Comcare v Broadhurst [2011] FCAFC 39 (18 March 2011)

Last Updated: 1 April 2011

FEDERAL COURT OF AUSTRALIA

Comcare v Broadhurst [2011] FCAFC 39

Citation:		Comcare v Broadhurst [2011] FCAFC 39
Appeal from:		Broadhurst v Comcare [2010] FCA 1034
Parties:		COMCARE v KAREN BROADHURST; KAREN BROADHURST v COMCARE
File number:		ACD 36 of 2010
Judges:		DOWNES, TRACEY AND FLICK JJ
Date of judgment:		18 March 2011
Catchwords:		ADMINISTRATIVE LAW – legislative instruments – need for certainty – cannot incorporate material “from time to time” – remittal of proceeding to Administrative Appeals Tribunal – whether it should be differently constituted PRACTICE AND PROCEDURE – notice of contention
Legislation:		Acts Interpretation Act 1901 (Cth) s 46 Administrative Appeals Tribunal Act 1975 (Cth) ss 20B, 44 Federal Court of Australia Act 1976 (Cth) s 28(1)(b) Legislative Instruments Act 2003 (Cth) ss 13, 14, 38, 42 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 28, 68 Federal Court Rules 1979 (Cth) O 52 r 22 Guide to the Assessment of the Degree of Permanent Impairment
Cases cited:		Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68, 176 FCR 203, cited Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 2 ALR 89, referred to Bargwanna v Commissioner of Taxation (No 3) [2011] FCAFC 18, referred to Bashar v Comcare Australia [2002] FCA 837, 69 ALD 784, cited Broadhurst and Comcare, Re [2010] AATA 251, cited Broadhurst v Comcare [2010] FCA 1034, considered Byrne v Repatriation Commission [2007] FCAFC 126, 97 ALD 359, referred to Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137, 179 FCR 554, referred to Condell v Federal Commissioner of Taxation [2007] FCAFC 44, [2007] ATC 4404, referred to Industry Research and Development Board v IMT Ltd [2001] FCA 85, referred to Jordan v Australian Postal Corporation [2007] FCA 2028, 99 ALD 303, referred to Mines v Repatriation Commission [2004] FCA 1331, 86 ALD 62, cited Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, 215 CLR 518, cited NBMB v Minister for Immigration and Citizenship [2008] FCA 149, 100 ALD 118, cited Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, cited Ross, Re; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2001] FCA 770, 108 FCR 399, referred to Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40, 124 CLR 468, cited SZJFI v Minister for Immigration and Multicultural Affairs [2006] FMCA 1860, 206 FLR 205, cited  Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905, 99 ALD 268, considered Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758, 176 FCR 153, cited Toohey and Tax Agents’ Board, Re [2009] AATA 142, 49 AAR 427, cited M Batskos, “Natural Justice and the Constitution of Tribunal Membership” (1998) 16 AIAL Forum 22
Date of hearing:	18 February 2011
Place:	Sydney (Heard in Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	101
Counsel for the Appellant/Cross-Respondent:	Mr P Hanks QC
Solicitor for the Appellant/Cross-Respondent:	Mr D O’Donovan (DibbsBarker)
Counsel for the Respondent/Cross-Appellant:	Mr R Crowe SC
Solicitor for the Respondent/Cross-Appellant:	Mr A Anforth (Capital Lawyers)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY AND FLICK JJ
DATE OF ORDER:	18 MARCH 2011
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. The cross-appeal be dismissed.
4. The cross-respondent is to pay the costs of the cross-appellant.
5. The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.
6. Liberty is reserved to the parties to apply within 7 days to vary these orders.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY AND FLICK JJ
DATE:	18 MARCH 2011
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

DOWNES J:

1. Where the Comcare Guide to the Assessment of the Degree of Permanent Impairment, for persons claiming compensation under the Commonwealth system of employees compensation, will not permit a determination whether the level of permanent impairment is above or below 10%, the degree of permanent impairment must be assessed under Edition 5 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5).
2. Reference to AMA5 is permitted for conditions capable of being described as chronic pain conditions, but the section in AMA5 dealing with Pain, including chronic pain, cannot be used.
3. Although in the present case there are matters suggesting that assessment of the permanent impairment of the respondent should be made in accordance with Table 15.3 of AMA5, this issue and the assessment should be undertaken by the Administrative Appeals Tribunal.
4. The matter should be remitted to the Administrative Appeals Tribunal for assessment accordingly. It is generally inappropriate for this Court, on remittal, to give any direction as to how the Tribunal should be constituted on the rehearing.

FIRST PROBLEM – THE DEFECTIVE GUIDE

5. Employees of the Commonwealth, of Commonwealth authorities and of certain other licensed corporations are entitled to compensation for work related injury and disease. Specified compensation is payable for permanent impairment. Degrees of permanent impairment are recognised. Compensation is generally not payable for permanent impairment of less than 10% (s 24(7) Safety, Rehabilitation and Compensation Act 1998 (Cth)). The degree of permanent impairment is to be determined under the provisions of a Guide (s 24(5)).
6. The Guide is prepared by Comcare, which is a body established by the Parliament (s 68). The Comcare Guide must be approved by the Minister (s 28(3)). It is a legislative instrument (s 28(3A)).
7. Part III of Chapter 9 of the Comcare Guide (Guide to the Assessment of the Degree of Permanent Impairment), which deals with the Spine, contains Table 9.17. That table provides criteria for assessment of the degree of impairment at different levels. Two of those levels, which are consecutive, are 8% and 13%. Where the 8% criteria apply, but not the 13% criteria, it is not possible to determine if impairment satisfies the 10% minimum requirement. The table cannot be used.
8. Clause 12 in Part I of the Comcare Guide provides that where impairment cannot be assessed under the Comcare Guide “the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment”. For present purposes, that identifies the 6th edition of the AMA guide: AMA6. However, the guide in place at the time the Comcare Guide was approved was AMA5.
9. Legislation provides that legislative instruments “may not make provision... applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time” (s 14(2) Legislative Instruments Act 2003 (Cth)). Clause 12 clearly offends against this requirement. A legislative instrument which exceeds power “is to be taken to be a valid instrument to the extent to which it is not in excess of that power” (s 13(2) Legislative Instruments Act).
10. The question before us is whether the whole of cl. 12 is invalidated or whether the clause is to be read as applying to the AMA guide current at the time the Comcare Guide was approved. In either case we must determine what standard should be used to determine the degree of impairment.

SOLUTION

11. What can be identified in the operative words of cl. 12 that “is not in excess of... power”? Clause 12 originally incorporated AMA5. That was within power. AMA6 was substituted. That was not within power. On one view the substitution was ineffective and AMA5 continues to apply. The difficulty with this is that cl. 12, by its terms, limited the time during which any particular AMA guide was to be incorporated. It ceased to incorporate a guide when the guide ceased to be current. On this basis cl. 12 had two independent operations. First, it caused (relevantly to the facts of this case) AMA5 no longer to apply. Secondly, it caused AMA6 to be substituted. If this is the correct construction of cl. 12, then AMA5 ceased to apply because of the effect of cl. 12 and AMA6 did not begin to apply because of the effect of the legislation. If that is the correct analysis, cl. 12, by its own operation, ceased to incorporate AMA5. The incorporation of AMA5 cannot be said to be a continued operation of the clause which can be preserved by the legislation.
12. This is not a case in which, for example, a legislative instrument was expressed to apply in either of two separate circumstances. If its application in one of those circumstances was in excess of power the legislative instrument would continue to operate in the other. The person drafting such a legislative instrument would undoubtedly intend such an operation. However, the person who drafted cl. 12, if told that its operation would be to enshrine AMA5, might well have opted for a completely different solution. It is easy to infer a legislative intention that persons drafting legislative instruments should not be empowered to potentially incorporate future standards or guides whose terms are unknown at the time of approval of the legislative instrument. It is equally clear, however, that the present guide was intended to do exactly that. It is not easy to attribute to the legislative instrument an intention that if its expressed purpose should fail a regime should continue which had been expressly rejected.
13. Two factors must, however, be weighed against this. First, the legislation and the legislative instrument should not readily be construed so that the primary purpose of providing for a standard wholly fails. Secondly, the very purpose of provisions seeking to preserve the effect of invalid legislative instruments, to the extent to which they are not in excess of power, must be to preserve the application of legislative instruments whose authors have not anticipated their invalidity. It is in that circumstance that the intention of the legislative instrument is to be considered and not in the circumstance that would have confronted the author if the problem had been appreciated in time to correct it. The policy of the legislation, in contrast to the intention of the author, is for incorporated instruments to be restricted to those in existence at the time the legislative instrument is made. Change will depend upon an amendment to the legislative instrument.
14. Importantly, the legislative provision does not address the intention of the legislative instrument so much as its operation. It speaks objectively of “excess of power”. The original effect of the instrument, which was within power, was to incorporate AMA5. The change to incorporate AMA6 was in excess of power. On this basis, the effect of the legislation may be to strike down AMA6, paving the way to save AMA5.
15. This has not been an easy matter to resolve. There is substance in the argument that AMA5 has ceased to be incorporated and its operation cannot be preserved. I have, however, come to the conclusion that the legislation does operate to preserve and continue the incorporation of AMA5. This is because that result seems more nearly to reflect the legislative intention and recognises that the considerations I have most recently addressed are more persuasive than the matters with which I began this analysis. Once incorporation of AMA6 is struck down, the only guide remaining, AMA5, continues to apply.
16. The result is that AMA5 applies. It is next necessary to consider how that conclusion operates in this case.

THE FACTS

17. The respondent’s impairment is associated with a lumbar sprain. The Administrative Appeals Tribunal (SM Creyke: [2010] AATA 251) found that it is evidenced by disc bulge and annular tear at the L4/5 level in her spine. Pain and discomfort are experienced in the leg. A factor for consideration is, therefore, that this is a case of an injury to the spine which is manifested through pain in the leg.
18. The Tribunal found that “... aggravation of [the respondent’s] spinal conditions, principally due to [a] work-related incident... caused [the respondent’s] leg condition to become symptomatic”. The Tribunal also found an “absence of evidence of any neurological source in her spine for the pain in [the respondent’s] legs.”

SECOND PROBLEM – CHARACTERIZATION OF THE CONDITION

19. The spine is dealt with in Chapter 15 of AMA5. Table 15.3 deals with impairment due to lumbar spine injury and recognises impairment associated with symptoms experienced in the leg. Prima facie this seems to be the assessment standard to be applied. It permits assessment of whether impairment is 10% or more and the exclusion of impairment less than 10%. It is also very closely allied, in its terms, to the table in the Comcare Guide (Table 9.17) which was applied by the Tribunal but which, it is accepted, cannot apply because it does not permit this division.
20. The respondent, however, raises a matter which is said to lead to an alternative and preferable method of assessment. It depends upon characterising the respondent’s relevant condition as a chronic pain condition. The respondent says that clause 12 excludes the application of the AMA guide for most “chronic pain conditions”. The respondent’s submission is that, because cl. 12 excludes the AMA guide, no assessment tool for chronic pain conditions is identified in cases such as the present, where assessment cannot be undertaken in accordance with the Comcare Guide. The proper course, the respondent says, is to refer to the provisions of the Comcare Guide most analogous and appropriate to the respondent’s condition. The provision relied upon is cl. 9.7 and Table 9.7 in Part 1 of Chapter 9 dealing with the lower extremities.
21. It is significant to note that the decision of the Tribunal does not characterise the respondent’s condition at any point as a chronic pain condition. It addresses the condition as a lumbar sprain leading to pain and disability in the leg. The decision does recognise that the respondent undoubtedly experiences chronic pain. In the absence of more specific findings by the Tribunal, however, it would be inappropriate for the Court to deal with the respondent’s condition as a chronic pain condition. The matter would have to be remitted to the Tribunal for that assessment. It is appropriate, however, for the Court to address any questions of law which arise.
22. A question of construction arises as to whether cl. 12 excludes the use of the AMA guide in all respects for chronic pain conditions, or only precludes the use of the provisions of the AMA guide which specifically address chronic pain.

SOLUTION

23. The precise provision of cl. 12 is that “[a]n assessment is not to be made using the [AMA guide] for... chronic pain conditions...’. Subject to examining the provisions of AMA5, that provision may only preclude the use of that part of the AMA guide which addresses chronic pain as a condition. AMA5 contains a chapter relating to Pain, including chronic pain. It is to be noted that the Comcare Guide does not contain any provision for the assessment of chronic pain as such. The Comcare Guide deals separately with different body systems such as the Cardiovascular System and the Musculoskeletal System and guides the assessment of impairment by reference to these systems rather than by reference to symptoms. There are provisions dealing with pain, such as Complex Regional Pain Syndromes, but there is no separate section dealing only with pain. AMA5, on the other hand, has a chapter entitled Pain. It contains protocols, figures and tables for the assessment of pain. However, the chapter emphasises that it should not be used “to rate pain-related impairment for any condition that can be adequately rated on the basis of the body and organ impairment rating systems given in other chapters of the Guides” (page 571). Other parts of the Chapter repeat this restriction.
24. In these circumstances I do not doubt that the prohibition of the use of the AMA guide in cases of chronic pain conditions, consistently with the absence of such a means of assessment in the AMA Guide and with the restriction on the use of such a means in the AMA guide, simply operates to preclude the use of the Chapter of the AMA guide entitled Pain. Such a construction is wholly consistent with the words of cl. 12 and with an intention, which can be imputed to it, that it should not leave chronic pain conditions without any identified means of assessment.

REMITTAL

25. The result is that AMA5 is applicable. Impairment should probably be assessed in accordance with Table 15.3. In the decision under appeal Buchanan J concluded that AMA6 should apply. This is not surprising since no argument had been put that cl. 12 was in excess of power. His Honour also concluded that the respondent would not succeed under AMA5. I have no doubt that his Honour did not intend this observation to be binding in any future hearing. The observation was made obiter, on a matter other than a question of law and therefore outside his Honour’s jurisdiction (s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)) and without hearing argument.
26. Although SM Creyke has made findings which might permit ultimate conclusions to be drawn as to what level of impairment the respondent experiences I do not think we should attempt this assessment. I particularly note that the Tribunal made findings that the pain was associated with a lumbar sprain involving a disc bulge and annular tear while also finding that the pain had no neurological cause in the spine. It is not immediately apparent to me why pain experienced in the leg which is referred from, and associated with, a disc bulge, does not have a neurological cause, assuming that the vehicle for referral of the pain is the nervous system. This, no doubt, reflects my disadvantage in not having seen the evidence, which is not included in the appeal book. It presumably reflects the difference between referred pain and radicular pain. The facts accordingly raise nuances which it would be reckless for us to seek to resolve. For us to determine this matter we would have to take findings which were made in connection with the application of Table 9.17 of the Comcare Guide and seek to use those findings to determine what part of AMA5 applies and what is the result. It may be that Table 15.3 should be applied but the complexity of the facts in the case do not make this certain. On any rehearing, how AMA5 applies (apart from the section on pain) should be left to the Tribunal.
27. Section 44(7) of the Tribunal Act gives the Court limited power to find facts. Dealing with the present case, however, requires not only fact finding but the making of a fresh administrative decision. This further role is better undertaken by the Tribunal which is specifically empowered to make such decisions.
28. The appeal must be allowed. The cross-appeal should also be allowed because the cross-appeal properly challenged Buchanan J’s findings relative to the application of Table 15.3 of AMA5 and the result which would follow. The matter should be remitted to the Tribunal for further consideration according to law.

TRIBUNAL CONSTITUTION

29. Constitution and reconstitution of the Administrative Appeals Tribunal are dealt with in Part III, Division 3 of the Tribunal Act. The powers of constitution and reconstitution are conferred upon the President. Section 23B (added in 2005) identifies matters which the President must have regard to in constituting the Tribunal. No doubt the President must also take into account the statutory requirements that the Tribunal “must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” (s 2A) (also added in 2005) and conduct proceedings before it “with as little formality and technicality, and with as much expedition” as possible (s 33(1(b)). The President would also take into account the recognition by the Tribunal Act that matters remitted to the Tribunal for further hearing may be determined “either with or without ... further evidence” (s 44(5)), thereby confirming the possibility of hearings on remittal based simply on the existing evidence – a practice which would generally be more satisfactory if the Tribunal is constituted in the way it was for the original hearing. To this is to be added the power of the Tribunal to determine the scope of the review of a decision by limiting “the questions of fact, the evidence and the issues that it considers” (s 25(4A)).
30. The rehearing of matters remitted to the Tribunal is to be distinguished from the rehearing of matters remitted by an appellate court to a trial court. In the former case an appeal can be allowed only on a question of law. Most appeals in the latter category will be rehearings where all issues are open, including findings of fact. Reversal on a question of law will rarely justify a rehearing by a Tribunal differently constituted.
31. A rehearing before a Tribunal differently constituted will inevitably be more expensive, both to the parties and to the Commonwealth. Except in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally.
32. Practical matters such as the workload of the Tribunal and its members, as well as other similar matters, will also be relevant to how the Tribunal should be constituted for a matter remitted for further hearing.
33. For all these reasons it seems to me that this Court should leave to the President of the Tribunal the question of how the Tribunal should be constituted on a rehearing. Only the President will be aware of all the factors which must be taken into account. Observations in decisions of the Court which may suggest a different view are generally obiter, made in cases relating to different tribunals, or made prior to the amendments to the Tribunal Act in 2005 (or based on remarks in cases so decided).
34. It should be left to the President of the Tribunal, at a time when all the facts and relevant matters set out above can be taken into account, to determine how the Tribunal should be constituted on remittal.

ORDERS AND COSTS

35. The appeal should be allowed, because the appellant’s arguments have largely been upheld. Unless the appeal, or the cross-appeal, are allowed, no consequential orders can be made. The proposed remittal to the Administrative Appeals Tribunal is on a completely different basis to the remittal by Buchanan J. The consequence of dismissing the appeal should be to leave Buchanan J’s remittal in place. The cross-appeal should also be allowed because the cross-appellant raised the operation of cl. 12 in connection with chronic pain conditions in the cross-appeal. That matter affects the content of the remittal.
36. I would set aside the order of Buchanan J, other than any orders relating to costs, set aside the decision of the Administrative Appeals Tribunal and remit the matter to the Tribunal “for rehearing according to law”. I would not remit the matter “to be heard and decided again” in case these words were thought, wrongly, to require a full rehearing. Any further hearing should take place primarily on the existing evidence and may be quite short (s 44(5)).
37. As I understand it, it is agreed that the appellant will pay the respondent’s costs of the appeal. Because the cross-appellant has partly succeeded in the cross-appeal and because the costs of the cross-appeal will add little to the costs of the appeal, the respondent/cross-appellant should have her costs of the cross-appeal as well. Orders should be made accordingly. However, there should be a grant of liberty to apply on the costs order in case I have misunderstood the agreement between the parties.

REPAIRING THE DEFECT

38. This case draws attention to a glaring defect in the Comcare Guide. It should have been corrected as soon as it was identified. The problem was identified a considerable time ago. Its correction should now be a matter of the most urgent attention. Subordinate legislation in excess of power should not be allowed to stand. To the extent to which there may be other problems, anomalies or uncertainties within the Comcare Guide, these will only serve to make the requirement to remedy the situation even more urgent.
    

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated: 18 March 2011

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMCARE Appellant/Cross-Respondent
AND:	KAREN BROADHURST Respondent/Cross-Appellant

JUDGES:	DOWNES, TRACEY, FLICK JJ
DATE:	18 MARCH 2011
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

TRACEY AND FLICK JJ:

39. On 12 April 2005, Ms Broadhurst suffered an injury.
40. She made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Safety, Rehabilitation and Compensation Act”). That claim was denied in part and she then lodged an appeal with the Administrative Appeals Tribunal. The Tribunal affirmed the decision denying compensation: Re Broadhurst and Comcare [2010] AATA 251.
41. An appeal from the decision of the Tribunal was allowed and the matter remitted to the Tribunal for further consideration: Broadhurst v Comcare [2010] FCA 1034.
42. Now before this Full Court is an appeal from that decision. Also before the Court is a Notice of Cross Appeal as filed on behalf of Ms Broadhurst. Those two Notices raise a myriad of issues sought to be resolved on appeal. To a very great extent those issues travel well beyond any “question of law” that could have been raised pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“Administrative Appeals Tribunal Act”). The issues now also seek to travel beyond the arguments raised before the primary Judge.
43. During the course of oral submissions, however, the issues to be resolved were reduced to a consideration as to the validity and application to the facts of Principle 12 of a Guide entitled “Guide to the Assessment of the Degree of Permanent Impairment” (“Comcare Guide”).

THE CLAIM FOR COMPENSATION

44. Section 14 of the Safety, Rehabilitation and Compensation Act provides that, subject to Part II of the Act, “Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in ... impairment”.
45. Relevantly, s 24(7) further provides that compensation is not payable if Comcare determines that “the degree of permanent impairment is less than 10%”.
46. The Tribunal determined that Ms Broadhurst’s impairment was permanent but that the degree of her impairment was less than 10%. Accordingly, the Tribunal affirmed the decision denying the payment of compensation.
47. In determining the extent of impairment, reliance was placed upon the Comcare Guide.
48. Two Tables within the Comcare Guide assumed potential importance – Tables 9.7 and 9.17. But the Tribunal concluded that Table 9.7 did not apply because there was no “objectively identified orthopaedic or neurological condition”. And Table 9.17 only provided for a degree of impairment of either 8% or 13%.
49. If Table 9.7 applied, the primary Judge expressed the view that “it was probable that it would yield a more favourable result than an assessment under Table 9.17”: [2010] FCA 1034 at [24]. But that Table, said the primary Judge, did not apply. “The application of Table 9.7 was expressly excluded”: [2010] FCA 1034 at [46]. And Table 9.17 appeared to the primary Judge “to frustrate the operation of the statutory scheme which guarantees Ms Broadhurst compensation unless Comcare (as decision maker) determines that the degree of permanent impairment is less than 10%. Comcare has not done that, and nor did the AAT”: [2010] FCA 1034 at [55].
50. The primary Judge further concluded that there was a “tension ... between the provisions of the Comcare Guide and the basic requirement that compensation for a permanent impairment is only denied where the degree of permanent impairment is assessed by the decision maker as less than 10%”: [2010] FCA 1034 at [57]. That “tension” was resolved by reference to “Principle 12” of the “Principles of Assessment” as set forth in the Comcare Guide. That Principle identified the circumstances in which impairment was to be assessed “under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment” (“American Guide”).
51. The primary Judge referred to the text of the fifth edition of the American Guide and observed that if Comcare was to apply the relevant parts of that edition “it would inevitably determine that Ms Broadhurst did not fall within the 10-13% range”: [2010] FCA 1034 at [61]. Reference was then made to the text of the sixth edition. In doing so, His Honour observed:

[62] However, it is not the fifth edition of the American Guide which must (or may) be used to make this assessment. The Comcare Guide requires the current edition to be used. The position under the sixth edition of the American Guide is less straightforward ...

His Honour’s own examination of the sixth edition “suggest[ed] that probably the relevant table to be used to assess Ms Broadhurst’s circumstances ... is Table 17.4”: [2010] FCA 1034 at [63]. But that was not a matter in respect to which he had heard argument. He thus concluded that it was appropriate to remit the matter to the Tribunal for the Tribunal to give consideration to the application of the then current edition of the American Guide.

52. A question central to the resolution of the appeal was whether reference could be made to that edition of the American Guide which was “current at the time of assessment”.

THE SAFETY, REHABILITATION AND COMPENSATION ACT

53. The provision of the Safety, Rehabilitation and Compensation Act which assumes primary importance in the resolution of the claim for compensation is s 24.
54. That section provides in relevant part as follows:

Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.

(3) ...
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:

(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.
(7A) ...
(8) ...
(9) ...

Section 24(5), it will be noted, provides that the degree of permanent impairment is to be determined “under the provisions of the approved Guide”.

55. Part 1 of the Comcare Guide sets forth the “Principles of Assessment” and Principle 12 sets forth exceptions to the use of that Part. That Principle in its entirety provides as follows:

12. Exceptions to use of Part 1 of this Guide
In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment.

An assessment is not to be made using the American Medical Association’s Guides to the Evaluation of Permanent Impairment for:

• mental and behavioural impairments (psychiatric conditions);
• impairments of the visual system;
• hearing impairment; or
• chronic pain conditions, except in the case of migraine or tension headaches. (For complex regional pain syndromes affecting the upper extremities, see Part 1, Chapter 9 - 9.13.3 Complex Regional Pain Syndrome, see page 105).
  

Any reference in this Guide to the American Medical Association’s Guides to the Evaluation of Permanent Impairment is a reference to the edition current at the time of assessment, unless there is reference to a specific edition.

56. The Comcare Guide was prepared pursuant to the authority conferred by s 28 of the Safety, Rehabilitation and Compensation Act. That section provides in relevant part as follows:

Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4) ...
(5) ...
(6) ...
(8) ...

That section, it will be noted, confers power to vary or revoke the Guide and further provides for the Guide itself and any variation or revocation to be approved by the Minister: s 28(3) and (3A).

THE LEGISLATIVE INSTRUMENTS ACT — WHICH EDITION?

57. The Comcare Guide is a “legislative instrument” for the purposes of the Legislative Instruments Act 2003 (Cth) (“Legislative Instruments Act”). Part 3 of that Act requires there to be consultation before a legislative instrument is made. Part 5 provides for Parliamentary scrutiny of legislative instruments, including requirements that a legislative instrument be tabled in each House of Parliament (s 38) and for disallowance by either House (s 42).
58. It was accepted that, chronologically:
    • the fifth edition of the American Guide was published on 15 December 2000;
    • the Comcare Guide itself took effect on 1 March 2006; and
    • the sixth edition of the American Guide was published on 15 December 2007.
59. The terms of Principle 12, clearly enough, evince the draftsman’s intention that the assessment be made using the edition of the American Guide “current at the time of assessment”. And that was the form of the Comcare Guide which had been approved by the Minister and the form of the Comcare Guide as tabled before each House of Parliament. The terms of Principle 12 deny any ambit for any argument that the draftsman intended only the American Guide in force as at March 2006 was to be henceforth applied.
60. But Comcare contended that s 14 of the Legislative Instruments Act, and in particular s 14(2), precluded effect being given to that intention. Section 14 provides as follows:

Prescribing matters by reference to other instruments
(1) If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter:

(a) by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument, as in force at a particular time or as in force from time to time; or
(b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned legislative instrument takes effect.

(2) Unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

In the absence of any “contrary intention”, s 14(2) would preclude the draftsman of the Comcare Guide from “adopting or incorporating any matter contained in an instrument or other writing...”, such as the American Guide, “... existing from time to time”.

61. To avoid the Comcare Guide, or at least a part of it, being rendered invalid as being in excess of the power conferred by s 28 of the Safety, Rehabilitation and Compensation Act as constrained by s 14(2) of the Legislative Instruments Act, reliance was placed upon s 13 of the latter Act which provides as follows:

Construction of legislative instruments
(1) If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:

(a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and
(b) expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and
(c) any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule-maker.

(2) If any legislative instrument would, but for subsection (1), be construed as being in excess of the rule-maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.
(3) If enabling legislation confers on a rule-maker the power to make a legislative instrument:

(a) specifying, declaring or prescribing a matter or thing; or
(b) doing anything in relation to a matter or thing;
then, in exercising the power, the rule-maker may identify the matter or thing by referring to a class or classes of matters or things.

Section 13 of the Legislative Instruments Act applies to “legislative instruments” in a comparable manner to the way in which s 46 of the Acts Interpretation Act 1901 (Cth) applies to “an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court ...”. Like s 13(1)(c), s 46(1)(c) provides that “any instrument ... is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority”.

62. The extent to which s 46 of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) permits a “reading down” of an instrument was considered in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905, 99 ALD 268 at 278 to 279. Bennett J there observed:

Does s 46 of the Interpretation Act apply to the Competition Notice?

[55] Section 46 of the Interpretation Act is applied as a rule of construction to permit the reading down of instruments. It is not a rule of law ... The Commission has not referred to anything in the Act or in any extrinsic legislative materials to support the proposition that s 46 extends beyond such a limited application. Section 46 of the Interpretation Act concerns the construction of instruments. Both ss 46(1)(c) and 46(2) provide for a construction to be applied. To read and construe an instrument by the application of s 46(1)(c) is not to rewrite it or to ignore its content. Section 46 has no application to a decision made under an Act. It has no application to a denial of procedural fairness.

[56] Section 46 of the Interpretation Act, like s 15A, may apply where ‘particular clauses, provisos and qualifications, separately expressed’ are beyond power ... It does not apply to validate a provision which extends beyond power unless the operation of the remaining parts of the instrument remain unchanged. It does not apply where the instrument was intended to operate fully and completely according to its terms or not at all ...

[57] A distinction is also to be drawn between, on the one hand, questions of severance which involve an excess of power so that the ultra vires portion of an instrument can be severed and the intra vires portion preserved and, on the other hand, a lack of power to make the whole instrument by reason of a failure to comply with the consultation provision in a statute (Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186). As Pearlman CJ observed in Darling Casino at 207, if the power was improperly exercised, the instrument is invalid in its totality. It is no answer that part of it could have been validly made.

[58] Before embarking on the process of reading down, there must be some part of the impugned provision that is capable of being within power. While s 46(2) of the Interpretation Act may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power. As with s 15A, s 46 does not turn an Act or instrument which is invalid as being wholly outside legislative power into an Act which is, in part, within power ...

63. Provisions such as s 46 of the Acts Interpretation Act and ss 13 and 14 of the Legislative Instruments Act are perhaps “extraordinary provisions”: cf. Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40, 124 CLR 468 at 492 per Barwick CJ. And perhaps a different approach is warranted when consideration is being given to attempting to preserve the validity of legislation as opposed to attempting to preserve the validity of a legislative instrument, such as the present Comcare Guide. Whatever the difference, care must be taken to strike a balance between attempting to preserve so much of a legislative instrument as is within the ambit of the legislative power conferred but not to do so where there would be a deletion of truly “inseparable” material such that the deletion would cause the Comcare Guide to “operate differently”: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371[1948] HCA 7; , 2 ALR 89. Dixon J there observed:

The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. The general provision contained in s 15A of the Acts Interpretation Act 1901–1941 produces this effect, as does s 46(b), which similarly deals with severance in subordinate legislation.

But in applying s 15A and s 46(b) the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s 15A and it is important in using s 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.

Appl’d: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [191], [2008] FCA 1758; 176 FCR 153 at 200 per Rares J. For subsequent proceedings, see: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68, 176 FCR 203.

64. By recourse to ss 13(1)(c) and 13(2), in the present proceeding, it is contended on behalf of Comcare that the Comcare Guide is to be “construed ... so as not to exceed the power of the rule-maker” and is “taken to be a valid instrument to the extent to which it is not in excess of that power”. The contention was that as the draftsman of the Comcare Guide could have “adopted or incorporated” the edition of the American Guide current as at March 2006, namely the fifth edition, he is to be taken to have done so.
65. No “contrary intention” for the purposes of s 14(2), it is concluded, can be discerned from the terms of s 28 of the Safety, Rehabilitation and Compensation Act.
66. The power to “vary or revoke” the Comcare Guide from time to time is but one factor suggesting that s 28 does not evince any “contrary intention” – any future edition of the American Guide could readily be addressed by a variation of the Comcare Guide. A further factor suggesting that there is no “contrary intention” – but rather a commitment to certainty – is the requirement that any Comcare Guide prepared pursuant to s 28 “must be approved by the Minister”.
67. For the purposes of s 14(2), however, it may be accepted that a “contrary intention” need not be found in a single express provision but may be ascertained from the legislative context: cf. Re Ross; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2001] FCA 770 at [65], [2001] FCA 770; 108 FCR 399 at 418 per Gray, Lee and Stone JJ. But no “contrary intention” can be discerned in any other provision of the Safety, Rehabilitation and Compensation Act.
68. Section 14(2) thus operates upon the Comcare Guide according to its term – whatever may have been the intention of the draftsman of that Guide – to constrain the Comcare Guide from “adopting or incorporating any matter... [including the American Guide] as in force or existing from time to time”. Not only is this a constraint upon the presumed intention of the draftsman, it also operates as a constraint upon the Minister when approving the Comcare Guide. Neither the draftsman nor the Minister can seek to implement a legislative instrument in the form in which Principle 12 was expressed.
69. The incorporation of the fifth edition of the American Guide, rather than invalidity at least in part to the Comcare Guide, thus depends upon s 13 of the Legislative Instruments Act.
70. Notwithstanding the intention of the draftsman of the Comcare Guide, it is concluded that s 13(1)(c) is equally unambiguous in its effect – that provision expressly states how “the legislative instrument” is to be “read and construed”. Notwithstanding any assumption that may have been made on the part of the draftsman, s 14(2) constrains any mistaken assumption of power that may have been made by the draftsman and s 13(1)(c) thereafter operates so as to inform the manner in which the mistaken assumption of power is to be “read and construed”.
71. To employ the language of Bennett J in Telstra, there remains “some part of the impugned” Principle 12 “that is capable of being within power”. So “read down”, Principle 12 is to be read as though the following words have been deleted:

In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provision of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment.

So read, the Principle unquestionably has an effect different to that intended by the draftsman; but to so read the Principle is “not to rewrite it or ignore its contents”. It is simply to read it as subject to the constraint upon the power or authority of the draftsman and to confine him to the incorporation of a reference to the American Guide fixed in time.

72. One difference between reading down legislation such that it is within (for example) the constitutional competence of the Commonwealth legislature, as opposed to reading down a “legislative instrument”, is the very fact that the latter involves an exercise of confining both the draftsman of the Comcare Guide (and the Minister) to the authority conferred by the enabling legislation. It is respectfully considered that the Court should strive to uphold the validity of a “legislative instrument”, and to construe such a “legislative instrument”, as within power if at all possible.
73. So construed, it is thus concluded that Principle 12 of the Guide is to be read as incorporating a reference to the edition of the American Guide in force as at March 2006, namely the fifth edition.

PARAGRAPH 61

74. Senior Counsel on behalf of Ms Broadhurst was understandably concerned as to paragraph [61] of the primary Judge’s reasons for decision in the event that the conclusion reached was that Principle 12 incorporated the fifth edition of the American Guide.
75. Paragraph [61] of His Honour’s reasons stated as follows:

Table 15.3 of the fifth edition of the American Guide set out “Criteria for Rating Impairment Due to Lumbar Spine Injury”. The descriptors of matters which fall within the ranges there identified, of 5–8% impairment of the whole person and 10–13% impairment of the whole person correspond without relevant difference to the descriptors of such matters in Table 9.17 which are applied to the values of 8% and 13% respectively. Like Table 9.17, the descriptions in the fifth edition of the American Guide clearly encompassed impairment of the lower limbs. If the AAT was required to assess Ms Broadhurst’s circumstances, using the medical evidence which was before it, by reference to the fifth edition of the American Guide rather than the Comcare Guide then it would inevitably determine that Ms Broadhurst did not fall within the 10–13% range. In other words, it would determine necessarily that her degree of permanent impairment was less than 10%. In those circumstances it would be bound to affirm Comcare’s decision as it earlier did.

The concern of Senior Counsel was that the statement as to the manner in which the Tribunal would have to “inevitably determine” the matter would preclude the Tribunal from considering the facts for itself.

76. The concern of Senior Counsel was understandable but misplaced. His Honour was doing no more than expressing his own views as to the consequences of applying the fifth or the sixth edition of the American Guide. His Honour was certainly not attempting to make any finding of fact critical to his own decision-making process. Indeed, on His Honour’s approach, he considered the implications of the fifth edition to the facts but ultimately concluded that it was the sixth edition that was to be applied. His Honour was very conscious of the fact that he was making observations in respect to which the parties had had no opportunity to make submissions. Indeed, in respect to even his ultimate conclusion as to the application of the sixth edition, His Honour expressly said:

[64] However, that is not a matter about which I have heard argument and I may be wrong ...

77. The statement in paragraph [61] of the primary Judge’s reasons for decision is not to be construed as expressing any finding of fact that binds any future consideration by the Tribunal of the Appellant’s claim for compensation.

CHRONIC PAIN?

78. A further matter pursued on appeal was the correct interpretation and application of the reference to “chronic pain” set forth in Principle 12.
79. Any question, however, as to whether or not the evidence that was before the Tribunal could fall within the phrase “chronic pain” is not considered to be a question which could be (or should be) resolved by this Court.
80. It may be accepted that this Court on appeal has a limited statutory power to itself make findings of fact (Administrative Appeals Tribunal Act, s 44(7)), and that that provision “facilitate[s] dealing with issues that are properly before the Court” (Condell v Federal Commissioner of Taxation [2007] FCAFC 44 at [14], [2007] ATC 4,404 at 4,409 per Gyles J). But it is a power which must be exercised by reference to the responsibility entrusted by the Legislature to the Tribunal as the forum in which facts are to be resolved and the limited ambit of an appeal to this Court on questions of law. It is only in limited circumstances that this Court should itself make findings of fact not made by the Tribunal. In, for example, Byrne v Repatriation Commission [2007] FCAFC 126 at [4], [2007] FCAFC 126; 97 ALD 359 at 360, Gyles J did not consider that the Court “can, or should, make factual findings pursuant to s 44(7) in this appeal based upon snippets of evidence which were not directed to the issue in question”.
81. A submission advanced on behalf of Ms Broadhurst, namely that it was “implicit in the findings which [the Tribunal] did make that it considered that Ms Broadhurst suffered from a chronic pain condition”, is thus not resolved. Any finding of fact to be made is to be made by the Tribunal and not this Court. Nor would it have otherwise been appropriate to entertain the submission where a finding as to “chronic pain” was not a finding sought to be made by the Tribunal.
82. But a question which could potentially be pursued on appeal was the correct construction of the reference in Principle 12 to “chronic pain”.
83. That part of Principle 12 of present relevance is the following constraint upon the ability to make reference to the American Guide:

An assessment is not to be made using the American Medical Association’s Guides to the Evaluation of Permanent Impairment for:

• ...
• ...
• ...; or

• chronic pain conditions, except in the case of migraine or tension headaches. (For complex regional pain syndromes affecting the upper extremities, see Part 1, Chapter 9 – 9.13.3 Complex Regional Pain Syndrome, see page 105).
  

84. The argument as to construction of this exclusion seizes upon the claim as made for compensation and the ambit of Chapter 18 to the American Guide.
85. The claim for compensation and the injury as found by the Tribunal was expressed in the Tribunal’s reasons for decision as follows:

[5] Ms Broadhurst has an accepted claim for compensation for a lumbar sprain evidenced by disc bulge and annular tear at the L4/5 level in her spine sustained on 12 April 2005 ...

This was properly characterised by Senior Counsel on behalf of Comcare as a specific injury to the spine. The Tribunal thereafter referred to the evidence and concluded as follows:

[61] ... The evidence establishes to the Tribunal’s satisfaction that it was the aggravation of her spinal conditions, principally due to the work-related incident on 12 April 2005, which caused Ms Broadhurst’s leg condition to become symptomatic.

Chapter 18 to the American Guide, it is then submitted, makes it clear that the fifth edition draws a dichotomy between pain that accompanies illnesses and injuries and pain that has become an autonomous process.

86. Whatever merit the argument advanced on behalf of Comcare may ultimately have, in the circumstances of the present case it is an argument which it is respectfully considered should first be resolved by the Tribunal. The application of the exclusion in Principle 12 in respect to “chronic pain” will depend upon how that phrase has been employed in the Comcare Guide and that meaning may well involve mixed questions of both fact and law. Even if the argument may ultimately be found not to depend upon any question of fact, it is an argument in respect to which this Court would be considerably assisted by the conclusions of the Tribunal.
87. It may further be noted that no question of law in respect to the Tribunal’s consideration as to “chronic pain” was raised in the Notice of Appeal from the decision of the Tribunal or in any Notice of Appeal from the decision of the primary Judge.

REMITTING THE MATTER TO THE TRIBUNAL

88. It follows that the decision of the Tribunal should be set aside, albeit for different reasons than those expressed by the primary Judge. There remains for consideration the form of orders to be made.
89. The powers of the Federal Court when entertaining an appeal from the Tribunal are set forth in s 44(4) and (5) of the Administrative Appeals Tribunal Act 1975 (Cth). Those sub-sections provide as follows:

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

And s 44(6) addresses the constitution of the Tribunal in those circumstances where a case is remitted to it. That sub-section provides as follows:

Constitution of Tribunal if Federal Court remits case etc.
(6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:

(a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and
(b) whether or not the Tribunal is reconstituted for the hearing – the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.

On occasions this Court has made orders that a matter be remitted to the Tribunal in a manner “differently constituted”. Indeed, it has been said that the “usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed”: Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40]. See also: Mines v Repatriation Commission [2004] FCA 1331 at [60], [2004] FCA 1331; 86 ALD 62 at 77; NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [39], [2008] FCA 149; 100 ALD 118 at 129. Cf. SZJFI v Minister for Immigration and Multicultural Affairs [2006] FMCA 1860, 206 FLR 205.

90. There may be circumstances in which it is appropriate for the Tribunal to be differently constituted if justice is to be seen to be done: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42. When considering whether a matter should be remitted to the Australian Broadcasting Tribunal differently constituted, Davies and Foster JJ there concluded:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member’s views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, “ ... subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted”: (1990) 26 FCR at 42-43.

It may thus be appropriate for the Tribunal to be differently constituted where, for example, the decision of the Tribunal has been set aside by reason of an apprehension of bias on the part of a Tribunal member or where findings of fact have been made by the Tribunal which may need to be revisited. The decision in that case prompted the observation that the Court was there elaborating a “general principle of ordinary practice”: M Batskos, “Natural Justice and the Constitution of Tribunal Membership” (1998) 16 AIAL Forum 22 at 30. A helpful list of factors drawn from the cases was there also set forth as to “factors ... relevant in determining whether the tribunal should be reconstituted”: (1998) 16 AIAL Forum at 31. See also: Bashar v Comcare Australia [2002] FCA 837 at [17] to [20][2002] FCA 837; , 69 ALD 784 per Madgwick J. A Tribunal member may also consider it appropriate to disqualify himself from further participation: eg, Re Toohey and Tax Agents’ Board [2009] AATA 142, 49 AAR 427.

91. On other occasions, there may be circumstances where there is no reason why the Tribunal whose decision is under appeal should be constituted in any different manner when an appeal is allowed and the matter remitted to it for further consideration. Indeed, in some circumstances it may well be convenient for the Tribunal to remain as previously constituted to avoid unnecessary time and expense being incurred. In Jordan v Australian Postal Corporation [2007] FCA 2028 at [49], [2007] FCA 2028; 99 ALD 303 at 314, Buchanan J declined to make a direction that the Tribunal be reconstituted and said that he saw “no reason to intrude upon the discretion of the President of the AAT”.
92. On yet other occasions, the Tribunal as originally constituted may not be able to hear a matter remitted to it by reason of (for example) the expiration of the appointment of a Tribunal member: eg, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 at [68], [2009] FCAFC 137; 179 FCR 554 at 567. It was there said that “[i]t should be left to the Tribunal to determine how it should be reconstituted and it should be left to the Tribunal to determine how it should proceed”.
93. In the absence of an express order, s 20B of the Administrative Appeals Tribunal Act provides that it is the President of the Tribunal who “may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding”.
94. In many cases it may well be the appropriate course to simply allow an appeal and remit the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate pursuant to s 20B. The power, however, of this Court to make orders or give directions as to the future constitution of the Tribunal when an appeal has been allowed has not been questioned: cf. Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, 215 CLR 518. The manner in which that power should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power, it is respectfully considered, should not be more confined than that. The exercise of the power should not be approached with any inclination that it should “usually” be exercised in one manner rather than another. Whether any specific direction or order should be made by this Court on appeal as to the constitution of the Tribunal, or whether the constitution of the Tribunal should be left for determination by the President, should not be constrained by any pre-determined formulae or by any attempt to characterise those factors where one order rather than another may be more appropriate.
95. The present proceeding is one in which it is manifestly appropriate to simply make an order remitting the matter to the Tribunal and to leave it to the President to give such directions as he considers appropriate. To the extent that it may assist the President, it may be observed that there is no apparent reason that would warrant the Tribunal being differently constituted; indeed, there seems to be every reason why the Tribunal should remain as it was originally constituted.

CONCLUSIONS

96. It was common ground between the parties that the assessment of Ms Broadhurst’s impairment was to be assessed by reference to Principle 12 of the Comcare Guide and not by reference to either Table 9.7 or Table 9.17.
97. In respect to Principle 12 of the Comcare Guide, for the reasons given, agreement cannot be expressed with the reasoning of the primary Judge. The edition of the American Guide that is to be applied is the fifth, and not the sixth, edition. That was an issue raised in both the Notice of Appeal and the Notice of Cross Appeal.
98. Notwithstanding the terms in which the Notice of Appeal from the decision of the Tribunal was expressed, s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) confers power upon the Court “in the exercise of its appellate jurisdiction ... [to] give such judgment, or make such order, as, in all the circumstances, it thinks fit ...”. That power “extends to substituting for the order of the primary judge the order that in our opinion should have been made by him in the exercise of the power conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)”: Bargwanna v Commissioner of Taxation (No 3) [2011] FCAFC 18 at [12] per Dowsett, Kenny and Middleton JJ.
99. The learned primary Judge ordered that the decision of the Tribunal should be set aside. There should be no variation of that order, even though it is concluded that that order should have been made for reasons different to those expressed by His Honour. An appeal to this Court is nevertheless an appeal from a “judgment” and not an appeal from the “reasons” for judgment. It follows that the appeal from the decision of the primary Judge is to be dismissed. A cross-appeal is equally an appeal from “a part of the judgment”: Order 52 r 22 Federal Court Rules 1979 (Cth). It too should be dismissed. The basis upon which the submissions on appeal proceeded should, perhaps, have been most properly raised by a notice of contention which sought an order that the “judgment should be affirmed on grounds other than those relied on by the court below ...”: Order 52 r 22(3).
100. But whatever route the issues now resolved should have followed perhaps matters little. The order of the primary Judge setting aside the decision of the Tribunal is not to be varied. An order remitting the matter to be determined in accordance with law is an order requiring the Tribunal to determine the matter in accordance with the reasons of the Court. Such an order would be within the power conferred by s 28(1)(b) – even though the appeal and cross-appeal are to be dismissed.
101. It is considered that the Orders of the Court should be:
     1. The appeal be dismissed.
     2. The appellant is to pay the respondent’s costs of the appeal.
     3. The cross-appeal be dismissed.
     4. The cross-respondent is to pay the costs of the cross-appellant.
     5. The case be remitted to the Tribunal to be heard and decided again consistently with these reasons.
     6. Liberty is reserved to the parties to apply within 7 days to vary these orders.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey and Flick JJ.

Associate:

Dated: 18 March 2011