Lowth and Comcare [1999] AATA 645 (1 September 1999)

Last Updated: 2 September 1999

CATCHWORDS - COMPENSATION - preliminary questions of law -representations made in Defence Instruction (General) PERS 14-2 regarding compensation - approval to participate in civilian motor cycling competition - whether respondent had any discretion to make the decision it made - whether respondent estopped from denying liability - decision that respondent had discretion and not estopped.

Defence Act 1903 - Ss 8, 9A

Defence Discipline Act 1982 - Ss 3, 29

Safety, Rehabilitation and Compensation Act 1988 - Ss 4, 14(1), 14(2), 14(3), 62, 68, 69, 72, 73, Part VIIIB, 108A

Formosa v Secretary, Department of Social Security (1988) 81 ALR 687; (1988) 15 ALD 657; (1988) 9 AAR 260; (1998) 46 FCR 117

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 92 ALR 93; (1990) 21 FCR 193

Mr B v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 120

The Commonwealth v Verwayen (1990) 170 CLR 394; (1990) 64 ALJR 540; (1990) 95 ALR 321; [1990] ANZ ConvR 600; (1990) Aust Torts R 81-036

Waltons Stores (Interstate) Ltd v Maher (1988) 76 ALR 513; (1988) 62 ALJR 110; (1998) 164 CLR 387

Wang v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 104

DECISION AND REASONS FOR DECISION [1999] AATA 645

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q 1998/893

GENERAL ADMINISTRATIVE DIVISION ) )

Re BRUCE E LOWTH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 1 September, 1999

Place Brisbane

Decision The Tribunal decides that: 1. the respondent's discretion to consider the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 was not fettered by any decision made by officers of the Defence Force under the Defence Act 1901 or under the Defence Instruction (General) PERS 14-2 made under the Defence Act 1901; and 2. the doctrine of estoppel does not apply to fetter the respondent's duty to consider the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 and, in particular, does not fetter its duty to consider whether or not the applicant's injury arose out of, or in the course of, his employment.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 11 September, 1998, the applicant, Mr Bruce Lowth, applied for review of a reviewable decision of the respondent, Comcare, dated 6 August, 1998. Comcare had affirmed its earlier determination dated 10 July, 1998. That earlier decision ceased liability for Mr Lowth's left shoulder condition on the basis that his injury did not arise out of, or in the course of, his Commonwealth employment. Mr Lowth, a member of the Royal Australian Air Force ("RAAF"), had incurred the injury while participating in a civilian motorcycle competition.

2. At the hearing, Mr Lowth was represented by Mr Pope of counsel and Comcare by Mr Watson of counsel. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Also admitted were the Australian Defence Force Policy on Sport ("ADF Policy on Sport") and three pamphlets produced by the Military Compensation and Rehabilitation Section of the Department of Defence ("MCRS") in 1994, 1996 and 1997. Mr Lowth gave oral evidence in support of his case. No oral evidence was given in support of Comcare's case.

THE ISSUES

3. Two issues were raised at the hearing for preliminary consideration. The first issue was whether Comcare had any discretion to make a decision other than that it was liable for compensation. The second was whether, because of statements made in certain brochures and policy statements, Comcare was estopped from denying that Mr Lowth's injury arose out of or in the course of his employment.

BACKGROUND

4. I find that Mr Lowth, who is thirty-six years of age, joined the RAAF on 14 December, 1978 as an apprentice. The RAAF is part of the Australian Defence Force ("ADF"). Mr Lowth qualified as an Engine Fitter (Aircraft Technician) which involved him in engine and airframe maintenance. He has since worked as an aircraft engineer and has now attained the rank of flight sergeant. On 24 February, 1997, Mr Lowth applied for approval to compete in a Post Classic Motorcycle Competition for motorcycles made before 1974. He would compete with the Brisbane Motorcycle Club for approximately twelve meetings each year and each meeting would be of approximately eight hours' duration. In signing his application, Mr Lowth stated, among other matters, that he would not receive remuneration for the activity.

5. Mr Lowth's section commander, Captain Borg, decided that this activity would benefit Mr Lowth. He signed a statement that he had advised Mr Lowth that:

"... A member authorised to participate in sport within the terms of DI(A) 195-2 is deemed to be on duty and may be covered under the normal provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988." (T documents, page 10)

The sports officer, Captain Hadzi-Music, recommended that approval be given and, on 25 February, 1997, the activity was approved by Mr Lowth's commanding officer, Wing Commander Crocombe. (T documents, pages 10 and 11).

6. At all relevant times, the Defence Instruction (General) PERS 14-2 ("DI(G)"), which may also be referred to as "Army Pers 195-2") set out the policy of the ADF regarding sport. Relevant passages read:

"INTRODUCTION

1. Physical fitness is an essential element in the operational efficiency of the ADF. Properly planned and executed, it is a necessary factor in maintaining the physical and mental well-being of each member. Sport encompasses physical activity and is therefore an integral part of Service training.

2. A member authorised to participate in sport within the terms of the DI(G) is deemed to be on duty and will be covered under the normal provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988.

3. The DI(G) covers:

a. Programmed Sport. Sport conducted during periods detailed in Unit/Base/Ship training programs.

b. Local Sport. Sport conducted in the local region in which the member is employed.

c. Interservice Sport. Sport conducted at local, regional, State or national level between teams or individuals from at least two of the Services.

d. Combined Service Sport. Sport conducted at State, national or international level and involving a team selected from two or more of the Services.

AIM

4. The aim of this Instruction is to state ADF policy on sport.

DEFINITION

5. For the purposes of this instruction, the following definition applies:

'Sport is a physical activity of a competitive nature designed to stimulate physical and mental well-being by providing physical fitness and either team spirit or personal challenge.'

...

CONDUCT OF SPORT

Participation

16. Members who have the ability to represent the Defence Force in sporting competitions are to be released to train and participate provided such release does not prejudice Service requirements. ...

...

Authorisation Requirements

19. Each service is responsible for determining the sports in which its members will participate. Commanding Officers may authorise members to participate in single Service activities which are not accredited by the ISSC [Interservice Sports Committee] for that area.

...

23. Attention is drawn to the need for written authorisation to participate in civilian sporting competitions and activities outside normal working hours. Members should also refer to DI(G) PERS 27 - 1 - Compensation for Commonwealth Employees and Members of the Defence Force in Respect of Personal Injury or Disease.

...

Conditions of Service

27. The following conditions apply to members training and competing in approved Service sports activities or as a member of a Service team in civilian competitions:

a. Members will continue to receive Service pay and allowances.

b. The only supplementary allowance payable is based on the incidental element of Travelling Allowance (TA) and is subject to separate consideration, including the availability of funds, with each instance being considered on its individual merits.

c. The provisions of the Commonwealth Employees Rehabilitation and Compensation Act 1988 will apply where the activity satisfies the requirements of the Act.

Participation in Civilian Competitions

28. A member may seek approval to participate in civilian competitions on the basis that it is in the Service interest. Commanding Officers should only provide such approval when the Service competition is of a level patently unsuitable to the demonstrated ability of the member, or where the sport is not catered for locally as a Service sporting activity. Such approval will normally be confined to activities endorsed by the appropriate ISSC, the parent Service or the ADFSC [Australian Defence Force Sports Council].

29. A member participating in civilian sport without Service endorsement, should ensure that the club carries appropriate public liability insurance as well as insurance for personal injury or he should seek such insurance cover. The Commonwealth may not accept liability for any damage, personal or public, and Service personnel should be aware that they may be held personally liable.

30. A member selected to represent Australia, a State or Territory in civilian competition, may be authorised to be on duty by his/her CO to train and compete.

Prizes

31. Personnel may not accept any remuneration or prizes other than trophies for any sporting activity for which they are deemed to be on duty and receive assistance by means of public funding for such participation. Where special circumstances arise the matter may be referred to the ADFSC for consideration, but the principle to be applied is that no monetary profit shall accrue to the member. This also applies to civilians (Defence or otherwise) participating in joint Service/civilian activities. Such combined teams should only be formed when there is direct benefit to the ADF.

..." (Exhibit A)

7. Mr Pope referred to three brochures published by MCRS in 1994, 1996 and 1997. Each was entitled "When you are covered by workers' compensation". The 1994 and 1996 brochures contained the following passage:

"Physical fitness / sporting activities

The Defence Force policy on participation in sport is contained in DI(G)PERS 14-2. A member authorised in writing to participate in sport within the terms of the DI(G) is deemed to be on duty and will be covered for compensation.

Written authorisation to participate in civilian sporting competitions and activities outside normal working hours is required. A member participating in civilian sport without Service approval, should ensure that the club/organisation carries appropriate public liability insurance as well as insurance for personal injury or should seek insurance cover." (Exhibit B)

8. The front page of the brochures produced in 1994 and 1996 also bear the following:

"This brochure has been produced to give you a guide as to when you are covered for workers' compensation while on duty when on warlike (operational), non-warlike (peacekeeping and hazardous) and peacetime service.

The details set out inside this brochure are not comprehensive. For detailed information regarding benefits contact your local Defence Centre Military Compensation and Rehabilitation Section." (Exhibit B)

9. The 1997 brochure carries passages which are worded slightly differently but which are to the same effect. Each of the brochures advises the reader that the Department of Defence administers the Act through the MCRS on behalf of Service Offices. If the reader had any questions, he or she was referred to nearest MCRS office.

10. On 4 May, 1997, Mr Lowth injured his shoulder while competing in a Post Classic Motorcycle Competition. He completed a claim for compensation on 28 May, 1997 and, on 30 July, 1997 (T documents, pages 23-24), Comcare accepted liability with respect to "a complete disruption of the acromioclavicular joint of the left shoulder" (T documents, page 35). Having admitted liability, Comcare asked Mr Lowth to identify the benefits for which he thought he might qualify and to advise it of those benefits. Mr Lowth indicated that he wished to claim a lump sum for permanent impairment and his medical costs (T documents, page 36).

11. On 4 February, 1998, Comcare wrote to Mr Lowth and advised him that his claim was under review. He was asked a number of questions relating to whether he would have participated in the sport had his activities not been approved by his Commanding Officer, whether he had participated to maintain his level of fitness and why he believed it was in the Service interest to participate in the sport of motorcycle racing (T documents, pages 48-49). Mr Lowth replied, in part:

"1. I would not have participated in the motorcycling if I did not have an approved participation for civilian sport application. I understand that under the guidelines of DI(A)195-2 I may not have been covered in the event of injury/accident without approval. I highlight that at the same time I was approved to play soccer for St Albums and the Toowoomba Raiders, had I not had approval I would not have played. I do recognise that if I had wished to participate without ADF approval I would have sought insurance. Accordingly, I had ADF approval for participation in civilian sport and did not seek commercial insurance.

2. I participated in both soccer and motor cycling to attain and maintain the high level of fitness required by the ADF. At the time of the accident I was walk/running 5.5 kilometres 3 times per week, playing 'on base' touch football once a week, training soccer 2 nights per week and playing on weekends as required. I also attended the Army LM Sqn scheduled physical training sessions for 2 hours per week. Motorcycling requires a high level of fitness, a letter from Mr S. Gall briefly provides his qualifications and the level of fitness necessary when motorcycle racing.

3. Participating in motorcycling has the following advantages and is in the interest of the RAAF,

a. I maintain the high level of fitness required by the ADF and the scheduled training I undergo is predetermined and ensures sound exercise habits.

b. Almost all civilians of the clubs I race at and are (sic) a member of are aware I'm a member of the RAAF. I wear a DEFCREDIT shirt when racing. I also work at designated meetings providing service to clubs and the community. This allows me to assimilate into the local community and also enhances how the community regard the RAAF.

c. I also maintain and service my own equipment which enhances my technical knowledge.

4. I also provide that both the RAAF and the Army have an approved motorcycle racing team. 'TEAM Army' and 'TEAM RAAF' both participate at events around Australia, this surely must indicate that members of the ADF have the support to participate in motorcycling events.

5. I firmly believe that members that have an 'approved participation in civilian sport' are covered in the event of injury and accident. This appears quite evident under the guidelines of DI(A) 195-2. I enclose letters from my immediate superior officer who approved my application, a letter from Mr S Gall and my approved application dated FEB97." (T documents, pages 53-54)

12. Attached to Mr Lowth's letter was a minute from Captain Borg stating:

"1. I understand the requirements and guidelines of DI(A)195-2. As per Reference A, I signed SGT now FSGT Lowth's application on 24FEB97 in the position of his Section Commander, aware that he is both committed and determined to maintain the level of fitness required by the ADF. He has scheduled, sensible exercise habits and sets goals. Under the guidelines of DI(A) 195-2 he was covered for compensation in the event of injury or accident whilst participating in motorcycle racing." (T documents, page 52)

13. On 10 July, 1998, a delegate of Comcare decided to cease its liability to pay compensation to Mr Lowth for complete disruption of the acriomioclavicular joint of his left shoulder. The essence of the delegate's reasons was set out in the following passage of his letter written to Mr Lowth:

"What I have to decide is whether it is reasonable in all the circumstances for the Commonwealth to take responsibility for compensation coverage for a member who is participating in an external activity essentially in a private capacity, such activity having little relevance to any aspect of Service life and having little or no benefit to the member or to the ADF in the terms of the DI (G). I regret that I cannot conclude that this is reasonable as I see no nexus between your activities on the day you were injured and your Commonwealth employment therefore your injury cannot be seen to have arisen out of, or in the course of, your employment. Sect 4 of the Act refers." (T documents, page 67)

14. The delegate considered the approval which Mr Lowth had been given to pursue his sport. He said:

"Of course it is arguable but I would suggest that the sport of motorcycling racing does not in itself on the face of it satisfy the intent of the DI(G) [Defence Instruction(General)] in that it is an activity which does not require nor lead to the degree of fitness intended, the team/social connotations are not evident and there is little relationship with any aspect of Service activity, although I acknowledge that motorcycles are used within the ADF. Whilst the DI(G) does give some discretion to the delegate considering approval of requests to participate in civilian competitions it is moot whether an application to participate in motorcycling racing could be construed as being in the Service interest as specified in para 28 [of the DI(G)].

Whether approval to participate in motorcycling racing should have or should not have been approved is to a large extent irrelevant. Similarly, despite the fact that the DI(G) states that those participating with approval are covered under the provisions of the SRC Act, this in itself does not mean that coverage automatically applies. Responsibility for acceptance of liability lies with a delegate appointed under the Act. In the event, liability was accepted by the delegate, not so much due to the merits or reasonableness of the case, but because it was thought that the DI(G) gave automatic coverage.

It would appear that a primary reason for obtaining approval from delegates to participate in civilian sport is to acquire compensation coverage. You have stated that you would not have participated in this activity but for approval being granted by your CO to participate. I have difficulty in accepting this as on the evidence to hand I believe that having a well-established interest in motorcycling racing it is likely that you would have participated in the activity or similar activities in any case." (T documents, page 66)

15. The delegate's decision was reviewed and, on 6 August, 1998, it was affirmed. The reviewing delegate's reasons focused on whether or not Mr Lowth's injury arose out of or in the course of his Commonwealth employment.

LEGISLATIVE FRAMEWORK

16. Sub-section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("Act") provides that:

"Subject to this Part, 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 death, incapacity for work, or impairment."

17. Exceptions are specified in sub-sections 14(2) and (3):

"(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

18. The word "injury" is defined in sub-section 4(1) to mean:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

19. Comcare, upon whom section 14 imposes liability, is established by section 68 of the Act. Its functions, which are set out in section 69, include its functions:

(a) to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act; [and]

...

(e) to publish material relating to any of the functions referred to in paragraphs (a) ... relating to the rehabilitation of employees under this Act; ..."

20. In performing its functions, Comcare:

(a) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b) is not required to conduct a hearing; and

(c) is not bound by the rules of evidence.

21. Section 62 permits Comcare to reconsider its determinations. It provides that:

(1) A determining authority [i.e. the person who made the decision - sub-section 60(1)] may, on its own motion:

(a) reconsider a determination made by it; or

(b) cause a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

...

(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit."

22. Comcare may delegate all or any of its functions or powers to an officer of, or employed by, the Commonwealth or a Commonwealth authority (section 73B). Certain corporations may seek to have the Act apply to their corporations. The Minister may declare such corporations to be eligible corporations for the purposes of Part VIIIB of the Act. If he or she does so, the corporations may apply to the Safety, Rehabilitation and Compensation Commission for a licence under that Part. If a licence is granted to a corporation, the Act applies (subject to any conditions in that licence) to the corporation's employees as if they were employees of the Commonwealth. (section 108A).

23. DI(G) is a Defence Instruction (General). It is issued pursuant to section 9A of the Defence Act 1903 ("Defence Act") and is "issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly". Section 8 of the Defence Act provides that Defence Instructions (General) "shall be exercised subject to and in accordance with any directions of the Minister".

24. A Defence Instruction is a general order within the meaning of the Defence Force Discipline Act 1982 ("Defence Discipline Act"). Section 3 of that Act provides that a "general order" means:

"(a) a Defence Instruction (General), a Defence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (Air Force);

(b) any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or

(c) a general, standing, routine or daily order in force with respect to a part of the Defence Force; ..."

25. Section 29 of the Defence Discipline Act provides:

(1) A person, being a defence member or a defence civilian, who does not comply with a lawful general order that is applicable to the person is guilty of an offence for which the maximum punishment is imprisonment for 12 months.

(2) It is a defence if a person charged with an offence under this section neither knew, nor could reasonably be expected to have known, of the general order."

CONSIDERATION

The exercise of discretion

26. The essence of Mr Pope's submission on the first issue was that Comcare had no discretion to make its decision that Mr Lowth was not entitled to compensation because his injury did not arise out of, or in the course of, his employment. It had no discretion because its discretion had already been removed by the operation of DI(G) which, he submitted, was subordinate Commonwealth legislation made under section 9A of the Defence Act 1903. Mr Lowth had already sought and been given approval to participate in the civilian activity of motorcycling. That approval had been given properly in accordance with paragraph 2 of the DI(G). Therefore, Mr Lowth was deemed to have been on duty at the relevant time by the ADF. As Mr Lowth had complied with DI(G), he had complied with subordinate Commonwealth legislation and so must be deemed to have been on duty when he was injured. Had Mr Lowth acted in a manner unbecoming of a member of the ADF at a motorcycle competition for which he had been given permission to attend, Mr Pope submitted, he could have been convicted of an offence under section 29 of the Defence Discipline Act.

27. In response, Mr Watson submitted that it is the provisions of the Act, and not of the Defence Act and Defence Discipline Act, which determine liability. That seems to me to be the correct position. Under the provisions of the Act, the discretion to determine whether or not Comcare is liable to pay compensation is vested in the agency itself, in those to whom it delegates its functions and powers or in those whom it licences. Included among its functions is the function to make determinations accurately and quickly in relation to claims and requests made to it (paragraph 69(a)). While Comcare also has the function of publishing material about its determinative function (paragraph 69(b)), it does not have any function to make determinations other than in relation to particular claims and requests. That is to say, it does not have a function of determining generally when certain activities will, or will not be, regarded as having arisen out of, or in the course of, a person's employment.

28. Comcare has delegated its functions and powers to certain officers of the Department of Defence and, in particular, to certain officers of the MCRS of that Department. It cannot delegate anything beyond the powers or functions which it already possesses. Therefore, Comcare could not delegate, and officers of the Department of Defence could not assume, power to determine Comcare's liability in any context other than that of the consideration of a particular claim or request made to it. In particular, it could not delegate any power to officers of the Department to determine in general terms the circumstances in which a member of the ADF will be covered by the Act. I also note that Comcare did not purport to delegate any of its powers to officers of the Defence Force as opposed to officers of the Department of Defence.

29. That is not to say that the DI(G) or the approval given to Mr Lowth are irrelevant. The approval and the processes by which the approval was obtained are relevant as two of the elements in the factual jigsaw which must be considered in order to determine whether or not Mr Lowth's activities at the time he was injured were in the course his employment and so whether his injury arose out of or in the course of his employment. So too will be a consideration of whether Mr Lowth undertook his motorcycling activities in accordance with the approval he had been given.

30. These are some of the issues which need to be considered in determining whether or not Comcare is liable to pay compensation. Others include a consideration of whether or not the injury was intentionally self-inflicted or caused by the serious and wilful misconduct of the employee within the meaning of sub-sections 14(2) and (3). All of the issues require a consideration of the evidence in the context of the Act and require Comcare's delegate to make a determination accordingly.

31. It follows that I have concluded that DI(G) and the approval given under it to Mr Lowth to pursue motorcycling activities do not limit Comcare's discretion in carrying out its functions and exercising its powers under the Act.

32. Before leaving this issue, I note that it is not open to Comcare, or to the Tribunal in reviewing its decision, to review decisions which are not within Comcare's power to make or the Tribunal to review. Comcare, for example, does not have the power to make decisions under the Defence Act or under instruments made pursuant to that legislation. Equally, in reviewing Comcare's decision, the Tribunal must not seek to review decisions which have been made under the Defence Act or under instruments under that Act and which it has no power to review. As I have indicated, the consequences of decisions made under the Defence Act may be relevant as part of the context of a consideration of decisions made under the Act in relation to a person's entitlement to compensation.

Estoppel

33. Mr Pope submitted that Comcare is estopped from admitting liability for compensation because the brochures distributed by MCRS expressly state that "[a] member authorised in writing to participate in sport within the terms of the DI(G) is deemed to be on duty and will be covered for compensation." (Exhibit B) He referred to sub-section 72(1) of the Act which provides that:

In performing the function referred to in paragraph 69(a), Comcare:

(a) shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities; ...

In Mr Pope's submission, a clearer application of section 72 would be harder to imagine. He concluded that there was a clear representation of an existing fact made by the decision maker and that combined with section 72 amounted to the position that it would be inequitable to deny liability.

34. Mr Watson submitted that a number of elements must be established before the doctrine of estoppel has any application. The first is that no other legal remedy is available. The second, there must be a specific representation which is capable of being understood as such and which is acted upon to his or her detriment by the person to whom the representation was made. The third is that a representation of law cannot override a statutory provision to the contrary.

35. There are a number of authorities that have considered the doctrine of estoppel. The conceptual foundations of the doctrine of estoppel was summarised by Deane J in The Commonwealth v Verwayen (1990) 170 CLR 394 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) at pages 443-446 (see also Waltons Stores (Interstate) Ltd. v Maher (1988) 76 ALR 513, Mason CJ, Brennan, Deane and Gaudron JJ).

36. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 (Neaves, Ryan and Gummow JJ), Gummow J considered estoppel in the context of administrative law. Relying on various authorities, including Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 (Davies, Burchett and Gummow JJ), his Honour concluded that, as a general principle:

"The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:

'Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.'" (page 109)

37. Gummow J proceeded to consider the foundations of the general proposition he had stated and the exceptions to it. He considered it in the context of statutory duties and discretions. Putting to one side situations in which there is an issue of ultra vires or illegality, the doctrine of estoppel is only relevant in the context of a public agency's making operational decisions as opposed to decisions which are subject to a statutory discretion. Without wishing to set out his Honour's analysis in detail, there is a consistent theme in it that executive action is subordinate to the terms of any legislation which may be applicable and that the doctrine of estoppel cannot be used to change that relationship.

38. In considering whether or not the representations of an officer of the Immigration Review Tribunal estopped the Minister for Immigration from contending that an applicant's application was out of time, Merkel J concluded in Wang v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 104 that:

"... the doctrine of estoppel cannot be relied upon by a court so as to relieve against non-compliance with a requirement that the statute intends be satisfied: see s478(2), Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 124-5; 15 ALD 657; 81 ALR 687 per Davies and Gummow JJ and Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7; 37 ALD 394 per Davies and Branson JJ and at FCR 111 per Whitlam J.

In any event estoppel cannot operate, directly or indirectly, to confer any jurisdiction or power on a court or public authority which it does not otherwise have: see Wade and Forsyth, Administrative Law, 7^th ed, 1994, pp 270 and 392." (page 109)

Merkel J applied similar principles in Mr B v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 120. Those principles led him to conclude that any erroneous advice of a departmental official which led Mr B to fail to comply with a necessary legislative requirement did not estop the Minister from relying upon that non-compliance.

39. In this case, I am not concerned with representations regarding procedural matters but with statements which have been made by officers of the Defence Force and which are said to represent to Mr Lowth that he is entitled in any event to compensation under the Act should he be injured in the course of his motorcycling activities. Even if those statements were representations of a kind that might raise the doctrine of estoppel in other circumstances (and I make no finding one way or the other), it is clear from the principles I have set out that the doctrine of estoppel cannot be applied to fetter Comcare's statutory duty to consider whether or not it is liable according to the provisions of the Act. In particular, the doctrine cannot apply to fetter Comcare's statutory duty to consider whether or not Mr Lowth suffered an injury within the meaning of the Act and whether it is liable to pay him compensation in accordance with the Act. Similarly, the statements cannot fetter the Tribunal's power to review Comcare's decision.

40. For the reasons I have given, I have concluded that:

1. the respondent's discretion to consider the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 was not fettered by any decision made by officers of the Defence Force under the Defence Act 1901 or under the Defence Instruction (General) PERS 14-2 made under the Defence Act 1901; and

2. the doctrine of estoppel does not apply to fetter the respondent's duty to consider the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 and, in particular, does not fetter its duty to consider whether or not the applicant's injury arose out of, or in the course of, his employment.

I certify that the forty preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed: ...........................................

Associate

Date of Hearing 16 April, 1999

Date of Decision 1 September, 1999

Counsel for the Applicant Mr M E Pope

Solicitor for Applicant Nehmer McKee & Partners

Counsel for the Respondent Mr G M Watson

Solicitor for the Respondent Sparke Helmore