Australian Postal Corporation v Hughes

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FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Hughes [2009] FCA 1057

ADMINISTRATIVE LAW — adequacy of reasons — a reference to the evidence or other materials — no evidence — inquisitorial procedure — duty to assist the Administrative Appeals Tribunal

COMPENSATION — the injury for which compensation was claimed — nature of injury — evidence in support

HELD: Appeal dismissed

Administrative Appeals Tribunal Act1975 (Cth) ss 2A, 7(2)(b), 33(1AA), 43(2B), 44(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 23, 24, 25, 26, 53, 54

Abrahams v Comcare [2006] FCA 1829, 93 ALD 147, cited
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 75 ALD 630, cited
Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2, 257 ALR 765, cited
Australian Postal Corporation v Sellick [2008] FCA 236, 101 ALD 245, cited
Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332, applied
Black v Minister for Immigration and Citizenship [2007] FCAFC 189, 99 ALD 1, cited
Brown v Repatriation Commission (1985) 7 FCR 302, applied
Centrelink v Dykstra [2002] FCA 1442, cited
Comcare Australia v Lees (1997) 151 ALR 647, cited
Comcare Australia v Mathieson [2004] FCA 212, 79 ALD 518, cited
Comcare v Davies [2008] FCA 393, 173 IR 294, cited
Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377, cited
Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302, cited
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, cited
Dodds v Comcare Australia (1993) 31 ALD 690, cited
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, applied
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 73 ALD 321, cited
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, 158 FCR 252, applied
Hughes v Australian Postal Corporation [2009] AATA 260, affirmed
Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56, cited
Lafu v Minister for Immigration and Citizenship [2009] FCA 733, cited
Lang v Comcare [2007] FCA 47, 94 ALD 141, cited
Milbourn v Repatriation Commission [2009] FCA 176, 174 FCR 486, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323, considered
Roncevich v Repatriation Commission [2005] HCA 40, 222 CLR 115, cited
Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779, 91 ALD 103, cited
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 96 ALD 1, cited
SZGYT v Minister for Immigration and Citizenship [2009] FCA 705, cited
Tralongo v Malios [2007] VSC 239, 27 VAR 74, cited
WAFP v Minister for Immigration and…

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Details
Case
[2009] FCA 1057
Decision Date

CaseChat Overview and Summary

In the matter of Australian Postal Corporation v Hughes, the dispute centred around the adequacy of the evidence presented to support the Tribunal's findings regarding Ms Hughes' symptoms and their causation. The Federal Court of Australia was tasked with evaluating the grounds of appeal filed by the Australian Postal Corporation, which argued that the Tribunal's findings were not adequately supported by evidence. The Corporation contended that Ms Hughes' symptoms had not been causally linked to a specific incident, and that the Tribunal had failed to properly address certain submissions.

The legal issues before the Court involved whether the Tribunal had adequately referred to the evidence underpinning its findings, and if it had overlooked a submission that was worthy of serious consideration. Specifically, the Corporation argued that the Tribunal did not correctly identify the evidence that established a causal link between Ms Hughes' symptoms and the incident in question. Additionally, the Corporation claimed that the Tribunal had failed to address a submission concerning discrepancies between various expert findings and Ms Hughes' own reports of pain.

The Court found that the Tribunal had not erred in its handling of the evidence and submissions. It held that the Tribunal was not required to expressly identify every submission in the same terms used by the parties but needed to ensure that submissions of substance were addressed and resolved. The Court concluded that the Tribunal had discharged this task adequately and that there was no failure to consider a submission that was worthy of serious consideration. Consequently, the appeal was dismissed, and the Court ordered that the Applicant pay the Respondent's costs.

Orders

Orders of the court

1. The Notice of Appeal as filed on 19 May 2009 is dismissed.

2. The Applicant is to pay the costs of the Respondent.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first Ground of Appeal is thus rejected.FINDINGS NOT SUPPORTED BY EVIDENCE The second Ground of Appeal focuses attention upon the following finding as made by the Tribunal:[41] Her symptoms did not subside as may have been expected, and in fact spread to other areas. …This reference as to the symptoms having spread to “other areas” was a reference to the evidence Ms Hughes had earlier provided and which was summarised by the Tribunal earlier in its reasons for decision as follows:[11] She had a cortisone injection in late February 2006. By September 2006 she had been prescribed Endone, a narcotic for her occasional severe pain. She has developed a variety of symptoms. She told Dr Fearnside in October 2007 she has continued to experience back, left buttock and left hip pain; also that she had developed left sided sciatica with referred pain to the foot. She also described having alternate cold and burning feelings in the left hip and buttock region and had experienced some paraesthesia in her right buttock and thigh, but no sciatica. Also since January 2006 she had been constipated and also experienced loss of bladder sensation and some urinary incontinence.[12] She said that since 13 January 2006 she has had virtually the same level of back pain, the intensity of which varies according to her activities. Her left hip has deteriorated and that pain also fluctuates. Her hip is more troublesome than her back. Nonetheless since late August 2007 she has worked 7 hours 21 minutes each work day and does 1–1½ hours overtime most days.[13] She said she has had several experiences of her left hip locking and her left leg giving way. That might occur once a month, although it occurred three times one month.These paragraphs may be taken as an account of the symptoms claimed to be suffered by Ms Hughes. On behalf of the Corporation it is contended that “the Tribunal failed to include in its Reasons a reference to the evidence or other material on which” the finding at paragraph [41] was based, namely that Ms Hughes’ symptoms had “spread to other areas”. Reference was again made on behalf of the Corporation to the evidence of the medical witnesses. One witness, for example, Dr Brennan, had said that he “[did] not see a structural … cause to the bladder dysfunction related to her spine”. Another witness, Dr Fearnside, had said that Ms Hughes’ radicular complaints were “non-verifiable”. A further witness indicated that “[t]he report of bladder and bowel symptoms … appear to have no objective neurological basis”. It was contended by the Corporation that “there was no evidence before the Tribunal to the effect that those tests or consultations had established a causal connection between the symptoms and the 13 January 2006 incident”. The Corporation obviously accepted that it was for the claimant to set forth her symptoms — but contended that such an account did not establish that those symptoms had been caused by the January 2006 accident.

Decision

Reasons for decision

FLICK J
There is considered to be no necessity for the Tribunal to expressly identify any particular submission being advanced for resolution, or to identify it in the same or similar terms to that being advanced by a party, and to then expressly address and resolve that submission. The manner in which the Tribunal resolves competing submissions, and the manner in which it expresses those submissions, is a matter for it to determine. That which is required, however, is for it to be readily apparent that a submission of “substance” or one “worthy of consideration” has in fact been addressed and resolved. The Tribunal discharged that task in the case at hand.CONCLUSIONS It follows that the appeal pursuant to s 44 of the 1975 Act should be dismissed. No separate submissions were advanced on behalf of either the Corporation or Ms Hughes as to whether it was appropriate for the Corporation to file both an appeal pursuant to s 44 and also rely upon s 5 of the 1977 Act. No submission, for example, was advanced on behalf of Ms Hughes that applications may not be made pursuant to both s 44 of the 1975 Act and s 5 of the 1977 Act. In other cases such a submission has been advanced: e.g. Australian Postal Corporation v Sellick, supra, at [92] to [95]. Both parties sought costs in the event that they should prevail, the proposition common to both parties being that costs should follow the event. There is no reason why costs should not follow the event in the present proceeding.ORDERS The orders of the Court are:1.The Notice of Appeal as filed on 19 May 2009 is dismissed.2.The Applicant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

There is considered to be no failure on the part of the Tribunal to make a finding and to refer to the evidence on which its findings were based. Section 43 of the 1975 Act does not require that reasons for decision be expressed in any particular way or according to any particular formula. The manner in which Tribunal members may express their reasons for decision is as diverse as the manner in which Judges of this and other Courts express their reasons. The reasons for decision of the Tribunal in the present proceeding, and the manner in which it has expressed its findings and referred to the evidence before it, are expressed in sufficiently clear terms such that a conclusion can safely be reached on appeal that the Tribunal has referred to the evidence upon which it reached the finding of present relevance.A SUBMISSION WORTHY OF CONSIDERATION The final Ground of Appeal seeks to contend that there has been a failure on the part of the Tribunal to consider “a submission worthy of serious consideration”. According to the Corporation, that submission was its submission that “the Tribunal should reject or heavily discount the evidence of the respondent because of discrepancies between the findings made in investigations of the respondent’s pathology, the findings made by expert witnesses in their examinations of the respondent, and the respondent’s reports of pain”. A failure on the part of the Tribunal to resolve a submission advanced before it for resolution may give rise to a “question of law” within the meaning of and for the purposes of s 44(1) of the 1975 Act. And the failure on the part of the Tribunal to mention a submission or particular evidence advanced before it may give rise to an inference that the submission or the evidence has not been taken into account during the decision-making process. Or, if the submission or evidence has been taken into account, a failure to refer to the submission or the evidence in the reasons for decision may expose a failure to comply with the requirements of s 43 of the 1975 Act. But not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows:There is also the further possibility that the tribunal’s failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. 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. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal “on a question of law” is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent’s decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal’s decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376.Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick, supra, at [35], Bennett J also referred to the need to address a submission of “substance” or a submission which would have “affected the outcome”. See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.