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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Workers' Compensation - Costs of applicant in proceedings before the Administrative Appeals Tribunal - Claim for compensation refused by the Commissioner for employees' compensation - Appeal to the Administrative Appeals Tribunal - Claim for compensation allowed but no award as to the applicant's costs - Tribunal's discretionary power to award costs - Whether properly exercised - Conduct of the applicant and her solicitor - Failure to supply certain information and medical authorities - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5(11)(a), 20(1), (2), 24, 27(1), 29, 43, 44, 54, 64(2), (3) - Administrative Appeals Tribunal Act 1975 (Cth), s 44(1). In an application by the widow of an employee of Telecom for compensation under the Compensation (Commonwealth Government Employees) Act 1971 the applicant refused to comply with a request of the deceased's employer to supply to it certain information and authorities to obtain medical information which the employer intended to place before the Commissioner for employees' compensation (the Commissioner) for the purpose of the Commissioner's determination under the Act. These were:The Commissioner, having determined that no compensation was payable, and the Administrative Appeals Tribunal (the Tribunal), in reviewing the determination of the Commissioner and awarding compensation to the applicant, having ruled however, that her refusal to supply such information was unreasonable conduct which justified the Tribunal refusing to award her costs of the proceedings before the Tribunal,
Held: (1)(Per curiam.) The conduct of the applicant and her solicitor both
in and prior to the litigation in refusing to supply
the authorities or
medical evidence and refusing to supply the required observations and
impressions was not unreasonable conduct
such as to justify refusal by the
Tribunal to exercise its discretion under s 64(2) of the Act to award costs to
the applicant; (per
Jenkinson J) the applicant's refusal to supply
observations and impressions was unreasonable but was unlikely to have changed
the
course which events took and did not justify a decision to deny to the
applicant an order that the respondent pay her costs. Relevant
matters which
the Tribunal did not take into account and should have, were (per curiam) that
the Commissioner is not given any power
under the Act to compel the applicant
to give any such information and (per Keely J) the form of authority and
request for medical
evidence sent to the applicant each expressly pointed out
that there was no obligation to provide the information and (per Davies
J) it
had not been established that there was relevant material in existence prior
to the making of the Commissioner's determination
which ought to have been
disclosed to the Commissioner, in particular, the written medical reports were
not then in existence.
(2)(Per Davies J.) The Act does not require an applicant, for a
determination by the Commissioner, to prepare fully and support
by evidence a
case for compensation, and medical evidence, even if presented, may not be
properly tested in an administrative hearing
conducted by the Commissioner in
the manner provided by the Act.
(3) (Per Keely and Jenkinson JJ.) The determination by the Tribunal that
compensation was payable, although not specifying the amount
or the applicant
as the recipient therof, nonetheless, in the circumstances, left no matter to
be remitted to the Commissioner for
further determination under s 64(3) of the
Act.
(4) (Per Jenkinson J.) Communication with the applicant could properly be
conducted by the employer of the deceased unless the applicant
insisted on
communication direct with the Commissioner or his delegate.
Puddy v. Borg (1973) VR 626; Harnett v. Vise (1880) 5 Ex D 307; Bostock v. Ramsey Urban District Council (1900) 2 QB 616; Beale v. Taylor (1967) 1 WLR 1193; Re Pengelly and Commonwealth of Australia (1982) 5 ALN 53, referred to.
HEARING
1984, November 22, 23; 1985, February 22. 22:2:1985Appeal pursuant to s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) against an order of the Administrative Appeals Tribunal refusing to award costs to the appellant pursuant to the discretion conferred on it by s 64(2) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).
E.F. Hill, for the appellant.
J.G. Larkins QC and P C Robinson, for the respondent.Solicitors for the appellant: Slater & Gordon.
Solicitors for the respondent: Australian Government Solicitor.
GFV
DECISION
22 February 19852. At the request of the respondent's counsel, the Tribunal deferred hearing submissions on the question of costs until after the making of the decision on 16 May 1984. After hearing such submissions it decided on 22 June 1984 that "None of the costs of the proceedings before this Tribunal incurred by the applicant are to be paid by the respondent". The applicant has appealed from that decision to this Court, contending that the Tribunal misdirected itself in law in exercising its discretion to award costs, that it took into account irrelevant matters and failed to take into account relevant matters and that it was not open to the Tribunal, properly instructed as to the law, to reach the conclusion that the applicant, through her solicitors, had engaged in unreasonable conduct which warranted its refusal to award costs to her.
3. It was also submitted by the applicant's counsel, in his reply, that the Tribunal should have remitted the case to the Commissioner for redetermination and that, had it done so, the question of costs would have been determined by the Tribunal in accordance with s 64(3) of the Act which conferred no discretion to refuse costs to the applicant. In my opinion it has not been shown that the Tribunal was required to remit "the case for re-determination by the Commissioner" and accordingly the question of costs was to be determined in accordance with the provisions of s 64(2) of the Act.
4. The Tribunal in my opinion correctly decided that s 64(2) gave it a discretion as to whether "to order that all or any part of the costs of the proceedings before it incurred by (the applicant) ... shall be paid by the Commonwealth" and that, in exercising that discretion, the appropriate principles were those which apply to the awarding of costs by a court.
5. The Tribunal said that prima facie an order should be made for the payment
of the costs of a successful applicant by a respondent
and that "the party who
succeeds should normally recover his costs unless his own conduct has made it
unfair to require the other
party to pay them". However, it decided that the
applicant "must bear her own costs of the proceedings in this Tribunal"
because
it was:
"... satisfied that the costs which the applicant incurred in applying6. That finding by the Tribunal was based upon the fact that the applicant's solicitors did not supply certain information sought by the respondent employer. It is necessary to set out at some length extracts from letters between the respondent employer and the applicant's solicitors. On 25 February 1981 the respondent wrote:
for the review of the Commissioner's determination were unnecessarily
incurred, in the sense that her unreasonable conduct frustrated the
performance by the Commissioner of his function of making a
determination on the merits and made necessary the application to this
Tribunal for review of the determination he made."
"We would appreciate Mrs Miller completing the attachedA similar request was made in a later (undated) letter from the respondent employer which asked that there be forwarded, amonst other things:
'authorities' for release of medical information in order that reports be
obtained from Mr Millers treating doctors. Alternately (sic) if you could
obtain those reports we will pay the doctors account."
"... completed medical authority form or medical reports obtained7. The respondent's counsel accepted that a form of medical "authority" tendered to this Court by the applicant's counsel "was, concurrently with the letter referred to, in use and might be supposed to have been in the form which was included" with the letter from the respondent dated 25 February 1981; he also said that the court could accept that the space provided for the insertion of the name and address of a doctor would have been left blank in the authorities attached to that letter.
on behalf of your client.
It would also be appreciated if you could obtain a statement from
Mrs Miller, detailing her husbands activities on the day of his death."
8. Under a heading which included the words "Telecom Australia", the
"authority" was in the following terms:
"AUTHORITY FOR DISCLOSURE OF MEDICAL INFORMATION------------------------------------------------------------------------------ .
Doctor's name and address Patient's name and address------------------------------------------------------------------------------ .
(One form per doctor)
To:
Please supply the Telecom Commission with any medical historyOn the back of that form of authority there appeared the following:
(including X-ray films, or reports, ECG tracings, etc if required)
requested for the purposes of my claim for compensation in respect of:
Date of injury / / When first treated / /
Signature Date / / "
"EVIDENCE REQUIRED IN COMPENSATION CLAIMSby
The delegate of the Commissioner for employees' compensation has
asked that evidence (preferably medical evidence) be supplied in support
of your claim for compensation. However he has also asked that you
be informed that you are not under any obligation to either provide
such evidence or consent to the release by treating doctors/hospitals of
medical reports, clinical notes, etc. You should note, however, that the
onus of establishing that there is an entitlement to compensation rests
with the claimant. Thus, if no evidence to support the claim is
provided, or if the delegate cannot obtain such evidence, the claim may
fail. It would then be necessary to determine that there was no liability
for the payment of compensation.
The Commissioner has expressed a deep reluctance to deny liability
in any such case - particularly if the claimant has not been specifically
informed of the need for supporting evidence. He is particularly
conscious of the stipulation in s 20 of the Act that he is to be guided
equity, good conscience and the substantial merits of the case. He shalltracings
give to any person directly affected by the determination a fair
opportunity to present a case.
Would you please advise whether you have any evidence (medical evidence
would be the most persuasive) to support your claim and whether you are
prepared to provide that evidence. It would assist the fair and proper
consideration of your claim if you would provide such evidence or give
written consent to the release by treating doctors/hospitals of clinical
notes, reports, etc, concerning the condition calimed for (films,
and/or reports from any associated radiologist examination,On the back of the form both the heading and the last two sentences in the first paragraph were printed in bold type and the heading was in capital letters.
electrocardiography, electroencephalography, etc would also be useful)."
9. A letter, dated 15 June 1981, from the applicant's solicitors to the
respondent employer included the statement "that Mrs Miller
will not be
signing any medical authorities". On 16 September 1981 the respondent
replied:
"I refer to your letter of 18 June 1981.10. The reply by the applicant's solicitors, dated 2 November 1981, included the following:
The delegate of the Commissioner for employees' compensation has
asked that evidence (preferably medical evidence) be supplied in support
of your clients claim for compensation.
There is no obligation to either provide such evidence or consent to
the release by treating doctors/hospitals of medical reports, clinical
notes etc. However, you should note that the onus of establishing that
there is an entitlement to compensation rests with the claimant. If no
evidence to support the claim is provided or if the delegate cannot
obtain such evidence, the claim may fail. It would then be necessary to
determine that there was no liability for the payment of compensation.
At the present stage, we have insufficient evidence to submit to the
Commissioner, and we are reluctant to proceed before the claimant has
been given a fair opportunity to present a case.
Before this claim can be properly considered, the following information
would be of assistance:
1 A statement from Mrs Miller detailing her husband's activities on
the day of death, and for several days before. In particular, is
anything known of unusual stress or strain that may have
contributed to the attack? She should also comment generally on
her husband's employment with Telecom, and give an opinion as
to how his work may have affected his health.
2 If Mrs Miller does not wish to sign medical authority forms
already provided, you may obtain medical evidence on her behalf.
Such evidence should include clinical notes and reports, films,
tracings, electrocardiography etc. A post-mortem report would also
be of value. Costs of obtaining such evidence will be borne by
Telecom, provided that this office is provided with copies where
relevant.
I await your early reply."
"In or about June 1979 Mr Miller developed a heart attack at work11. The Tribunal came to the conclusion, set out earlier, that the refusal by the applicant's solicitors to comply with the request to supply information to the respondent employer was "unreasonable conduct (which) frustrated the performance by the Commissioner of his function...."
for which he was hospitalised and following which he had recurring
chest pains, and he was off work again in about October 1979 and
January 1980.
Mrs Miller has instructed us that particularly from the beginning of
1980 until the date of his death, Mr Miller's health deteriorated
steadily - he became very tired and irritable and complained
constantly about the work being too difficult for him. In addition he
had become unusually breathless over the last few months and was
unable to sleep without extra pillows to prop himself up in bed.
We trust that we do not need to persuade you as to the heavy nature
of a lineman's job."
12. In reaching that conclusion the Tribunal referred to "the scheme of the
Act, with the Commissioner as the primary decision-maker
and the
Administrative Appeals Tribunal at the second level as a tribunal of review".
It continued:
"That scheme affords both parties the benefit of an opportunity tothe
have the first-made decision in respect of each issue reviewed on its
merits and not merely on the basis of error of law. Both the applicant
and the respondent are entitled to that benefit; it ought not to be
possible for one party to deprive the other of it by frustrating the
Commissioner in his task of gathering the information required by him
to enable him to ascertain the facts so that a decision can be made by
him on the merits. If by doing so that party causes the Commissioner
to make a decision unfavourable to himself and then applies to the
Administrative Appeals Tribunal for review of that decision, he creates
by his conduct a situation where the first decision made truly on the
merits will be that of the Tribunal. The other party will have been
deprived of the right, which the Act intended him to have, to have a
review on the merits. When a party abuses the provisions of the Act in
that way, it is appropriate that he should be deprived of his costs of
proceedings in the Tribunal."13. It may be noted that the Tribunal concluded that the applicant's costs "were unnecessarily incurred" although it had already accepted that it was not able to reach the conclusion that the Commissioner would have granted the claim, saying:
"It is not possible to know what determination the Commissioner14. I accept the submission put by the respondent's counsel that the Tribunal, in exercising its discretion as to costs, was entitled to take into account, as a relevant consideration, conduct of the applicant or of her solicitors occurring at a time before she lodged her application for a review by the Tribunal. Reliance was placed upon the principle stated by James L.J. (in which Brett and Cotton L.J.J. concurred) in Harnett v. Vise (1880) 5 Ex D 307 at 310-311, that a judge was "not confined ... to the conduct of the parties in the litigation itself ..." (but could) "consider the whole circumstances of the case, everything which led to the action... everything in the conduct of the parties which may show that the action was not properly brought...". That principle was adopted by A L Smith L.J. in Bostock v. Ramsey Urban District Council (1900) 2 QB 616 at 622.
would have made if he had received the information which he
requested; it should have been in favour of the applicant."
15. It is clear that the Tribunal, in considering whether (to use its words)
the applicant had abused the provisions of the Act or
had engaged in conduct
which was "unreasonable" or "made it unfair to require the other party to pay"
costs, was required to take
into account exactly what it was that the
applicant's solicitors were refusing to supply to the respondent employer. The
correspondence
set out above shows that the employer was seeking to obtain:
1(a) "A statement by the applicant detailing her husband's activities onclinical
the day of death, and for several days before. In particular, is
anything known of unusual stress or strain that may have
contributed to the attack?"
(b) The applicant's "opinion as to how his work may have affected his
health".
2 (a) Medical "authorities for release of medical information in order that
reports be obtained from Mr Miller's treating doctors".
(b) Alternatively to (a) to provide "medical evidence (including)
notes and reports, films, tracings, electrocardiography etc (and) a16. The information sought was in respect of a claim for compensation which, whether granted or rejected by the Commissioner, might well be the subject of a review before the Administrative Appeals Tribunal; in such a review the applicant widow and other witnesses, including the medical practitioners called to give evidence in support of her claim, would all be open to cross-examination by counsel for the respondent employer. In my opinion, on the material before it, including the medical evidence, it was not open to the Tribunal to reach the conclusion that the applicant, by reason of her solicitors' response to the requests by the employer, had engaged in unreasonable conduct as a result of which "the costs... for the review of the Commissioner's determination were unnecessarily incurred...".
post-mortem report...".
17. The Act expressly provides that the Commissioner, in carrying out his function, "is not required to hold a formal or oral hearing" although he must give to the applicant "a fair opportunity of presenting his case" (s 20(2)(b)). In this case it was not suggested that, had the information been supplied, the Commissioner would have held an oral hearing, including oral evidence of witnesses as to the facts and of medical practitioners, giving evidence as expert witnesses, explaining their medical opinions, and the bases for them. The Commissioner is not given any power to compel the applicant to present a case or to give evidence; nor can he compel any other potential witness to give oral evidence or to supply any statement. The absence of such provisions from the Act is relevant in considering whether the applicant's "conduct frustrated the performance by the Commissioner of his function of making a determination on the merits". From its reasons for decision it appears that the Tribunal failed to have regard to that consideration.
18. In my opinion it would also have been a relevant consideration, in considering whether the applicant's failure to supply the information was unreasonable, that both the form of authority, which the respondent employer asked the applicant to sign and the respondent's request for evidence, dated 16 September, 1981 expressly informed the applicant's solicitors that there was no obligation to provide such evidence. The Tribunal's reasons for decision do not refer to that consideration.
19. It should perhaps be added that it is possible that, when the Tribunal is exercising its discretion as to costs in a particular case, a refusal by an applicant to supply certain information to the Commissioner would constitute a sufficient reason for the Tribunal to refuse to award costs to the applicant on a subsequent review of a determination by the Commissioner rejecting a claim. The principles enunciated by Winneke C.J. Smith and Menhennitt JJ. in Puddy v. Borg (1973) VR 626 at 629 would be relevant to such a refusal of costs, based upon "the particular facts of the case" as distinct from a refusal based upon " a policy reason of a general nature which would be applicable to all cases". In this connection the Tribunal's reference to a refusal of costs which "serves to foster the proper administration of the Act" was apt to convey that it had regard to the need to deter applicants generally from "frustrating the Commissioner in his task of gathering the information required by him".
20. However, in my opinion, it was not open to the Tribunal, on the material before it in the present case, to conclude that the applicant had engaged in unreasonable conduct as a result of which her costs of the review of the Commissioner's determination were unnecessarily incurred; in addition the Tribunal, in the exercise of its discretion as to costs, failed to take into account the relevant considerations referred to above.
21. As the Tribunal's discretion has miscarried, it is proper for this Court to exercise the discretion as to costs. In my opinion the conduct of the applicant's solicitors does not justify a refusal of her application for costs.
22. I would allow the appeal with costs, set aside the order of the Tribunal as to costs and order that the costs of the proceedings before the Tribunal as incurred by the applicant be paid by the respondent, the matter of the amount of those costs being remitted to the Tribunal.
DAVIES J. This is an appeal from a decision of the Administrative Appeals Tribunal refusing costs to a successful applicant for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the Act).
2. Section 64 of the Act provides, inter alia:
"64.(2) Where-:3. The application before the Tribunal was a widow's claim for compensation arising from the death of her husband, an employee of the Australian Telecommunications Commission. The Tribunal set aside the decision of the Commissioner which had refused compensation and made a determination more favourable to the applicant than the determination set aside. The decision of the Tribunal read:
(a) the Administrative Appeals Tribunal gives a decision-:
....
(ii) setting aside a determination of the Commissioner and
making a determination in substitution for the determination
so set aside that is more favourable to a party to the
determination other than the Commonwealth than the
determination so set aside;...
...
the Administrative Appeals Tribunal may order that the costs of the
proceedings before it incurred by that party, or a part of those costs,
shall be paid by the Commonwealth."
"1. The determination under review is set aside and the followingdeceased's
determination is substituted for it:
(i) William John Miller ('the deceased'), an employee of the
Australian Telecommunications Commission ('the Commission'),
died at Warrnambool on 28 November 1980;
(ii) The employment of the deceased by the Commission was a
contributing factor to aggravation of a disease of the
heart ('the aggravation');deceased;
(iii) The aggravation contributed to the death of the deceased;
(iv) On 28 November 1980 Ronald George Bates and Stephen the
(v) On 28 November 1980 Ronald George Bates and Stephen4. Subsequently, after hearing argument, the Tribunal refused an award of costs.
William Bates were partly dependent on the deceased; and
(vi) The Commission is liable to pay compensation to the applicant
in accordance with the provisions of ss 43 and 44 of the
Compensation (Commonwealth Government Employees) Act
1971; compensation is not payable to Ronald George Bates or
Stephen William Bates.
2. The parties are to have an opportunity to address the Tribunal on
the question of costs before a decision in that regard is given."
5. The basis for the refusal was that, when the application for compensation
had been made to the Commissioner, the applicant's solicitors
had refused to
provide the Commissioner with information which he requested and with an
authority to obtain medical information and
that, without that information,
the Commissioner was unable to make a determination favourable to the
applicant. The Tribunal said:
"6. . . . there is a threshold question whether the Tribunal can6. The Tribunal correctly held that in considering a discretionary award of costs it should take into account conduct which occurred prior to the proceedings before the Tribunal. See Harnett v. Vise (1880) 5 Ex D 307; Bostock v. Ramsey Urban District Council (1900) 2 QB 616 and Beale v. Taylor (1967) 1 WLR 1193. As A L Smith L.J. said in Bostock's case at 622,
properly deny a successful party the costs incurred by him in relation
to proceedings instituted before the Tribunal under Pt V of the Act
(which are the costs in respect of which the Tribunal has power)
because the proceedings would not have been necessary if he had not
acted unreasonably at the stage when the primary decision had still to
be made by the Commissioner. In Re Pengelly and Commonwealth of
Australia (1982) 5 ALN N53 Mr A N Hall, senior member as he was
then, drew attention to the scheme of the Act, with the Commissioner
as the primary decision-maker and the Administrative Appeals Tribunal
at the second level as a tribunal of review. That scheme affords both
parties the benefit of an opportunity to have the first-made decision in
respect of each issue reviewed on its merits and not merely on the basis
of error of law. Both the applicant and the respondent are entitled to
that benefit; it ought not to be possible for one party to deprive the
other of it by frustrating the Commissioner in his task of gathering the
information required by him to enable him to ascertain the facts so that
a decision can be made by him on the merits. If by doing that a party
causes the Commissioner to make a decision unfavourable to himself
and then applies to the Administrative Appeals Tribunal for review of
that decision, he creates by his conduct a situation where the first
decision made truly on the merits will be that of the Tribunal. The
other party will have been deprived of the right, which the Act
intended him to have, to have a review on the merits. When a party
abuses the provisions of the Act in that way, it is appropriate that he
should be deprived of his costs of the proceedings in the Tribunal. To
construe the provisions of s 64(2) of the Act as giving the Tribunal the
power to do that would, therefore, be consistent with the purposes of
the Act (see s 15AA Acts Interpretation Act 1901 (Cth)).
7. . . . For the Tribunal, in deciding whether a successful applicant
should recover the costs he has incurred in making and prosecuting his
application for review, to take into account conduct by him which
effectively prevented the Commissioner from making a determination
on the merits both accords with the principles which should be applied
and serves to foster the proper administration of the Act.
. . . .
11. I am satisfied that the costs which the applicant incurred in
applying for the review of the Commissioner's determination were
unnecessarily incurred, in the sense that her unreasonable conduct
frustrated the performance by the Commissioner of his function of
making a determination on the merits and made necessary the
application to this Tribunal for review of the determination he made.
The applicant must bear her own costs of the proceedings in this
Tribunal; they are not to be paid by the Commonwealth."
". . . the judge is not confined, in considering the question whether7. Certainly, the solicitors for the applicant took an unco-operative attitude in this matter. Such an attitude, if persisted in, may hamper the administration of the Act. Section 20(2) provides:
there is good cause for depriving the successful party of costs, to the
conduct of the parties in the litigation itself, but must consider the
whole circumstances of the case and everything which led to the
action."
"20.(2) In determining any matter or question under this Act, theThat section intends that applicants and the Commissioner will not take a confrontationist attitude but that the Commissioner will act informally, will give to an applicant a fair opportunity to put a case and will act fairly in the matter having regard to the substantial merits of the case. Lack of co-operation from applicants and their solicitors will necessarily impair this decision-making process. It was submitted to the court by Mr E F Hill, of counsel, who appeared for the applicant on the appeal, that the Commissioner was merely the alter ego of the employer, the Commonwealth or, in this case, the Australian Telecommunications Commission. But the position is otherwise. The Commissioner is an independent statutory office holder. He has an important duty to perform and should be given a fair opportunity to perform it. How otherwise may the Commissioner be guided by equity and the substantial merits of the case? Section 20 intends that his administration of the Act shall be an enlightened administration.
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."
8. Nevertheless, there was, in my opinion, no proper basis for the Tribunal's conclusion that the applicant's ". . . unreasonable conduct frustrated the performance by the Commissioner of his function of making a determination on the merits and made necessary the application to this Tribunal . . ." .
9. The Tribunal did not find that the requirements of the Act had not been complied with and the Tribunal could not properly have considered that, in this complicated case, the solicitors acting for the applicant should, before fully investigating their client's claim, give to the Commissioner both a statement from their client as to facts bearing upon the subject of the claim and authorities enabling the Commissioner to obtain reports from doctors who had treated the deceased. Obviously, they would have been in breach of their duty to their client if they had done so.
10. It was not established that there was relevant material in existence prior to the making of the determination which ought to have been disclosed to the Commissioner, let alone to the Australian Telecommunications Commission, in whose name the relevant letters of request were written. The principal medical reports which were tendered before the Tribunal and which were supported by oral evidence did not come into existence until a much later time. The medical report of Sir John Frew was dated 17 January 1984, and that of Dr John Stubbe was dated 16 March 1984. The principal witness for the respondent, Dr J E Clarke, did not give his report until 29 February 1984. It was on the evidence of those witnesses that the decision of the Tribunal turned rather than on the opinion of treating medical practioners.
11. The Tribunal expressed the view:
"9. . . . Without knowledge of the manner in which death occurredit
the Commissioner could not reasonably have been expected by the
applicant or her solicitors to decide on a balance of probabilities that
resulted from ventricular fibrillation and not from an occlusion of aBut it was not shown that the applicant's solicitors were aware prior to the making of the determination under review that the death occurred from ventricular fibrillation or that it was significant to determine whether the death so resulted rather than from an occlusion of a coronary artery. Certainly, the solicitors were not asked this and the correspondence did not direct its attention to it.
coronary artery . . . ."
12. That is the nub of the matter. It was not established before the Tribunal that there was any particular information in the hands of the applicant's solicitors which would have been sufficient to obtain a favourable determination from the Commissioner. The applicant's solicitors did not obtain the essential expert medical advice until later.
13. The view of the Tribunal could be supported only if the Act had in mind that applicants and their solicitors would prepare claims prior to the making by the Commissioner of a determination and that the claims would be supported by adequate factual information and by reports of suitable medical experts. But not only does the Act not require that this be done, it does not infer that it should be done. No onus of proof is laid upon an applicant. What the Act requires of an applicant is notice in writing as prescribed by s 53 and reg 15 and a claim in writing under s 54. And where injury has occurred to an employee, s 58 provides that the Commissioner may require the employee to submit himself to examination by a medical referee or a legally qualified medical practitioner nominated by the Commissioner or by a medical board constituted in accordance with the Act. The Commissioner may hold a hearing but is not bound to do so. He may make inquiries but is not empowered to require answers on oath or the production of documents. Those are the means which the Act provides for the obtaining of information. It is not consistent with the intent of these provisions that an applicant and his solicitors should fully prepare a case for compensation and support that case with adequate material before a determination is made.
14. For these reasons, therefore, the Tribunal, which did not direct its attention to Pt IV of the Act, fell into error. I would allow the appeal. I agree with the orders proposed by my colleagues.
JENKINSON J. 1. Appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) against an order of the Administrative Appeals Tribunal (constituted by Mr I R Thompson, Deputy President) that none of the costs of an applicant for review of an administrative determination be paid by the respondent to the application for review.
2. The determination reviewed was that of a delegate of the Commissioner for
Employees' Compensation, whereby the claim of the appellant,
Irene Ellen
Miller, for compensation under the Compensation (Commonwealth Government
Employees) Act 1971 (Cth) in respect of the
death of her husband had been
disallowed. Her application, pursuant to Pt V of that Act, for review of the
determination was on 16
May 1984 granted, the determination was set aside and
in its place the Deputy President substituted the following determination:
"(i) William John Miller ('the deceased'), an employee of theCompensation
Australian Telecommunications Commission ('the Commission'),
died at Warrnambool on 28 November 1980;
(ii) The employment of the deceased by the Commission was a
contributing factor to aggravation of a disease of the deceased's
heart ('the aggravation');
(iii) The aggravation contributed to the death of the deceased;
(iv) On 28 November 1980 the applicant was wholly dependent on
the deceased;
(v) On 28 November 1980 Ronald George Bates and Stephen
William Bates were partly dependent on the deceased; and
(vi) The Commission is liable to pay compensation to the applicant in
accordance with the provisions of ss 43 and 44 of the
(Commonwealth Government Employees) Act 1971; compensation is notThereafter the Deputy President heard argument concerning costs and on 22 June 1984 refused to make an order that any part of the appellant's costs be paid by the respondent Commission. On the appeal to this Court the appellant contends that the refusal to make such an order resulted from error of law.
payable to Ronald George Bates or Stephen William Bates."
"(1) Where -recurrence
(a) an employee contracts a disease or suffers an aggravation,
acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a
contributing factor to the contraction of the disease or to the
aggravation, acceleration or recurrence, as the case may be,
whether or not the disease was contracted or the aggravation,
acceleration or recurrence was suffered in the course of that
employment.
the succeeding provisions of this section have effect.
(2) If-:
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in s 39 or 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or
recurrence of the disease, or the employee obtained medical treatment
in relation to the disease, or the aggravation, acceleration or
of the disease, as the case may be, then, for the purposes of this Act,or
unless the contrary intention appears-:
(f) the contraction of the disease, or the aggravation, acceleration
recurrence, as the case may be, shall be deemed to be a personal3. Section 27(1) of the Act provides:
injury to the employee arising out of the employment of the
employee by the Commonwealth; and
(g) the date of the death, the date of the loss, the date of the
disfigurement, the date of the commencement of the incapacity
or the date on which the medical treatment was first obtained,
whichever is the earlier, shall be deemed to be the date of the
injury."
"If personal injury arising out of or in the course of the employment4. Sections 43 and 44, to which par (vi) of the Tribunal's determination refers, prescribe the amounts payable, the persons entitled, and the modes of distribution, in the event that compensable injury results in death.
of an employee by the Commonwealth is caused to the employee, the
Commonwealth is, subject to this Act, liable to pay compensation in
respect of that injury in accordance with this Act."
5. William John Miller died on 28 November 1980 while engaged in his own
affairs and not in the course of his employment as a lineman
by the
Commission. A passenger in a motor car being driven by his stepson, and
apparently in his normal health, he died without any
movement or sound which
his stepson noticed. The Administrative Appeals Tribunal found that death was
caused by an episode of cardiac
arrhythmia, a principal cause of which was
cardiac muscle necrosis. The necrosis had been caused by acute ischaemic
episodes in 1979
and January 1980 and, as the Tribunal found, by further
ischaemic episodes during the last six months of Mr Miller's life, when he
was
in heart failure. The Tribunal found that by engaging, in the course of his
employment by the Commission, in work involving considerable
exertion during
that period, when his heart was in failure, Mr Miller sustained cardiac muscle
necrosis greater than would have been
sustained in the course of the
progression of the heart disease from which he was suffering if he had not so
exerted himself, and
that the risk of a fatal arrhythmic episode is magnified
by increase of cardiac muscle necrosis. The Tribunal was of the opinion
that,
by reason of the provisions of s 5(11)(a) of the Act, those findings led to
the conclusions that Mr Miller's employment was
a contributing factor to the
aggravation of his heart disease and that his death should, for the purposes
of the Act, be taken to
have resulted from that aggravation. Section 5(11)(a)
provides:
"For the purposes of this Act-:committed by s 20(1) to the Commissioner for Employees' Compensation, a corporation sole constituted by the Act (the Commissioner). Section 24 empowers the Commissioner to delegate all or any of his powers and functions under the Act to certain persons and provides that the Act has effect in relation to the exercise of such powers and functions as if a reference in the Act to the Commissioner were a reference to the delegate. Compensation is not payable under the Act unless a claim in writing for the compensation is served on the Commissioner: s 54. The appellant's written claim was date 9 June 1981, but a letter dated 2 February 1981 from her solicitors to the respondent had initiated communication with respect to the claim. It was upon a consideration of events which occurred between February 1981 and 16 February 1983, when the determination of the Commissioner's delegate disallowing the claim was made, that the Deputy President decided not to order that any part of the appellant's costs of the proceedings taken before the Administrative Appeals Tribunal in review of that determination be paid by the respondent Commission.
(a) the death, or a disfigurement, incapacity or disablement, of an
employee, or a loss suffered by an employee, shall be taken to
have resulted from an injury to the employee, from a disease
contracted by the employee or from an aggravation, acceleration
or recurrence of a disease suffered by the employee if the injury,
the disease or the aggravation, acceleration or recurrence, as the
case may be, contributed to the death, disfigurement, incapacity,
disablement or loss;".
3. The determination of "all matters and questions arising under" the Act is
6. Part V of the Act contains, in s 64, a provision with respect to costs in
these terms:
"(1) Subject to this section, the costs incurred by a party in relation7. Section 20 is in these terms:
to proceedings instituted before the Administrative Appeals Tribunal
under this Part shall be borne by that party.
(2) Where-:
(a) the Administrative Appeals Tribunal gives a decision-:
(i) varying a determination of the Commissioner in a manner
favourable to a party to the determination other than the
Commonwealth; or
(ii) setting aside a determination of the Commissioner and
making a determination in substitution for the determination
so set aside that is more favourable to a party to the
determination other than the Commonwealth than the
determination so set aside; or
(b) the Administrative Appeals Tribunal gives a decision-:
(i) varying the determination of the Commissioner in a manner
adverse to a party to the determination other than the
Commonwealth; or
(ii) setting aside a determination of the Commissioner and
making a determination in substitution for the determination
so set aside that is less favourable to a party to the
determination other than the Commonwealth than the
determination so set aside,
not being a decision made as a result of an application to the
Tribunal by or on behalf of that party,
the Administrative Appeals Tribunal may order that the costs of the
proceedings before it incurred by that party, or a part of those costs,
shall be paid by the Commonwealth.
(3) Where the Administrative Appeals Tribunal gives a decision
setting aside a determination of the Commissioner and remitting the
case for re-determination by the Commissioner, the Administrative
Appeals Tribunal shall order that the costs of the proceedings before it
incurred by parties to the determination other than the Commonwealth
shall be paid by the Commonwealth.
(4) Where -
(a) the Administrative Appeals Tribunal gives a decision affirming a
determination of the Commissioner; and
(b) a party to the determination, not being the Commonwealth or a
party by or on behalf of whom the proceedings were instituted,
incurred costs in connection with the proceedings before the
Tribunal,
the Tribunal shall order that those costs shall be paid by the
Commonwealth.
(5) Nothing in subs (2), (3) or (4) authorises the Administrative
Appeals Tribunal to order the Commonwealth to pay any costs
incurred by a party in relation to an application for an extension of
time for applying to the Tribunal for a review of a determination.
(6) Where, in accordance with this section, the Administrative
Appeals Tribunal orders the Commonwealth to pay costs incurred by a
party to a determination, the Tribunal may, in the absence of
agreement between the Commonwealth and that party as to the
amount of the costs to be so paid, tax or settle the amount of the costs
to be so paid or order that the costs be taxed by the Registrar or a
Deputy Registrar of the Tribunal.
(7) This section does not limit the operation of subs (5) of s 20."
"(1) Subject to this Act, the function of the Commissioner under thiscircumstances in which he had to determine the question of costs were those which are specified in s 64(2)(a)(ii). It was submitted on behalf of the appellant that, because the determination made by the Administrative Appeals Tribunal neither specified an amount of compensation payable in respect of that which, by virtue of s 29(2), is deemed to have been a personal injury to Mr Miller arising out of his employment by the Commission, nor in terms awarded such an amount to the appellant in response to her claim, there remained, after the making of that determination, "matters . . . arising under" the Act to be determined. The Tribunal should, therefore, have remitted the case to the Commissioner or his delegate, according to the submission, so that he might by further determination have completed the resolution of the appellant's claim. If that had been done which ought to have been done, the question of costs would have fallen for determination in accordance with s 64(3), which leaves the Tribunal no discretion to refuse a party such as the appellant an order for costs. This Court should, according to the submission, make the orders which the Tribunal ought to have made. Those submissions cannot in my opinion be accepted, for a number of reasons.
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.
(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 Pt 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 Pt 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.
(5) Where -
(a) a proceeding has been instituted under Pt V in respect of a
determination by the Commissioner;
(b) before the completion of the proceeding, the Commissioner
makes, under par (a) of the last preceding subsection, a
determination varying or revoking the first-mentioned
determination; and
the Commonwealth is liable to reimburse the claimant, or, if there
is more than one claimant whose claim was dealt with by the
determination, to reimburse each of the claimants, for any costs
reasonably incurred by him in connection with that proceeding.
(6) Where -
(a) a determination has been made under this Act, whether before
or after the commencement of this subsection;
(b) a request has been made (whether before or after the
commencement of this subsection) under par (b) of subs (4)
for the reconsideration of that determination by the
Commissioner; and
(c) after the commencement of this subsection, the Commissioner,
in pursuance of that request -
(i) makes a determination varying or revoking the
first-mentioned determination (whether or not, where he
revokes the first-mentioned determination, he makes a
new determination in substitution for that
first-mentioned determination);
or
(ii) decides not to vary or revoke that first-mentioned
determination,
the Commonwealth is, subject to subs (7), liable to reimburse a
claimant affected by that first-mentioned determination for any
costs reasonably incurred by him in relation to that
first-mentioned determination after it was made and before the
Commissioner notifies him of the making of the determination or
decision referred to in par (c).
(7) Subsection (6) does not apply in relation to costs incurred by a
claimant who made a request referred to in par (b) of that subsection
unless the reconsideration has had a result favourable to the claimant."
4. The Deputy President considered, in my opinion correctly, that the
8. First, the grounds of the appeal to this Court do not comprehend the submissions, which were first advanced during reply. No application was made for leave to amend the grounds of appeal.
9. Second, there is no reason to suppose, on the material before this Court,
that there remains for determination any matter arising
under the Act in
respect of the appellant's claim - or in respect of any other claim - for
compensation upon Mr Miller's death, in
my opinion. The appellant's claim for
compensation disclosed no dependants of Mr Miller except herself. During her
evidence before
the Tribunal the dependency of two grandchildren of Mr Miller
was disclosed, to whom reference is made in cll (v) and (vi) of the
Tribunal's
determination. They were then treated as claimants for compensation in respect
of his death. The determinations contained
in cl (vi) that the "Commission is
liable to pay compensation to the applicant in accordance with the provisions
of" s43 and that
"compensation is not payable to Ronald George Bates or
Stephen William Bates" in my opinion concluded all matters and questions
arising
under the Act in respect of the appellant's and the grandchildren's
claims for compensation. (Section 44 imposes a liability on the
Commission to
pay compensation in respect of the cost of Mr Miller's funeral, to the person
who paid that cost if it has been paid
and, if not, to the person who carried
out the funeral. The material before this Court does not indicate that the
appellant ever
made a claim under s 44, or that she either paid the cost or
carried out the funeral. Nothing was said about this liability on the
hearing
of the appeal and it may, I think, be put aside.) Compensation payable under s
43, that is where an injury results in death,
is "payable to, or in accordance
with the directions of, the Commissioner for the benefit of" those persons
whose entitlement the
section contemplates and to whom reference is made in
the Act as "dependants": see ss 43(3)(b), 43(4)(b), 43(5), 43(7). The
compensation
is not therefore payable to any dependant except at the direction
of the Commissioner. The last three subsections of s 43 are in
the following
terms:
"(10) Where an amount of compensation is payable under thisIt is to be inferred, in my opinion, that the determinations in cl (vi) of a liability in the Commission to pay compensation to the appellant rather than to the Commissioner, and that compensation is not payable to either grandchild, followed the exercise by the Tribunal, in conformity with the requirements of s 43(12), of the function conferred on the Commissioner by s 43(10) and of the power conferred by s 43(3)(b) on the Commissioner to give direction as to payment of compensation. The reasons in writing for the Tribunal's decision reveal that the Deputy President consciously exercised the former function. (He denied any share in the amount of compensation to each grandchild because he found that neither had suffered any loss as a result of the cessation of the earnings of Mr Miller.) The first determination contained in cl (vi) necessarily implies the exercise of the latter power, in my opinion. And s 43 of the Administrative Appeals Tribunal Act 1975 in my opinion authorised the exercise by the Tribunal of those "powers and discretions" of the Commissioner. Nothing remains to be determined, in my opinion. The amount of the compensation payable is specified in s 43(3) and the declaratory determination of the Commission's liability to pay the appellant compensation in accordance with the provisions of that section is sufficient authority for the making of that payment to the appellant by the Commission, although it must be conceded that the intent of the Tribunal would have been more clearly expressed if in cl (vi) there had been inserted before the word "Ronald" the words "or for the benefit of".
section for the benefit of two or more dependants of a deceased
employee, the Commissioner shall determine the shares of those
dependants in that amount as he thinks fit having regard to any losses
suffered by those dependants as a result of the cessation of the earnings
of the employee.
(11) A reference in the preceding provisions of this section to a
dependant of a deceased employee shall be read as a reference to a
dependant by or on behalf of whom a claim for compensation is made.
(12) Where claims for compensation under this section are made by
or on behalf of two or more dependants of a deceased employee in
respect of an injury that resulted in the death of the employee, the
Commissioner shall make one determination in respect of those
claims."
10. Third, if the Tribunal had remitted the case for further determination by
the Commissioner or by his delegate, that would not
in my opinion have made
applicable the provisions of s 64(3). The delegate's determinations had been
that Mr Miller's death was not the result of personal injury arising out of,
or in the course
of, his employment, or of the contraction, aggravation or
acceleration of a disease to which his employment was a contributing factor,
and that the appellant's claim for compensation "is therefore disallowed".
Once the Tribunal had set aside those determinations and
had made the
determinations contained in cll (i), (ii) and (iii) of its own determination,
no matter or question which might have
arisen for determination by the
delegate in the course of his coming to his original determinations could
arise again before the
Commissioner or any delegate of his in the course of
determining any "case" which the Tribunal might have remitted. In those
circumstances
no such a "case" could be regarded as one "for
re-determination", in my opinion. And the determinations contained in cll (i),
(ii)
and (iii) were in my opinion appropriately made by the Tribunal in
exercising the functions conferred on it by s 43(1) of the Administrative
Appeals Tribunal Act 1975. To have reached the conclusions to which
determinative expression is given in those three clauses and to have abstained
from giving
effect to the conclusions by making its own determinations would
in my opinion have been an inappropriate choice by the Tribunal
between the
several powers provided by s 43(1)(c) of that Act.
5. The Tribunal considered, in my opinion correctly, that in the
circumstances specified in s 64(2)(a)(ii) a discretion is conferred
on the
Tribunal to grant or refuse an order that the costs of the proceedings before
the Tribunal of the appellant, or a part of
those costs, be paid by the
Commission. The Tribunal further considered, again in my opinion correctly,
that the conduct of a claimant
for compensation, or of a claimant's agent, in
relation to his or her claim, before the making of a determination in respect
of the
claim might raise considerations relevant to the exercise of that
discretion. The processes of primary administrative determination
and
administrative review by the Tribunal have been closely integrated by the
legislative scheme constituted by the Act; and in particular
s 64 relates the
power - in subss (3) and (4) the requirement - to make an order with respect
to costs to comparisons between the
outcome of each process. Subject to the
qualifications to be stated hereafter, I accept the following observations of
the Deputy
President in the reasons for his decision:
"In Re Pengelly and Commonwealth of Australia (1982) 5 ALN N53frustrating
Mr A N Hall, Senior Member as he was then, drew attention to the
scheme of the Act, with the Commissioner as the primary decision
maker and the Administrative Appeals Tribunal at the second level as a
tribunal of review. That scheme affords both parties the benefit of an
opportunity to have the first-made decision in respect of each issue
reviewed on its merits and not merely on the basis of error of law. Both
the applicant and the respondent are entitled to that benefit; it ought
not to be possible for one party to deprive the other of it by
the Commissioner in his task of gathering the information required bythe
him to enable him to ascertain the facts so that a decision can be made
by him on the merits. If by doing that a party causes the Commissioner
to make a decision unfavourable to himself and then applies to the
Administrative Appeals Tribunal for review of that decision, he creates
by his conduct a situation where the first decision made truly on the
merits will be that of the Tribunal. The other party will have been
deprived of the right, which the Act intended him to have, to have a
review on the merits. When a party abuses the provisions of the Act in
that way, it is appropriate that he should be deprived of his costs of
proceedings in the Tribunal."The first general qualification which I would place upon that statement by the Deputy President is expressed by him in other passages of his reasons: that conduct by or on behalf of a party having the effect of "frustrating the Commissioner in his task of gathering the information required by him to enable him to ascertain the facts" will be weighed against that party in the exercise of the discretion as to costs only if, and to the extent that, the conduct was unjustified. Justification is to be determined by reference to the reasonableness of the conduct in all the circumstances. The second general qualification I would place upon the statement is that a determination that it is appropriate that a party by or on whose behalf there has been such unjustified conduct should be deprived of his costs can be the result of a soundly exercised discretion only if it proceeds from a consideration of all the relevant circumstances of the particular case, including that conduct. There can be no rule or policy controlling the exercise of that discretion.
11. The correspondence which disclosed the appellant's solicitors' failure to
facilitate the Commissioner's procurement of relevant
information passed
between those solicitors and officers of the Commission, not the Commissioner
nor any person representing himself
to be a delegate, or to be under the
immediate administrative control, of the Commissioner or of a delegate. The
first of these communications
which the material before this Court discloses
is a letter dated 2 February 1981 from the solicitors to "The Compensation
Section,
Telecom Australia". Thereafter the relevant correspondence passed
between the solicitors and signatories on behalf of "State Manager,
Telecom
Australia", to whom the solicitors were requested to send statements of facts
known to the appellant and written requests,
signed by her, that persons by
whom Mr Miller had been given medical treatment furnish to the Commission
information, concerning
his diagnosis and treatment, relevant to the
determination of her claim. These written requests were to be presented by
officers
of the Commission to the persons to whom they were to be addressed by
her. It will be necessary to consider what relevance to the
reasonableness of
the solicitors' conduct there was in the circumstance that information of the
kind which compliance with the Commission's
requests might have been expected
to bring to the delegate would have passed through the hands of officers of
the Commission. But
for the present I am concerned only to express the opinion
that the legislature must have contemplated, in enacting the Compensation
(Commonwealth Government Employees) Act 1971, that many officers of, and
persons employed by, the Commonwealth and "prescribed authorities
of the
Commonwealth", within the meaning of that expression defined in s 5(1), would
participate in doing the things necessary for
the carrying out of the function
conferred on the Commissioner by s 20(1), being persons who would also carry
out work unrelated
to the administration of that Act and who would be under
the control of persons other than the Commissioner or a delegate of his
or a
person subject to his or his delegate's direct control. To the administration
of the Commonwealth Employees' Compensation Act
1930 (Cth), which the Act of
1971 repealed and replaced (see s 4 and Pt VII of the Act of 1971), the
labours of many hundreds of
public servants had contributed, few of them
engaged only in the administration of that Act and few of them subject to
administrative
control in their daily work by the Commissioner or a delegate
of his. The Act of 1971, like the Act of 1930, made no express provision,
except by grant to the Commissioner of a power of delegation, for officers or
servants to assist the Commissioner. Provision is made
for delegation in s 24,
which reads:
"(1) The Commissioner may, by instrument in writing, delegate to anSince there is conferred on the Commissioner by s 20(1) a power "to do all things necessary for the carrying out of" his function to determine all matters and questions arising under the Act, s 24(1) authorises delegation, "either generally or as otherwise provided by the instrument of delegation", of that power. Whether written instruments of delegation to the hundreds of clerical and administrative workers who in fact do the things necessary for the carrying out of the determinative function have been executed, the evidence in this case does not reveal. Nor does it reveal whether he who at relevant times answered the description "State Manager, Telecom Australia", or those who signed letters to the appellant's solicitors "for" him, had been granted power, by such an instrument, to do any of those "things necessary for the carrying out" of that determinative function. The letters contain no assertion that any of them had. But, whether or not they had been granted such a power, the Parliament which enacted the Act of 1971 must, I think, be taken to have contemplated that the labour of procuring and collating and submitting to the Commissioner and his delegates the information upon a consideration of which the determination of matters and questions arising under the Act would be made was to be shared among very many public servants, of whom only a small proportion would enjoy either the authority which an instrument of delegation under s 24 could confer or the personal direction of a person who did have such an authority. I do not think that the appellant could justify a failure to comply with the requests addressed to her in the letters to her solicitors by reference merely to the circumstance that he who made the requests was, and purported to make the requests as, an officer of her late husband's employer, not the Commissioner nor a person claiming to make the requests in exercise of power delegated by the Commissioner. The purpose with which the requests were made - to procure information relevant to the determination of her claim by a delegate - was made clear in several of the letters. Only if the appellant had called upon the Commissioner to communicate with her in relation to her claim personally or by one invested by delegation with appropriate power, and the Commissioner had thereafter failed thus to communicate with her, might it be said that a failure to comply with the requests in the letters was justified by reference to the authorship of the letters, in my opinion. Nothing of the kind happened.
officer of, or a person employed, by the Commonwealth, a prescribed
authority of the Commonwealth or the administration of a Territory,
either generally or otherwise as provided by the instrument of
delegation, all or any of his powers and functions under this Act,
except this power of delegation.
(2) A power of function so delegated may be exercised or performed
by the delegate in accordance with the instrument of delegation and
this Act has effect in relation to the exercise of the power or the
performance of the function by the delegate as if a reference in this Act
to the Commissioner were a reference to the delegate.
(3) A delegation under this section is revocable in writing at will and
does not prevent the exercise of a power or the performance of a
function by the Commissioner.
(4) A person to whom a power or function has been delegated under
this section shall, before proceeding to exercise that power or perform
that function, make an oath or affirmation in accordance with the form
of oath or affirmation in Sch 3.
(5) The oath or affirmation shall be made before a justice of the
peace or a commissioner for affidavits.
(6) The Commissioner shall -
(a) cause a register to be kept for the purposes of this section; and
(b) cause to be entered in the register particulars of any delegation
in force under this section."
"We would appreciate Mrs Miller completing the attachedEnclosed with the letter containing that request, dated 25 February 1981, were printed forms in these terms:
'authorities' for release of medical information in order that reports be
obtained from Mr Miller's treating doctors. Alternately if you could
obtain those reports we will pay the doctor's account."
12. Front:
"Telecom Australia Accident and compensation section------------------------------------------------------------------------------ .
Personnel & industrial relations dept
(See notes on reverse Telecom Australia
side of form) 1st floor, Tivoli Court
239 Bourke Street
Melbourne, Vic 3000.
AUTHORITY FOR DISCLOSURE OF MEDICAL INFORMATION
Doctor's name and address Patient's name and address------------------------------------------------------------------------------ .
(One form per Doctor)
To:
Please supply the Telecom Commission with any medical history13. Back:
(including X-ray films, or reports, ECG tracings, etc if required)
requested for the purposes of my claim for compensation in respect of:
Date of injury / / . When first treated / /
Signature Date / / "
"EVIDENCE REQUIRED IN COMPENSATION CLAIMSby
The delegate of the Commissioner for employees' compensation has
asked that evidence (preferably medical evidence) be supplied in support
of your claim for compensation. However he has also asked that you
be informed that you are not under any obligation to either provide
such evidence or consent to the release by treating doctors/hospitals of
medical reports, clinical notes, etc. You should note, however, that the
onus of establishing that there is an entitlement to compensation rests
with the claimant. Thus, if no evidence to support the claim is
provided, or if the delegate cannot obtain such evidence, the claim may
fail. It would then be necessary to determine that there was no liability
for the payment of compensation.
The Commissioner has expressed a deep reluctance to deny liability
in any such case - particularly if the claimant has not been specifically
informed of the need for supporting evidence. He is particularly
conscious of the stipulation in s 20 of the Act that he is to be guided
equity, good conscience and the substantial merits of the case. He shall14. There was no evidence that the appellant was, or that she had represented herself to be, a personal representative of her deceased husband. What justification her completion and signing of such a form might afford the doctor to whom it was addressed for communicating to "the Telecom Commission" or to the Commissioner information derived in the course of treating Mr Miller was not the subject of submission on the hearing of the appeal. The Act provides no authority for any such a communication. It was submitted on behalf of the appellant that no disadvantage in relation to costs could attend her failure, upon request, to ask those who had treated her husband to communicate to the respondent or to the Commissioner information they had acquired in the course of treating him, when the Act imposed on her no obligation to procure or to request or to sanction such communications. It was upon the absence from the Act of a provision imposing such an obligation on the claimant for compensation, not upon the absence of a provision authorising such communications, that reliance was placed by counsel for the appellant. In those circumstances I think that for the purposes of this appeal I should assume, but without expressing any opinion, that a doctor or those who controlled a hospital might lawfully and without serious impropriety have made such communications upon no authority except the requests of Mr Miller's widow and the respondent.
give to any person directly affected by the determination a fair
opportunity to present a case.
Would you please advise whether you have any evidence (medical
evidence would be the most persuasive) to support your claim and
whether you are prepared to provide that evidence. It would assist
the fair and proper consideration of your claim if you would provide
such evidence or give written consent to the release by treating
doctors/hospitals of clinical notes, reports, etc, concerning the
condition claimed for (films, tracings and/or reports from any
associated radiologist examination, electrocardiography,
electroencephalography, etc would also be useful.)"
15. In my opinion the Act constitutes the Commissioner, and those to whom he
may delegate his determinative function, an independent
adjudicative
authority, not an agent of the employer. That conclusion is easier to reach in
respect of the Act of 1971 than it had
been in respect of the Act of 1930. A
comparison of the two Acts suggests a legislative determination to make clear
in the Act of
1971 the independence of the Commissioner and of his delegates.
It is clear that not all the information relevant to the determination
of
matters and questions arising under the Act will be educible by means of the
compulsive processes ordained by the Act. The Act
contemplates, in my opinion,
that the claimant for compensation will voluntarily disclose such information
in "presenting his case",
and the Commissioner is required by s 20(2)(b) to
give the claimant "a fair opportunity" of doing that. It does not in my
opinion
follow that because a failure by a claimant to disclose relevant
information involves no contravention of the Act such a failure
may not be
characterised as unreasonable or be taken into consideration in relation to
the question of costs. For the reasons already
given I think it may.
9. Those who might have been able to give medical information concerning Mr
Miller's treatment were a doctor in general practice
in the country town where
Mr Miller had lived, another doctor who was a Fellow of the Royal Australasian
College of Physicians and
who agreed in evidence that he practised in that
town "as a general physician with a particular interest in cardiovascular
disease",
and those who controlled the hospital in that town. A solicitor
experienced in claims under this Act in respect of fatal or disabling
incidents which occur outside the course of employment, but in the common
course of the common cardiovascular degenerative diseases,
such as the
incident which resulted in Mr Miller's death was, would, as I believe, know
that in almost all such cases a proper determination
of the question whether
liability under the Act has been incurred in respect of such an incident can
be achieved only upon an oral
hearing at which, first, the relevant
physiological and other events, so far as they can be ascertained, are
carefully sifted and
then brought to the knowledge of medical experts before,
or at the time when, those experts express to the determining authority
their
opinions, and second, medical experts so furnished with that information and
equipped both with expertise of a high order in
cardiovascular pathology and a
sound grasp of the complex legal concepts by reference to which that liability
is defined are thoroughly
cross-examined. Such a solicitor would know that no
oral hearing will be conducted by the Commissioner or his delegate. He would
know also, as I believe, that a substantial proportion of doctors, including
doctors specialising in diseases of the cardiovascular
system, respond to a
request for a written report and expression of opinion in such cases in terms
which do not accurately communicate
either the information they have
concerning relevant physiological events or the opinions they hold. The
criteria of liability under
the Act in such cases propound causal
relationships between physical activities or environmental conditions and
physiological processes
which are not ordinarily the subject of refined
analysis or careful reflection by a doctor in the course of his practice. It
is natural
that, unless he has had experience of those criteria, a doctor will
communicate what is of medical significance to him rather than
what may answer
the esoteric questions which those criteria propound.
16. The appellant's solicitors were experienced in claims of that kind. In
the letter I have quoted and in other letters the suggestion
was made that
they might, instead of authorising the respondent to obtain relevant medical
information, obtain the information themselves,
at the respondent's expense,
and transmit what they obtained to the respondent for the consideration of the
Commissioner or his delegate.
But the appellant's solicitors would know that
neither they, furnished with an understanding of the legal criteria, but not
expert
in cardiovascular pathology, nor the doctors who treated Mr Miller,
knowing the pathology, but likely to be unaware of the criteria,
could be
confident of discovering together the true ground of liability under the Act,
if ground there should be. Only members of
the small group of consultant
physicians who are familiar with the conceptually complex criteria are likely
to make that discovery.
The labour and expense involved in the appellant's
solicitors' procuring the appropriate factual and opinionative material,
collating
it and presenting it adequately in written form for the
consideration of a delegate would be very great indeed. There being no oral
hearing, the delegate would not have the benefit of evaluating the written
medical opinions, either those presented on the appellant's
behalf or any
contradictory medical opinions submitted to him, by cross-examination or by
hearing the experts who were of contrary
opinions commenting on one another's
reasoning.
10. Parliament no doubt wisely enacted the first clause of s 20(2)(b), upon
a comparison of cost and benefit attaching to oral hearing
of a multitude of
claims of all kinds under the Act. And I intend no criticism of the
Commissioner's abstention from oral hearing
of such claims as the appellant's
was: he has to have regard to comparison of cost and benefit and to the public
interest in the
conservation of public funds. What is in question is the
reasonableness of the appellant and her legal advisers, not of the Parliament
or the Commissioner. They, the appellant and her solicitors, are not in my
opinion unreasonable if they decline to undertake the
great labour and expense
of discovering, preparing and presenting effectively the appellant's "case" to
the consideration of a determining
authority which will not employ the
effective means of evaluating what is presented. Nor are they in my opinion
unreasonable if they
decline to comply with the request which was in fact
made, to authorise inquiry, by or on behalf of the Commissioner, of those with
relevant medical information, or to procure themselves reports by those
persons and transmit the reports to the Commissioner or his
delegate. Reports
by a doctor not known to be experienced in the criteria of liability under the
Act are likely to do less than justice
to his medical capacity, as I attempted
to explain in par 9 hereof. A solicitor experienced in cases such as this was
would know
that, upon a review before the Administrative Appeals Tribunal of a
determination that liability had not been incurred, counsel for
the respondent
employer would be armed with such reports. In this particular case the
appellant's solicitors knew that the reports
were being sought in the name of
the employer and were to pass through the hands of the employer's officers to
the delegate. They
could confidently expect that any doctor who had treated Mr
Miller and had furnished a report for the consideration of the delegate
and
was called as a witness on behalf of the appellant upon a review by the
Tribunal of the delegate's determination would face cross-examination
upon the
report by counsel for the employer if the report contained anything by means
of which the persuasiveness of the doctor's
evidence could be diminished. In
cases of this kind a medical report hastily penned by a busy doctor is not
infrequently a source
of grave embarrassment to its author under
cross-examination, not because he has given evidence at variance with the
facts or with
what he believed at the time he wrote the report, but because
the letter inaccurately records the facts or his opinion or both. In
cases of
this king - fatal or disabling cardiac incident outside the course of
employment - the balance is often fine indeed on which
the decision turns and
slight circumstances may turn the balance. The money at stake would often be
not inconsiderable to the widow
of a lineman employed by the respondent.
11. In all the circumstances as I think they would have presented themselves
to solicitors experienced in cases of this sort acting
in 1981, 1982 and the
first two months of 1983 for the appellant as claimant for compensation, a
failure to advise her to comply
with the requests made of her concerning
information about medical treatment of Mr Miller could not in my opinion be
judged unreasonable.
It was conduct reasonably undertaken in protection of the
appellant's interests, in my opinion. But whether or not that opinion be
correct, the considerations which I have discussed in pars 9 and 10 hereof
were considerations relevant to the discretion as to costs
which the Deputy
President had to exercise. He rightly recognised that it was relevant to the
exercise of the discretion to consider
whether the conduct which frustrated
the Commissioner's attempt to procure information required for the purpose of
properly determining
the claim was in all the circumstances reasonable. But
his reasons for his decision of the question of costs indicate that he gave
no
consideration to any of the circumstances or considerations discussed in those
two paragraphs, all of which were in my opinion
relevant to the question
whether the conduct was reasonable. In that respect he fell into error of law,
in my opinion.
12. The other request for relevant information with which the appellant
failed to comply was that the appellant should furnish a
statement detailing
her husband's activities on the day he died and on the several days preceding
that day. No such a statement was
supplied. That failure was unreasonable, in
my opinion, and unjustified. But it seems to me very unlikely that compliance
with the
request would have changed the course which events took. The exercise
of the Tribunal's discretion as to costs having been vitiated
by error of law,
it is in my opinion appropriate that the discretion be exercised by this
Court. I would not regard the appellant's
failure to comply with that request
as justifying, in all the circumstances, a decision to deny her an order that
the respondent
pay her costs. No other circumstance was shown against an order
for costs in her favour.
13. It is very difficult to find in the notice of appeal a ground under
which my reasons for thinking the Tribunal to have been
in error may be
subsumed. But the considerations which have led me to the conclusion that
there was error of law infecting the Tribunal's
decision were canvassed during
the presentation of the appellant's argument in support of the appeal and I am
confident that counsel
for the respondent was prepared to deal with those
matters. I would allow the appeal, set aside the order of the Tribunal as to
costs
and order that the costs of the proceedings before the Tribunal incurred
by the appellant be paid by the respondent and that the
question of the amount
of the said costs be remitted to the Tribunal. The appellant should have an
order that the respondent pay
the costs of this appeal.
ORDER
Appeal allowed with costs
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