Australian Postal Corporation v Hakim, S.

[1992] FCA 107

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIAN DISTRICT REGISTRY	1	No. VG 262 of 1991
)
GENERAL DIVISION	)	/

B E T W E E N :

AUSTRALIAN POSTAL

CORPORATION

Applicant

A N D :

SULEIMAN HAKIM

Respondent

JUDGE MAKING ORDER:	KEELY J.
PLACE ORDER MADE:	MELBOURNE
DATE ORDER MADE:	12 MARCH, 1992

RECEIVKm

MINUTES OF ORDER 1 6 MAR 1992

FEDERAL COUR A

I

AUSTRALIA PRINCIPAL

THE COURT ORDERS THAT:  REGISTRY

1.    The appeal be dismissed.

36 of the Federal Court Rules.)

GENERAL DISTRIBUTION NOT REOUIRED

2.   The decision of the Administrative Appeals Tribunal, given on 9 September 1991, be affirmed.

3.   The applicant, Australian Postal Corporation, pay the costs of the respondent, Suleiman Hakim.

(W: Settlement and entry of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIAN DISTRICT REGISTRY	)	No. VG 262 of 1991
)
GENERAL DIVISION	)	i

ON APPEAL from the General Division of the

Administrative Appeals Tribunal constituted by a Senior Member

B E T W E E N :

AUSTRALIAN POSTAL

CORPORATION

Applicant

A N D :

SULEIMAN HAKIM

Respondent

12 MARCH, 1992 KEELY J.

REASONS FOR JUDGMENT

The Australian Postal Corporation ("the employer") has

appealed from the decision of the Administrative Appeals

Tribunal ("the Tribunal"), given on 9 September 1991, by which	the Tribunal set aside the decision under review by it and
decided:

"1. that the applicant is entitled to be compensated for time off work and medical expenses incurred in respect of stress nervous debility for such periods, from and including 16 April 1986, he was certified medically unfit for work due to his stress nervous debility, and also for any future periods; and

2.   orders that the respondent pay the costs of the applicant to these proceedings, such costs in the absence of agreement to be taxed by the Registrar or a District Registrar of the Tribunal."

Mr. Misso, of counsel, appeared for tha employer before

the Tribunal and also on this appeal and Mr. Stiffe, of
counsel, appeared for the employee in both proceedings.

The notice of appeal was amended at the hearing by leave without objection. As amended, the questions of law raised were stated to be:-

"(a) Whether the Tribunal erred in law in failing to take into account the evidence contained in document T33.

(b)	Whether the Tribunal erred in law in failing to give reasons for its decision (if any) not to take into account the evidence contained in
document T33. "

As amended, the grounds of appeal read:-

"(a) The Tribunal erred in law in failing to take

into account the evidence contained in document

T33.

(b)	Without limiting the generality of Ground (a) hereof, the Tribunal erred in law in failing to take into account the evidence contained in document T33 -
(i) That showed that the Respondent had a substantial gambling habit pre-dating the

16 April, 1986.

(ii) That showed that the Respondent had borrowed $44,200.00 which was used by him, or substantially so, on gambling.

(iii)That showed that the Respondent was untruthful and insincere in giving his evidence that he did not have a gambling habit pre-dating 16 April, 1986.

(iv) That showed that it was unsafe to rely on the evidence of the Respondent.

(v)   That showed that it was unsafe to rely on the opinions of Dr. A.D. Hore, General Practitioner, Dr. D. Horgan,]Psychiatrist and Dr. N. Parker, Psychiatrist that the

Respondent had developed an anxiety neurosis causally connected to his employment with the Applicant in circumstances where their opinions were given in ignorance of and without regard to the evidence contained on document T33.

(vi) That showed that the evidence of Dr. Conron, Psychiatrist was to be preferred over the other medical evidence that the evidence contained in document T33 showed that any anxlety neurosis suffered by the Respondent was not causally connected to his employment wlth the Applicant but to his gambling habit and other factors in his life not related to his employment with the Applicant.

(c)	The Tribunal erred in law in failing to give reasons for its decision (if any) not to take into account the evidence contained in document
T33. "

Document T33, which is referred to in the notice of appeal, consisted of several documents being photo-copies of:-

(a)	The employee's petltion for the purpose of becoming a bankrupt, dated 27 June 1986, his statement of affairs, his affidavit verifying the statement and two formal documents relating to the proposed public examination of him, as a bankrupt;
(b)	A report, dated 13 February 1987, under S. 19 of the Bankruptcy Act 1966, by Mr. Drenen, Assistant Official Receiver; and
(c)	Pages from a transcript of the public examination of the

employee, as a bankrupt, by Mr. Drenen before a Deputy

Registrar in Bankruptcy on 24 June 1987, being part of

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that examination, namely page 1 and pages 3-20a.

It is convenient to refer to those documents as "document T33" as they were so cited in the proceedings before the Tribunal and have been so described in the notice of appeal.

The employer's counsel tendered to this court, without objection (Exhibit A), pages 216-218 of the transcript of the proceedings before the Tribunal, which recorded the tender of document T33 by the employer's counsel. Those pages showed that that tender took place after the employee's case had been closed by his counsel.

In seeking to tender document T33 Mr. Misso informed the Tribunal that :

documents came into the possession of those	"At about 5 o'clock yesterday afternoon a body of
instructing me relating to the bankruptcy proceedings which Mr Hakim put into train. ... I did not get them till about 9.30 this morning and I gave a copy to Mr Stiffe at the earliest opportunity
prior to 10 o'clock this morning . . . [who] . . .
advises me that he will object to the tender of
them. "

Asked by the Tribunal what was the purpose of the tender, Mr.
Misso said:

"They substantially go to Mr Hakim's credit, sir, as to evidence he gave on Monday about the circumstances of his bankruptcy ..."

m. Stiffe, in objecting to the tender, said:

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"... we have had no notice of this ... the documents

being presented to me shortly before 10 am. So, I would oppose them on that basis, but further on the basis that so far as they go to credit none of these matters were put to Mr Hakim and it would be, in my submission, very unfair for them to go before the tribunal in circumstances where they are not put to him and he given an opportunity to answer them. Now, both those matters, in my submission, should lead you to - not to accept the documents into

evidence. "

W. Misso in reply submitted:

... that neither of those are substantial objections as matters of law. I concede that these documents were given to Mr Stiffe at a point this morning which required him time to look at those documents. He has now had the opportunity of reading those documents and conferring with his client, which I understand he did.

. . . . but if my learned friend is concerned that his

client now wishes to deny the efficacy of some of the statements in these documents and answers he gave recorded in the transcript I invite my learned

clarify those matters.	friend to recall his client to have his client
That is the simplest way it can be done. I would submit not to have these documents before the tribunal will leave the tribunal with less than the
ideal body of evidence to test . . . the body of his
evidence. After all, whatever conclusion the tribunal may have reached at this point on interim basis have been derived from the evidence before it.
As the evidence builds up, it is my submission, the tribunal will then gain an overall impression as to what it accepts and what it does not accept and I would submit this - these documents are relevant to that process."

The Tribunal allowed the tender, saying:

"Mr. Misso, I propose to allow the documents to be tendered and note the objection of Mr Stiffe, but I do say that I would agree with you that they could possibly go to credit. It will be fpr Mr Stiffe whether or not he wishes to recall his client to question him [in] regard to this, but as I think both of you will appreciate . . . it would be the ultimate decision of the tribunal to decide what weight it would give those documents."

It will be noted that both Mr. Misso, in tendering document T33, and the Tribunal in admitting the documents, referred to them as going to credit.

The employee was not recalled by his counsel to glve evidence to the Tribunal as to the accuracy or otherwise of the transcript in document T33. On the other hand the employer's counsel did not seek leave to recall the employee for cross-examination as to the matters dealt with in that transcript or in the report under s . 19 of the Bankruptcy Act. In the result, the Tribunal did not have before it any evidence from the employee as to any of those matters referred

the tender; nor as to the accuracy or otherwise of the	to by Mr. Misso in informing the Tribunal as to the purpose of
transcript part of document T33; nor any evidence by the employee seeking to explain any possible inconsistency between his evidence to the Tribunal (in November 1990) and his answers (in June 1987) as reported in the transcript part of document T33.
It should be added that I accept the submission of Mr. Misso that there was no unfairness to the employee involved in
the tender of document T33 and that there was no breach of the
rule in Browne v (1894) 6 R 67 (HL). It was made clear
both by him and by the Tribunal, that the employee could be

/

recalled and asked questions as to the matters in document T33; doubtless the Tribunal would have permitted the employee to have adequate time to consider the items there raised before being called upon to give further evidence.

Mr. Misso in his final address to the Tribunal said:

"... it is my submission that the whole of the

evidence that you have heard produces three alternatives. The first alternative, in my submission, is that Mr Hakim was persecuted from 1983, that the letter that he received on 16 April 1986 tipped him over the edge, and that what followed after April 1986 was due to his work circumstances.

The second alternative, in my submission, is that Mr Hakim had a debt-ridden life throughout 1985 due to a gambling habit, which caused him anxiety problems and problems within his family, and that the event of April 1986 was no more than coincidental in the collapse of his financial world and the production of his anxiety symptoms.

man with personality problems; a man who perceives	The third alternative, sir, is that Mr Hakim is a	persecution when there is none there, and I would submit that even if he were of that personality type and the tribunal found that there was no persecution, then it is my submission, as a matter of logic and fact, then work could not have an implication in how that personality condition developed ultimately.
It is obvious, sir, that the question of persecution is a matter of substantial conflict in this case.
Ultimately, whether you find in favour of Mr Hakim or not will depend on how you deal with the evidence of Mr Kerr and Mr Hakim, who are the - would appear to be the only two parties about whom this alleged longstanding conflict involved."

The first and second alternatives there posed seemed to amount

to a submission that the Tribunal had to decide that the

medical condition was either "due to his work circumstances",

1

or that it was due to his personal life style (or to the "third alternative" which was stated by Mr. Misso to be not relevant to this appeal). Mr. Misso contended to this court that the above "second alternative" would, if accepted by the Tribunal, have provided "a complete answer" to the claim. However, he conceded that, if the Tribunal concluded that the work was a contributing factor to the medical condition, the employer could not succeed merely by showing that "other matters also contributed" e.g. the employee's personal life style.

Mr. Misso did not challenge any of the findings of fact in the Tribunal's reasons for decision. The Tribunal preferred (Appeal Book 463 para 49) the employee's evidence (that Mr. Kerr, the employer's Mail Processing Controller Supervisor, had been "harassing and victimising him") to the	denials by Mr. Kerr of those allegations. It expressly found:	( 1) that Mr. Kerr 'S "behaviour included harassment and
victimisation of the [employee] causing the [employee] significant stress" (para 50); and (2) "that the [employee] suffers from a stress induced condition caused by continuing problems at work. The Tribunal finds as a fact that the [employee] suffers stress nervous debility to which his employment with the [employer] was a causal factor, pursuant to S. 29 of the 1971 Act" (para 51).
Mr. Misso had submitted to the tribunal that it "ought to be slow to accept the applicant's evidence on that score" i.e.
the conflicting evidence of the employee and of Mr. Kerr. He

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addressed in some detail as to the employee's credit and then

said:	-
"But when the tribunal has regard to the documents obtained by the respondent which are now part of the T documents, it gives a very, very different picture, and the picture is a man who throughout
1985 up until about March 1986 borrowed sums
totalling 44 and a half thousand dollars from a variety of organisations, with a strong line or undercurrent throughout those bankruptcy documents that the moneys were applied up to $20,000 towards a gambling habit.
Now he in my submission, if he was going to be truthful with the tribunal, should have told the tribunal the amount of money that he borrowed, the sources from whom he borrowed it, and what those moneys were applied to, yet the simple proposition he puts is that once again the bankruptcy occurred only because he was out of work as from April 1986, and it is my submiss~on that there is very clearly a glaringly different hypothesis developed, once regard is had to those bankruptcy documents.
My learned friend made an objection to them being admitted, and if that objection was being made
on those borrowings wh~ch was not there to be drawn because the documents put a picture or a complexion
inference or by fact, then he could have called his client to have resolved those conflicts, but despite the invitation to do so did not, and I would submit that the tribunal therefore ought to give the forced weight to those documents, and ought not to draw away weight when the applicant himself has had the opportunity of rectifying any misconceptions that may be developed out of those documents." (Appeal Book 410-411)

It is clear from those passages that the employee's credit was very much in issue in the hearing before the Tribunal - which extended over four days.

Mr. Misso submitted to this court that:-

". . . one of two things have happened. Either as a

matter of inadvertence, the tribunal hiis overlooked document T33 altogether, and I would submit that when I take your Honour through the reasons for decision, it is my submission that is the likely result. Or the tribunal ignored it all together

..m

He said that he "did not suggest" that the Tribunal "deliberately ignored" the documents in T33 and I reject without hesitation that theoretical possibility.

As to his submission that it is "likely" that "the tribunal has overlooked T33 altogether", in my opinion it cannot be inferred that the learned Senior Member "overlooked" document T33, having regard to the following circumstances:-

(i) the tender of document T33, (ii) the objection by Mr. Stiffe, (iii) the rullng by the Tribunal that it accepted that tender, (iv) its statement in that ruling that "It will be for Mr Stiffe whether or not he wishes to recall his client to

question him [in] regard to this . . ." (v) the Tribunal's	further statement that "it would be the ultimate decision of
the tribunal to decide what weight it would give those documents", and (vi) the emphasis placed by Mr. Misso on credit in his final address, including his express references to document T33 (Appeal Book 410-411 - quoted earlier).
In this connexion, Mr. Misso, in his reply in this appeal, conceded (and in my opinion correctly) "that it is possible that the tribunal did consider T33 and re-read the transcript of the evidence, including cross examination of the employee and having considered it all, reached the findings of facts set out in its reasons for decision."

J

In a very well prepared and strongly presented argument, in which he examined and analysed the Tribunal's reasons in great detail, Mr. Misso relied upon the Tribunal's failure to refer to the documents in T33 (except, in passing, at Appeal Book 448) and its failure to analyse the employee's evidence appearing in the transcript contained in document T33. He contrasted those "failures" with the Tribunal's analysis of the oral evidence of the witnesses called by the employee and by the employer and submitted that the court should infer that the Tribunal, in reaching its decision overlooked the material in document T33.

Having given careful consideration to his submission, read the transcript of it and reflected upon it, I cannot uphold that submission.

The Tribunal plainly realized the importance of the

submissions put by Mr. Misso as to the employee's credit. In
its reasons for decision it said:

" 4 9 . . . . The Tribunal, in noting these aspects, had an opportunity to assess the applicant's general demeanour and credibility and found him to be articulate and clear in giving his version of events.

50.  The Tribunal finds that despite his inability to express himself fully in the English language and at times to recall the events fully, the applicant was truthful and sincere."

The Tribunal there expressly referred to its

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consideration of the question of the employee's credibility and its assessment of his demeanour. It noted his "inability to express himself fully in the English language and at times to recall the events fully". In my opinion the Tribunal in forming that opinion had regard to the material contained in document T33, as well as having regard to the employee's evidence to the Tribunal. It was, as the Tribunal had said in

admitting document T33, a matter for rt to decide what weight

to give to document T33, which it would have read after it had observed the employee as a witness and noted his "inability to express himself fully in the Engllsh language and at times to recall the events fully".

It may have taken the view, for example, that his

inability to express himself fully in the English language

would have been aggravated by the way in which the public

pages of that transcript the employee's attempted answers to	examination was conducted. It may have noted that in ten	questions were interrupted by the questioner on no less than
24 occasions (pp. 120-129); that aspect is, of course, not a
matter upon which the court could form any opinion, but the Tribunal, having heard the employee's evidence, including cross-examination, might have taken it into account in considering the submission by Mr. Misso in his final address as to the employee's credibility.
Of course there would have been no room for debate had the Tribunal expressly stated its opinion as to document T33.
However, as the Full Court (Fox, McGregor and Morling JJ.)

1

said in Steed v Minister for Immiaration and Ethnic Affairs
(1981) 37 ALR 620 at 621:

"It is a mistake to conclude simply from the fact that a judge or Trlbunal does not refer . . . to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with."

Similarly, in Dennis Willcox Ptv. Ltd. v Federal Commissioner of Taxation (1988) 79 ALR 267, Jenkinson J., with whom Woodward and Foster JJ. agreed, said at 276:

"Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of S. 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal."

Mr. Misso placed considerable reliance upon other

passages in the reasons for judgment in the latter case.

However, in my opinion that decision is distinguishable.

There, the Full Court inferred that a particular submission,

which raised both a question of fact and a question of law,

had been "inadvertently overlooked by the tribunal". It held

(at 277) that the Tribunal's failure "to carry out the duty to

consider and determine each question of law and fact . . . or

the failure to carry out the duty imposed by S. 43(2) [to give

reasons for its decision not to take into account a particular

matter ("the true value of the shares")] as the case may be,

has brought about a miscarriage of justice by preventing this

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court from affording the parties a determination whether the tribunal's decision was vitiated by error of law". The Full Court's decision was based on its opinion that the court would be "unable to determine whether, on the one hand, error of law had vitiated the tribunal's consideration of the submission or, on the other hand, the submission had availed the applicant nothing because the factual basis on which it rested had not found acceptance by the tribunal" (see p. 276).

In the present appeal the relevant circumstances are quite different. The employer did not challenge any of the Tribunal's findings of fact. It accepted that there was a finding as to the employee's credit (see paras 49 and 50 of the Tribunal's reasons) but submitted that the court should infer that that finding was "reached without having regard to T33". The employer's primary submission was that the Tribunal

-

already stated, I have not upheld that submission. It follows

failed to take into account the matters in document T33. As

that the second submission does not arise for consideration i.e. that the Tribunal failed "to give reasons for its decision (if any) not to take into account" those matters - see ground (c) in the notice of appeal. In the present appeal there is nothing "preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law" - (Dennis Willcox at p. 276). As I have said, in my opinion that authority is distinguishable.

For the foregoing reasons the appeal will be dismissed,

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the decision of the Tribunal affirmed and the applicant, Australian Postal Corporation, ordered to pay the costs of the respondent, Suleiman Hakim.

I certify this and the fourteen preceding

pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice

Keely delivered o 1 March, 1992. A i

Associate: 4f@fkLdLd\

Date:  12 March, 1992

ATTACHMENT A

Dates of Hearing	2 and 3 March, 1992
Date of Judgment	12 March, 1992
Solicitor for Applicant	Australian Government Solicitor

Appearing for Applicant Mr. P. Misso

Solicitor for Respondent	Messrs.	Slater	&
Gordon

Appearing for Respondent Mr. M. Stiffe