Re Australian Postal Commission v Susan Patricia Quinn [1989] FCA 289; 30 IR 347 (1 August 1989)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN POSTAL COMMISSION
And: SUSAN PATRICIA QUINN
No. NG 1370 of 1988
FED No. 405
Commonwealth Employees' Compensation
30 IR 347

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Commonwealth Employees' Compensation - Partially incapacitated employee claiming deemed totally incapacitated - Meaning of phrase "employment of a kind that is not commonly available" - Whether evidence of that fact before Tribunal.

Compensation (Commonwealth Government Employees) Act 1971 s.26.

HEARING

SYDNEY
1:8:1989

Counsel for the Applicant: Mr D M J Bennett QC with Mr R B Wilson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr M F Adams QC with Mrs J C Kelly

Solicitors for the Respondent: McClellands

ORDER

The appeal be dismissed.

The applicant pay the costs of the respondent.

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

DECISION

This case raises questions concerning the application of some important words in the Compensation (Commonwealth Government Employees) Act 1971. That Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988, which commenced operation on 1 December 1988. However, the 1971 Act remains relevant to the present case, which is an appeal by the Australian Postal Commission against a decision given in favour of an employee of the Commission, Susan Patricia Quinn, by the Administrative Appeals Tribunal (Mr M D Allen, Senior Member). That decision was announced on 24 October 1988 and was made under the 1971 Act. The applicant contends that the decision was erroneous, in point of law, so that it should be set aside, and the matter remitted to the Tribunal for further hearing. Such a hearing would need to pay regard to the transitional provisions contained in Part X of the 1988 Act. But, if the Tribunal's decision was free from legal error, it will stand and benefits will be payable to Mrs Quinn notwithstanding the repeal of the 1971 Act.

2. The questions of law raised by the appeal arise out of s.26 of the 1971 Act. That section read:

"26. For the purposes of this Part, an employee
shall be deemed to be totally incapacitated for
work if his incapacity is such that he is fitted
only for employment of a kind that is not commonly
available and employment of that kind is not
reasonably available to him."

3. The first question is the meaning of the words "that is not commonly available". The second question is whether there was evidence before the Tribunal, in this particular case, that the work for which Mrs Quinn was fitted was not commonly available.

4. The relevant facts, as found by the Tribunal, may be stated briefly. Mrs Quinn was employed by the Commission as a postal officer, serving at Fairfield post office. On 12 July 1984, during the course of her employment, she injured her neck. She was granted worker's compensation until 5 November 1984, when she returned to work. However, in February 1985 Mrs Quinn suffered a relapse of her condition. She left work, compensation being paid until 28 August 1987 when, consequent upon a determination by a delegate of the Commissioner for Employees' Compensation, compensation was terminated. The basis for termination of compensation payments was that Mrs Quinn was no longer suffering the effects of the initial injury. Mrs Quinn sought review of that determination by the Tribunal.

5. At the time of her original injury, Mrs Quinn resided at Fairfield. In July 1986 her husband, a policeman, was transferred to Campbelltown. The family moved to Pheasant's Nest, a village about 40 km south of Campbelltown and 4 km from Tahmoor. In preparation for the hearing of the matter by the Tribunal, and having in mind comments made in some medical reports regarding the undesirability of a lengthy journey to work by Mrs Quinn, her solicitors wrote to the Commission a letter on 4 January 1988 in which they requested, amongst other things, that light duties be provided for Mrs Quinn at Campbelltown post office, not involving standing for long periods and not involving lifting weights of more than 12 kilograms.

6. The request made on 4 January was discussed at a preliminary conference held by the Tribunal, and was confirmed in letters Mrs Quinn's solicitors sent to the Australian Government Solicitor on 9 February 1988 and 22 March 1988. On 29 April 1988 the Australian Government Solicitor responded, confirming oral advice that a light duties position was available at Fairfield post office. Nothing was said about any alternative position.

7. There was conflicting evidence before the Tribunal concerning Mrs Quinn's medical condition. In his findings Mr Allen adopted the evidence of Dr Cyrus Irani, an orthopaedic surgeon, that Mrs Quinn had a cervico-dorsal spine strain and was fit only for restricted duties which did not involve lifting items weighing more than five to seven kilograms or reaching up to shelves. There was evidence from both Dr Irani, and Mrs Quinn's local doctor, Dr K Sathiah, as to the problems occasioned to her by lengthy travel. The Tribunal accepted this evidence, describing the offer of work at Fairfield as "illusory".

8. In January 1988 Mrs Quinn registered for employment with the Commonwealth Employment Service at Campbelltown. Between that date and the hearing by the Tribunal in September 1988 she visited the CES office at Campbelltown enquiring about employment on three occasions. In June, Mrs Quinn had an interview with a CES officer, Mr J Rookes, who was concerned with the placement of disabled persons. Mr Rookes gave evidence that Mrs Quinn would need to broaden her clerical experience to become attractive to a private sector employer. At Campbelltown there were about 30 clerical vacancies per month but none for people fitted only for light duties. Mr Rookes estimated that there would probably be lo00 people listed for clerical employment at any one time. He described Campbelltown as being "an area of high unemployment".

9. In his reasons for decision Mr Allen dealt at some length with the question whether the type of employment for which, according to the medical evidence, Mrs Quinn was fitted was reasonably available to her. Mr Allen did not deal with the first of the two conditions specified in s.26, whether Mrs Quinn was fitted only for employment of a kind which was not commonly available. The reason for this, no doubt, was that -- as counsel for the applicant concede -- the question whether this condition was satisfied was not an issue raised before the Tribunal. Nonetheless, say counsel, the condition must be satisfied by proper evidence before s.26 can operate.

10. There is an issue between the parties as to the meaning of the words "not commonly available". Counsel for the applicant contend that the words refer to work available to people generally, in Australia as a whole, or, alternatively, in the particular geographical area in which the employee resides. They further contend that the words do not require or permit reference to any particular impediments to employment suffered by an individual employee. In contrast, counsel for the respondent submit that consideration of the question whether work is of a kind which is commonly available requires an inquiry not only as to the injuries and capacities of the employee, but also as to the existence of any particular difficulty in the employee taking work of that kind, for example because of an inability to travel. "Commonly available", say counsel, means available to a person in the position of the applicant. It would be an unreasonable result, they submit, if the claim of an employee was defeated because employment was available to others although not reasonably available to the applicant.

11. It seems to me that, as is not infrequently the case, the true position lies between the extremes suggested in argument by counsel. I agree with counsel for the applicant that the first of the two conditions does not require reference to the availability of particular employment to the particular employee; were it to do so the second condition would be redundant and the word "commonly" would be inappropriate. Consequently, Mrs Quinn's difficulty in travelling is not a matter to be considered in relation to the first condition. On the other hand, in the application of the first condition, it is necessary to consider all of the attributes of the employee, including such matters as training, experience, etc, along with his or her physical condition. One must identify those attributes and then enquire whether, in the Australian community, a person having those attributes is likely to obtain work.

12. In Anderson v Australian Postal Commission (1981) 39 ALR 94 Morling J considered the application of s.26. At pp 99-100 his Honour said:

"In my opinion, the ambit of the class of work
comprehended by the words 'employment of a
kind that is not commonly available' cannot be
determined without reference to the physical
and other capacities possessed by the
particular employee whose claim to be treated
as totally incapacitated falls to be
determined. The obvious intent of the section
is to facilitate compensation claims by
employees who suffer from some incapacity in
obtaining employment. It would be strange if
the nature and extent of that incapacity were
not relevant in ascertaining the 'employment
of a kind that is not commonly available'
referred to in the section. Further, the
reference in the section to the employee being
'fitted' for employment suggests that his
particular work capacity is to be taken into
account when determining whether employment of
a particular kind is commonly available.
Thus, in the present case, I would read the
section as requiring an inquiry to be made as
to whether employment is commonly available
for a worker with the limited skills,
experience and physical capacity of the appellant."

13. I respectfully adopt this exegesis and apply it to the present case by saying that the first matter to be considered, in the application of s.26, is whether light work not involving lifting items of more than five to seven kilograms and not involving stretching is not commonly available for a person with Mrs Quinn's limited clerical experience and skills. If it is found that such work is not commonly available, the next question is whether it is reasonably available to Mrs Quinn.

14. As I have said, the Tribunal made no express finding upon the question whether work not involving lifting and stretching was not commonly available. But the terms of the section were quoted by Mr Allen in his reasons for decision. There is no reason to doubt that he was conscious of the fact that the section only applied in such a case. I think that his finding in favour of the respondent must be seen as including an implied finding in her favour upon this issue. The question then arises whether there was evidence to sustain such a finding.

15. It must be conceded that the evidence upon the matter of common availability was scanty; but it seems to me that there was evidence to sustain the Tribunal's finding. There was no direct evidence before the Tribunal as to the general availability of light work of the type described by Dr Irani. But the evidence showed that the solicitors for the respondent had clearly put before the applicant the situation confronting their client. They had referred to her physical limitations and the undesirability of her having to travel to Fairfield and had requested work at Campbelltown post office. The applicant made no offer of work at Campbelltown, or at any other location closer to Pheasant's Nest than Fairfield. That being so, it should be inferred that the applicant was unable to provide such work; cf Australian Telecommunications Commission v King [1984] FCA 61; (1985) 5 FCR 42 at p 48. Of course, the fact that the applicant was unable to offer, or to find, work at Campbelltown within Mrs Quinn's capabilities does not establish that such work is not available in the community generally. But I think that it constitutes some evidence of that fact. Australia Post is a major employer, employing many people in clerical positions. If, notwithstanding her disabilities, Mrs Quinn was fitted for work which was commonly available, it might be expected that Australia Post would have been able to offer her a position; especially in an area as populous as Campbelltown. Moreover, Mrs Quinn's position was considered by Mr P J Debotton, an officer of the applicant, who checked the continued availability of the Fairfield position. It is not unreasonable to assume that, if jobs with the limitations specified by Dr Irani were commonly available in the community, he would have been aware of this fact and would have drawn it to the attention of Mrs Quinn or her legal advisers. But at no stage did anybody on behalf of the applicant suggest the availability within Campbelltown of a suitable job.

16. I think that the evidence of Mr Rookes also lends some support to the inference that the specified work was not commonly available. Admittedly, Campbelltown is a district of high unemployment, but Mr Rookes gave evidence of placing about 30 people per month in clerical positions. If Mrs Quinn was capable of doing work which was commonly available, it might reasonably be expected that, in the period of eight months after her registration with the CES, at least one potential employer would have shown an interest in her. But there was no such interest, and Mr Rookes' view was that Mrs Quinn's experience was insufficient to attract private sector employers.

17. There is evidence then that due to her disabilities and lack of training, Mrs Quinn was not fitted for employment either in the private sector or by a major public sector employer such as Australia Post. This constitutes evidence that she was fit only for employment of a kind not commonly available to a person in her position. Thus the evidence supports the implied finding that she satisfied the first condition in s.26.

18. As to the second condition -- that is, that the work for which Mrs Quinn was fitted was not reasonably available to her -- no issue is raised in this Court. It was plainly open to the Tribunal to find, upon the basis of the medical evidence, that it would be undesirable for Mrs Quinn to have to journey to and from Fairfield each day.

19. The decision of the Tribunal does not exhibit any error of law. The appeal should be dismissed with costs.

20. I would like to add two observations before parting with the matter. In this Court both parties were represented by senior annd junior counsel. The total costs of the proceeding will be considerable. The case raises no issue of principle. It relates to a matter which the applicant had not chosen previously to put in question. Insofar as that matter raises a question of statutory interpretation, that question arises out of a provision which is now repealed. If the appeal had succeeded, the matter would have gone back to the Tribunal for a fresh hearing at which the evidence as to non-availability of the particular category of light work for which Mrs Quinn is fitted would, no doubt, have been supplemented and may have proved overwhelming. Under those circumstances, one cannot help but wonder at the applicant's choice of priorities, in expending money upon legal costs rather than in the rehabilitation or retraining of Mrs Quinn so that she can return to work; a course which she desires and which is obviously in the interests of both parties and the community generally.

21. Secondly, the decision of the Tribunal was announced on 24 October 1988. Because of the projected appeal, no moneys have been paid to Mrs Quinn pursuant to the Tribunal's decision. The Notice of Appeal was filed in this Court on 25 November 1988. On 15 December 1988 Davies J directed that the matter be referred to the Registrar to settle an index of the appeal papers but no action was taken pursuant to that direction until I made a further direction for urgent settlement on 6 July 1989. I understand that some delay was experienced in obtaining the transcript of the evidence before the Tribunal, but little effort seems to have been made to expedite the transcript and no action was taken for some months thereafter. Especially in a case where an employee is being denied receipt of compensation awarded to her because of the fact that an appeal is pending, such inattention to the case is totally unacceptable.