Case: Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253
Outcome: followed
For its part, the Commission submitted, principally by reference to Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , that, questions of liability to pay compensation under s 24 of the SRC Act can involve "primary aspects" of liability such as whether there is an "injury" for the purposes of that Act. The Commission also emphasised that the Tribunal was not obliged, subject to procedural fairness considerations, to limit the conduct of its review to the case presented by the parties, citing Grant v Repatriation Commission [1999] FCA 1629 ; (1999) 57 ALD 1 and Bramwell v Repatriation Commission (1998) 158 ALR 623 in support of this proposition. 31 In Telstra Corporation Limited v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 , after an exhaustive review of earlier authority, Conti J, with the agreement of Heerey and Dowsett JJ, reached (at 273-274, [57] - [59]) the following conclusions: 57 In my opinion, it should be concluded, upon the correct construction of the SRC Act , and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act , and also under ss 21 and 27 of the SRC Act , where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) '[s]ubject to this Part...' are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged. 58 The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle . 59 I would therefore conclude , contrary to the decision of the primary judge, that the AAT below was duly empowered , upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation; and (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act , and/or under ss 21 and 27 of the SRC Act ; and (iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT. In short, it matters not, upon the true construction of the SRC Act , that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford's claim originally made on 1 May 2002 had been accepted. (Emphasis added; citations for cases referred to in the passage quoted omitted) 34 Mr Bryant did not seek reconsideration of the determination of 25 January 2006. The status of this determination is identical to the earlier determination made by Telstra, that of 8 May 2002, analysed by Conti J in Telstra Corporation Limited v Hannaford . Mr Bryant sought reconsideration only of the later, 16 March 2006 determination, described at the outset of these reasons. When, on 24 July 2006, a decision was made on reconsideration it was that decision, and that decision alone, which became the "reviewable decision" for the purposes of s 64 of the SRC Act . 35 In the passage from Telstra Corporation Limited v Hannaford which I have quoted above Conti J does not, in terms, mention s 24 of the SRC Act , instead referring to ss 16 , 19 , 21 and 27 of the SRC Act . However, his Honour's reference to these particular provisions was clearly by way of example (witness their being preceded by "for instance"). The compensation for which s 16 (compensation for medical expenses and the like), s 19 (compensation types for injuries resulting in incapacity), s 21 (compensation for injuries resulting in incapacity where the employee is in receipt of a lump sum benefit) and s 27 (compensation for non-economic loss) respectively provide are but particular types of compensation eligibility for which is enlivened, subject to the additional satisfaction of their relevant statutory criteria, once it has been concluded that an "injury" for the purposes of the SRC Act has been suffered. Compensation for an injury which has resulted in permanent impairment, for which s 24 of the SRC Act provides, is another. Each of these is a type of compensation for which Part II of the SRC Act provides. In these circumstances, there is no material distinction to be drawn between Telstra Corporation Limited v Hannaford and the present case. 36 It follows, to paraphrase and adapt for present application the conclusions reached in Telstra Corporation Limited v Hannaford , that, providing procedural fairness was observed, the Tribunal was duly empowered, upon the true construction of the SRC Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the decision of the Commission under s 14 of the SRC Act to accept liability in respect of Mr Bryant's claim for compensation; and (ii) to do so in circumstances where the Tribunal was undertaking its review of whether any compensation should be payable or further payable under s 24 of the SRC Act ; and (iii) to do so in the circumstances further where the Commission's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the Tribunal. 37 To the extent that Mr Bryant contends for a contrary conclusion, that contention must be rejected. 38 Paragraphs 37, 39, 40 and 41 of the Tribunal's reasons evidence that the Tribunal did consider whether Mr Bryant indeed suffered from the hitherto accepted "injury" of "muscle tension type headaches". The Tribunal concluded that he did. In so doing, the Tribunal necessarily accepted that Mr Bryant suffered from a "disease" for the purposes of the SRC Act , i.e. materially, an ailment suffered by him that was contributed to in a material degree by his employment by the Commonwealth (see; the then definition of "disease" in s 4 of the SRC Act ). At the relevant time, the SRC Act provided that an "injury" included a "disease" (definition of "injury" in s 4 , SRC Act ).