Case: Lees v Comcare (1999) 56 ALD 84
Outcome: distinguished
first question is said to be sourced in the ground that the Tribunal should have found, on the proper application of s 25 of the AAT Act and ss 61 and 62 of the SRC Act, that its jurisdiction was limited to reviewing a decision made pursuant to ss 16 and 20 of the SRC Act in respect of the cessation, as at 1 December 2004, of compensation payments for an accepted injury of the applicant of 'adjustment disorder with features of anxiety and depression and chronic soft tissue injury': Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In short, it should have found that it did not have jurisdiction at large to hear and determine whether an injury, other than the accepted injury, was compensable under s 14 of the SRC Act. Where the Tribunal has no jurisdiction under s 25 of the AAT Act to make or review a determination under s 14 of the SRC Act, the parties cannot consent to the Tribunal being vested with such jurisdiction: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396 . The applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray &amp; Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288. Further, according to Comcare, it was unnecessary for this decision to address all of the matters see [35] of Lees that were necessary to give rise to liability under s 14 of the SRC Act. The delegate was satisfied that a relevant matter, namely whether the employee had suffered a work related 'injury', had not been established. This was sufficient, on the reasoning of the delegate, to deny liability for the delusional disorder. The contention in the applicant's submission that 'the first tier decision of the process found that as at 1 December 2004 the anxiety and depression had progressed to a delusional/paranoid disorder' is, according to Comcare, wrong. The decision simply found that as at 1 December 2004, on the medical evidence, benefits were not payable under ss 16 and 20 of the SRC Act for an 'adjustment disorder with features of anxiety and depression'; the decision also rejected liability for a work related delusional disorder. On 1 November 2004 the applicant's solicitors sought review of this decision. The applicant was entitled to do this pursuant to subs 62(2) of the SRC Act. Further, under subs 62(3), the applicant was required to set out reasons for the request. This the letter did. Although, in the main, the letter pressed the anxiety condition as requiring the continuation of benefits, it also argued that Comcare was liable for the applicant's delusional disorder which had been exacerbated by his employment. This question is said to be sourced in the ground that the Tribunal should have found that, on the proper construction of the scheme of the provisions of the SRC Act, as set out in Lees , that a pre-requisite to Comcare making a determination as to whether it had a liability for a delusional/paranoid disorder injury of the applicant was the making of a claim by the applicant, pursuant to s 54 of the SRC Act, for such an injury. The fact that a review decision concerning the applicant's eligibility for compensation payments under ss 16 and 20 of the SRC Act took into consideration the applicant's condition at the date of that decision did not give rise to a decision in respect of liability for a condition for which a claim had been made. There is a certain overlap between this ground and the first ground; both go to the question of whether the Tribunal had jurisdiction to consider and determine whether the applicant's delusional/paranoid disorder was a compensable injury under s 14 of the SRC Act although the first ground was predicated on the premise, implied if not express, that a claim for such an injury had been made. The present ground raises the anterior issue whether a claim for such an injury had been made. At [23] of its reasons, the Tribunal acknowledged that the applicant had not made a formal claim after the commencement of the SRC Act. But the Tribunal went on: '... [the applicant] did respond to an enquiry by Comcare after 1 December 1988 ... In my view Comcare treated Mr Buhr's complaint as if a formal claim had been lodged after commencement of the [SRC] Act ... Accordingly, I consider that the continuing correspondence from Mr Buhr and Comcare's responses and medical investigation of Mr Buhr's claim should be treated as a claim and acceptance of that claim under the [SRC] Act.' Comcare conceded that there is no dispute that Lees at [29] set out what ordinarily will be required of a claim under s 54 of the SRC Act. In particular, that it be in writing and that it should be supported by a medical certificate: s 54(2). However, it observed that Lees did not fully set out the terms of s 54. In particular, it noted that subs 54(5) of the SRC Act also states: 'Strict compliance with the approved form referred to in subsection (2) is not required and substantial compliance is sufficient.' Comcare further submitted that the Tribunal's conclusion at [23] is consistent with s 54 of the SRC Act. That is, notwithstanding the applicant's lack of a formal claim for a delusional disorder, the requirements of the section were, on the facts of this case, substantially complied with by him. Finally, reference was made to the rationale for ss 53 and 54 of the SRC Act, namely, to prevent prejudice to Comcare by late notification of events that could give rise to a claim. Comcare has long been aware of the general nature of the applicant's complaints about his work between 31 August 1989 and 26 November 1990. Neither the applicant nor Comcare adduced evidence that Comcare had been prejudiced by a claim being made in the way it was. I agree that the Tribunal's finding at [23] was open on the evidence and that, notwithstanding the lack of a formal claim for a delusional disorder, the requirements of s 54 were, on the facts of this case, substantially complied with by the applicant. I am therefore of the view that the Tribunal's finding at [23] does not raise a basis for an appeal on a question of law under s 44 of the AAT Act. The difficulty I have with this question is that I cannot identify in the Tribunal's reasons where it found the applicant's claim for compensation of 10 October 1988 for an injury of extreme anxiety and for which the respondent accepted liability on 24 February 1989 gave rise to liability for compensation under s 14 of the SRC Act. I do not read [6] of the Tribunal's reasons, in particular the sentences 'In relation to Mr Buhr's psychological disorder a preliminary question arose. The first question was whether Mr Buhr suffered an injury or disease compensable pursuant to s 14 of the 1988 Act' as being a reference to the applicant's claim for compensation of 10 October 1988 and for which Comcare accepted liability on 24 February 1989. These sentences clearly refer to the delusional or paranoid disorder that had disabled him from continuing to work. In any event, nothing in [6] amounts to a finding of the Tribunal; the paragraph is nothing more than a statement of the issues before the Tribunal, albeit an arguably ambiguous statement.