it "relates" to "matters or questions" which are wider than the claim, cf. the commissioner's determination that the employment was not a contributing factor to the contraction or the aggravation of the condition of coronary sclerosis.

The commissioner's determination on 19 July 1979 was of a claim "in respect of strained right ankle" and provided, inter alia, for payment of workers' compensation for total incapacity for periods up to 30 March 1979 in respect of an injury to the right ankle which occurred on 6 September 1976. It is clear therefore that the determination related, inter alia, to the length of the period of total incapacity resulting from that injury. Paragraph 5 of the employee's amended request for a reference to the tribunal made it clear that the employee sought to contend before the tribunal that he had been incapacitated for a longer period than that specified in the determination, that he was still incapacitated and that the ankle injury contributed to that incapacity in that it "resulted in the development of an hysterical state which . . . is incapacitating the worker for work". It is true that the claimed incapacity was an indirect result (through the hysterical state) rather than a direct result. However, s.5(11)(a) of the Act provided that:

"(11) For the purposes of this Act-

(a) the . . . incapacity . . . shall be taken to have resulted from an injury to the employee . . . if the injury, . . . contributed to the . . . incapacity, . . ."

In my view the matter or question of whether "the ankle injury and its effects resulted in the development of an hysterical state which has (incapacitated) and is incapacitating the worker for work" is a matter or question "to which the determination (of the commissioner on 19 July 1979) relates" within the meaning of s.63(1)(a) of the Act. Accordingly, in my opinion the first question asked by the tribunal should have been answered "Yes".

The commissioner's determination on 31 March 1980 (set out above) was expressed as being "in the matter of the claim of (the employee) for compensation in respect of heart attack". As can be seen from the terms of the determination, the commissioner "disallowed" the claim and "determined", inter alia, that:

"(a) the conditions of coronary sclerosis and myocardial infarction suffered by (the employee) on 26 April 1979 are not the result of personal

injury arising out of or in the course of his employment;

(b) the employment of (the employee) was not a contributing factor to the contraction by him of the conditions of coronary sclerosis and myocardial infarction on 26 April, 1979 or to the aggravation, acceleration or recurrence of those conditions".

The words used by the commissioner are very wide. In paragraph (a) the commissioner determined that the conditions of coronary sclerosis and myocardial infarction suffered on 26 April 1979 were not the result of "personal injury arising out of or in the course of (the employee's) employment", i.e. he determined that they were not the result of any such personal injury and did not incident on 26 April 1979. In paragraph (b) the commissioner determined, without any qualification, that the employment - not merely some aspect of the employment or some incident in it - "was not a contributing factor to the contraction by (the employee) of the conditions of coronary sclerosis and myocardial infarction on 26 April 1979". The date presumably refers only to the myocardial infarction and not to the coronary sclerosis which the commissioner treated as being "due to the natural progression of a pre-existing or underlying condition" (paragraph 1 of the determination). Accordingly, the commissioner determined that "the employment" was "not a contributing factor" to the contraction of coronary sclerosis. Further, the commissioner determined, again without qualification, that "the employment" was "not a contributing factor to the aggravation (or) acceleration" of the coronary sclerosis, which was due to the natural progression of a pre-existing or underlying condition. Having regard to the matters so determined by the commissioner, in my opinion the determination of 31 March 1980 "related" - within the meaning of s.63(1)(a) of the Act - to "the matter or question" whether the ankle injury, "including the resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction" (paragraph 6 of the amended request for a reference to the tribunal). Accordingly, in my opinion the second question of law asked by the tribunal should have been answered "Yes".

The answers to the first and second questions referred by the tribunal are as follows:

"1. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the claimant for work having regard, inter alia, to the fact that medical reports concerning this claim appear from the documents forwarded to the Clerk of the Tribunal under s. 78 to have been before the delegate at the time the determinations were made but were not referred to in those

determinations."

Answer - Yes.

"2. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction having regard, inter alia, to the facts the documents under s. 78 indicate that this claim was not before the delegate at the time the determinations were made and was not referred to in the determination."

Answer - Yes.

The case should be remitted to the tribunal for determination in accordance with those answers.

By reason of the opinion I have expressed that the learned judge had no power to vary the form of the questions of law referred by the tribunal, the appeal should be allowed and the order made should be set aside. However, the Commonwealth has not succeeded in any of its contentions and in my opinion must pay the employee's costs of the appeal as well as his costs of the reference before Northrop J.

THE COMMONWEALTH OF AUSTRALIA (The Commonwealth) appeals against the whole of the judgment of a judge of the Federal Court of Australia given on 9 June 1981 in respect of proceedings in which JOHN BAPTIST PORTELLI (the employee) had sought to exercise rights conferred on him by s.63 of the Compensation (Commonwealth Government Employees) Act 1971 (the Act).

It appears from the judgment that at all material times, the employee was an employee of the Commonwealth within the meaning of the Act. By a Determination dated 1 October 1976 a delegate of the Commissioner for Employees' Compensation, (the Commissioner) determined in response to a claim for compensation in respect of a strained right ankle that on 6 September 1976 the employee suffered personal injury, arising out of or in the course of his employment by the Commonwealth and that the Commonwealth was liable to pay compensation to the employee therefor. Thereafter a number of determinations were made in relation to the liability of the Commonwealth to make weekly payments of compensation, of medical expenses and of travelling expenses incurred in obtaining medical treatment in respect of that injury.

On 19 July 1979 the Commissioner made a Determination in the matter of the claim by the employee "in respect of strained right ankle". The Determination provided for the payment of compensation on the basis of total incapacity for work (s.45 of the Act) for specified periods ending at 3.18 p.m. on 30 March 1979, and for various other payments including the sum of $812.50 under s.39 of the Act for a percentage loss i.e. of 5% of the efficient use of the right leg below the knee. On 31 March 1980, the Commissioner made a Determination "In the matter of the claim by (the employee) for compensation in respect of heart attack". The formal parts of the Determination were -

"DETERMINATION

1. Specialist medical opinion indicates that the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are due to the natural progression of a pre-existing or underlying condition.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, (as amended, including sections 27 and 29 of that Act, I hereby determine:

(a) the conditions of coronary sclerosis and myocardial infarction suffered by the said John Baptist Portelli on 26 April 1979 are not the result of personal injury arising out of or in the course of his employment;

(b) the employment of the said John Baptist Portelli was not a contributing factor to the contraction by him of the conditions of coronary sclerosis and myocardial infarction on 26 April, 1979 or to the aggravation, acceleration or recurrence of those conditions;

(c) the claim for compensation of the said John Baptist Portelli of 16 May 1979 is therefore disallowed."

Certain inferences were drawn by the learned Judge which I do not find necessary to repeat. Nothing turns on the difference between "sprained" or "strained" in relation to the right ankle.

The employee sought to exercise a right conferred upon him by s.63(1)(a) of the Act to which I refer specifically later.

To achieve this the employee's Solicitors, on 16 July 1980, sent a letter addressed as follows -

"The Clerk,
Compensation Tribunal,
C/- The Office of the Commissioner for Employees' Compensation,
P.O. Box 1,
WODEN A.C.T. 2606

Dear Sir,
Re Compensation (Commonwealth
Government Employees) Act as
amended. re: John Baptist Portelli -
Ref: 77/2896
----------------------------------------

You will note that Mr. Portelli is the subject of two Applications in relation to myocardial infarction he suffered in April, 1979 and an injury to his right foot.

We are instructed by Mr. Portelli to request that both Applications be referred to the Tribunal for Determination of the entitlement of Mr. Portelli to weekly compensation in relation to the myocardial infarction and the incapacity he suffered since the 26th April, 1979 and in relation to the amount payable to Mr. Portelli in relation to the right lower leg injury.
. . . . . . "

It is noted that the request referred to in s.63 was one to the Commissioner; whereas the letter was addressed to the Compensation Tribunal via its Clerk. It would appear this is a procedure envisaged by s.76 of the Act.

We are told that the matter came before the Tribunal on 7 April 1981.

Thereupon the events are not able clearly to be described; except that the request for reference, meaning, no doubt, the letter of 16 July (received maybe on 18 July (1980)) was replaced by a request as follows -

"On behalf of Mr. Portelli we request that his claim for compensation be referred to the Tribunal for assessment and we refer to the Determinations dated the 19th July 1979 and the 31st of March 1980 which Mr. Portelli seeks to challenge on the basis that he has been totally incapacitated for work from the 26th April 1979 as the result of injuries received throughout the course of his employment with the Commonwealth Department

of Productivity and more particularly on the following bases:-

1. Injury to Mr. Portelli's right leg is of sufficient severity to incapacitate the worker for work.

2. It is further alleged that the ankle injury with its resultant pain and limitation of movement with the resultant increase in weight and discomfort caused by he effects of the injury have caused aggravated and/or accelerated coronary artery disease and the development of myocardial infarction.
3. It is further alleged that his general employment stresses both physical and mental have caused aggravated and/or accelerated general coronary arterial degeneration with resultant myocardial degeneration and infarction.

4. It is further alleged that the work on the 26th of April 1979 precipitated the myocardial infarction.

5. It is further alleged that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the worker for work.

6. It is further alleged that the injury of September 1976 to the worker's ankle including the resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction."

It seems that in the course of proceedings Counsel for the claiment then

outlined a claim for total incapacity based upon these six grounds but finally reduced to two grounds, viz.

. that the ankle injury and its effects resulted in the development of an

hysterical state which is incapacitating the worker for work

. that the injury of September 1976 to the claimant's ankle, including the hysterical condition resulting therefrom, contributed to aggravation and acceleration of coronary artery disease and myocardial infarction

It will be noted that the two grounds are almost in the precise words, or

certainly to the effect of grounds 5 and 6 already set out.

We are told that when the two grounds were raised, Counsel for the Commonwealth referred to a threshold issue that the Tribunal was seeking to embark upon a course of reconsidering a matter not properly before it. As described in the reference to the Federal Court of Australia (Appeal Book p.11) Counsel for the Commonwealth objected to these grounds on the bases that as they were not matters or questions to which a determination related (para.63(1)(a)) the Tribunal had no jurisdiction to consider those matters by way of reconsideration.

We are further informed that as soon as this argument was put, the Tribunal itself decided it would not proceed further to adjudicate on the matter and itself then referred a case for the consideration of the Federal Court (s.94A(1) of the Act.)

The questions referred then were 3 as follows -

"1. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and its effects resulted in the development of an hysterical state which has and is incapacitating the claimant for work having regard, inter alia, to the fact that medical reports concerning this claim appear from the documents forwarded to the Clerk of the Tribunal under s.78 to have been before the delegate at the time the determinations were made but were not referred to in those

determinations.

2. Whether the Tribunal has jurisdiction to reconsider a matter or question that the ankle injury and resultant hysterical condition has contributed to the aggravation and/or acceleration of coronary artery disease and myocardial infarction having regard, inter alia, to the facts the documents under s.78 indicate that this claim was not before the delegate at the time the determinations were made and was not referred to in the determination.

3. Whether the general scope and purpose of the Compensation (Commonwealth Government Employees) act 1971 is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment and, in particular, whether this applies to the construction of para.63(1)(a).

(Signature)

COMMONWEALTH EMPLOYEES'
COMPENSATION TRIBUNAL"

The reference to the Federal Court was made by letter dated 10 April 1981

addressed to the District Registrar in Melbourne and worded as follows -

"Pursuant to Or.50 r.2(c) of the Federal Court Rules I have the honour to transmit a special case referring a question of law to the Federal Court (with four extra copies) under s.94A of the Compensation (Commonwealth

Government Employees) Act 1971.

I have asked the Clerk of the Tribunal to send to you the documention forwarded to him by the Commissioner for Employees' Compensation under s.78 and the transcript of the proceedings of the Tribunal in Melbourne.

(SIGNED) JOHN BALLARD (John Ballard) Compensation Tribunal"

The action of the Tribunal in so referring is that which is referred to in

s.94A of the Act as follows -

"94A.(1) A compensation Tribunal or a prescribed Court may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal or the Court, as the case may be, to the

Federal Court of Australia for decision.

(2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section, and that jurisdiction shall be exercised, subject to sub-section (3), by a single Judge.

(3) The Chief Judge of the Federal Court of Australia may, if in his opinion a question of law referred to the Court under this section involves the determination of a matter of sufficient importance, direct that, for the purpose of the determination of that question, the Court shall be constituted by not less than 3 Judges.

(4) Where a question of law arising in any proceeding before a Compensation Tribunal or a prescribed Court has been referred to the Federal Court of Australia under this section, the Tribunal or prescribed Court, as the case may be, shall not, in that proceeding -
(a) give a decision, judgment or order to which the question is relevant while the reference is pending; or

(b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.

(5) A question of law arising in a proceeding before a prescribed Court shall not be reserved to a court other than the Federal Court of Australia.

(6) In this section, "proceeding" means a proceeding under the foregoing provisions of this Part."

When the matter came before the learned Judge who heard the reference, the

parties consented to facts being added to the case stated and that a Statement of Reasons for the Determinations dated 19 July 1979 and 31 March 1980 should form part of the case stated. It is not clear why this could or should have been done; but since his Honour in his judgment stated that he did not find any of these additional facts either relevant or of assistance, it is not necessary to pursue this matter further; or to decide whether it was open to the learned Judge to permit the parties to allow to be added facts to the case stated or a Statement of Reasons to form part of a case stated by the Tribunal of its own motion.

However, the first two questions "asked" in the reference were, by consent, varied by the parties so that they then took the following form -

"1. WHETHER CONTENTIONS THAT THE INJURY TO WHICH THE DETERMINATION OF 19TH JULY, 1979 RELATES AND THAT THE EFFECTS THEREOF HAVE RESULTED IN AN HYSTERICAL STATE ARE MATTERS OR QUESTIONS WHICH THE TRIBUNAL HAS THE JURISDICTION TO RECONSIDER PURSUANT TO THE PROVISIONS OF THE COMPENSATION

(COMMONWEALTH EMPLOYEES) ACT?

2. WHETHER CONTENTIONS THAT THE INJURIES REFERRED TO IN DETERMINATIONS OF 19TH JULY, 1979 AND 30TH MARCH, 1980 AND THAT THE INJURY OF SEPTEMBER 1976 TO THE CLAIMANT'S ANKLE INCLUDING THE RESULTANT HYSTERICAL STATE CONTRIBUTED TO THE AGGRAVATION AND/OR ACCELERATION OF CORONOARY ARTERY DISEASE AND MYOCARDIAL INFARCTION ARE MATTERS OR QUESTIONS WHICH THE TRIBUNAL HAS JURISDICTION TO RECONSIDER PURSUANT TO THE PROVISIONS OF THE SAID ACT?"

It was further agreed that the date in paragraph 2,"30 March 1980" should

have been 31 March 1980, and the matter proceeded accordingly.

It will be noted that only the first two questions were replaced, the third question was, as his Honour put it, "disposed of speedily". It seems that neither Counsel requested that the Court answer the question; and his Honour, anyway, stated that it was not a question that the Court should answer. His Honour proceeded to hear argument and reach a decision which is the subject of the appeal.

Counsel for the appellant argued that the hysterical state was a matter upon which the Tribunal could not adjudicate since that condition, however related and even if said to be work related, is not a justiciable issue for the Tribunal because it had never been the subject of a determination. It was agreed in argument, in effect, that the employee could now give a notification alleging that his heart attack was caused or contributed to by hysteria which itself was work related; that such a notification would call for a determination which may or may not result in his being found to be entitled to compensation. Counsel for the appellant also submitted that the structure and procedures of the Act were subverted if employees raised their claims at first only before what was the equivalent of an Appeals Tribunal i.e. the Compensation Tribunal. In aid of the argument Counsel referred to the entitlement of the Commissioner in s.58 of the Act. He may require a medical examination of an employee; there was no such power in the Act for the Tribunal so to require. This supported, he said, the necessity for a reference to be to be confined to -

". . . . . . matters or questions to which the determination relates."

He argued that as the matter with which the Tribunal was asked to deal was beyond its entitlement, then there could not be said in terms of s.94A(1) to be (as later contended) a -

". . . question of law arising in a proceeding before the Tribunal . . . "

which could be referred to this Court by the Tribunal. He referred particularly to the hysterical state, not having been considered by the Commissioner or later the Tribunal. He objected to that being part of the claim which was included in the reference to the Federal Court of Australia. Counsel submitted, anyway, that in relation to the "heart attack" the determination of the 31 March 1980 showed that the conditions of coronary sclerosis and myocardial infarction were due to the natural progression of a pre-existing or underlying condition; that this determination, therefore, resolved any issue as to heart attack being, in effect, work caused or incapacity from heart attack being work caused and resolved it in its entirety. He contended, therefore, that any hysterical state which being work caused and incapacitating would be a matter for a further determination.

Counsel for the employee said, in effect, that the employee had really invoked the jurisdiction of the Commissioner to enquire into the liability of the Commonwealth to pay compensation; and it was then incumbent on the Commissioner to ascertain any "possible basis of liability under the Act". He noted the reference in the heading on the Determination of 1 October 1976 to "sprained right ankle" and to the heading on the Determination of 31 March 1980 to "heart attack"; that the Commissioner, he argued, should, in effect, have this man under surveillance from then on. He submitted that though it had never been put that the employee lodged a claim for any psychiatric condition, yet the claim was that the latter condition emanated from or was a sequel to the ankle injury; that injury having occurred, the complication flowed from it as an initial cause. The Court could, he said, take the view that the Commissioner was on notice of some psychiatric component to this man's incapacity. He referred to Ogden Industries Pty. Limited v. Lucas [1968] UKPCHCA 1; (1968) 118 C.L.R. 32 at p.36, the report being of the Privy Council -

"The first question depends entirely upon the true construction of the relevant Acts and in their Lordships' opinion should be solved by construing the Acts without reference to authority and then to see whether authority compels a different conclusion."

He cited Howe v. Simmons Bedding Co. Ltd. (1980) V.R. 177 at p.178. As to the interpretation of the Workers Compensation legislation, he referred to Hoddinott v. Newton Chambers & Co. Ltd (1901) A.C. 49 at p.57. He submitted a "popular" construction should be placed upon the meaning of the Act. He referred to the Act ss.20 and 80; and to Jolly v. Federal Commissioner of Taxation [1935] HCA 21; (1935) 53 C.L.R. 206. He contended that the onus of demonstrating what materials the Commissioner had before him fell "squarely" on the Commonwealth's shoulders. The summary of argument does not purport to recapture everything offered by Counsel for the parties.

It is not necessary in the view I take of this matter to provide an answer to the questions to which the learned judge at first instance was directed. My tentative view is that I would have answered the questions anyway in the negative. In so saying, I do not imply that the Tribunal lacked power in a broad sense to consider the possible association of "strained right ankle" and an "hysterical state". But so far as the Determination of 19 July 1979 tells us or Counsel's arguments state, there was no question of hysteria mentioned or evaluated. This alleged condition was not referred to or raised in the letter of 16 July 1980 nor even in the request of the 28 July 1980. There was reference in the latter to "hypertension" which, however, though uninstructed by evidence, is, I understand, a different condition.

Pursuant to the letters of 16 July 1980 and perhaps 28 July 1980, the Commissioner was obliged to forward the documents referred to in s.78 of the Act to the Clerk of the Compensation Tribunal.

When the matter did come to the Tribunal on 7 April 1981, the request of 16 July 1980 was "replaced" by one quoted at pp. 5 and 6 earlier which did in paras. 5 and 6 refer to an hysterical state.

As I understand it, this document was offered to the Tribunal but had not been the subject of any application pursuant to s.63 of the Act. The Tribunal's duty may be ascertained by reference to earlier sections of the Act relating first to the function of the Commission -

"20. (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.

(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."

The role or operation of the Tribunal follows and is referred to thus -

"63.(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

(b) apply to a prescribed Court in accordance with Division 4 for a judicial review of the determination."

Thus the Commissioner's function is to determine matters and questions

arising under the Act; the entitlement in a party then is to request in accordance with Division 3 (in which s.75(1) refers again to "matter or question") the Commissioner to refer to the Tribunal -

". . . . all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration;"

The Tribunal's powers are then set out in s.83, i.e. of -

". . .reconsidering a matter or question. . . " or s.84 that it - ". . .reconsiders a matter or question. . . "

However, it was sought apparently to debate that which had not been considered or not shown to have been considered by the Commissioner viz. a relationship between the ankle injury and the development of an incapacitating hysterical state; and, further, the relationship between an hysterical state (resultant upon the ankle injury) and coronary artery disease and myocardial infarction. Further, it follows that it was a matter which had not been referred. These questions were not, in my view, some minor extension of the medical condition already considered by the Commissioner nor a mere tidying up of verbiage, but, in reality, a different claim.

Accordingly, the Tribunal was being asked to reconsider a "matter or question" to which the Determinations relate when, as I read them, they did not so relate; or are not shown to have related. What was outlined anyway in the replacing document had not been the subject of any request to the Commissioner or the Clerk.

In my opinion the Tribunal was not entitled to deal with allegations or assertions of such matter merely because a party, not having made an appropriate request to the Commissioner, found it convenient to raise it at that hearing.

As the learned Justices of first instance said of the proceedings -

"A consideration of the Act makes it clear that the proceeding before the Tribunal constitute a complete rehearing of the matters or questions to which the Determination relates and which have been made the subject of a

request for reconsideration."

(Underlining is mine).

In my opinion, the prerequisites in that sentence to there being proceedings

before the Tribunal are not fulfilled here; i.e. there was not going to be a rehearing of matters or questions, as to which the Determinations related or of matters or questions which had been made the subject of a request or a request for reconsideration.

There being an objection by the Commonwealth to the new matter, the Tribunal itself decided not to proceed further but sought to invoke the power in s.94A of the Act which reads -

"(1) A Compensation Tribunal or a prescribed Court may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal or the Court, as the case may be, to the

Federal Court of Australia for decision.

. . . . . "
The questions referred are set out at p.8 above. I assume, without deciding, that they could correctly be described as -

". . . .a question of law arising in a proceeding before the Tribunal. . . . "

Then it seems that when the matter came before the learned Judge at first

instance, the questions asked by the Tribunal were "varied by consent" so that they took the form which is recited in the judgment at page 24 of the Appeal Book and pages 11 and 12 above.

The two questions his Honour considered are sufficiently dissimilar to those which were put forward by the Tribunal purportedly acting pursuant to s.94A as to be beyond mere changes in verbiage or of typographical errors. Accordingly, the basis upon which the Court could give a decision was not fulfilled, since it was not dealing with the question of law referred. This is not the same situation as arose in the Commonwealth of Australia v. Beattie [1981] FCA 88; 35 ALR 369 where an inaptly worded question was rephrased but understood as raising the same point (see pp.375, 386).

It is my opinion that the learned Judge at first instance was not entitled to deal with the questions; cf. Johanson v. Dixon [1979] HCA 23; (1978-1979) 143 C.L.R. 376 at p.382 per Mason J.; though no argument was addressed to us in this respect, the difficulty is one in the nature of jurisdiction and, in my view, not one which can be cured by acquiescence.

There was indeed a third question but, on any view of the matter, it seems to have been one which was quite impermissible in the context. His Honour refused (with respect, correctly) to deal with it and no request to reconsider that refusal has been made in this hearing.

In my view the Tribunal was not empowered to deal with the matters put forward on behalf of the employee quoted at pp. 5 and 6 hereof.

Assuming that the Tribunal was empowered to refer as "a question of law" the questions quoted at p.8, those questions were so referred "of its own motion". Therefore, the Court had no power to vary the terms of those questions; or to vary those questions so that they were replaced in the terms quoted at pp. 11 and 12 hereof.

I do not consider it appropriate that this Court should now attempt to answer the original questions submitted by the Tribunal to the Court.

The Order I would propose is that the appeal be upheld but, in the circumstances, each side should pay its own costs of this appeal and of the hearing before the learned Judge at first instance, leaving the parties to take such further steps as they are advised.