Robertson and Comcare [2002] AATA 96 (15 February 2002)

Last Updated: 18 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 96

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/342

GENERAL ADMINISTRATIVE DIVISION )

Re DENIS ROBERTSON

Applicant

And COMCARE

Respondent

DIRECTION

Tribunal Mr. D.W. Muller, Senior Member

Date 15 February 2002

Place Brisbane

Decision The Tribunal directs that it has no jurisdiction to review a claim by the applicant for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988, following upon the election by the applicant to sue for damages for non-economic loss suffered as a result of the injury, the subject of his claim.

............(Signed)..................................

D.W. MULLER

SENIOR MEMBER

CATCHWORDS

COMPENSATION - jurisdiction - election to sue - irrevocable - wrong advice by solicitor - no estoppel - whether doctrine of "non est factum" applies

Safety, Rehabilitation and Compensation Act 1988: ss 24, 25, 27, 41 and 45

Verwayen and the Commonwealth of Australia (1990) 170 CLR 394

Formosa and another v Secretary, Department of Social Security [(1998) 9 AAR 260]

Roberts v Repatriation Commission [(1992) 39 FCR 420]

Petelin v Cullen (1975) 132 CLR 355

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

1. The parties to these proceedings seek a determination as to whether or not the Tribunal has jurisdiction to review the matter following an attempt by the Applicant to revoke an election to institute an action or proceedings against the Commonwealth for damages for non-economic loss.

2. The facts relevant to this Direction are as follows:

(i) On 26 November 1999, the Applicant, who was a Centrelink Service Officer, claimed that he hit his right elbow on a door at his workplace.

(ii) On 16 December 1999, the Applicant submitted a claim for compensation for "right elbow tendinitis". His claim form said that he had "pain left elbow f/arm and hand" and that his "right arm" was the part of the body that was affected.

(iii) On 24 January 2000 the Respondent advised the Applicant that his claim for compensation for right lateral epicondylitis had been accepted up to and including 21 February 2000. This resulted in Comcare meeting medical costs associated with the treatment of the Applicant's right arm.

(iv) A report from Dr. Roger on 23 March 2000, affirmed that:

(a) Dr. Roger had been Mr. Robertson's General Practitioner for many years.

(b) Mr. Robertson was treated on 29 November 1999 for a "sore right elbow" which he said was the result of striking his right elbow on the wall at work.

(c) Dr. Roger diagnosed the "classical" signs of "tennis elbow" - lateral epicondylitis.

(d) Mr. Robertson's capacity for employment was extremely limited.

(e) Mr. Robertson had been referred to an orthopaedic surgeon.

(f) There was a good chance of complete resolution to the problem.

(v) On 4 April 2000, Dr. Ashwell, orthopaedic surgeon, recommended ongoing physiotherapy and the bracing of the arm.

(vi) On 11 April 2000, a physiotherapist from Work Directions provided a report on the Applicant which included the following information (among other things):

(a) that the Applicant was "putting up barriers" to his returning to work;

(b) the Applicant claims that he would have accepted another job if he had been offered a redundancy by Comcare but he has lost that opportunity;

(c) the applicant is not motivated to return to work;

(d) the applicant claimed that he had a personality conflict with his current manager, Ms. Amarant.

(vii) On 14 April 2000, Dr. Roger, reported that the injury had "spread" to the right wrist and to the left elbow and that the Applicant now suffered bilateral epicondylitis of the elbows. Dr. Roger:

(a) opined that the spread to the left elbow was as a result of the Applicant favouring the right arm in his work;

(b) considered that the consequences of the trauma to the right elbow would have ceased within two years;

(c) identified that the Applicant was suffering depression.

(viii) On 1 May 2000, the Applicant submitted an application for lump sum compensation for permanent impairment, pursuant to s. 24 of the Safety, Rehabilitation and Compensation Act 1988.

(a) The claim was made in respect of the injury sustained on 26 November 1999;

(b) The claim sought compensation in relation to the sequelae of the trauma being both right and left lateral epicondylitis.

(ix) On 10 May 2000, Comcare wrote the following letter to the Applicant's solicitors, Short Flynn and Co.

"Safety, Rehabilitation and Compensation Act 1988

Re: Mr Denis Robertson

Your Ref: MF:SE:26901

Your client's claim for permanent impairment was received in Comcare on 8 May 2000.

The claim will be considered as soon as possible and I will keep you informed of the progress.

Under section 45 of the Act, your client may elect to sue the Commonwealth, a Commonwealth authority or another employee for damages at common law. If your client elects to sue, compensation will not be payable under section 24, 25 or 27 and the maximum amount of damages she can be awarded is $110,000. If your client wishes to sue a copy of the attached Election Form must be returned to Comcare no later than 21 days after the determination of their entitlement under section 24, 25 or 27 of the Act.

If you have any questions relating to this claim, please call this office on 1300 366 979 or write to Comcare quoting the claim number stated above."

(x) On 16 May 2000, Mark Flynn, of Short Flynn and Co., wrote the following letter to Comcare.

"RE: DENNIS ROBERTSON

Further to your letter dated 10 May 2000 received by us on 15 May 2000 we advise that contrary to what was stated in your letter the election form was not attached.

We look forward to receiving same."

(xi) On 24 May 2000, Comcare sent an election form to the applicant's solicitors.

(xii) On 30 May 2000, Mark Flynn wrote the following letter to Mr. Robertson.

"Dear Dennis

RE: WORKERS COMPENSATION CLAIM

Further to the writer's telephone discussions with you on 29 May last and by way of update we advise as follows:-

We now enclose Election Form which we request you sign and return to us.

Essentially by signing the form you are confirming your intention to pursue a claim for permanent impairment compensation and not institute common law proceedings against your employer. We believe that this is the appropriate course and have no hesitation in recommending that you sign the form.

If you have any query in relation to the matter, please do not hesitate to contact the writer."

(xiii) On 5 June 2000, Mr. Robertson signed the Election Form. The full text of the Election Form, contains the following:

ELECTION FORM

ELECTION UNDER SECTION 45 OF

THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988.

NOTE: This form should only be used if you are electing to sue the Commonwealth, a Commonwealth authority, a licensed corporation or another employee for damages for non-economic loss suffered as a result of an injury in respect of which compensation is payable under sections 24, 25 or 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). To make the election, you are asked to return the original of this form signed to the person or body that you are electing to sue and to send a copy to Comcare.

Do not complete this form if you wish to receive compensation under sections 24, 25 or 27 of the Act. If you have been advised by Comcare of an assessment of compensation payable under sections 24, 25 or 27 of the Act then Comcare will automatically proceed to pay that compensation unless we receive your election form within 21 days of the date of the letter advising of your assessment.

Full Name: DENIS ALLAN REX ROBERTSON

Address: 1/51 Julian Rocks Drive Byron Bay

Comcare Claim Number: 586359/02

I understand that:

(a) by electing to sue the Commonwealth, a Commonwealth authority, a licensed corporation or another employee for damages for non-economic loss suffered as a result of the injury in respect of which compensation is payable under section 24, 25 or 27 of the Act, compensation is not payable under section 24, 25 or 27 of the SRC Act;

(b) the maximum amount of damages that can be awarded is $110,000;

(c) the effect of being paid compensation under section 24, 25 or 27 of the Act is that I will not at a later date be able to sue the Commonwealth, a Commonwealth authority, a licensed corporation or another employee for damages for non-economic loss suffered as a result of the injury in respect of which compensation is payable under section 24, 25 or 27 of the Act;

(d) this election is irrevocable.

I, DENIS ROBERTSON

[print full name in block letters]

ELECT TO SUE for damages for non-economic loss suffered as a result of the injury in respect of which compensation is payable under section 24, 25 or 27 of the Act [strike out as inapplicable] the Commonwealth/a Commonwealth authority/a licensed corporation/another employee, being [only in the case of a Commonwealth authority/a licensed corporation/another employee, write the name of that person]

Signed: (signed by the Applicant) Date: 5/6/00

(xiv) On 7 June 2000, the Applicant's solicitors sent the signed Election Form to Comcare. The applicant also returned to work on that day, on restricted duties.

(xv) On 10 August 2000, Mark Flynn had a telephone conversation with Nadine Ellis of Comcare. No notes of the conversation were made but a letter from Mark Flynn to Nadine Ellis dated 11 August 2000, appears to cover the matter.

"ATTENTION: NADINE ELLIS

Dear Madam

RE: DENIS ROBERTSON

We refer to the writer's telephone discussions with your Nadine Ellis on 10 August last and confirm our client's instructions as follows:

The election form forwarded to you undercover of letter dated 7 June 2000 was incorrect.

Our client does not intend to sue for damages for non economic loss but rather seeks compensation pursuant to sections 24, 25 and 27 of the Act.

Please advise as to your determination at the earliest opportunity."

(xvi) On 23 August 2000 a Claims Manager wrote to the Applicant, through his solicitors, to tell him that liability for his accepted compensation claim for lateral epicondylitis (right), had been extended to 7 December 2000. He was also told that medical expenses would be paid by Comcare.

(xvii) On 28 August 2000 Dr. Roger certified the Applicant as unfit for work until 16 October 2000.

(xviii) On 5 September 2000 a Rehabilitation Assessment Progress Report was filed.

(xix) On 6 September 2000, Ms. Ellis from Comcare wrote to Mr. Flynn about Mr. Robertson's claim for permanent impairment. She said (among other things):

(a) "Your claim for permanent impairment has been disallowed at this time."

(b) "The following reports submitted have been considered in reaching this decision". (there followed excerpts from four reports)

(c) "After careful consideration of the above information it can not be considered that the current level of your injury has stabilised to the point of being permanent. You are still in receipt of active treatment and there are other treatment options to be considered if the current means prove unsuccessful.

Having regard to the evidence presented and the provisions of sub-section 24(2) of the Safety, Rehabilitation and Compensation Act 1988, I have determined that you are not eligible for any compensation under section 24 and consequently are not eligible for a payment for non-economic loss under section 27 of the Act.

Your rights relating to my decision are explained on the enclosed sheet.

Given the comments of your treating doctors and the independent doctors, you may wish to resubmit a Permanent Impairment claim when your condition has stabilised."

(xx) Further medical reports and progress reports were filed between 6 September 2000 and 23 November 2000.

(xxi) On 23 November 2000, the Applicant's solicitors wrote to Ms. Ellis. The solicitors enclosed a further report of Dr. Langley, orthopaedic surgeon. They also sought a reconsideration of the decision of 6 September 2000.

(xxii) On 12 December 2000, Dr. Zavarotto reported that Mr. Robertson had developed carpal tunnel syndrome as a result of his repetitive keyboard work and that he required a carpal tunnel decompression.

(xxiii) On 18 December 2000, Comcare advised the Allamanda Private Hospital that it would pay reasonable expenses relating to a left endoscopic carpal tunnel decompression.

(xxiv) On 3 January 2001, Luke Petersen, AAT and Review Services, Comcare, wrote to Mr. Flynn.

"Safety, Rehabilitation and Compensation Act 1988

Re: Mr Denis Robertson

I refer to your letter dated 23 November 2000.

Your letter has been accepted as a formal notice pursuant to sub-section 62(2) of the Act, requesting that Comcare reconsider the determination dated 06 September 2000.

Your letter and any evidence you have provided have been noted and will be considered. You are also welcome to submit any additional evidence in support of the reconsideration. Please note that any additional evidence, or a request for an extension of time to provide additional evidence, should be received by this Office within 10 days of the date of this letter. After which date a decision will be made on the evidence currently available to Comcare.

The Independent Review Officer in this matter is Ms Lynn Webb. If you have any questions in relation to this claim, please call Ms Webb on 1300 366 979 or write to Comcare quoting the claim number stated above."

(xxv) On 29 January 2001, the Applicant's solicitors advised Ms. Webb that no further evidence would be tendered in support of the application.

(xxvi) During February and March 2001, the Applicant underwent surgery and other treatment for carpal tunnel syndrome. Comcare paid for the treatment. The problems with the Applicant's hands were said by the medical people to be due to his keyboard work and not related to his elbow condition.

(xxvii) On 13 March 2001, Ms. Webb affirmed the decision dated 6 September 2000 to deny compensation for permanent impairment in relation to the Applicant's elbow.

(xxviii) On 23 April 2001 the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the decision of Ms. Webb.

(xxix) On 2 July 2001, Mr. Bishop, Principal Solicitor, Australian Government Solicitor, wrote the following letter to the District Registrar of the AAT.

"Robertson, Denis - AAT Application No. Q2001/342

1. I act on behalf of the respondent to the above application. The present position is that the matter was last mentioned on 15 June. I have arranged for Mr. Robertson to travel to Brisbane on 17 July to undergo a medical examination pursuant to section 57 of the Safety Rehabilitation & Compensation Act 1988.

2. I am instructed to request that the Administrative Appeals Tribunal convene an interlocutory hearing to determine the issue of jurisdiction. I have recently received advice from counsel on this issue. My client contends that the Tribunal does not have jurisdiction to consider the present application. The respondent prefers to make submissions in person, rather than by telephone. The basis for the application derives from pages 104 and 129 of the T-Documents. The respondent contends that section 45 of the Safety Rehabilitation & Compensation Act 1988 is a complete bar to the present application.

3. Mr. Roger Derrington of counsel is briefed on behalf of the respondent. If at all possible, the respondent prefers that Mr. Derrington appear. I have copies this letter to the applicant's solicitor."

3. The sections of the Act relevant to the rights of employees to claim compensation under the Act or to elect to sue for damages for permanent impairment are set out below:

"SECTION 44 ACTION FOR DAMAGES NOT TO LIE AGAINST COMMONWEALTH ETC. IN CERTAIN CASES

44(1) [Precluded] Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

SECTION 45 ACTIONS FOR DAMAGES - ELECTION BY EMPLOYEES

45(1) [Non-economic loss] Where:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.

45(2) [Application] Where an employee makes an election:

(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and

(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.

45(3) [Irrevocable] An election is irrevocable.

454) [Limit on damages] In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee."

4. It is clear that the advice contained in Mr. Flynn's letter to the Applicant on 30 May 2000, set out in subparagraph 2(xii) above, was incorrect. The Tribunal accepts that the Applicant signed the Election Form on the advice of his Solicitor and that when the Applicant did so, he had no proper understanding as to the force and effect of the form that he was signing.

5. It is also clear that the Applicant would have some difficulty in formulating a cause of action against the Commonwealth in a common law action in relation to his elbow problems.

6. Although it may be unfortunate for the Applicant, he did make an election to sue the Commonwealth, albeit on the wrong advice of his solicitor. The Act prevents the election to be revoked (see s.45(3) set out above). The further effect of the election is that compensation is not payable to the Applicant under section 24, 25 or 27 of the Act in respect of the injury (see s. 45(2)(b) set out above).

7. It was submitted on behalf of the Applicant that he should be permitted to pursue his claim for permanent impairment under s.24 of the Act on the following two grounds:

(i) The Respondent is estopped from relying on the combination of the signed Election Form and the provisions of s.45 of the Act to refuse payment of compensation under sections 24, 25 or 27 of the Act. The Respondent failed to raise the matter of the bar to the Applicant's application until the Applicant applied to the AAT for review. He was thus led to believe that the revocation of his election had been accepted, which had the consequence of putting him to further expense in gathering further medical reports and raising his expectations in respect to the possible receipt of compensation.

(ii) The circumstances under which the Election Form was signed by the Applicant, that is, on the wrong advice of his Solicitor, make a plea of "non est factum" available to the Applicant. The signed Election Form was not his document.

ESTOPPEL

8. On the question of estoppel the Applicant claims that his position is the same as that which was before the High Court in Verwayen and the Commonwealth of Australia (1990) 170 CLR 394 the facts of Verwayen's case are set out in the head note:

"A member of the Royal Australian Navy was injured when two warships collided while engaged in combat exercises in 1964. In 1984 he sued the Commonwealth for damages for negligence. By its defence the Commonwealth admitted liability, but the question of damages remained in issue. The Commonwealth did not plead that the action was barred by the Limitation of Actions Act 1958 (Vict.) or that it owed no duty of care to the plaintiff because he was injured as a serviceman in the course of combat exercises. Both before and after it delivered its defence the Commonwealth stated that its policy in relation to claims arising out of the collision was not to contest liability and not to plead a limitations defence. Following a change in policy, in 1986 the Commonwealth obtained leave to amend its defence to rely both on the Limitation of Actions Act and to assert that it owed no duty of care to the plaintiff.

Held, by Deane, Dawson, Toohey and Gaudron JJ., Mason CJ., Brennan and McHugh JJ. dissenting, that the Commonwealth was not free to dispute its liability to the plaintiff, by Deane and Dawson JJ. because it was estopped from so doing, the equity raised by the Commonwealth's conduct being such as could only be accounted for by holding it to the assumed state of affairs, and by Toohey and Gaudron JJ. because it had waived its right to rely on either defence."

The judgment of Deane J. contains a passage (starting at 447) which sets out the conduct of the Commonwealth which he believed led to the conclusion that the Commonwealth was estopped from disputing its liability to Mr. Verwayen for damages for the injuries he sustained while in its service.

"As I followed the argument, it is common ground that Mr. Verwayen's injuries were sustained by reason of the negligence of a person or persons in the service of the Commonwealth. He was, himself, also in that service. Indeed, it is the fact that he was a serving member of the Royal Australian Navy which the Commonwealth now seeks to invoke as a ground for denying that it owed him any duty of care. The other defence which the Commonwealth seeks to invoke is that Mr. Verwayen's action is statute-barred. It is not suggested that the Commonwealth was other than fully conscious of these possible defences when it induced Mr. Verwayen to assume that his action for damages for negligence would proceed against the Commonwealth and be determined on the basis that liability was admitted. With the encouragement of the Commonwealth, there was established between the Commonwealth and Mr. Verwayen the relationship of admitted wrongdoer (the Commonwealth) and wronged (Mr. Verwayen) for the express common purpose of enabling the expeditious assessment of the amount of compensation which the wrongdoer should pay. On the basis of that assumption and relationship, Mr. Verwayen proceeded with the preparation and prosecution of his action. He expended both time and money thereon. Far more important, he subjected himself to the stress, anxiety and inconvenience which were inevitably involved in the pursuit of the proceedings. It was only when the actual hearing was all but due to commence that the Commonwealth sought to depart from the induced assumption and to destroy the whole material relationship between the respondent and itself and the entitlement to just compensation which would result from it.

In the ordinary case where a party to litigation amends a pleading to raise a new defence or to assert a new claim, questions of estoppel do not arise. The effect of earlier pleadings will be merely to reflect the particular party's then intentions in relation to the conduct of the action and the other party will not be justified in assuming that subsequent amendment will not be made. Nor, in such a case, will amendment of the pleadings and subsequent conduct of the proceedings on the basis of the amendment give rise to any suggestion of unconscionable conduct on the part of the amending party. It will involve no more than the exercise of the right to seek to raise additional matters of claim or defence in accordance with the procedures laid down for that purpose. The present case is, however, far removed from the ordinary one. The claimed estoppel does not arise merely from the Commonwealth's failure to deny liability in the pleadings. It arises from the fact that other actions of the Commonwealth constituted an unambiguous representation to Mr. Verwayen that liability would not be contested, that is to say, that a limitations defence would not be relied on and that breach of a duty of care would not be denied. The assumption upon which Mr. Verwayen acted was knowingly and deliberately induced and the resulting material relationship of wrongdoer and wronged was deliberately established so that the action could proceed expeditiously to the assessment of damages. The evidence discloses that the Commonwealth had, to the knowledge of Mr. Verwayen, admitted its liability to pay damages to at least one other injured serviceman in comparable circumstances. The confinement of the dispute to the assessment of damages had, no doubt, the advantage, from the Commonwealth's point of view, that it avoided the public impression of a mean-spirited and technical approach to those injured in the performance of their duties as members of their country's defence forces.

Equity has never adopted the approach that relief should be framed on the basis that the only relevant detriment or injury is that which is compensable by an award of monetary damages. To the contrary, a major part of equity was founded upon a denial of that approach (see, e.g., Pomeroy's Equity Jurisprudence, par.116; Dougan v Ley (38) per Dixon J.; Aristoc Industries Pty. Ltd. v. Wenham Pty. Ltd. (39); Doulton Potteries Ltd. v Bronotte (40)). If the Commonwealth were now allowed to depart from the assumed state of affairs, the detriment which Mr. Verwayen would sustain could not be measured in terms merely of wasted legal costs. The past stress, anxiety, inconvenience and effort which were involved in the pursuit of the proceedings would be rendered futile. More important, Mr. Verwayen would be subjected to the potentially devastating effects of a last-minute denial of an expectation of just compensation for his injury in circumstances where those injuries were sustained in the course of the service of the Commonwealth by reason of the negligence of another or others in that service and where that expectation of just compensation had been deliberately induced by the Commonwealth. In that regard, the learned primary judge was expressly informed, without objection or dissent, that the relevant detriment included "increased ill health" and that part of Mr. Verwayen's "problems are of a psychiatric nature and medical evidence is that this" - i.e. the Commonwealth's inducement of the assumption and attempt to depart from it ("take away the carrot") - "has had and will continue to have ....severe consequences upon the ill health produced by the defendant's negligence" (i.e. the original accident). It is true that the extent of the detriment which, in the absence of an estoppel, Mr. Verwayen would sustain by reason of the induced assumption has not been established or quantified with the precision which might be thought necessary to discharge an onus of proof in an action for pecuniary compensation for that detriment. That is not surprising however, since the issue of estoppel was resolved against Mr. Verwayen before he had an opportunity of leading detailed evidence. More important, the absence of such detailed evidence is not really to the point in circumstances where the relevant detriment to Mr. Verwayen would obviously extend far beyond any question of legal costs and be of such a nature and extent that it cannot properly be said that it exceeds the requirements of good conscience or is unjust to the Commonwealth to hold it to the assumed state of affairs upon the basis of which it deliberately induced Mr. Verwayen to act."

9. I am not persuaded that the actions of the persons assessing Mr. Robertson's claim for permanent impairment were in any way comparable with the conduct of the Commonwealth in Mr. Verwayen's case. No specific representations were made to Mr. Robertson that the election would not be acted upon. His claim was rejected twice. The first time by Ms. Ellis on 6 September 2000 and the second time by Ms. Webb on 13 March 2000. On this basis alone I would not be prepared to find that Comcare is estopped from relying on the Applicant's election and s.45 of the Act.

10. There is another aspect to the question of estoppel. That is, whether or not the doctrine can be raised in circumstances where a Commonwealth employee is bound to apply the provisions of a statute and where there is no discretion to depart from those provisions. The matter was dealt with by the Full Federal Court in Formosa and another v Secretary, Department of Social Security [(1988) 9 AAR 260]. In the joint judgment of Davies and Gummow JJ the following passage deals with the question of estoppel, at 268:

"Estoppel

Counsel for the applicants also relied on estoppel. He submitted that by submitting her documents for identification, attending an interview for the purposes of ascertaining her entitlements, signing a form in the course of that interview to support her claim and receiving information from the officer of the Department that she had no entitlements, Mrs Formosa was led to believe that she had made a claim and that her claim was unsuccessful; it was then submitted that Mrs Formosa had acted to her detriment on those assumptions by failing to apply for an age pension before November 1986, and that the Department had fostered her mistaken belief by giving her incorrect information, acting as if she had made a claim and repeating the incorrect information in January 1986.

Counsel agreed that he had to say, to make the submissions good, that the respondent was estopped from denying that in December 1985 or January 1986 Mrs Formosa had lodged with the office at Mt Druitt a claim in writing in accordance with a form approved by the Secretary, for an age pension to commence 25 February 1986. Thus the result of that estoppel would be to lift the prohibition placed by s 158(1) upon the payment of the age pension to Mrs Formosa, except upon the making of a claim in the manner described in s 159(1).

A collection of the authorities revealing the somewhat uncertain state of the law as to the fettering by estoppels of the proper exercise of statutory discretions may be found in Re Bundy (1980) 2 ALD 735 at 750. However, in Brickworks Ltd v The Council of the Shire of Warringah (1963) 108 CLR 568 at 577, Windeyer J said that there was no doubt about the principle that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion.

Where the issue is one of statutory discretion, the operation of an estoppel may cut across the proper exercise of the discretion reposed by legislation in a specified decision-maker and thus be at odds with what is mandated by the legislation. Hence, the observation by Professor David Williams ([1981] CLJ 198), in commenting upon Rootkin v Kent County Council [1981] 1 WLR 1186; 2 All ER 227, that estoppel appears to operate only at the periphery of judicial review of administration, and, more recently, the view that the foundation for the protection of "legitimate expectations" lies elsewhere than in estoppel (Forsyth, "The provenence and Protection of Legitimate Expectations" [(1988) CLJ 238 at 257-258).

The present is a case of right and obligation rather than discretion. If a claimant to an age pension satisfies the criteria specified in s 25 of the Social Security Act for qualification and if a claim is made in accordance with s 159, then, in the ordinary course, the claim should be determined in favour of the claimant and, subject to the determination of the rate of the pension (ss 33-36), there is no area for the exercise of discretion by the decision-maker. But if there has been no claim for that pension which complied with s 159, then the grant or payment of the pension shall not be made: s 158(1). The effect of the estoppel sought to be established in the present case would be, as we have said, to lift the prohibition imposed by s 158(1) and extend the authority of the decision-maker beyond that given by the statute. This cannot be achieved by an estoppel: The Council of the Shire of Sutherland v James (1962) 63 SR (NSW) 273 at 278-279, per Sugerman and Manning JJ; Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227 at 230-231.

Further, any payment of an age pension to Mrs Formosa in respect of the period in dispute would conflict with the related principle that estoppel does not operate so as to sanction the appropriation of public moneys without the authority of the Parliament: Howell v Falmouth Boat Construction Co Ltd [1951] AC 837; Victoria v The Commonwealth (1975) 134 CLR 338 at 353, 370-371, 392, 410-411, 421-423; Attorney-General (NSW) v Gray [1977] 1 NSWLR 406 at 410-412, 413; cf Commonwealth v Crothall Hospital Services (Australia) Ltd (1981) 54 FLR 439 at 453.

There was much debate before us as to whether the Tribunal had found the facts necessary for the existence of the estoppel claimed before us by Mrs Formosa. There is much force in the respondent's submission that, the appeal to this Court being limited to questions of law, the findings of fact by the Tribunal amounted to no more than the statement that it lacked sufficient information to express an opinion on the matter.

But, in any event, the matters we have discussed above are fatal obstacles to acceptance of the case sought to be made on estoppel.

The appeal should be dismissed."

11. The question of estoppel was also raised in Roberts v Repatriation [(1992) 39 FCR 420]. The judgment of the Full Court, Black CJ, Gray and Ryan J, contains the following passage (at 423):

"In our view, this case is governed, as the learned President concluded, by the decision of the Full Court in Formosa v Secretary, Department of Social Security (1988) 9 AAR 260. In that case an estoppel was said to arise to preclude the respondent from denying that, on a given date, the applicant had lodged a claim for an age pension. In their joint judgment, Davies and Gummow JJ observed (at 268):

(there followed part of the passage quoted above)

See also SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 245-246; Glass v Defence Force Retirement and Death Benefits Authority (1992) 38 FCR 534 and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 esp at 208.

The representation said to ground the estoppel in this case was not one as to the way in which a statutory discretion was to be exercised, as it was claimed to be in Kurtovic (supra). Rather, it was as to a fact of a temporal nature, which was a prerequisite to the exercise of the discretion conferred by s 177(2)(a). Unless the application had been made within the three month period referred to in s 177(2)(a) the Tribunal simply had no authority under that provision to order payment of the pension from an earlier date.

Counsel for the applicant contended that in some circumstances an estoppel may be available against the Executive in relation to the exercise of a discretionary power and that there is not, and should not be any absolute principle against the availability of estoppel in relation to non-discretionary powers. He relied upon the observations of Mason CJ in Attorney-General (NSW) v Quin (1990) 179 CLR 1 at 18 where his Honour said:

"What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning MR in Laker Airways v Department of Trade [1977] QB 643 at 708; but see also the criticism of this approach by Gummow J in Kurtovic."

It is clear however that Mason CJ was confining his observations to a particular class of case involving the exercise of a discretion and that his Honour was speaking in the context of his earlier statement of general principle (at 17):

"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power..."

It is not open to this Court to erect, on the foundation suggested by counsel for the applicant, a general principle, of uncertain application, based upon a balancing of elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by the Parliament and also appropriate public money without the authority of the Parliament."

12. In my view it was not open to the officers of Comcare to waive or ignore the effects of Mr. Robertson's election and the provisions of the Act. Estoppel is not available against Comcare in this case.

"NON EST FACTUM"

13. The availability of the plea of "non est factum" and the principles to be applied were set out in the judgment of the High Court in Petelin v Cullen (1975) 132 CLR 355, at 359:

"The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one "which must necessarily be kept within narrow limits" (Muskham Finance Ltd. v. Howard (9)) and in the qualifications attaching to the defence which are designed to achieve this objective.

The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v. Anglia Building Society (Gallie v. Lee) (10) [1971] A.C. 1004 esp at p.1019."

14. In my view Mr. Robertson's personal characteristics and the circumstances in which Mr. Robertson signed the Election Form, do not come anywhere near those which would allow him to claim that the signed election form was not his document.

15. I direct that the Tribunal has no jurisdiction to review the Applicant's claim for compensation pursuant to sections 24, 25 and 27 of the Act.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

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

B. Hitchcock, Secretary

Date/s of Hearing 6 September 2001

Date of Decision 15 February 2002

Counsel for the Applicant Mr. G.J. Bellen

Solicitor for the Applicant Short Flynn & Co.

Counsel for the Respondent Mr. R. Derrington

Solicitor for the Respondent Australian Government Solicitor's office