Davies v Australian Postal Corporation [2002] FCA 449 (15 April 2002)

Last Updated: 15 April 2002

FEDERAL COURT OF AUSTRALIA

Davies v Australian Postal Corporation [2002] FCA 449

ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - whether decision of Tribunal against the weight of evidence - whether error of law - whether tribunal failed to consider question of whether offer of graduated return-to-work to commence at 5 am was a real offer of employment to be taken into account in considering whether any compensation for work related injury was payable when applicant sole carer of children who were sick.

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19(4), 4(1)

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 cited

SUSAN DAVIES-KACANIC v AUSTRALIAN POSTAL CORPORATION

N1226 OF 2001

HILL J

15 APRIL 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1226 OF 2001

BETWEEN:	SUZANNE DAVIES-KACANIC APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	15 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.

2. the applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1226 OF 2001

BETWEEN:	SUZANNE DAVIES-KACANIC APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	HILL J
DATE:	15 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Ms Davies, (formerly known as Ms Kacanic and in these reasons referred to as Ms Davies) appeals against the decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by a senior member, Ms Ettinger and by Dr P Lynch, an ordinary member, varying an earlier decision of the Tribunal made on 25 September 1997 by finding that no liability of the Respondent, the Australian Postal Corporation ("the Corporation") to Ms Davies arose under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") from 1 March 1996 because she had failed to participate in a graduated return-to-work program and further that Ms Davies had no loss of earnings because she had resigned from the employment of the Corporation on 18 March 1998. The appeal, which is in the original jurisdiction of the Court is an appeal on, that is to say, limited to a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act")

History of the Litigation.

2 On 31 July 1995 Ms Davies, then an employee of the Corporation, claimed that she was entitled to compensation under the Act. The claim was based upon stress which she said incapacitated her for work and which was said to be employment related. The corporation denied liability to Ms Davies.

3 On 23 August 1995 a delegate of the Corporation made a determination that on the balance of probabilities there was insufficient evidence to show that Ms Davies' employment with the Corporation materially contributed to any condition she suffered and in particular "stress related problems". The delegate, at Ms Davies' request, reconsidered the determination and confirmed it on 26 September 1995. Ms Davies then sought review of the determination and redetermination by an application dated 23 November 1995 made to the Tribunal under s 29(1) of the AAT Act.

4 The Tribunal, comprised of Ms Ettinger, Sr M McGovern, AO, RSM and Dr Lynch on 25 September 1997 set aside the Corporation's decision and in substitution for it found that Ms Davies had suffered a compensable injury within the terms of the Act and was incapacitated for work on and from 27 July 1995 until 1 March 1996 inclusive. It ordered that the Corporation pay Ms Davies' costs. The different composition of the Tribunal which made that decision and the Tribunal which made the decision appealed from now, is to be explained by the retirement between 25 September 1997 and 13 June 2001 of Sr McGovern.

5 An appeal was brought by Ms Davies to this Court from the decision of the Tribunal of 25 September 1997. That appeal was resolved by consent and an order was made by Madgwick J on 7 December 1999 that the matter be remitted to the Tribunal "to determine only the extent of loss of income from 1 March 1996 to date." It will be noted that the date 1 March 1996 was the date up to which the Tribunal's original order applied. The consequence of the Tribunal's initial order was that compensation payable by the Corporation to Ms Davies would have ceased to be payable as and from 1 March 1996 and there was no determination that compensation was payable to her after 1 March 1996.

6 When the matter came to be heard by the Tribunal on remittal from Madgwick J, the parties advised the Tribunal that they had agreed that the words "to date" in the order of Madgwick J were to be read as meaning "on-going" so that the question for resolution by the Tribunal was the determination of the liability of the Corporation to pay compensation from 1 March 1996 to the date of the new hearing of the Tribunal. The hearing before the Tribunal proceeded in accordance with the agreement of the parties.

7 The outcome of the proceedings in the Tribunal on the remittal to it by Madgwick J was the order it made varying the terms of the initial order (although, as it happens, not the effect of that order) with the consequence that it was thereafter explicit that Ms Davies was not entitled to compensation after 1 March 1996.

TheTribunal's findings of fact at the first hearing.

8 The Tribunal found that Ms Davies, as at 27 July 1995 suffered from an anxiety disorder which rendered her incapacitated for work for a certain period. It found that there was a causal connection between the anxiety disorder which Ms Davies suffered at that date and her work at the Corporation. Her condition was a "disease" within the meaning of the Act. The personality disorder with which she suffered meant that she was unusually susceptible to workplace stressors. These stresses were caused by the move she had in employment from the Bankstown depot of the Corporation to the Milperra depot. The extra stressors at Milperra played a causal role, so the Tribunal found, in the aggravation of her personality disorder. Her employment materially contributed to her perceptions of workplace stress and ensured her incapacity to work.

9 Finally the Tribunal considered whether the incapacity, which had led to Ms Davies leaving work on 27 July 1995 had ceased. On this matter there was a conflict of expert evidence. The Tribunal concluded that the weight of the evidence indicated that Ms Davies was fit to embark upon a graduated return-to-work program by the end of February 1996. On this basis it found that she was incapacitated for work on and from 27 July 1995 until the end of February 1996. It noted that since the end of February 1996 Ms Davies had been able to embark upon a graduated return-to-work program. It considered it unreasonable to expect Ms Davies to return to work at the Milperra Mail Centre unless she wished to do so and further noted that it was likely that for some time Ms Davies would be unable to embrace the full responsibilities and hours of her previous duties.

10 It may be noted that the Tribunal pointed out that the evidence showed that Ms Davies had expressed a desire to return to work on restricted hours and that she had said in April 1996 that she felt able to return to her old duties and that she would be able to upgrade to full-time duties within 6 to 12 months. It noted a concern she had expressed regarding the hours she was able to work "due to her family responsibilities." Apparently Ms Davies had told the Tribunal (as it noted) that while she would have been able to work from February 1996 with rehabilitation, since December 1996 there had been a worsening of her condition and that at the time of the first part of the hearing in February 1997 she was not capable of working. This evidence was not accepted by the Tribunal. Indeed, the Tribunal found that as at the time it gave its decision Ms Davies was capable of working, at least, part time.

The Tribunal's Reasons for its decision on 13 June 2001.

11 Evidence was given at the second hearing before the Tribunal from Ms Davies and a psychiatrist, Dr Chaudhary. The Tribunal also had before it the medical evidence that had been before the Tribunal on the first hearing, including reports from another psychiatrist, Dr McMurdo and a psychologist, Dr Roldan. All exhibits tendered in the original hearing were retendered on the resumed hearing. These included Case Notes from the Rehabilitation Service relating to offers made to Ms Davies for a graduated return-to-work program.

12 The Tribunal noted that the issues before it on the resumed hearing were threefold. First was the issue whether Ms Davies, by reason of her psychological injury, was unable to resume work for the Corporation from 1 March 1996. The second issue was what her situation was as at the time of hearing, namely 17 April 2001. The third issue was what loss of income, if any, Ms Davies suffered from 1 March 1996 to the date of hearing. The Tribunal noted that in determining whether Ms Davies was able to return to work, the Tribunal was required to consider the extent of her capacity to work after 1 March 1996 and the role of any work-related psychological injury in that incapacity, whether she had failed to comply with a reasonable return-to-work program and whether she had voluntarily removed herself from suitable employment by resigning on 18 March 1998.

13 It was Ms Davies' case before the Tribunal, as appears from the reasons for decision that her health was such that she could not have returned to work from and after 1 March 1996. She said that in 1997 she had a lot of financial problems and that she needed to look after her children on a full time basis because neither child was well, they did not attend school and had behavioural and emotional problems. She acknowledged that the Tribunal in its original reasons had taken the view that she was able to engage in a graduated return-to-work program to re-enter the work force from 1 March 1996 but argued that the Corporation needed to find her "suitable hours". She gave evidence of offers of work that had been made to her orally or in writing, that work consisting of mail sorting. These offers, she said, had required her to start work at 3am or 5am. By implication, these were not "suitable hours".

14 The evidence of Dr Chaudhary was somewhat conflicting and the Tribunal did not find it satisfactory. In some of his evidence he said that Ms Davies was unfit for work. In other evidence he agreed with Dr McMurdo that she was fit for her pre-injury employment. In some of his evidence Dr Chaudhary said that Ms Davies was fit for suitable duties three hours per day from 9.30 am to 12.30 pm. His evidence was also that the further deterioration in Ms Davies condition since the date of the previous hearing was due to other factors besides employment, especially the health of her husband, her marital problems, problems with her children and other environmental factors, in other words, that it was not work related.

15 The Tribunal found that Ms Davies was well enough to work on a graduated program which may have lasted up to a year or more based upon Dr Chaudary's report of 20 November 1996. It found, consistently with Dr Chaudary's evidence, that the deterioration thereafter was not related to the workplace but rather that the fact that she was now totally incapacitated for work was a result of her marriage problems, financial pressures and the psychiatric condition from which she suffered.

16 The Tribunal, while noting that the hours offered for mail sorting for the graduated return-to-work program required an early start, found that there was no work starting at 9.30 am and extending to 12.30 pm in the sorting area which could be offered to her. It found that she was well enough to return to work on this program but had not even attempted to do so. Accordingly the Tribunal found that there could be no loss of income for which the Corporation could be liable. Once Ms Davies had resigned on 18 March 1998 the Tribunal found that she had voluntarily removed herself from suitable employment so that the Corporation could not be liable for compensation from that date onwards. The result was therefore that in the period from 1 March 1996 Ms Davies had suffered no loss of earnings for which the Corporation had any liability to compensate her.

The legislation as relevant to the present case.

17 Section 14 of the Act provides that Comcare (for present purposes that means the Corporation) is liable to pay compensation in accordance with the Act in respect of "an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." "Injury" includes disease: s4(1). It was not in dispute that Ms Davies suffered from a disease.

18 The amount of compensation for which there is a liability is to be determined in accordance with s 19 of the Act. For present purposes it suffices to note that where an employee is not employed during a week the compensation is to be determined by reference to the normal weekly earnings of the employee less the amount, if any, that the employee was able to earn during that week in suitable employment. Subsection 4 of that section then provides:

"In determining, for the purposes of subsections (2) and (3) the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a) ...

(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment.

(d) where, after becoming incapacitated for work the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e) ...

(f) where paragraph (b), (c) (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and

(g) any other matter that Comcare considers relevant."

19 The expression "suitable employment" is defined in s 4(1). It is necessary here only to note that the employment must be in work for which the employee is suited and that suitability is to be determined taking into account not only matters listed in that definition but any other relevant matter.

The submissions on behalf of Ms Davies.

20 For Ms Davies it was submitted:

1(a) That the Tribunal erred by travelling outside the directions made by Madgwick and, it must be assumed, thereby deciding matters which it was not open for the Tribunal to decide.

1(b) Alternatively, that the Tribunal failed to consider evidence or place proper weight upon evidence concerning Ms Davies' disability after 1 March 1996 so far as it related to loss of income.

2 That the Tribunal's finding that liability to pay compensation ceased on 1 March 1996 was against the weight of the evidence.

3 That the Tribunal erred in its construction of s 14 of the Act.

4 That the Tribunal's findings were harsh and unreasonable and contrary to the weight of the evidence.

5 That the Tribunal failed to give proper reasons for its decision. This submission was not pressed.

6 That there was no evidence that Ms Davies' incapacity to work ceased on 1 March 1996 and no evidence that it was caused other than as a result of her employment. This submission was also not pressed.

1(a) Whether the Tribunal went outside the matter referred to it by Madgwick J

21 With respect, this submission is untenable. The order of Madgwick J directed the Tribunal to consider the extent of loss of income from the date of the Tribunal's first decision. Perhaps, having regard to the terms of the legislation which I have set out, it was not happily framed. In making the orders he did, his Honour acted at the request of the legal advisors of both parties who had prepared draft orders for his Honour's approval. Be that as it may, it was conceded, and properly, that the reference to "loss of income" referred to compensable loss of income. Although the order was expressed in terms of "extent of lost income", there is no doubt at all that what was contemplated by the order was that the Tribunal determine the liability for compensation (if any) to which Ms Davies was entitled from the date of the first Tribunal decision until the second hearing (and continuing). No other reading of the order would make sense. To determine that question it was necessary to determine whether in the circumstances of the case there was a liability to Ms Davies under s 19 of the Act from 1 March 1996. The starting point of the enquiry was the finding made by the Tribunal in its first decision that by the end of February 1996 Ms Davies was fit to embark upon a graduated return-to-work program and that that situation continued to the date of the Tribunal's first decision, namely, 25 September 1997. In turn, as the Tribunal noted, it was necessary for the Tribunal to determine whether there had been a failure on the part of Ms Davies to undertake or to complete a rehabilitation programme. That question in turn depended upon whether the failure was reasonable in the circumstances.

22 Strictly, once the Tribunal had found that Ms Davies had failed to undertake a rehabilitation program it was unnecessary for it to consider the consequences of her resignation. However, clearly her resignation, which became effective only approximately six months from the date the Tribunal published its reasons for decision after completing the first hearing, provided a further ground for the Tribunal to find that Ms Davies was not, at least from the date of retirement, entitled to compensation.

23 In my view the Tribunal did not, in the way it approached the second hearing, go outside what was contemplated by the order made by consent by Madgwick J. If it matters, the Tribunal approached the matter in precisely the way that counsel for Ms Davies requested, as appears from the transcript of the Tribunal's hearing.

1(b) The Tribunal failed to consider evidence or give proper weight to evidence of disability after 1 March 1996 so far as it related to loss of income.

24 This submission was made, as an alternative to the first submission. The point of it seems rather to be that the Tribunal was entitled on the evidence before it to conclude that Ms Davies' stress-related condition deteriorated, as a result of her employment with the Corporation, after 1 March 1996 and indeed, after the previous hearing. In one sense, counsel for Ms Davies appeared to suggest that the evidence before the Tribunal in the second hearing negated the conclusion reached by the Tribunal after the first hearing, that Ms Davies was fit to undertake the rehabilitation program as at March 1996. It can be argued that it was not open to the Tribunal to do this, having regard to the orders of Madgwick J. However, it is not necessary to consider that question.

25 It is simply not the case that the Tribunal failed to consider the evidence before it in the second hearing so far as that evidence went to the question whether Ms Davies was incapacitated for work, or for that matter, whether that incapacity was employment related. It did. The suggestion in oral argument that the Tribunal failed to place sufficient weight on some of the evidence given by Dr Chaudhary in the second hearing does not disclose an error of law, even if it were accepted. The matter what weight should be given to particular evidence, or for that matter, particular parts of the evidence of a witness is a matter for the Tribunal. Here, it would be necessary before an error of law is made out for Ms Davies to show that it was not open to the Tribunal on the evidence before it to make the findings it did. However, one has only to glance at the evidence which the Tribunal had before it and which it notes in its reasons to appreciate that it was open to the Tribunal to find that as at 1 March 1996 Ms Davies was able to return to work; that her medical condition deteriorated after that date, and that that deterioration was unrelated to her employment but was the result of other, non-employment related factors.

26 So far as the submission concerned the evidence of Dr Chaudhary, the problem is that his evidence was contradictory and not particularly satisfactory. It is not surprising that not all of it was accepted. Indeed, where it was contradictory one part of it had to be rejected. However, that does not disclose an error of law on the part of the Tribunal.

Whether the Tribunal's finding that liability ceased on 1 March 1996 was against the weight of the evidence?

27 As noted earlier a ground that a finding is against the weight of the evidence will not involve an error of law, at least so long as the Tribunal's finding is one that, on the evidence, was open to it. Questions of fact are for the Tribunal, not for the Court.

28 The Tribunal's ultimate finding that the Corporation's liability to pay compensation ceased on 1 March 1996 depended upon its factual findings that Ms Davies had failed, from that date, to undertake or participate in the graduated return-to-work program in accordance with offers made to her, notwithstanding that her medical condition permitted her at the time to do so and that the deterioration thereafter of her medical condition related to matters extraneous to her employment. There was factual material before the Tribunal upon which these findings could be based. No error of law has been disclosed.

29 Whether as a part of this submission, or as a separate submission, counsel for Ms Davies took the Court to evidence, it is referred to in the Tribunal's reasons, which was said to show that Ms Davies failure to work for the Corporation was related to her "injury", that is to say her stress-related condition and to her employment. The evidence shows that Ms Davies was under considerable financial pressure. She was being pressured by her lawyers for money and could not afford to register her car. Without a car she was unable to work. The evidence was hardly overlooked by the Tribunal. As I have already mentioned, it is referred to in the Tribunal's reasons. However, the problem with the submission still remains that the Tribunal's findings of fact were open to it on the evidence and, indeed, counsel for Ms Davies conceded that this was so. In these circumstances it cannot be said that the Tribunal's factual findings involved an error of law.

Error of construction of s 14 of the Act.

30 So far as I understood this argument it proceeded on the basis that the proper construction of s 14 of the Act was that an injury suffered by an employee resulting in incapacity for work was compensable per se, unless excluded from that section by subsection (3). However, s 14 is expressed to be subject to Part II of the Act which is headed "Compensation". Section 19 is contained within Part II. Section 19, as I have noted, quantifies the compensation payable to an employee who is incapacitated for work as a result of an injury. Accordingly it was necessary for the Tribunal to consider whether Ms Davies had failed to undertake suitable employment through the offer of the graduated return-to-work program. If she had, then no compensation was payable to her. Likewise there was no suggestion that compensation was payable in a case where an employee voluntarily resigned from employment. Ultimately I did not understand counsel for Ms Davies to maintain the submission that the Tribunal had erred in the construction of the Act, particularly, s 19. I can see nothing in the Tribunal's reasons which suggested that it did.

Error in findings

31 Although the fourth ground of appeal nominated in the Application filed with the Court stated that the Tribunal had erred in construing s 4 of the Act, counsel for Ms Davies in oral submission argued instead that the Tribunal had, in reaching the conclusions it did, acted harshly and unreasonably and contrary to the weight of the evidence. However, when pressed, counsel agreed that it could not be demonstrated that the decision of the Tribunal was unreasonable in the administrative law sense of being so unreasonable that no decision maker could make it or that the factual findings made by the Tribunal were not findings open to the Tribunal on the evidence before the Tribunal. Accordingly, Ms Davies has not demonstrated that the Tribunal made an error of law in the findings of fact which it made.

Did the Tribunal fail to consider a relevant matter?

32 Although this matter was not the subject of submission by counsel or raised in the grounds of appeal, it has given me considerable concern in the present case. It is clear from the Tribunal's reasons for decision that there was raised, if not by counsel for Ms Davies, then by her in her evidence, the question whether the offer of employment referred to as the staged offer of rehabilitation was a real offer in the circumstances. This, in my view, was an issue which it was necessary for the Tribunal to consider, having regard to the evidence before it and failure to address the issue would involve an error of law (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [75].

33 Although the definition of "suitable employment" in s 4 of the Act does not directly say so, it is clear that for an offer for work to operate to reduce compensation otherwise payable under the Act that offer must be a real offer. An offer made in the knowledge that it could not be taken up by the employee would not be a real offer. Neither would an offer be a real offer where the offer is one which is so unreasonable that it could not reasonably be taken up.

34 Ms Davies was a woman with two children. I was told from the bar table that their dates of birth were respectively 22 June 1989 and 7 October 1992. The younger child was not yet four as at 1 March 1996. The evidence of Ms Davies was that they were sick and had behavioural problems. Indeed, she said, that she needed to stay at home to look after them. Her evidence was that the offers of employment made to her were for work to start at 3am and 5am respectively. The Tribunal appears to have accepted the evidence given by Ms Davies that an offer had been made to her of employment to commence at 3 am. It noted, however, that the offer had been rejected by Ms Davies on the basis of "child care duties". It may be noted that the notes of the Rehabilitation Committee confirm that offers for employment were made to Ms Davies to commence at 5am. There was no evidence of any offer of work to commence at 3 am. That, however, was a matter for the Tribunal and in any case nothing turns upon it. It would, in my view, in most cases at least, be quite unreasonable to expect a mother to commence work at 5am, let alone 3am, when she was the "sole carer" of her children. It may be noted that, even if she was not a single mother in March 1996, she and her husband had marital problems and the husband suffered at that time, it would seem, a heart disorder, so that it is not inaccurate to refer to her as "the sole carer" of the children. It seems that the husband did not assist Ms Davies with the children, even although he stayed in the family home until it was sold in July 2000.

35 It is not as clear as one might expect it to be whether the question whether the offer of employment was a real offer, that is to say, one that fell within the definition of "suitable employment" was an issue which the Tribunal considered. Not without some doubt I have come to the conclusion that the Tribunal did consider the issue and resolve it in favour of the Corporation. I do so for the following reasons. First, the Tribunal noted the contention of Ms Davies that the Corporation needed to find for her "suitable hours" ie suitable hours of employment having regard to her circumstances. The Tribunal then set out the difficulties faced by Ms Davies as the sole carer of the children. However, it noted, also that she had in the past worked shifts commencing at 5.30 am or 5.45 am, even if she had done so with great difficulty because she had small children and needed to employ baby sitters.

36 The Tribunal also noted that Ms Davies had been offered employment commencing at 5 am for two hours daily (as well as employment for three hours commencing at 3 am) and that it was submitted by Ms Davies that these hours were not realistic. No doubt in considering whether an offer is reasonable in all the circumstances, such that it is a "real offer" of suitable employment it is relevant to consider the hours which an employer might realistically offer to a person occupying the position which the disabled worker had occupied. This the Tribunal did in the present case. It considered the reasonableness of the offer from the point of view of the employer noting that there was no work available which the Corporation could offer to Ms Davies so that she would commence employment at 9.20 am, the hour of commencement which Ms Davies's psychiatrist had recommended and which Ms Davies apparently accepted as reasonable to her. It may be mentioned that evidence before the Tribunal, but not referred to by it, showed that an offer of possible employment by the Corporation to commence at 6 am had also been rejected by Ms Davies.

37 Ultimately the Tribunal's findings on the reasonableness of the offer (that is to say, on the question of whether there was a real offer to be taken into account are to be found in the following paragraph of its reasons:

"In considering whether Ms Davies failed to engage in a rehabilitation plan or refused an offer of suitable employment pursuant to section 19(4) of the Act, and whether it was reasonable in all the circumstances, the Tribunal took into account all the evidence before it. The Tribunal was mindful that attempts had been made to restructure Ms Davies' employment, and that her inability to undertake the graduated return to work offered was as a result of her personal problems with her children, the sale of her car, her travel to New Zealand, and other personal problems rather than the workplace. The Tribunal considers that the efforts made to return the Applicant on a graduated return to work program were reasonable within the terms of the legislation."

38 I think it follows from this paragraph that the Tribunal was of the opinion that in all the circumstances, the offer of employment was a real offer to MS Davies which it was appropriate to take into account under s 19(4) in determining the quantum of any entitlement. The consequence was that the Tribunal concluded that Ms Davies was not entitled at all to any compensation as and from 1 March 1996. In reaching this conclusion the Tribunal did not err in law.

39 In my opinion counsel for Ms Davies has not succeeded in showing that the Tribunal erred in law. Accordingly, the application must be dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 15 April 2002

Counsel for the Applicant:	N Mayell
Solicitor for the Applicant:	W.R. Ghioni & Co
Counsel for the Respondent:	R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2002
Date of Judgment:	15 April 2002