Case: Australian Postal Corporation v Sellick [2008] FCA 236 , 101 ALD 245
Outcome: cited
the extent that the Corporation in the present appeal seeks to raise a contention as to whether or not there was " any evidence " in support of particular findings, it may be noted that in Australian Postal Corporation v Sellick [2008] FCA 236 at [91] , [2008] FCA 236 ; 101 ALD 245 at 264, Bennett J observed that " [a] decision made under an enactment is invalid if there is a total absence of evidence to satisfy an essential element of the decision ". Section 14 of the 1988 Act provides that Comcare is liable to pay compensation " in respect of an injury suffered by an employee ... ". Section 53 requires notice to be given " of the injury " and s 54 provides that compensation is not payable " unless a claim for compensation is made ..." that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang , supra , at [43]. The claim as made by a claimant is to be given " a broad, generous and practical interpretation ...": Abrahams v Comcare [2006] FCA 1829 at [18] , [2006] FCA 1829 ; 93 ALD 147 at 152; Australian Postal Corporation v Sellick , supra , at [55]. Section 24 provides for the payment of compensation for " permanent impairment " and s 25 provides for the " interim payment of compensation " pending the final determination of a claimant's disability. Section 26 provides that " an amount of compensation payable to an employee under section 24 or 25 ... shall be paid to the employee within 30 days after the date of the assessment of the amount ". But not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J. No separate submissions were advanced on behalf of either the Corporation or Ms Hughes as to whether it was appropriate for the Corporation to file both an appeal pursuant to s 44 and also rely upon s 5 of the 1977 Act. No submission, for example, was advanced on behalf of Ms Hughes that applications may not be made pursuant to both s 44 of the 1975 Act and s 5 of the 1977 Act. In other cases such a submission has been advanced: e.g. Australian Postal Corporation v Sellick , supra , at [92] to [95]. Both parties sought costs in the event that they should prevail, the proposition common to both parties being that costs should follow the event. There is no reason why costs should not follow the event in the present proceeding.