Case: Power v Comcare (1998) 89 FCR 514
Outcome: applied
The judgment of Sackville J in Power v Comcare (1998) 89 FCR 514 at 525 526 supports the proposition that 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 the four sections mentioned on the basis that a material fact (necessary to support the determination under s 14) did not exist. His Honour said: 'Only Comcare addressed in submissions the character of the 22 March 1995 decision. In supplementary written submissions, Mr Johnson argued that Comcare's powers under ss 69(a) and 70 of the SRC Act authorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare's liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act . If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Act conferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate's decision that Comcare's liability had ceased from 9 March 1995. I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act, to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act. In these circumstances, I accept Mr Johnson's analysis of the nature of the decision of 22 March 1995, namely, that it was made in exercise of the power conferred by s 69(a), but was also a decision under ss 14 and 19 of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Act to make "determinations... in relation to claims ": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise. The reconsideration decision of 7 April 1995 was made pursuant to s 62(4) of the SRC Act. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant's coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis. I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)).' (Emphasis added) 40 Moore J's observation at [40] that Sackville J in Power , supra, recognised the conclusion he reached was not the only one reasonably open by Sackville J's use of the words 'I think the better view is that ...' in the last paragraph of the quotation in [33] supra may well be right; on the other hand, and with respect, I think Sackville J's view is the better one. Moore J's approach may not, as his Honour says, render the scheme of the SRC Act unworkable, but it has the potential, with respect, to render it cumbersome in determining claims for compensation under specific heads which are rejected, such as in this case, following upon a determination of liability under s 14, unless that determination is itself reconsidered (by the determining authority's own motion) under s 62(1) of the SRC Act.