Case: Re Quinn &amp; Australian Postal Corporation (1992) 15 AAR 519
Outcome: cited
grounds of appeal of the Authority are as follows: The Tribunal erred in law in not considering a serious submission of the applicant that, adopting the principle that having regard to the dictates of fairness and expedition "previous Tribunal decisions should generally be regarded as establishing the matters actually decided and the grounds for determination unless there is reason not to do so": Re Quinn &amp; Australian Postal Corporation (1992) 15 AAR 519 at 526, the question for the Tribunal is what has changed since the operative date for the previous Tribunal determination of the respondent's incapacity. The Tribunal erred in law in failing to take into account a relevant consideration, ie that the respondent's condition had improved since 2001. The Tribunal was required to take into account this consideration by s 34(1) of the Act. The Tribunal erred in law in failing to take into account a relevant consideration, ie that a person with the applicant's skills, qualifications and experience would reasonably be expected to undertake a wider range of civil employment than security officer and foreman. Under s 34(1)(c) of the Act the Tribunal made its assessment of the degree to which the prescribed impairment of the respondent had diminished his capacity to undertake the kinds of employment identified for the purposes of s 34(1)(b) of the Act by reference to only two of the nine identified employment kinds. The Tribunal erred in law by misdirecting itself as to the nature of the decision it was required to make, or misapplied s 34(1) of the Act. The Tribunal said that it was "required to have regard to the width, quality and nature of the range in employment opportunities and make a 'value judgment'". But it then made its decision on the assessment of only two of nine identified employment types. The Tribunal's statement of reasons was manifestly inadequate in that it: is impossible to glean from the statement the reasons what was the Tribunal's reasoning process that led to its decisions; and does not state reasons adequate to enable the court to determine whether or not any other error had occurred in the reasoning process. Relevant legislative scheme The governing law in these proceedings is Pt V of the Act. Part V provides invalidity benefits for members of the scheme established by the Act who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. The initial classification of a member is made under s 30, which provides as follows: 30 (1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows: Percentage of incapacity Class 60% or more A 30% or more but less than 60% B Less than 30% C In its Reasons for Decision the Tribunal also referred to s 34 of the Act, which so far as is relevant in these proceedings provides: 34 (1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment. ... (1A) In determining: (aa)What is the percentage of incapacity in relation to civil employment of a recipient member;... (aab) The Authority shall have regard to the following matters only: (a) the vocational, trade and professional skills, qualifications and experience of the recipient member ; (b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; (c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b); (d) such other matters (if any) as are prescribed for the purposes of this subsection (1B) In subsection (1A), prescribed physical or mental impairment , in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means: (a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or (b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a). Submissions of the parties In re Quinn &amp; Australian Postal Corporation (1992) 15 AAR 519 at 526 the Tribunal stated: It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.