Riddle v Telstra Corporation Limited (includes Corrigendum dated 15 February 2006) [2006] FCA 58 (10 February 2006)

Last Updated: 15 February 2006

FEDERAL COURT OF AUSTRALIA

Riddle v Telstra Corporation Limited [2006] FCA 58

CORRIGENDUM

LESLIE RIDDLE v TELSTRA CORPORATION LIMITED

NSD 592 OF 2005





EDMONDS J
10 FEBRUARY 2006 (CORRIGENDUM 15 FEBRUARY 2006)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 592 OF 2005

BETWEEN:	LESLIE RIDDLE APPLICANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT

JUDGE:	EDMONDS J
DATE:	10 FEBRUARY 2006
PLACE:	SYDNEY

CORRIGENDUM

1 In the reasons for judgment handed down by Justice Edmonds on 10 February 2006 the following amendments should be made.

1. In the third line of [27] insert ‘I’ after the word ‘therefore’ so that it reads ‘... and therefore I do not think that ...’.

2. In the first line of [53] insert ‘not’ after the word ‘will’ so that it reads ‘A decision will not be vitiated by Wednesbury unreasonableness ...’.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum herein of the Honourable Justice Edmonds.

Associate:

Dated: 15 February 2006

FEDERAL COURT OF AUSTRALIA

Riddle v Telstra Corporation Limited [2006] FCA 58

COMPENSATION – Commonwealth employees – Jurisdiction of Administrative Appeals Tribunal – whether Tribunal made findings on review inconsistent with findings supporting prior determination of liability not the subject of review – whether Tribunal may make such findings.


Administrative Appeals Tribunal Act 1975 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 17, 19, 24, 62, 114D


Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1; [1948] 1 KB 223 cited
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 referred to
Australian Postal Corporation v Oudyn [2003] FCA 318 referred to
Comcare v Hill (1999) 56 ALD 487 referred to
Hannaford v Telstra Corporation Limited [2005] FCA 1298 considered
Lees v Comcare (1999) 56 ALD 84 considered
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 referred to
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to
Power v Comcare (1998) 89 FCR 514 applied
Rosillo v Telstra Corporation Limited [2003] FCA 1628 referred to
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 cited
Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 referred to

LESLIE RIDDLE v TELSTRA CORPORATION LIMITED

NSD 592 OF 2005



EDMONDS J
10 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 592 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE RIDDLE APPLICANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	10 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed.

2.	The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 592 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE RIDDLE APPLICANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT

JUDGE:	EDMONDS J
DATE:	10 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:
INTRODUCTION

1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from three decisions of the Administrative Appeals Tribunal constituted by Senior Member Ettinger and Member Dr Thorpe (‘the Tribunal’) given on 24 March 2005 at Sydney.

2 The Tribunal proceedings comprised three separate applications heard together.

3 In Matter N2004/40 the applicant sought review of a decision dated 6 January 2004 which affirmed a determination dated 28 October 2003 ceasing liability in respect of ‘aggravation of pre-existing spinal canal stenosis at L4/5’ on and from 28 October 2003.

4 In Matter N2004/1095 the applicant sought review of a decision dated 19 August 2004 which affirmed a determination dated 4 August 2004 denying liability in respect of permanent impairment allegedly resulting from that condition.

5 In Matter N2004/1410 the applicant sought review of a decision dated 26 October 2004 which affirmed a determination dated 6 October 2004 that the applicant had not suffered any injury as a result of the nature and conditions of his employment with Telstra Corporation Limited (‘Telstra’).

6 All three decisions related to claims for compensation submitted by the applicant following the onset of symptoms affecting his lower back and right buttock on 19 February 2003 whilst he was walking from a railway station on his way home from work.

7 The decisions of the Tribunal were that:

‘The decision in Matter N2004/40 is set aside. No decision is made in substitution therefor.

The Tribunal has made no order for costs in Matter N2004/40. It awaits the written submissions of the Applicant and Respondent regarding costs in this matter, which, if they are to be taken into account must be lodged with the Tribunal and served by the parties on each other on or before 22 April 2005.

The decisions in Matters N2004/1095 and N2204/1410 [sic] are affirmed.

Costs may not be awarded pursuant to s. 67(8) of the Safety, Rehabilitation and Compensation Act 1988 in Matters N2004/1095 and N2204/1410 [sic].’

NOTICE OF APPEAL

8 The applicant appeals those decisions upon a number of grounds:

‘(i) With regard to matter N2004/40 the Tribunal failed to make a decision in accordance with s. 43 of the ... AAT Act.

...

(ii) With regard to matter N2004/1095 and N2004/1410 the Tribunal made a decision to review the proceedings with regard to s. 62(1) of the Safety, Rehabilitation and Compensation Act (the SRC Act) when s. 62(1) was not within the jurisdiction of the Tribunal.

...

(iii) With regard to matter N 2004/1095 and N 2004/1410 the Tribunal made a decision pursuant to s. 14 of the SRC Act with regard to an injury dated 19 February 2003 (paragraph 101) when an earlier s. 14 SRC Act decision relating to the injury dated 19 February 2003 had not been reconsidered or set aside.

...

In the Alternative, if the Tribunal was able to make a finding as to whether the Applicant satisfied s. 14 of the SRC Act relating to determining an entitlement to compensation under s. 24 and s. 27 of the SRC Act (N2004/1095); and or determining whether the Applicant satisfied s. 14 of the SRC Act with respect to the nature and conditions claim (N 2004/1410):

A. The Tribunal failed to make findings of it required by law.

...

B. With regard to matter N2004/1410 the decision by the Tribunal that the Applicant’s [sic] was not entitled to compensation attributable to the nature and conditions of his employment is so inconsistent with the evidence as to be Wednesbury unreasonable.

...

C. The Tribunal provided inadequate reasons for its decision.

...

D. The Tribunal decisions [in] N2004/1095, N2004/1410 and N2004/40 are internally inconsistent resulting in uncertainty.’

Ground 1

9 The decision dated 6 January 2004 (N2004/40) which affirmed the determination dated 28 October 2003 ceasing liability on and from that date was set aside by the Tribunal and no decision was made by the Tribunal in substitution therefor.

10 The parties agreed before the Tribunal that the decision of 6 January 2004 be set aside: it could not stand in the terms in which it was expressed, since it is not permissible to cease liability ‘on and from’, thereby apparently precluding any future claims which may be made: Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628.

11 In this Court, the applicant submitted that the Tribunal had failed in its duty to either make a decision in substitution for the decision set aside, or to remit the matter for reconsideration in accordance with any direction or recommendations it deemed appropriate, as required by s 43(1) of the AAT Act.

12 In many cases, it will no doubt be true that if the Tribunal fails to make a decision in substitution for the decision it sets aside, or fails to remit the matter for reconsideration in accordance with any directions or recommendations it makes, there will have been a failure to carry out or perform the duty reposed in the Tribunal by s 43(1) of the AAT Act. However, I do not think this is such a case. The setting aside of the decision dated 6 January 2004 was by agreement of the parties. The parties obviously did not think it was necessary for a substituted decision to be made or for the matter to be remitted for reconsideration in accordance with any directions or recommendations of the Tribunal. And the reason for this is because there was already an anterior determination (anterior to the determination of 28 October 2003) of 25 June 2003 accepting liability under s 14 of the SRC Act without any fetter on, or cesser of, liability on and from a particular date. With the setting aside of the determination of 28 October 2003, the determination of 25 June 2003 remained with the consequence that it was neither necessary to make a substituted decision nor to remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal. The setting aside of the 28 October 2003 determination had the effect of restoring the matter to what it had been prior to the 28 October 2003 determination and without the need for any substitute decision or any remission of the matter for reconsideration accompanied by a direction or recommendation.

13 For the foregoing reasons, this ground of appeal must fail.

Ground 2

14 The applicant submitted that the Tribunal wrongly assumed for itself power to exercise jurisdiction under s 62(1) of the SRC Act – reconsideration of a determination by a determining authority on its own motion – and purported to exercise that jurisdiction. In support of this submission, the applicant pointed to [43] and [48] of the Tribunal’s reasons – in particular, the Tribunal’s observation at [43] that it had been submitted by the respondent ‘... that on the basis of the evidence, the Tribunal could find that section 14 liability ought never to have been accepted in relation to Mr Riddle ...’ and its observations at [48]:

‘The Tribunal has noted the submissions of the parties, and relies on the powers regarding reconsideration of own motion accorded to the Commonwealth pursuant to section 62(1) of the Act, and the jurisdiction of the Tribunal (Lees [v Comcare (1999) 56 ALD 84] (supra)).’

15 I cannot accept, by reference to these passages from the Tribunal’s reasons, that it was purporting to exercise jurisdiction under s 62(1). Counsel for the applicant relied on the Tribunal’s findings at [94] and [95] of its reasons that it ‘... was satisfied in relation to Mr Riddle’s back pain, that there was only a temporal, and no causal connection with the employment ...’ and that it ‘... was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003’ for a submission that this involved a consideration of s 14 liability, presumably made under s 62(1). Likewise, he relied on the Tribunal’s finding at [101] of its reasons that it ‘... was satisfied ... that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of the natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment’ for a submission that this involved a consideration of s 14 liability, again presumably made under s 62(1).

16 I cannot agree. The Tribunal made it clear at [9] of its reasons that liability pursuant to s 14(1) of the SRC Act was not in question, but even if it was, the Tribunal’s reasons do not provide a sufficient basis for a presumption that such consideration was made under s 62(1).

17 For the foregoing reasons, this ground of appeal must fail.

Ground 3

18 The simple answer to this ground is that the Tribunal made no decision pursuant to s 14 of the SRC Act with regard to Matter N2004/1095 and N2004/1410, nor did it purport to make such a decision in either matter. As noted in [16] supra, the Tribunal had earlier indicated (at [9] of its reasons) that liability pursuant to s 14(1) of the SRC Act was not in question. The liability previously accepted under s 14 was neither revoked nor disturbed.

19 What the Tribunal did was consider the facts on which the claims before it were based. It not only was entitled to undertake this consideration, but had a duty to do so.

20 Under s 24(1) of the SRC Act, Comcare is liable to pay compensation to the employee in respect of an injury, but only where the injury results in permanent impairment. This raises at least two factual enquiries which the Tribunal is required to consider: Whether there is permanent impairment? If so, is it the result of the injury? These might be considered separately as framed, or holistically: Did the injury result in permanent impairment? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 24(1).

21 In respect of the permanent impairment claim, the Tribunal made two relevant findings:

At [94]:

‘The Tribunal was satisfied in relation to Mr Riddle’s back pain, that there was only a temporal, and no causal connection with the employment, and that any permanent impairment suffered on 19 February 2003 was therefore not compensable.’

At [95]:

‘In summary, having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003.’

22 Clearly, the decision of the Tribunal on the permanent impairment claim by reference to those findings, affirming the decision of the reconsideration decision-maker in N2004/1095, was not a decision going to s 14 liability.

23 Under s 19(1) of the SRC Act, Comcare is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. This raises at least two factual enquiries which the Tribunal is required to consider: Whether the employee is incapacitated for work? If so, is it the result of the injury? Again, these may be considered separately as framed, or holistically: Is the employee incapacitated for work as a result of the injury? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 19(1) of the SRC Act.

24 In respect of the claim regarding the nature and conditions of the employment, the Tribunal made two relevant findings (at [101]):

‘The Tribunal was satisfied from the medical evidence which it has discussed in the paragraphs above, that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of a natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment.’

25 Clearly, the decision of the Tribunal on the nature and terms of conditions of employment claim by reference to that finding, affirming the decision of the reconsideration decision-maker in N2004/1410, was not a decision going to s 14 liability.

26 In Lees v Comcare (1999) 56 ALD 84, the Full Court said at [35]:

‘... a determination under s 14 ... will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was "an employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.’

27 These observations were part of an overall review of the scheme of the SRC Act and the place of a determination under s 14 in that scheme. But they were not critical to the decision in either appeal that was before the Court and therefore do not think that, persuasive as they may be, having been embraced in subsequent decisions of single judges of the Court, they are binding upon me. In any event, my departure is small, even if important. I do not think that a determination under s 14 necessarily involves the final finding – that the injury ‘has resulted in’ death, incapacity for work or impairment. It may, but it may not. Such a finding, it seems to me, is ultimately a matter for determination under ss 17, 19 or 24, not s 14. The wording of s 14 is ‘... if the injury results in death, incapacity for work or impairment’. Thus, a determination under s 14 may determine that Comcare (or a body in a similar position such as the respondent) is liable to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that it will only be so liable ‘if the injury results’ in death, incapacity for work or impairment. And that is what seems to have occurred in this case. The s 14 determination involved no finding that Mr Riddle’s injury had resulted in death, incapacity for work or impairment. The Statement of Reasons merely said:

‘5. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that the claimant sustained an injury, namely aggravation of pre-existing spinal canal stenosis at L4/5, which has arisen out of or in the course of his employment with Telstra. I have relied on the specialist opinion of Dr Nall in making a decision and that there is no evidence presently available to indicate that the injury did not arise out of or in the course of the claimant’s employment.’

The s 14 determination undoubtedly involved findings on the first four matters referred to in the extract from the Full Court’s judgment in [26], but not the final matter.

28 It follows, in my view, that the Tribunal’s findings at [94] and [95] of its reasons – that, in relation to Mr Riddle’s back pain, there was only a temporal, and no causal connection with the employment; and that having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003 – were not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far.

29 It also follows, in my view, that the Tribunal’s second finding at [101] of its reasons – that Mr Riddle’s impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment – was not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far.

30 On the other hand, the first finding at [101] of the Tribunal’s reasons – that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 – is inconsistent with a finding underpinning the s 14 determination that Mr Riddle had suffered an injury on that day, namely, aggravation of pre-existing spinal canal stenosis at L4/5, which had arisen out of or in the course of his employment with Telstra.

31 The question of law which arises is whether the Tribunal’s first finding at [101] of its reasons was open, in the face of the anterior finding underpinning the s 14 determination, and if it was not, whether it impacts on the second finding at [101] of the Tribunal’s reasons, which, for the reasons given at [29], clearly was open.

32 This latter question of law was encapsulated by Moore J in Hannaford v Telstra Corporation Limited [2005] FCA 1298 at [27], where his Honour said:

‘In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.’

33 The judgment of Sackville J in Power v Comcare (1998) 89 FCR 514 at 525 – 526 supports the proposition that it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of the four sections mentioned on the basis that a material fact (necessary to support the determination under s 14) did not exist. His Honour said:

‘Only Comcare addressed in submissions the character of the 22 March 1995 decision. In supplementary written submissions, Mr Johnson argued that Comcare’s powers under ss 69(a) and 70 of the SRC Act authorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare’s liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act. If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Act conferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate’s decision that Comcare’s liability had ceased from 9 March 1995.

I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act, to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant’s compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act.

In these circumstances, I accept Mr Johnson’s analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Act to make "determinations...in relation to claims": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise.

The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant’s coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis.

I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare’s liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)).’ (Emphasis added)

34 In Hannaford, supra, at [29] Moore J said:

‘In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62. In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination.’

35 In Comcare v Hill (1999) 56 ALD 487, Spender J – in particular at [9] – endorsed the approach of Sackville J.

36 The same question of law was recently considered by Moore J in Hannaford, supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said:

‘The Full Court indicated at [39] of its judgment [in Lees] ... that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.’

37 His Honour proceeded to say that this approach did not appear to him to render the scheme of the SRC Act unworkable. He said (at [44]):

‘If a determination is made under s 14 in favour of a claimant and later medical opinions or other evidence raises doubts about whether it should have been made, then Comcare (or a body in a similar position such as the respondent) can act of its own motion and reconsider the determination under s 62. That way, clear and unambiguous rights of review arise and the subject matter of the review will be clear as will the powers of the Tribunal when undertaking the review. In its submissions, the respondent raises the spectre of the revocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or number of determinations made under other sections. This was not the subject of any detailed submissions. Accordingly, the views I express in the following paragraph are necessarily provisional.’

38 His Honour went on at [45] to find comfort in his approach from the power of Comcare, under s 114D of the SRC Act, to waive its right to recover from a person a debt due (assuming, for present purposes, any payment under a revoked determination is, without more, a ‘debt due’). His Honour said:

‘While that power to waive is subject to Ministerial directions, it nonetheless reveals the statutory scheme which could easily be moulded to ensure that, in a case such as the present, monies would not be recovered even if the s 14 determination was revoked.’

39 His Honour concluded at [46]:

‘In my opinion, it was not open to the Tribunal to review findings on the question of whether the applicant had suffered RRF [Ross River Fever] and thereby make findings contrary to those underpinning the earlier determinations under s 14. Its decision should be set aside and the matter remitted to the Tribunal.’

40 Moore J’s observation at [40] that Sackville J in Power, supra, recognised the conclusion he reached was not the only one reasonably open – by Sackville J’s use of the words ‘I think the better view is that ...’ in the last paragraph of the quotation in [33] supra – may well be right; on the other hand, and with respect, I think Sackville J’s view is the better one. Moore J’s approach may not, as his Honour says, render the scheme of the SRC Act unworkable, but it has the potential, with respect, to render it cumbersome in determining claims for compensation under specific heads which are rejected, such as in this case, following upon a determination of liability under s 14, unless that determination is itself reconsidered (by the determining authority’s own motion) under s 62(1) of the SRC Act.

41 What is said in [40], is exemplified in Hannaford itself. First, it has the potential to lead to a situation where a claimant must repay money paid under one or a number of determinations made under other sections unless the relevant body exercises its power under s 114D of the SRC Act to waive its right to recover, assuming the power of waiver under that provision so extends. Second, it will be an exercise in futility for the applicant, in cases such as this, because as was said by his Honour at [47]:

‘Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under s 62 for the reasons which prompted the Tribunal to determine the matter as it did.’

42 For the foregoing reasons, I do not think the ground of appeal can be sustained, but even if I am wrong, and it was not open to the Tribunal to make the first finding at [101], I do not think this infects the second finding at [101] namely, that Mr Riddle’s impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment, a finding, as I observed at [29], which was not inconsistent with any findings underpinning the s 14 determination because none of the findings went that far.

43 For the foregoing reasons, this ground of appeal must fail.

Ground 4 (in the alternative)

44 The basis on which this ground is predicated is not clear. As previously indicated at [16], the Tribunal was of the view that liability under s 14 was not in question and my reasons at [18] to [25] inclusive in relation to ground 3 make it clear that neither the decision of the Tribunal on the permanent impairment claims nor the decision of the Tribunal on the terms of conditions of employment claim was a decision going to s 14 liability. On the other hand, the Tribunal clearly was able to make a finding as to whether the applicant had suffered permanent impairment as a result of injury arising out of or in the course of his employment with the respondent (N2004/1095) or whether he had suffered injury as a result of the nature and conditions of his employment with the respondent (N2004/1410), since both of those questions had been the subject of both primary determinations and reviewable decisions.

45 Under this ground, first it is said that the Tribunal failed to make findings of it required by law. This is particularised as a failure of the Tribunal to decide:

(i) whether or not the applicant had suffered an ‘injury’ or ‘disease’ pursuant to ss 4 and 6 of the SRC Act; and

(ii) whether the activity of walking materially contributed to or aggravated the applicant’s underlying condition pursuant to s 4 of the SRC Act.

46 As to (i), the Tribunal found that the applicant had not suffered an injury: At [93] of its reasons, the Tribunal said:

‘’The Tribunal accepted the opinion of the doctors (Dalton, Matheson and Schutz), who said that with Mr Riddle’s type of pathology, onset of symptoms as the Applicant experienced, is not necessarily related to trauma or physical activity.’

47 For a disease to be compensable under the SRC Act something more than a mere temporal connection must be found; there must be a material contribution towards either the contraction of the disease or an aggravation of it: See the definition of ‘disease’ in s 4(1) of the SRC Act and Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. The Tribunal’s finding that there had been a temporal connection only between the onset of the applicant’s symptoms and his work precludes any finding that the applicant had suffered a work-related disease which was therefore compensable. That finding was a finding of fact: March v (E & MH) Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 esp. per Mason CJ at 515-517.

48 As to (ii), no inconsistency exists between the Tribunal’s finding that the applicant had experienced the spontaneous onset of symptoms whilst walking home from work on 19 February 2003 and the Tribunal’s further finding that the nature and conditions of his employment with the respondent had not materially contributed to an aggravation of his underlying, pre-existing degenerative spinal condition. The Tribunal accepted the medical evidence that ‘with Mr Riddle’s type of pathology, the onset of symptoms as the applicant experienced, is not necessarily related to trauma or physical activity’ (at [93]).

49 Next, under this ground, it is said that the decision of the Tribunal in matter N2004/1410 – that the applicant was not entitled to compensation attributable to the nature and conditions of his employment – is so inconsistent with the evidence as to be Wednesbury unreasonable. This is particularised in the following way:

The Tribunal found the following:

(i) That Dr Griffith and Dr Wong were of the opinion that the work place was implicated in the applicant’s present condition [99];

(ii) That Dr Dalton concluded that the nature and conditions of the applicant’s employment involved physical activities which quite reasonably could have aggravated the underlying degenerative condition [99];

(iii) That Dr Griffith also opined that he agreed with Dr Dalton that had the applicant’s employment been office based he would have been less likely to have suffered a disc lesion as an aggravation to the degenerative changes in the applicant’s spine [100];

The Tribunal then went on at [101] to decide that it was satisfied from the medical evidence, which it had discussed in [99] and [100], that the impairment of the applicant was not attributable to the nature and conditions of the applicant’s employment and at [102] that the Tribunal was not satisfied that the available evidence established an entitlement to compensation on the basis of the nature and conditions of the applicant’s employment with the respondent.

50 The applicant essentially asserts that there was no evidence which supported the Tribunal’s decision that the applicant’s impairment was a result of the natural progression of the applicant’s lumbar spine and was not attributable to the nature and conditions of his employment.

51 That assertion wrongly presumes, however, that the only evidence relied upon by the Tribunal in arriving at that decision was that referred to in [96] – [100] of the Tribunal’s reasons for decision. The content of what was said by the Tribunal in [101] of its reasons for decision denies that presumption and evidence capable of supporting the Tribunal’s conclusion was referred to in the Tribunal’s reasons at [64], [69], [71] – [74], [76] and, especially at [93].

52 The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1; [1948] 1 KB 223; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 – 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 – 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 – 627, per Gleeson CJ and McHugh J; ‘Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 – 65, per Sackville J.

54 Next, under this ground, it is said that the Tribunal provided inadequate reasons for its decision. This is particularised as follows:

The Tribunal, in making findings under s 14 of the SRC Act that the applicant had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 ([93], [94] and [101]), failed to properly consider or provide adequate reasons as to the requirements of a s 14 decision. The requirements of a s 14 decision include consideration and determination as to whether the applicant satisfied the definition of injury, disease, aggravation, impairment and or incapacity for work as defined in s 4 of the SRC Act.

55 Again, the applicant fundamentally misconceives the decisions under review as being decisions made under s 14 of the SRC Act. For the reasons already indicated, they are not.

56 Finally, under this ground, it is said that the Tribunal decisions N2004/1095, N2004/1410 and N2004/40 are internally inconsistent resulting in uncertainty. This is particularised in the following way:

The Tribunal having accepted:

a. That the applicant was asymptomatic prior to 19 February 2003 ([21]);

b. that the applicant suffered the onset of pain while on a journey home from work on 19 February 2003 ([21]);

c. that the applicant has continued to suffer pain since 19 February 2003 ([21]);

did not find that the applicant suffered a disturbance to his normal physiological state on 19 February 2003 ([93]).

57 With respect, I do not see any inconsistency between the facts set out in a. – c. inclusive and the Tribunal’s finding that there was no disturbance to the normal physiological state of the applicant on 19 February 2003.

58 For the foregoing reasons, this ground of appeal must fail.

59 It follows that the appeal must be dismissed with costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 10 February 2006

Counsel for the Applicant:	Mr D Richards
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr A Robertson SC Mr B Kelly
Solicitor for the Respondent:	Henry Davis York
Dates of Hearing:	1 August 2005 10 October 2005
Date of Judgment:	10 February 2006