Case: Hannaford v Telstra Corporation Limited [2005] FCA 1298
Outcome: considered
This latter question of law was encapsulated by Moore J in Hannaford v Telstra Corporation Limited [2005] FCA 1298 at [27] , where his Honour said: 'In issue is whether, in reviewing determinations under ss 16, 19, 24 or 27 (but not a determination under s 14) it is open to the Tribunal to consider whether the facts underpinning a determination earlier made under s 14, ever existed and affirm determinations under any of these four sections on the basis that a material fact (necessary to support the determination under s 14) did not exist. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14.' 34 In Hannaford , supra, at [29] Moore J said: 'In the second emphasised passage, Sackville J was indicating that Comcare could, when reconsidering issues of liability under provisions such as s 24 and s 27, revisit factual issues founding an earlier determination under s 14 even though there was no reconsideration being undertaken of that earlier determination under s 62. In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination.' 36 The same question of law was recently considered by Moore J in Hannaford , supra, which I understand is presently on appeal to the Full Court. At [43] his Honour said: 'The Full Court indicated at [39] of its judgment [in Lees ] ... that the powers and discretions exercisable by the Tribunal in reviewing a reviewable decision are limited to the powers that could have been exercised by the person who had reconsidered the determination or determinations under s 62 and who made the reviewable decision. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act.' 41 What is said in [40], is exemplified in Hannaford itself. First, it has the potential to lead to a situation where a claimant must repay money paid under one or a number of determinations made under other sections unless the relevant body exercises its power under s 114D of the SRC Act to waive its right to recover, assuming the power of waiver under that provision so extends. Second, it will be an exercise in futility for the applicant, in cases such as this, because as was said by his Honour at [47]: 'Potentially the applicant will gain little from his success in these proceedings as the determination under s 14 may be reconsidered and revoked under s 62 for the reasons which prompted the Tribunal to determine the matter as it did.' 42 For the foregoing reasons, I do not think the ground of appeal can be sustained, but even if I am wrong, and it was not open to the Tribunal to make the first finding at [101], I do not think this infects the second finding at [101] namely, that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment, a finding, as I observed at [29], which was not inconsistent with any findings underpinning the s 14 determination because none of the findings went that far. 43 For the foregoing reasons, this ground of appeal must fail.