Australian Postal Commission v Burgazoff

[1989] FCA 200

Re: AUSTRALIAN POSTAL COMMISSION
And: DIMITRIUS JAMES BURGAZOFF
No. NG879 of 1988
FED No. 200
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - Commonwealth Government Employees' Compensation - whether there is any onus of proof in Tribunal proceedings - whether the Tribunal applied an onus of proof.

Commonwealth of Australia v. Muratore (1978) 141 CLR 296

Ladic v. Capital Territory Health Commission (1982) 5 ALN N60

McDonald v. Director-General of Social Security (1984) 1 FCR 354

HEARING

SYDNEY

#DATE 8:5:1989

Counsel for the applicant: Miss R. Henderson

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr J. Shaw QC with Mr M. Thompson

Solicitors for the respondent: Mr Peter G. Kearney

ORDER

The application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal, given on 29 March 1988, which set aside a decision of the delegate of the Australian Postal Commission and remitted the matter to the Commissioner for Employees' Compensation with the direction that, since 19 March 1987, Mr D.J. Burgazoff had continued to be partially incapacitated for work as the result of his injury on 24 February 1981 and that compensation was payable at an amount calculated in accordance with the above finding of fact.

1. The appeal was brought on the ground that the Tribunal had wrongly imposed an onus of proof upon the Australian Postal Commission and had, in effect, not fairly considered the evidence of the two doctors, Dr R.G. Robinson and Dr F. Ehrlich, whose views were unfavourable to Mr Burgazoff's claim but had, in effect, imposed a weighting against the reports and evidence of those two experts. That was not precisely the way the matter was put but that was the substance of it.

2. Mr Burgazoff had been employed in the Sydney Mail Exchange as a mail officer. His duties involved tying and lifting bags of mail and occasionally sorting letters. In February 1981, he lifted a mailbag and suffered severe pain in his back. He was off work for 5 - 6 weeks. On his evidence, he continued to have a nudging pain in his back in 1981 and during 1982, he suffered further problems and was off work for substantial periods. He was off work with back problems during periods in 1983 and 1984. He was retired in October 1985 on the recommendation of his doctor, Dr A.R. Clark.

3. Mr Burgazoff's entitlement to compensation was accepted in 1981 by a determination of the delegate of the Commissioner made 11 May 1981. Subsequent determinations limited in time were made from time to time. Thereafter the last such determination was made on 12 May 1986 with respect to the period up to 31 October 1986. After that date, payments were continued to be made to Mr Burgazoff by the Australian Postal Commission but, on 5 February 1987, the State Manager for the Commission wrote to the Commissioner for Employees' Compensation enclosing a report from Dr R.G. Robinson dated 4 August 1986 and recommending that liability should cease as from 31 October 1986. On 23 April 1987, a delegate of the Commissioner wrote to Mr Burgazoff advising that he was considering "whether you continue to be entitled to compensation." A determination was made on 15 June 1987 that he was not so entitled after 31 October 1986 with the effect that Mr Burgazoff was then asked to repay the $3,407.96 he had received after that date. Subsequently, a determination was made on 13 July 1987 substituting the date 19 March 1987 for the date 31 October 1986 appearing in the previous determination with the result that no repayment was then required.

4. It was these circumstances which led to paragraph 11 of the Tribunal's reasons which read:-
   

"11. The respondent (sic) originally accepted liability and paid compensation intermittently between 1981 and 1985 and continuously from October 1985 until March 1987. As it now alleges that it is no longer liable to pay that compensation, it bears the onus of proving that allegation. As Murphy J put it in Commonwealth of Australia v Muratore 22 ALR 176 at 182 -

'If the Commissioner varies a determination adversely to the worker, then on appeal by way of judicial review, the onus lies upon the Commonwealth to justify the variation to the extent to which it is adverse to the worker.' This is, as His Honour said, a simple application of the principle that he who asserts must prove."

1. Miss R. Henderson, counsel for the Australian Postal Commission, submitted that this paragraph showed an incorrect approach for the Administrative Appeals Tribunal is an administrative body and, in the absence of any statutory onus of proof, the rules which govern onus of proof in proceedings in courts of law do not apply to the Tribunal.

2. I accept without qualification the point that there was no strict onus of proof to be applied in the proceedings before the Tribunal. In this respect, the principles have been fully considered in McDonald v. Director-General of Social Security (1984) 1 FCR 354. I agree entirely with the separate observations made by Woodward, Northrop and Jenkinson JJ. in that case and I am, indeed, bound to apply their Honours' judgment.

3. What was said in McDonald's case is consistent with the views earlier stated by Fox J. in Ladic v. Capital Territory Health Commission, (partly reported in (1982) 5 ALN N60). His Honour said, inter alia:-
   

"Subject to relevant legislation, it is for the Tribunal to decide upon its own procedure. Although in many ways resembling a court of law, and although it finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative. Its task is to inquire. By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. It was well within the competence of the Tribunal in the present case to decide at what stage Mrs. Ladic should have been required to give evidence. The term 'onus of proof' (or 'burden of proof') has much of its application as an incident of the adversary system of litigation found in common law countries. This is not the occasion to examine its meaning and application in proceedings before the Tribunal. It was undoubtedly necessary for the Tribunal in the present case to be satisfied, on the facts, of certain matters. This was a legal burden, or requirement, and could, as a matter of common sense, be said to have rested with the party seeking the result. If there had been continuing periodical payments for incapacity, one matter of which the Tribunal would have had to be satisfied was that there had been a change, justifying cessation or reduction of payments (see The Commonwealth v Muratore (1978) 141 CLR 296)."

1. It was these principles which the Tribunal applied. The Tribunal did not treat the proceedings before it as adversarial proceedings in the nature of proceedings in a court. Indeed, it seems that the Tribunal, in accordance with the ordinary practice of the Administrative Appeals Tribunal, took into evidence before it the documents described as the "T documents", a nomenclature given to such documents as a recognition of the Tribunal's function as an administrative body and a notification to the parties before it, that, in addition to any material any party might wish to put before it, the Tribunal would take the "T documents" into account.

2. Because of the nature of its function and the fact that it proceeds by way of a hearing at which parties are entitled to appear and be represented, the Administrative Appeals Tribunal itself rarely calls evidence and never itself makes investigations outside the conduct of the hearing. But an Administrative Appeals Tribunal, as an administrative body, will feel free to suggest to the parties other additional information which ought to be obtained and sometimes appropriate means of obtaining the information and bringing it into evidence. An Administrative Appeals Tribunal may also, in the course of its proceedings, make it clear to one or other of the parties what the position would be if the evidence before the Tribunal were left in its then state. If it does so it is not then placing a legal onus of proof upon a party but merely making it clear to a party what would be the Tribunal's state of satisfaction as to relevant matters if no further evidence were called. As Woodward J. said in McDonald's case, cited above, at p 357:-
   

"Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe this situation in terms of the legal onus of proof."

1. The facts which were before the Tribunal in the prsent case would, in a court of law, have called up an onus of proof if the proceeding had been a proceeding in a court of law. As this matter has been fully considered in Commonwealth of Australia v. Muratore (1978) 141 CLR 296, I need not elaborate upon it. Although there was not here a determination of entitlement which was unlimited in time, nevertheless, the course of administration of Mr Burgazoff's claim was such that he would have continued to receive compensation unless the Commissioner for Employees' Compensation or his delegate had been satisfied that there was good reason for terminating that entitlement. This circumstance, which in a court of law would have called up an onus of proof, therefore, in proceedings before the Tribunal, called up the need for the Tribunal to be satisfied that the entitlement should be terminated.

2. It was thus appropriate for the Tribunal to refer to the Commonwealth of Australia v. Muratore. Although the Tribunal used the term "onus of proof", I do not draw from the use of that term a conclusion that the Tribunal misunderstood its function in any way. The member constituting the Tribunal was an experienced member of the Tribunal who would have been well aware of what was said in McDonald's case and would have approached the proceedings in that light. By referring to Commonwealth of Australia v. Muratore, the Tribunal would have had in mind the point made by Woodward J. in McDonald's case where his Honour said, at p 358:-
   

"If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. For a comparable analysis as to the onus of proof (properly so-called) before a judicial tribunal see Phillips v. The Commonwealth (1964) 110 CLR 347 at 350."

The Tribunal therefore analysed, by reference to Muratore's case, what was the decision to be made. The Tribunal did not refer to Ladic's case but probably had it in mind or was influenced by it.

1. As a result of analysing what was the question to be considered, the Tribunal turned first to the evidence of Drs Robinson and Erhlich, whose opinions and whose evidence supported the termination of Mr Burgazoff's entitlement to compensation. In doing so, the Tribunal approached the matter in the same manner as did the delegate of the Commissioner for Employees' Compensation, for it was the letter dated 5 February 1987 from the State Manager of Australia Post to the Commissioner for Employees' Compensation enclosing the medical report of Dr Roberton dated 4 August 1986 which caused the delegate of the Commissioner to reconsider Mr Burgazoff's ongoing entitlement.

2. The Tribunal was not bound to approach the matter in this way but it was entitled to do so if it thought it a convenient way of considering the issues. I see no error in the Tribunal's approach.

3. Miss Henderson submitted that the "onus of proof" referred to in paragraph 11 of the Tribunal's reasons dominated the Tribunal's consideration of the case and led to the finding against the Australian Postal Commission. She submitted that there had not been any full or fair consideration of the opinions and evidence of Dr Robinson and Dr Ehrlich and that, in effect, the Tribunal applied some concept of "onus of proof" to give a weighting against the views of those medical practitioners. However, I am unable to find in the Tribunal's decision any influence of the reference to onus of proof other than that the Tribunal looked first at the opinions and evidence of Drs Robinson and Ehrlich.

4. The Tribunal said:-
   

"... the only evidence on which the respondent can rely for discharging its onus is the medical evidence of Drs Robinson and Ehrlich."

Miss Henderson submitted that the Tribunal therefore did not consider the whole of the evidence. But she was unable to point to any evidence which the Tribunal failed to take into account. In fact, in its reasons for decision, the Tribunal referred to all the relevant evidence before it. In looking first to the evidence of Dr Robinson and Ehrlich, the Tribunal was not in error and the Tribunal was not in error in thinking that it was their opinions and evidence which supported the decision under review.

1. The Tribunal set out the substance of the opinions and evidence of Drs Robinson and Ehrlich and then discussed the opinions and evidence of Drs Smith and Taylor, whose views supported Mr Burgazoff's entitlement to ongoing compensation. The Tribunal said that Dr Taylor's evidence should be approached with caution as he had received a confused history. Thus, it is clear that the Tribunal examined with care the merits of the opinions expressed by each of the medical practitioners.

2. The Tribunal found for Mr Burgazoff principally upon the evidence of Dr Smith, which evidence the Tribunal described as putting forward "a believable probability". That inexact expression was no doubt intended to convey that Dr Smith's opinion gave a believable explanation for Mr Burgazoff's condition and the Tribunal was satisfied on the balance of probabilities that it was correct.

3. It is unnecessary for me to go into the facts of the matter in any detail but, out of fairness to the Tribunal, I should make it clear that it was open to the Tribunal to find that Dr Smith's evidence explained Mr Burgazoff's condition and its connection with his employment in a way that seemed more credible than the evidence of Drs Robinson and Ehrlich. Dr Taylor's evidence supported that of Dr Smith.

4. Mr Burgazoff had been employed at the Sydney Mail Exchange for many years and, in the course of his duties, handled heavy bags of mail. He had had an underlying arthritic condition and also a scoliosis of the spine, both of which conditions, until 9 February 1981, had been asymptomatic. In February 1981, he suffered pain after lifting a mailbag and was off work for 5 - 6 weeks. He was frequently off work therafter with back pain until October 1985, when on the advice of his medical practitioner, he retired. He has not worked since. The Tribunal found that Mr Burgazoff was a witness of truth.

5. Mr Burgazoff suffered not merely physical or organic problems, but had a functional overlay or psychological preoccupation with his disability.

6. Dr Robinson scarcely dealt with this latter aspect of Mr Burgazoff's condition. Dr Robinson concentrated on the physical or organic aspects of Mr Burgazoff's condition but not so much on the point that, because of pain, which he first suffered in February 1981, Mr Burgazoff found it increasingly difficult to work. For example, in his report dated 4 August 1986, Dr Robinson said:-
   

"I do not understand why he is so incapacitated ..."

1. Dr Ehrlich gave more attention to the functional side of Mr Burgazoff's condition and said:-
   

"I felt on both occasions that there was a very substantial non-organic component here ... It was - I hesitate to use the words 'psychotic preoccupation,' but he did seem - he seemed to have all his attention and all his mind focused on his painful hands and his physical symptoms and I thought that was probably where most of his trouble lay. ... I thought he was very, very preoccupied with his health and his pains and he seemed to be focusing much of his attention on his pains. I thought that was the most important thing happening in this man."

But Dr Ehrlich did not go on to explain why this important aspect of Mr Burgazoff's condition was not a part of the disease to which Mr Burgazoff's employment had contributed. As the Tribunal pointed out:-

"... no detailed reasons were given by him either in writing or in oral evidence as to why, in his opinion, the existing residual disability was no longer connected with the 1981 incident."

1. Dr Smith and Dr Taylor, in their reports and evidence, thought that the work which Mr Burgazoff did in the Sydney Mail Exchange had brought on the pain which was Mr Burgazoff's greatest disability and rendered symptomatic his pre-existing but asymptomatic degenerative condition.

2. As was said by Davies, Sheppard and Ryan JJ. in Commonwealth Banking Corporation v. Percival (1988) 82 ALR 54 at p 57:-
   

"It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity."

It was to this element that Drs Smith and Taylor directed their attention and which, in the Tribunal's view, made Dr Smith's report and evidence the most satisfying.

1. Accordingly, no ground of appeal has been made out. The appeal will be dismissed with costs.