Re Australian Postal Corporation v Christine Anne Mcguire [1992] FCA 59 (25 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN POSTAL CORPORATION
And: CHRISTINE ANNE McGUIRE
No. V G266 of 1991
FED No. 68
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Administrative Law - Appeal - error of law - Commonwealth Government employees - whether Tribunal erred in its construction of s. 4(1) - whether Tribunal misunderstood the reasons for judgment in Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)s. 4(1)

Administrative Appeals Tribunal Act 1975 - s. 44

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321.

HEARING

MELBOURNE
25:2:1992

Solicitors for the Applicant: Hall and Wilcox

Counsel for the Applicant: Mr C.G. Wallis

Solicitors for the Respondent: McMullin, Coate and Co.

Counsel for the Respondent: Mr S.B. Spittle

ORDER

The appeal be dismissed.

The decision of the Administrative Appeals Tribunal, given on 13 September 1991, be affirmed.

The Australian Postal Corporation pay to the respondent, Christine Anne McGuire, her costs of this appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Australian Postal Corporation ("the corporation") has appealed against a decision of the Administrative Appeals Tribunal ("the Tribunal"), given on 13 September 1991, which set aside a decision of a delegate of the corporation made under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). Christine Anne McGuire, the respondent to this appeal, was the applicant before the Tribunal and it is convenient to refer to her in these reasons as "the employee".

2. The corporation's counsel informed the court that:
1. the corporation did not dispute that there was sufficient evidence

upon which to make its findings of fact;
2. the corporation had not sought that the decision of the Tribunal
be stayed;
3. the corporation had already paid to the employee the appropriate
amounts of compensation and had reimbursed her for past medical
expenses;
4. the corporation was not seeking an order for costs if it succeeded
in this appeal;
5. if it succeeded, it was not seeking an order setting aside the
Tribunal's decision that it pay the employee's costs of the proceedings
before the Tribunal;
6. the corporation contended that the Tribunal "erred in law in the
view which it took" of the decision of the Full Court of this Court in
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 97 ALR 321;

and

7. the corporation is "the administering authority under the 1988 Act
and is conscious" of the "wide-ranging ramifications" of the decision
and of the fact that "any decision of the Tribunal of this calibre is
... applied in many cases as an authority for further decisions ...".

3. The Tribunal in its reasons for decision ("the reasons") said (paragraph 22) "... On the evidence, we are satisfied, and we find, that she was promoted beyond her abilities, and that the stress which this caused her contributed in a material degree to the onset of an episode of depressive illness from 2 May 1990 ...". On the evidence before the Tribunal, in my opinion the corporation plainly could not dispute that there was evidence upon which the Tribunal could find "that the stress which this caused her contributed in a material degree to the onset of an episode of depressive illness" (and, as already stated, it did not advance any such contention).

4. The ground of appeal was that "the Tribunal erred in law in that (it) misapplied sub-Section 4(1) of the (1988) Act by finding that the expression 'in a material degree'... (appearing in that sub-section) required that the (corporation's) employment contributed to the contraction or aggravation of the (employee's) disease whereas (that sub-section) requires that the (employee's) employment contributed in a material degree to the contraction or aggravation of the disease ..." (emphasis added). The ground went on to assert that "the Tribunal has not posed the correct questions upon which (it) had to be satisfied to determine the (corporation's) liability to pay compensation ...".

5. The corporation's substantial submission was that the Tribunal erred in law in that it considered that the words "in a material degree" in the 1988 Act did not "make any significant difference to the effect of the provision" which had been in force immediately before the 1988 Act. Those words in paragraph 21 of the reasons must be considered in their context. The full passage in which they appear in the Tribunal's reasons reads as follows:-

"The significant difference between that provision and the
provision considered in Treloar is the addition of the
expression "in a material degree". It would appear from the
second paragraph cited above from Treloar that the court
would not have found that addition to make any significant
difference to the effect of the provision." (paragraph 21)

That passage in the reasons suggests that the Tribunal's view was that there was a "significant difference" between the provision in the 1988 Act and the corresponding provision in the previous Act - notwithstanding the sentence immediately following, which referred to what "would appear" from Treloar.

6. As was said during the submissions in this appeal, doubt as to the Tribunal's meaning would have been less likely if paragraph 22 of the reasons had appeared immediately after paragraphs 18 and 19 - the paragraphs in which the Tribunal discussed the medical evidence before it. Had paragraph 22 appeared immediately after paragraph 19 it would have conveyed to the reader more clearly that paragraphs 20 and 21 of the reasons did not play any part in the Tribunal's decision in the case which is set out in paragraph 22; on that basis paragraphs 20 and 21 merely contained an observation, made obiter, by the Tribunal in relation to the paragraph in the Full Court's reasons for judgment in Treloar.

7. The Tribunal expressly found, on the evidence, that "the stress ... contributed in a material way to the onset ...". I have not been persuaded by the corporation that the Tribunal misunderstood the meaning of the Full Court in the "second paragraph cited" in Treloar. I reject the ground of appeal that "the Tribunal has not posed the correct questions ...". The corporation having failed to make out any ground of appeal, the appeal must be dismissed.

8. The court has heard submissions from both parties as to the meaning of the passage (97 ALR at p 328, lines 23-32) in the Full Court's reasons for judgment in Treloar, i.e. the passage which the Tribunal, at p 10 of its reasons, refers to as "the second paragraph cited above". Lest anyone be misled by my decision to dismiss this appeal, I should state that I do not accept the submission put to me by counsel for the employee (the respondent to the appeal) as to the meaning of that paragraph. He submitted that the Full Court was there expressing an opinion as to the meaning and effect of the words "in a material degree" in sub-s. 4 of the 1988 Act. In my opinion the Full Court was not expressing any opinion on that question.

9. I uphold the submission put by the corporation's counsel that in Treloar, in the passage quoted by the Tribunal, the Full Court was not referring to the word "material" where it appears in the 1988 Act. The Full Court had already said (at p 326-327):-

"It is to be noted that neither the tribunal nor the learned
primary judge was engaged in the construction of the
relevant section of the New Act. Nor do we essay that task.
It may further be noted that the word 'material' does not
appear in s 29 of the 1971 Act. It is sufficient that the
employment be a 'contributing factor'. The inquiry must,
therefore, be what do these words signify in the section?".

10. It should be added that counsel for the corporation placed before the court the Hansard Report of the Second Reading Speech of the Bill which led to the 1988 Act. It has not been necessary for me, in determining this appeal, to form any opinion as to the meaning or the effect of the words "in a material degree" which appear in the 1988 Act.

11. For these reasons the appeal will be dismissed, the decision of the Tribunal affirmed (s. 44(5)) and the corporation ordered to pay the costs of the respondent to this appeal, Christine Anne McGuire.