Australian Telecommunications Corporation v Lambroglou

[1990] FCA 689

CATCHWORDS

PRACTICE AND PROCEDURE - power of Court to strike out purported questions of law from notice of appeal under s.44 of Administrative Appeals Act 1975 (Cth) - 0.53 2 3, 15 First Schedule Form 55A - specification of a question of law a prerequisite to exercise of Court's jurisdiction - form in which questions of law should be stated - distinction between question of law and finding of fact - statement of grounds relied on in support of the order sought not available to resolve ambiguity in purported question of law - circumstances in which causation of myocardial infarction may give rise to a question of law - existence of power, as distinct from a wrong exercise of discretion, to award costs raises question of law.

Administrative Appeals Tribunal Act 1975

Whim Creek Consolidated NL v Colaan (1989) 89 A.L.R. 83

Huahes Motor Service Ptv Ltd v Wana Computer Ptv Ltd (1978) 35

F.L.R. 346
The Australian Gas Liaht CO v The Valuer-General (1940) 40
S.R.fN.S.W.) 126

~raceairdle'v Oxley [l9471 K.B. 349

commissioner of Taxation v Brixius (1987) 16 F.C.R. 359

Lambe v Director-General of Social Services (1981) 57 F.L.R. 262

Waterford v Commonwealth of Australia (1987) 163 C.L.R. 54

Edwards (Inspector of Taxes) v Bairstow [l9561 A.C. 14

Camel Exporters (Sales) Ltd v Sea-Land Services Inc [l9811 1 All

E.R. 984

Repatriation Commission v Bvrne (1981) 40 A.L.R. 296

Repatriation Commission v Law (1981) 147 C.L.R. 635

Commissioner for Government Transport v Adamcik (1961) 106 C.L.R.

REGISTRY

292

~isarotto v Australian Postal Commission (1989) 86 A.L.R. 399

Dennis Willcox Ptv Ltd v Federal Commissioner of Taxation (1988)
79 A.L.R. 267

Lennell v Repatriation Commission (1982) 4 A.L.N. Note 29

Sullivan v DeDartment of Transport (1978) 20 A.L.R. 323

AUSTRALIAN TELECOMMUNICATIONS CORPORATION v SOULTANA LAMBROGLOU

Ryan J
Melbourne

4 December 1990 RECEIVED

-6 DEC 1990

FmERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRAtIA )

)

VICTORIA DISTRICT REGISTRY	1	No VG 411 of 1989
1
GENERAt DIVISION	1

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

(Applicant)

AND:  SOULTANA LAMBROGLOU

(Respondent)

Judqe Makinq Order: Ryan J.

Date of Order:	4 December 1990
Where Made:	Melbourne

MINUTES OF ORDER

THE COURT ORDERS:

1. That sub-paragraphs 2(A), (B), (C), (D), (E), (F), (G), (I), and (J) and paragraph 4 of the notice of appeal be struck out.

2.     That the applicant have leave to amend its notice of appeal by substituting for all or any of the paragraphs struck out pursuant to paragraph 1 of this Order such statements as it may be advised of other questions of law (if any) to be raised on appeal and of the grounds relied on in support of the order sought by paragraph 2 of the notice of appeal.

3 .      That an amended notice of appeal be filed and served by 21 December 1990.

1. That if the applicant or the respondent should consider that the notice of appeal as amended pursuant to the leave granted by paragraph 2 of this Order requires documents or matters to be included in the appeal papers which were not referred to in the index settled by Deputy Registrar Agnew on 9 May 1990 that party should approach a Registrar of the Court for further settling of the index accordingly.

5.     That the application be restored to the list of cases awalting fixture to be fixed for hearing not before 4

February 199 1.

6.     That the applicant pay the respondent's costs of and incidental to the motion on notice dated 10 May 1990 and any costs thrown away as the result of the amendment of the notlce of appeal, such costs to be taxed in default of agreement.

NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No VG 411 of 1989
)
GENERAL DIVISION	1

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

(Applicant)

AND:  SOULTANA LAMBROGLOU

(Respondent)

m:  Ryan J.

Date: 4 December 1990

Place: Melbourne

REASONS FOR JUDGMENT

By notice of appeal dated 20 December 1989, the applicant, Australian Telecommunications Corporation ("Telecom"), has instituted an appeal from a decision of the Administrative Appeals Tribunal ("the A.A.T.") constituted by a Senior Member.

By that decision, it was decided that compensation pursuant to	the Com~ensation (Commonwealth Government EmDloveeS) Act 1971
("the 1971 Act") and the Commonwealth EmDloveeS' Rehabilitation and Com~ensation Act 1988 ( "the 1988 Act") should be paid to the respondent, Soultana Lambroglou, in respect of the death of her husband who died on 2 August 1986 from a myocardial infarction which he suffered after attending work on 1 July 1986 in the course of his employment by Telecom as a cleaner. It was further decided that Telecom should pay Mrs Lambroglou's costs of the proceedings before the A.A.T.
By motion on notice dated 10 May 1990, Mrs Lambroglou has moved for an order that Telecom's appeal be struck out on the ground that the notice of appeal does not raise any question of law.

The right to appeal to this Court from a decision of the

A.A.T.	is conferred by s . 4 4 of the Administrative A D D ~ ~ ~ s
Tribunal Act	("the A.A.T. Act") 1975 which provides:

"(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Trrbunal in that proceeding.

(2) Where a person has applied to the Tribunal for a revLew of a decislon, or has appl~ed to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the Interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Trrbunal.

(2A) An appeal by a person under subsection (1) or (2) shall be rnstituted:

(a)	not later than the twenty-eighth day after the day on which a document settrng out the terms of the decision of the Tribunal is furnished to the person or within such further trmes as the Federal Court of Australia (whether before or after the expiration of that day) allows; and
(b) In such manner as rs prescr~bed	by rules of court made

under the Federal Court of Australia Act 1976.

(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-sections (1) and (2) and that jurisdrction:

(a) may be exercised by that Court constituted as a Full court;

(b) shall be so exercised if:

(L) the Tribunal's decislon was grven by the Trrbunal constrtuted by a member who was, or by members at least one of whom was, a presidentaal member; and

(ri) after consulting the President, the Chief Judge of that Court cons~ders that it is appropriate for the appeal from the declsion to be heard and determined by that Court constituted as a Full Court; and

(C) shall be so exercised if the Tribunal's decision was given by the Tribunal constrtuted by a member who was, or by members at least one of whom was, a Judge.

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks approprrate by reason of its decision.

(5) Without l~miting by implrcation the generality of subsectron (4), the orders that may be made by the Federal Court of Australia on an appeal ~nclude an order affirming or setting aside the decrsron of the Tribunal and an order remitting the case to be heard and decided again, either with or wlthout the hearang of further evidence, by the Tribunal Ln accordance with the directions of the Court."

Telecom's attempt to identify the questions of law which it wishes to raise by its appeal is embodied in paragraph 2 of the notice of appeal which is in these terms:

"2.	THE questions of Law raised on Appeal are:-
A. Whether the Tribunal was entitled to find that LEONIDAS LAMBROGLOU ("the Deceased") -

(i)   Walked, clrmbed, lrfted and exerted hrmself when usLng floor scrubbing machines and a vacuum cleaner;

(ii)  Suffered from emotional stress by driving hrmself from the work place at Kings Way South Melbourne to Rlchmond to attend h ~ s Doctor in presence of chest pam, on the morning when he suffered the infarct;

B.	Whether the Tribunal was entitled to find that -
(L) The emotional stress of change of work location;
(ii) The Deceased undertaking the activlty of driving hrmself from the work place in Kings Way South Melbourne to Rrchmond to attend his Doctor;

were matters which aggravated the Deceased's coronary artery disease precipitatrng acute myocardral infarction which ultimately resulted in hrs death;

C.	Whether the Trrbunal was entitled to take into account the fact that the Deceased drove hrmself from the work place in Klngs Way South Melbourne to Richmond to attend h ~ s Doctor as contributing to the occurrence of
the infarct or ~ t s extent;
D.	Whether the Tribunal erred in Law in failing to consider the compet~tive views on the question of causation expressed by Doctors Dortimer, Rosenbaum, Sloman and Fuller;
E.	Whether the Trabunal was entitled to construe the evidence of Dr. Rosenbaum to be that the Deceased experaenced chest pain on the day of the infarctzon as a result of work being performed by him on that morning;
F.	Whether the Tribunal erred in Law in considerang any general employment contrabution to the occurrence of the infarct in the absence of any relevant evidence of the effect of such contribution;
G.	Whether the Trabunal im~rooerlv faaled to consider whether any aggravataon or icceieration occasioned by the Deceased's employment activataes were materaal;
H.	Whether there was any evzdence on which the Tribunal was able to find that the Respondent was dependent upon the Deceased;

I.     Whether the Tribunal erred in Law in decading that the Respondent be paid Compensation pursuant to Sectaon 43(4) of the 1971 Act for the period prior to 1st December, 1988 and thereafter until the 16th February, 1989 pursuant to Sectzon 17(4) of the 1988 Act;

J. Whether the Tribunal erred in Law in awarding costs m favour of the Respondent."

By paragraph 3 of the notice of appeal it is recited that the order sought is that the decision of the A.A.T. be set aside. In purported compliance with 0.53 r.2(d) of the Rules of this Court the grounds relied upon in support of the order sought are then set out as follows in paragraph 4 of the notice of appeal:

"4. GROUNDS

That the Tribunal erred an Law -

A.

In findzng that the Deceased

(i)	Walked, clambed, llfted and exerted himself when using floor scrubbing machines and vacuum cleaner;
(ii)	Suffered from emotzonal stress by drivang himself from the place of work zn Kangs Way South Melbourne to Rzchmond to attend has Doctor in the presence of chest paan;

on the morning when he suffered the infarct.

B.	In finding that -
(i) The emotional stress of change of work locataon;

(rr) The Deceased undertaking the activity of drivrng hrmself from the work place in Kings Way South Melbourne to Rrchmond to attend his Doctor;

were matters whrch aggravated the Deceased's coronary artery disease precipitating acute myocardial infarction which resulted ultimately In death in the absence of evidence to that effect.

C.	In taking into account the fact that the Deceased drove himself from the work place in Kings Way South Melbourne to Rrchmond to attend his Doctor as contributory to the occurrence of the infarct or its extent.
D.	In failing to consrder the competitive views on the questron of causation expressed by Doctors Dortimer, Rosenbaum, Sloman and Fuller.
E.	In construing the evidence of Dr Rosenbaum to be that the Deceased experienced chest pain on the day of the infarctron as a result of the work being performed on that morning.
F.	In cons~dering any general employment contributron to the occurrence of the mfarct.
G.	In failrng to consider whether any aggravation or acceleration occasroned by the Deceased's employment actrvities were material.
H.	In frnding that the Respondent was dependent upon the Deceased.

I.     In decrding that the Respondent be paid Compensation pursuant to Section 43(4 ) of the 1971 Act for the period prior to the 1st December, 1988 and thereafter until the 16th February, 1989 pursuant to Section 17(4) of the 1988 Act.

J. In awarding costs in favour of the Respondent."

I consider it to be clear that this Court has power to strike out either the whole or certain parts of a notice of appeal under s.44 of the A.A.T. Act, as not disclosing a question of law. The so-called "appeal" provided for by s.44 is a proceeding within the original jurisdiction of this Court which is accordingly empowered by s.23 of the Federal Court of Australia Act 1976 to make in relation to it "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". Section 38 of the same Act provides:

(1) Subject t o any provision made by o r under t h i s o r any

o the r A c t wrth respect t o p rac t i ce and procedure, t h e p rac t i ce and procedure of t h e Court s h a l l be m accordance wrth Rules of Court made under t h i s Act.

( 2 ) In s o f a r a s t h e provrsrons f o r t h e t i m e being

appl icable i n accordance with sub-section (1) a r e m s u f f i c i e n t ,

t h e Rules of t h e High Court, a s i n f o r c e f o r t h e trme being,

apply, muta t i s mutandis, so f a r a s they a r e capable of appl ica t ion

and sub jec t t o any d i rec t rons of t h e Court o r a Judge, t o t h e

p rac t rce and procedure of t h e Court.

( 3 ) In t h i s sec t ion , ' p rac t i ce and procedure' includes a l l

mat ters i n r e l a t i o n t o which Rules of	Court may be made under t h ~ s
A c t . "

Except for s.44(2A)(b) of the A.A.T. Act quoted above, no provision has been made by the A.A.T. Act or otherwise with respect to practice and procedure governing appeals under s.44 of that Act. Accordingly, resort must be had in the first instance to the Rules of this Court to determine the practice and procedure applicable to such appeals. As already indicated 0.53 of those rules deals specifically with appeals under the A.A.T.

m. However, by contrast with 0.54 dealing with applications to

this Court under the Administrative Decisions (Judicial Review)

m 1977, 0.53 is not prefaced by a recital that "subject to this

Order, the Rules of Court prescribe the manner of making an application under" the A.A.T. Act. I do not consider therefore	that a notice of appeal under s.44 of the A.A.T. Act is a
"pleading" as defined in 0.1 r.4 so as to make applicable to it the provisions of 0.11 r. 16; cp. the reasoning of Lee 3. in Whim Creek Consolidated NL v Colaan (1989) 89 A.L.R. 83 at 85-86 which concerned an application under the Administrative Decisions (Judicial Review) Act. However, in my view, the general power conferred by 0.53 r.15(1) is wide enough to allow the Court to strike out the whole or part of a notice of appeal under s.44. That sub-rule provides: "On a directions hearing under this Order the Court or a Judge shall give such directions with respect to the conduct of the proceeding as is thought proper". As well, the express provision in 0.53 r.3 that "the Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended" implies, I consider, that the Court may first direct that certain parts of a notice of appeal be struck out.
Even if I be wrong in gleaning from 0.53 a power to make an order of the kind sought in the present case, I consider that such a power is conferred by s.23 of the Federal Court of Australia Act or exists as part of the inherent jurisdiction of the Court which was invoked by Lee J. in Whim Creek Consolidated NL v Colaan (m) at 86 citing Huahes Motor Service Ptv Ltd v Wana Comuuter Ptv Ltd (1978) 35 F.L.R. 346 at 351.
I turn now to the question of whether some or all of the sub-paragraphs of paragraph 2 of the present notice of appeal
should be struck out as not raising what are truly questions of
law.
There has been so much judicial and academic exposition of the distinction between questions of law and questions of fact that it is difficult to formulate it in terms which are at the same time comprehensive enough for general application and sufficiently succinct to be useful. To my mind one of the most satisfactory analyses is that of Jordan C.J. in The Australian
Gas Liaht CO v The Valuer-General (1940) 40 S.R. (N.S.W.) 126 at
137-138:

"Before proceeding to the questions whrch have been submrtted, it is necessary to keep in mrnd that t h ~ s Court has jurisdiction to determrne only questrons of law and only such questrons of law as are submitted to it. In cases m whrch an appellate trrbunal has jurisdrctron to determine only questrons of law, the following rules appear to be established by the authoritres:

(1) The question what IS the meaning of an ordinary
English word or phrase as used in the Statute is one of fact not

of law: Girls' Publrc Dav School Trust v. Ereaut [l9311 A.C. 12 at

25, 28; Life Insurance Co. of Australra Ltd. v. Philli~s 36 C.L.R.

60 at 78; Mcouaker v. Goddard [l9401 1 All E.R. 471. This question rs to be resolved by the relevant tribunal rtself, by considering the word in rts context w ~ t h the assistance of dictionaries and other books, and not by expert evidence: Camden v. Inland Revenue Commissroners [l9141 1 K.B. 641; In re RrDon (Hrahfield) Housinq Confrrmatron Order, 1938. Whrte and Collrns v. Minrster of Health [l9391 2 K.B. S38 at 852; although evidence is receivable as to the meaning of technrcal terms: Caledon~an Rarlwav v. Glenboiq Unlon Fireclav Co. [l9111 A.C. 290 at 299; Attornev-General for the Isle of Man v. Moore [l9381 3 All E.R. 263 at 267; and the meanrng of a technical legal term rs a quest~on of law:

Commiss~oners for	S~ecial	~ u r ~ o s e s	of Income ~ a x	v. Pemsel [l8911
A.C. 531 at 580.

(2) The question whether a particular set of facts comes wrthin the descriptron of such a word or phrase is one of fact: Girls Publ~c Dav School Trust v. Ereaut [l9311 A.C. 12 at 35; Attornev-General for the Isle of Man v. Moore [l9381 3 All E.R.

263 at 267.

(3) A finding of fact by a trrbunal of fact cannot be disturbed if the facts rnferred by the trrbunal, upon which the finding 1.9 based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: Farmer v. Cotton's Trustees [l9151 A.C. 922 at 931; Currie v. Inland Revenue

Commrssioners v. Lvsaaht [l9281 A.C. 234 at 246-7, 249-251. Commissioners (19211 2 K.B. 332 at 338-341; Inland Revenue (4) Such a f~nding can be drsturbed only (a) if there is

no evrdence to support its mferences, or (b) if the facts ~nferred by it and supported by evidence are inca~able of justifymg 'the frnding of-fact baseb. upon those mferenc;~:

RlDon lHiahf~eldl Housina Confirmation Order, 1938. White & Collins v. Minrster of Health [l9391 2 K.B. 838, or (c) rf ~t has misdrrected itself in law: Farmer v. Cotton's Trustees [l9151 A.C.

922 at 930-1; Colonial Mutual Life Assurance Socretv Ltd. v. Federal Commissioner of Taxation 49 C.L.R. 171 at 175-6. Thus, if the facts rnferred by the trrbunal from the evidence before it are necessarily wrthin the descrrptron of a word or phrase in a statute or necessarily outside that descrrption, a contrary decisron is wrong i n law: Farmer v Cottonts ~rusteei

( v ) ; M e r s e v Docks and Harbour Board v. West Derbv Assessment Commrttee and Bottomlev, etc. [l9321 1 K.B. 40, 92 at 110-112. If, however, the facts so inferred are capable of being regarded as elther within or without the description, according to the relatrve signrficance attached to them, a decision either way by a trrbunal of fact cannot be d~sturbed by a superlor Court which can determ~ne only questrons of law: Farmer v. Cotton's Trustees

(m); Currie v. Inland Revenue Commissioners (m); Inland

Revenue Commissioners v. Lvsaaht (m); Mersev Docks and Harbour Board v. West Derbv Assessment Comm~ttee and Bottomlev, etc

In the light of his Honour's frequent references in that passage to inferences drawn by the tribunal below, it should be borne in mind that the availability of an inference from what are sometimes called primary facts is usually a question of law, although whether a particular, available, inference should be drawn is a question of fact. Thus Denning J. (as he then was) observed in Braceairdle v Oxlev [l9471 K.B. 349 at 358:

"The questron whether a determination by a tribunal is a determination m point of fact or in pomt of law frequently occurs. On such a question there is one distinction that must always be kept rn mind, namely, the drstinctron between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deduced by a process of reasoning from them. The determinatron of prrmary facts is always a questron of fact. It is essentrally a matter for the trrbunal whrch sees the witnesses to assess therr credrbility and to decide the primary facts wh~ch depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under 5.11 of the Road Traffic Act, 1930, the questlon whether a speed is dangerous is a question of degree and a conclusion on a questron of degree is a conclusron of fact. The court will only interfere if the conclusron cannot reasonably be drawn from the primary facts, but that is the case

them. " the prrmary facts was not one that could reasonably be drawn from here. In my opinion, the conclusion drawn by these justices from

That the existence of a question of law is a prerequisite to the jurisdiction of this Court under s.44(1) of the A.A.T. Act was emphasised by a Full Court in Commissioner of Taxation v Brixius (1987) 16 F.C.R. 359 which concerned a claim by a taxpayer for a deduction under s.51 of the Income Tax Assessment

1936 (Cth) for expenses incurred in maintaining a home study. The Full Court observed, at 365:

"In settrng out the grounds in his notrce of appeal the Commissioner did not pornt to any error of law, with one possible exceptron hereinafter referred to, but contended rather that the Tribunal came as a matter of law to the wrong conclusion or rncorrectly applied the law to the facts.

The drffrculty which confronts the Commissioner is that, once havrng identrfred the correct principles of law (a matter which was not challenged) the questron for determrnation by the Tribunal is, rn a matter of this nature, essentially a question of fact, or of fact and degree.

As a matter of law the questron for determrnation on the first limb of s51(1) rs whether the outgoing has the necessary relatron to the garning of assessable income, that rs, has it the essential character of an outgoing incurred in gainrng such income? The Trrbunal correctly rdentified this principle and the Commissioner did not contend to the contrary. Its task was then to apply the law to the facts as found. The applicatron of s51(1) in this manner is rn the varred circumstances of each case very much a matter of fact and degree. These factors were so stated by Wilson J who gave the principal ludgment of the malorrty of the High Court m Commissioner of Taxatron (Cth) v Forsvth (1981) 148 CLR 203."

The Rules of this Court to which I have already referred recognize that its jurisdiction under the A.A.T. Act is confined

to questions of law by providing as part of 0.53:

(1) An appeal to the Court from a decisron of the Trrbunal shall be instituted by frlrng a notrce of appeal which shall be in or substantially in the form numbered 55A in the First Schedule.

"2.

(2) A notice of appeal shall be filed in the District

Registry in the State or Territory where it is desired that the

appeal shall be heard.

3. (1) A notice of appeal and all subsequent proceedings in an appeal shall be entrtled 'In the Federal Court of Australia' wrth the name of the Registry in which they are frled, 'On Appeal From' the Division of the Tribunal from which the appeal is brought and shall also be entitled as between the party applrcant and the party respondent.

(2) The notice of appeal shall be signed by the applicant or hrs solicrtor and shall state -

(a)	the decision of the Tribunal from whrch the appeal is brought, the members constitutrng the Tribunal and the date when the decision was made;
(b)	the question or questions of law to be raised on the appeal ;

(C) the order sought; and

(d) briefly, but specifically, the grounds relied upon in support of the order sought.

(3) The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

(4) On the hearlng of an appeal, the applicant shall not, without the leave of the Court, ralse any question of law or rely on any ground m support of the order sought other than those stated In the notice of appeal."

The operative part of the notice of appeal ordained by Form

55A is:

"1.	TAKE NOTICE that the applicant appeals from the decision of (specify division of Trabunal below) constituted by (specify members constrtutrng the Tribunal) given on (specrfy date) at (specrfy place) whereby the Tribunal decided (specify decision appealed from).
2.	THE QUESTIONS OF LAW ralsed on the appeal are- (specrfy each question of law)
3.	ORDERS SOUGHT: (State the orders or relief sought by the applicant).
4.	GROUNDS: (Specrfy grounds relied upon an support of the orders sought). "

Those provisions of the Rules are mandatory in the sense that they must be complied with before this Court can embark on an exercise of jurisdiction under s.44 of the A.A.T. Act. Thus in Lambe v Director-General of Social Services (1981) 57 F.L.R. 262

there had been a complete failure to state even purported

questions of law, and another Full Court of this Court said, at

"However, the appellant in her notlce of appeal did not, as required by 0.53 r.4 of the rules of this Court state 'the question or questions of law to be raised on the appeal'. Compl~ance with the provisions of this rule of court is essential when, as here, the appeal from the dec~sion of the Trlbunal is lrmited to a question or questrons of law. It was therefore necessary at the outset to attempt to ldentify the error of law which the Trrbunal was alleged to have perpetrated, for the purpose of resolving the jurisdiction of this Court to deal with the appeal."

Against this background, I proceed to examine in order each of what are claimed to be questions of law in paragraph 2 of the notice of appeal.

A.	~t is impermissible to preface a question of law stated in purported compliance with 0.53 r.3(2)(b) by the words "Whether the Tribunal was entitled to find ...". Those words are ambiguous being capable of posing either the question whether there was any evidence before the Tribunal to support a particular finding, or the question whether on the evidence or the weight of the evidence the Tribunal should have made a particular finding. Only the former is a question of law. The latter asks whether the Tribunal has made an erroneous finding of fact, and, as Brennan J. pointed out in Waterford v Commonwealth of Australia (1987) 163 C.L.R. 54 at 77, "There is no error of law simply in making a wrong finding of fact." It is not clear on their face whether the findings attributed to the A.A.T. in sub-	paragraph 2A(i) of the notice of appeal are directly based	on the evidence or are inferences drawn by the A.A.T. from
other, primary, findings not expressly stated by the Tribunal. For example, there may have been evidence by a witness who directly observed the deceased exerting himself when using a floor scrubbing machine and a vacuum cleaner. The acceptance of that evidence would not give rise to a question of law. On the other hand, the finding attributed to the A.A.T. in sub-paragraph 2A(i) may have derived from an inference drawn from evidence going no further than that the deceased had been employed as a cleaner. Whether that evidence supported such an inference may be a question of law; see e.g. Edwards (InsDector of Taxes) v Bairstow [l9561 A.C. 14 where Viscount Simonds observed, at 29:

"The primary facts, as they are sometrmes called, do not, in my opinion, lustify the inference or conclusron which the commissioners have drawn: not only do they not lustify it but they lead irresistrbly to the opposite rnference or conclusron. It is therefore a case m which, whether it be said of the commissroners that their frnding is perverse or that they have mrsdirected themselves in law by a m~sunderstandrng of the statutory language or otherwrse, their determinatron cannot stand. I venture to put the matter thus strongly because I do not find in the careful and, indeed, exhaustrve statement of facts any rtem which points to the transaction not be~ng an adventure in the nature of trade."

I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with 0.53 r.3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s.44 of the A.A.T. Act is confined to a question of law it would be inappropriate for the Rules to specify as part of

the contents of a notice of appeal "grounds" which would be

appropriate if the appeal could be brought against findings

of fact as well as against what are said to be errors of law; cp. 0.52 r. 13(2) (b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by 0.53 r.3(2)(d) which requires the notice of appeal under the A.A.T. Act to state only "the grounds relied upon in support of the order sought". In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the A.A.T. to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.

In any event, the "ground" stated in paragraph 4A of the present notice of appeal does not resolve the ambiguity inherent in the formulation of the question of law attempted in paragraph 2A. To state that the Tribunal erred in law in making certain findings simply begs the question of whether those findings were vitiated only by a wrong selection between two or more alternatives all open to the A.A.T. as a matter of law, or were infected by some error of law of the kind described thus by Lord Radcliffe in Edwards (InsDector of Taxes v Bairstow (suDra) at 35:

dissatisfaction with t h e n determination as being erroneous	"If a party to a hearlng before commiss~oners expresses
rn point of law, ~t is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court rt is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contarns anythlng ex facie which is bad law and which bears upon the determrnation, it as, obv~ously, erroneous in point of law. But, without any such misconception appearrng ex facle, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those c~rcumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too,
t h e r e has been e r r o r i n point of law. I do not th ink t h a t r t
much matters whether t h r s s t a t e of a f f a i r s is described as
one i n which t h e r e rs no evidence t o support t h e
determination o r a s one rn which t h e evidence i s
inconsis tent wrth and contradrc tory of t h e determination, o r
a s one i n which t h e t r u e and only reasonable conclusron
con t rad ic t s t h e determination. Rightly understood, each
phrase propounds t h e same test. For my pa r t , I p r e f e r t h e
l a s t of t h e t h r e e , s i n c e I th ink t h a t it is r a t h e r misleadrng t o speak of t h e r e being no evrdence t o support a conclusron when i n c a s e s such a s these many of t h e f a c t s a r e
l i k e l y t o be neu t ra l i n themselves, and only t o t ake t h e i r
colour from t h e combination of circumstances i n w h ~ c h they
a r e found t o occur."

I am therefore unable, even with the aid of paragraph 4A, to distil a question of law from paragraph 2A of the present notice of appeal. As Robert Goff J. (as he then was) said in Camel Exaorters (Sales) Ltd v Sea-Land Services Inc. [l9811 1 All E.R. 984 at 989 of a requirement under the English RSC 0.12 r.8(3) to state grounds of an application by a party wishing to dispute the Court's jurisdiction:

" the only ground s t a t e d rn t h e summons is t h a t ' t h i s

Honourable Court does not have jur rsdic t ron i n t h i s mat ter ' .

That i s p l a i n l y not enough; every appl ica t ion under 0rd.12,

r . 8 ( 1 ) is an app l i ca t ion whereby t h e defendant d i spu tes t h e

ju r i sd ic t ion of t h e cour t , and merely t o r e i t e r a t e t h a t bald

f a c t cannot c o n s t i t u t e t h e 'grounds f o r t h e a p p l ~ c a t i o n '

requrred by r .8(3) t o be s t a t e d i n t h e summons."

Accordingly, paragraph 2A of the notice of appeal should be

struck out.

B. The so-called question of law set out in paragraph 2B by reason of its prefatory words "Whether the Tribunal was entitled to find that ..." suffers from the same vice as that which infects question 2A. Paragraph 2B appears to canvass questions of causation. Depending on how those questions are formulated they may be either questions of fact or questions of law. Thus in Re~atriation Commission v

(1981) 40 A.L.R. 296 the death of an ex-serviceman was deemed by s.lOl(lA) of the Re~atriation Act 1920 to have been caused by war service if, in the opinion of the Repatriation Commission, it was due to an accident that occurred or to a disease or an infection that was contracted and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service. Therefore the existence of that causal link was a fact which the Review Tribunal had to be satisfied beyond reasonable doubt did not exist before it could refuse an application for a widow's pension; (Re~atriation Commission v Law (1981) 147 C.L.R. 635 at 652). A Full Court of this Court in Bvrne's Case accordingly concluded at 302 in a passage to which I have added emphasis:

"In order to have succeeded the Commission would have had to demonstrate that no tribunal, properly directing rtself as

conclusion than that it was satisfied beyond reasonable to relevant matters of law, could have come to any other

doubt that malarial or other tropical infections could not

have been the cause of the cancer suffered by the deceased in their later lives. In our opinion one could not possibly reach that conclusron. The matter was one essentrallv for the Tribunal as the tribunal of fact. We do not regard the hvoothesis out forward by Dr Metcalf and the other witnesses - - as fancifui. We agree that it stands as no more than a possibility but in our opinron the Tribunal was well entitled to take the view, as it did, that the poesibilrty was real and drstinct. We should add that, on the assumption that Law's case had been correctly decided in thrs court, no matter of misdirection was or could have been successfully relied upon.

Although t h ~ s case rs of a very drfferent kind from

Commissioner for Government Transport v Adamcik (1961) 106

CLR 292, consrderations such as are there mentioned seem to

us to support in a general way the conclusron at which we
have arrived."

In Commissioner for Government Trans~ort v Adamcik cited by the Full Court, the High Court refused to interfere with a jury verdict for a plaintiff which involved acceptance of a theory propounded by an expert medical witness as to a causal link between a fracture of the acetabulum with accompanying mental stress and the onset of lymphatic leukaemia despite the fact that the opinion in question was not supported by scientific or statistical information or any other expert medical opinion. Windeyer J. observed at

"Thrs rs not a case m which the appellant was asking that a jury's verdict be examrned to see whether berng against the overwhelm~ng werght of the evidence lt should be set aside and a new t r ~ a l ordered. A new trial was not sought. Whether one might have been had we do not have to determine. What was sard rs that there was no evidence at all on whrch the jury could reach its finding, and that, as a matter of law, the verdlct must be, not merely set aslde, but reversed. We are not to weigh the evidence as a whole. That was the ]ury:s task. We are asked to say that Doctor Harnes' testrmony was obvrously worthless. The case of Hockxna v. Bell (1945) 71 C.L.R. 430; (1947) 75 C.L.R. 125 is in point. The cases to whrch the appellants referred did not really assist them. Blackstock v. Foster [l9581 S.R. (N.S.W.) 341; 75 W.N. 393 was a decision of the Supreme Court of New South

Wales (m J., RODer C.J. in Eq. and Herron J.). It	concerned a growth that it was cla~med had been converted
possible that the development of malrgnancy and the blow any medical witness Ln that case would say was that it was from a benrgn to a malignant state by a blow. The most that
were connected. The Court said: 'We are of opinron that the evrdence ... could not lustlfy the ~nference that it was more probable than not that there was a causal connexion between the blow and the malignancy of the growth. It is obvious from the evidence that, in the present state of medical and scientrf~c knowledge, lzttle 1s known of the causes of malrgnant growths, and if medical scrence is unable to supply the necessary link between such a growth and a blow in the region of it, rt is not for a layman to do so'. That case was thus quite unllke this, where a medlcal witness sald that the onset of leukaemia was not only possibly but more probably than not the result of the accident. Moreover, what the appellant in that case sought and got was a new trial. As for Adelaide Stevedorina Co. Ltd. v. Forst (1940) 64 C.L.R., at p. 538 it is hard to see what the appellants hope to aain from it. The maloritv judgments do-not help them. And t h e case was one in which an appellate court had to consider the evidence as a whole. It was an appeal on fact and law - a proceeding very different
from t h e motion made i n t h i s matter. I t i s not enough t h a t
w e may th ink t h e jury ' s verdrct was wrong. The appeals
should I cons ider be drsmrssed."

The question of law which may emerge from the A.A.T.'s treatment of an issue of causation like the present is whether there was any evidence at all on which the A.A.T. could reach a finding of a causal link between a change of Mr Lambroglou's work location or his driving himself from the work place to attend his doctor, and the aggravation of his coronary artery disease. Paragraph 2B of the notice of appeal does not unequivocally identify that or any other similar question of law. The "ground" stated in paragraph 4B by concluding with the words "in the absence of evidence to that effect" does suggest that the draftsman of the notice intended to raise a contention that there was no evidence at all of a causal link between one of the events specified in paragraph 2B and one or more of the other events there described. However, the element of causation for which

evidence is said to have been completely lacking has not been specified. In any event, for reasons which I have	already given, a ground stated in support of an order sought
cannot be relied on to cure an ambiguity in the identification of a question of law which is a condition of the Court's jurisdiction under s.44 of the A.A.T. Act.
Paragraph 2B of the notice of appeal must therefore be struck out as well.

C. This sub-paragraph fails to state with sufficient precision or at all a question of law as required by 0.53 r.3(2) (b). The introductory clause, "Whether the Tribunal was entitled to take into account . . . ' l like that in questions A and B makes it similarly uncertain whether the question which the paragraph attempts to identify is:

(i) whether the deceased's driving himself from the work place to his doctor was precluded by the terms of the 1971 Act or the 1988 Act from giving rise to a compensable injury;

(ii) whether there was any evidence at all to support a finding that the act of driving contributed to the infarct; or

(iii) whether on the evidence, or the weight of the evidence, the A.A.T. should have found that the

driving was a contributing factor.

Only (i) and (ii) are questions of law. If it is desired to raise either of them by the notice of appeal it should be disentangled from the other and unambiguously stated. Paragraph 2C in its present form will be struck out.

D. In my view it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law." If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. As explained in the course of argument, the formulation of question D is intended to enable Telecom to complain that the A.A.T. merely summarized the evidence of the four medical practitioners named in that sub-paragraph without expressing a preference for one or other of the competing views which emerged from that evidence. In this context I was referred to these observations of Hill J. in Casarotto v Australian Postal Commission (1989) 86 A.L.R. 399 at 402:

"Sectron 43(2) of the Administratrve Appeals Tribunal Act 1975 provides, subject as set out in the section, that the tribunal shall grve reasons either orally or in writing for its decisron. Those reasons are directed by s43(2B) to include rts frndlngs on materlal questions of fact and a reference to the evidence or other material on which those findings were based. Not every failure on the part of the tribunal to mentron a contention advanced on behalf of a party will amount to a farlure to comply with the requrrements of s43(2). However, it clearly would constrtute an error of law if it can be demonstrated that the contention m question, berng material, was not considered in deciding the matter before the trrbunal. Thus rn Dennis Wrllcox Ptv Ltd v FCT (1988) 79 ALR 267 it was held that a failure by the trrbunal to consider a submission made to it,

that in ascertainrng whether the appellant had gained a	'profit' on the sale of certarn shares there should be
deducted from the proceeds of sale not only the prrce pard for the shares but also the amount by which the value of the shares at the time the appellant purchaeed them exceeded that price, brought about a miscarriage of justrce."

As I gather it, Telecom contended before the A.A.T. that a myocardial infarctlon which the deceased suffered on 1 July

1986 was not contributed to by anything which he did at work

on 30 June or on the day of the infarction itself when he apparently drove himself from the workplace to his doctor. The passage in its reasons in which the A.A.T. expressed its conclusions after summarizing what have been called the "competing views" of the four medical experts is as follows:

"I am satisfied that the deceased suffered aggravation of

coronary artery disease and the employment was a contributrng factor to that aggravation particularly employment on 30th June and 1st July 1986. For the purposes of the 1988 Act, I am also sat~sfied, that the coronary artery disease was contributed to in a material degree by the employment generally and particularly on the 30th June and 1st July 1986.

By the presence of coronary artery disease the deceased suffered severe restriction of blood flow which manifested in chest and left arm parn and whrch was observed by the deceased's family following work on 30th June being the day prior to the infarct.

I am satrsfied that by the deceased continurng to work on 1st July 1986, rnvolvrng as rt drd perrods of walking, clrmbrng, lrfting and exertlon when usrng floor scrubbing machines and a vacuum cleaner, together with the emotronal stress of change of work locatron and driving himself from the workplace in Krngs Way South Melbourne to Richmond to attend his Doctor when in the presence of chest pain, aggravated his coronary artery drsease precipitating an acute myocard~al infarction which ultimately resulted in his death. "

In my view that statement, in the context, amounts to a clear preference for the expressions of opinion that the deceased's activities at work on 30 June and 1 July 1986 contributed to the myocardial infarction. The fact that the

A.A.T. did not expressly state that it preferred the opinion	of Dr Dortimer or Dr Rosenbaum, or that it did not accept
the view of Dr Sloman, does not entail that it fell into the error of law identified in Dennis Willcox Ptv. Ltd. v Federal Commissioner of Taxation (su~ra) of failing to mention a contention seriously advanced on behalf of Telecom. As was pointed out in the joint judgment of Northrop and Sheppard JJ. in Lennell v Repatriation Commission (1982) 4 A.L.N. Note 29:

"A court exercxsing supervisory jurisdiction over an

adm~nlstrative tribunal ought not lightly ~nterfere with its decisions even if the court feels that the tribunal's Language may have a degree of looseness. Certainly it ought not to indulge in an exercase which over-zealously picks the Tribunal up in the way ~t has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply."

Of course, my view of the effect of a passage from the reasons of the A.A.T. cannot preclude Telecom from seeking to contend, under cover of a properly formulated question of law, that the A.A.T. erred in law in failing to consider a presumptively relevant piece of evidence. (See e.g. Sullivan v De~artment of TranSDOrt (1978) 20 A.L.R. 323 esp. per Fisher J. at 350).

However, I do not consider that question D in its present form raises a possible failure of that kind to take account of a material fact. Rather, it seems to point to a wrong finding of fact reached by failing to give sufficient weight to the views of Dr Sloman. Accordingly, for reasons already expressed, paragraph 2D of the notice of appeal must be

struck out.

E.	To ask "whether the Tribunal was entitled to construe the evidence" of a particular witness in a certain way, only serves to obscure the question of law which may underlie such an inquiry. That question, as Counsel for Telecom conceded in the course of argument, is really one of whether there is any evidence to support a finding, for example, that work performed by the deceased on the morning of 1 July 1986 contributed to the infarction which he suffered on that day. If a question is framed in that way it makes clear to the legal advisers of the respondent that they are called upon to identify one or more pieces of evidence tending to establish the finding impugned by the applicant. The question in paragraph 2E is not so framed and should not be allowed to stand.
F.	The verbosity of this question has obscured the real inquiry and its character as a question of law. It again emerged in the course of argument that it was directed at the issue of whether there was any evidence to support a finding that the deceased's general history of employment by Telecom, as distinct from the specific incidents of 30 June and 1 July 1986, had contributed to his myocardial in£ arction. The supererogatory reference to "any relevant evidence" is as objectionable in begging the question as the prefatory words "Whether the Tribunal erred in law ..." If Telecom wishes to
persist in raising the question which I have distilled from the present form of paragraph 2F as clarified by Counsel in

his submissions, it will have to be reformulated.

G.

If there is put to one side the irritating tendentious formulary which recurs in the prefatory words of paragraph 2G, it comes down to another question of whether there was any evidence to support a finding expressly or implicitly made by the A.A.T., i.e. that the deceased's employment by Telecom aggravated or accelerated his coronary disease. In the course of argument, Counsel for Telecom was inclined to concede that paragraph 2G was by way of a make-weight and was "not the ground of greatest significance". Because s.44 and 0.53 require the identification of questions of law and not the formulation of grounds of appeal, paragraph 2 6 cannot remain in its present form.

H.

Paragraph 2H raises, in what I consider to be an acceptable way, the question of law of whether there was any evidence on which the A.A.T. could have found that the respondent was dependent on the deceased. The need for such a finding arose from the definitions of "dependant" and "dependent" in s.5 of the 1971 Act and s.4 of the 1988 Act which, so far as relevant for present purposes were:

"'dependant' rn relation to a deceased employee, means -

(a)	the spouse ... of the employee;
being a person who was wholly or partly dependent upon the

employee at the date of the death of the employee." "'dependent' means dependent for economic support."

Although Counsel for Telecom conceded that "there was a lot of evidence led about what the parties did by way of contributions" to defray the expenses of their joint domestic establishment, he indicated that Telecom desired to contend that no part of that evidence supported a finding that Mrs Lambroglou was wholly or partly dependent on the deceased within the meaning of s.43 of the 1971 Act. In my view paragraph 2H of the notice of appeal identifies a question of law which permits that contention to be advanced. It should therefore be allowed to stand.

I.   Paragraph 21 of the notice of appeal is intended to identify a question of law arising from the following conclusion reached by the A.A.T. at p.16 of its reasons for decision:

"The determrnation under revrew will be set aside and in these circumstances, the Tribunal decides that the Applicant be paid Compensation in accordance with the earlier finding, whrch, havrng regard to 5124(7) of the 1988 Act, shall be pursuant to S43(4) of the 1971 Act for the period prior to 1 December 1988 and thereafter, until 16 February 1989, pursuant to S17(4) of the 1988 Act."

The reasoning in support of that conclusion is expressed at p.7 of the A.A.T.'s decision in these terms:

"Subsequent to the date of death of the deceased the Applicant has remamed partly dependent to the extent of the deprivation of the support of her husband's income and I frnd that having regard to the fact that the anticipated retirement age of the husband would have been at a point in time prior to the antrcipated retirement age of the Applicant, that the Applicant has suffered loss of

dependency from the date of death until 16 February 1989

when the deceased would have achieved 65 years and thereby would have retired. That the deceased would have retired at that date is not disputed by the facts. Having been satisfied therefore that she was a dependant at the time of death I am satrsfred that at that time and subsequently she has been partly dependent.

I find that the loss of dependency from the date of death until 16 February 1989 is that loss of dependency which can be assessed with regard to the loss of support by the Applrcant of the benefrt of the husband's earnings, which having regard to sectron 43(4) of the 1971 Act, 'the losses suffered by those dependants as a result of the cessatron of the earnlngs of the employee' can be quantified as follows:

(1) for the period between the date of death until October 1986 at 50% upon the basis that the Applicant and the deceased each earned therefore $250 per week;

(2) for the period October 1986 until 16 February 1989 at 60% upon the basis that the Applicant was receiving 80% of her pre-accident earnings, that is $200 per week."

Section 43(4) of the 1971 Act as in force on 2 August 1986, provided:

"(4) If the employee dies without leaving dependants who were, at the date of the death of the employee, wholly dependent upon him but leaving dependants who were, at that date, partly dependent upon him, then-

(a)	subject to this section and to sections 37 and 44, the compensation payable in respect of the injury is such amount, not exceeding $28,000 or such h~gher amount as is prescribed, as the Commissioner determines should be paid, taking into account any losses suffered by those dependants as a result of the cessation of the earnings of the employee; and
(b)	that compensation is payable to, or in accordance with the directions of, the Commissioner for the benefit of those dependents."

Section 17(4) of the 1988 Act is in similar terms except that the maximum amount of compensation payable is $120,000. The transitional provision of the 1988 Act which was invoked

by the A.A.T. in its reasons is s.124(4) which provides:

"(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(a)	where the impairment or death occurred before the commencement of the 1930 Act - the 1912 Act;
(b)	where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force when the impairment or death occurred;

or

(c) in any other case - the 1971 Act as in force when the impairment or death occurred."

Counsel for Telecom pointed out that the A.A.T. considered it open to the respondent to be paid compensation at

differential weekly rates for the period from 2 August 1986 to 1 December 1988 and for the period from 2 December 1988 to 16 February 1989. At all events, it seems to have allowed the 1988 Act some application which Telecom contended that, on its proper construction, it could not be given. I consider the questions of law raised in these circumstances to be:

(a) whether compensation is payable otherwise than in a

lump sum to an adult dependant who was partly dependent on an employee at the date of his death on 2 August 1986;

(b) whether the 1988 Act has any application to the

determination of compensation payable to an adult dependant who was partly dependent on an employee at

the date of his death on 2 August 1986.

If paragraph 21 of the notice of appeal were recast to raise questions like that, it would be necessary for the statement of the orders sought in paragraph 3 to be amended to provide, at least in the alternative, for an order that the matter to be remitted to the A.A.T. for the amount of compensation to be determined according to law. The grounds relied on in support of that order would also have to be

stated briefly but specifically as required by 0.53

r.3(2)(d).

J. The question expressed in paragraph 2J of the notice of appeal was understandably interpreted by Counsel for the respondent as founding an argument that the A.A.T. had wrongly exercised a discretion to award costs to the respondent. However, Counsel for Telecom in the course of his submissions indicated that the formulation of the question was intended to draw attention to what was said to be a lacuna in the 1988 Act in respect of the power of the A.A.T. to award costs.

The respondentes application for review by the A.A.T. was made on 4 November 1988, so as to attract the operation of s.129(2) of the 1988 Act which provides:

"Where the Commonwealth is a party to any proceedings

relating to any matter aris~ng under the 1912 Act, the 1930

Act or the 1971 Act (including proceedings under Part V of the 1971 Act), being proceedings instituted but not

proceedings are so continued, the relevant authority and the	completed before the commencing day, those proceedings may be continued on and after that day and, where the
Commonwealth shall be parties to those proceedings."

The phrase "the Commonwealth" in that sub-section by virtue of its definition on s.4(1) and the provisions of s.5(7) of the 1988 Act includes a Commonwealth authority such as Telecom. Accordingly, the proceedings instituted by the applicant under the 1971 Act could be continued under that Act which included the following sub-sections (so far as relevant) inserted by Schedule 2 to Act No. 74 of 1981:

"64. (1) subject to this section, the costs incurred by a party in relation to proceedings instituted before the Administrative Appeals Trrbunal under this Part shall be borne by that party.

(2) Where -

(a) the Administrative Appeals Tribunal gives a decision -

(i) varying a determination of the Commiss~oner in a manner favourable to a party to the determination other than the Commonwealth; or

(ii) setting aside a determination of the Commissioner and making a determination in substitution for the determination so set aside that rs more favourable to a party to the determination other than the Commonwealth than the determination so set aside;

the Administrative Appeals Tribunal may order that the costs of the proceedings before it incurred by that party, or a part of those costs, shall be paid by the Commonwealth.

(3) Where the Administrative Appeals Tribunal gives a decision setting aside a determination of the Commissioner and remitting the case for re-determination by the Commissioner, the Administrative Appeals Tribunal shall order that the costs of the proceed~ngs before it incurred by partres to the determination other than the Commonwealth shall be paid by the Commonwealth."

(By s.7(6) of the 1971 Act a reference elsewhere in the Act

to the Commonwealth shall be read as a reference to a

prescribed authority of the Commonwealth such as Telecom.)

The decision of the A.A.T. on its face was to set aside a determination of the Commissioner for Employees' Compensation and to make a determination in substitution for it that was more favourable to the respondent than the

decision so set aside. It is difficult therefore to see why the power to award costs conferred by s.64(2)(a) of the 1971 Act was not attracted. However, if Telecom seriously wishes

to argue that the A.A.T. had no power in the circumstances to award costs to the applicant it should frame the relevant question as whether the 1971 or the 1988 Act (whichever was applicable) on its proper construction conferred power on the A.A.T. to award costs in consequence of a decision to the effect pronounced by the A.A.T. on 1 December 1989. Paragraph 21 of the notice of appeal in its present form is not apt to raise that question, and, accordingly, should be struck out.

CONCLUSION

In the result, therefore, sub-paragraphs A, B, C, D, E, P, G, I and J of paragraph 2 of the notice of appeal will be struck out and the whole of paragraph 4. I grant leave to Telecom to amend the notice of appeal by substituting for all or any of those paragraphs such statements as it may be advised of other questions of law (if any) to be raised on the appeal and of the grounds relied on in support of the order sought by paragraph 2

of the notice of appeal. The notice of appeal as so amended	should be filed and served by 21 December 1990. Should either
Telecom or the respondent consider that the notice of appeal as so amended requires documents or matters to be included in the appeal papers which were not referred to in the index settled by Deputy Registrar Agnew on 9 May 1990, that party should approach a Registrar of the Court for an appointment for further settling of the index accordingly. I shall direct that the matter be restored in the list of cases awaiting fixture and be fixed for
hearing not before 4 February 1991. Telecom must pay the respondent's costs of and incidental to the motion on notice dated 10 May 1990 and any costs thrown away as the result of the amendment of its notice of appeal.

I certify that this and the preceding

thirty (30) pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Ryan.

p /

Associate: 8 f ~ l b d i ~	/
/

f-

Date :  9 ~ ' c - ~ c - ~ ? : . ~ ~ L ~ //3?(L?

Solicitors for Applicant:	Australian Government Solicitor
Counsel for Applicant:	Mr J. Lenczner
Solicitors for Respondent:	Williams, Winter & Higgs
Counsel for Respondent:	MS D.S. Mortimer
Date of Hearing:	17 May 1990
Date of Judgment:	4 December 1990

CENRQKL b / s 7 ~ / ~ u r / d

-JUDGMENT No. .... . /YQ

PRACTICE AlPD PROCEDURE - power of Court to strike out purported questions of law from notice of appeal under 8.44 of ~dminietrative A~oeale Act 1975 (Cth) - 0.53 rr.2, 3, 15 Firet Schedule Form 55A - epecification of a question of law a prerequi~lite to exercise of Court's jurisdiction - form in which queetione of law ehould be etated - distinction between queetion of law and finding of fact - statement of grounds relid on in support of the order sought not available to reeolve ambiguity in purported queetion of law - circumetancee in which caueation of myocardial infarction may give rise to a queetion of law - exietence of power, as dietinct from a wrong exerciee of diecretion, to award costs raieee queetion of law.

Adminietrative A ~ ~ e a l e Tribunal 1975

1988

Federal 1976

Creek C o n s U s k a ~ l n n n (1989) 89 A.L.R. 83

Uahee Motor Service Ptv Ltd v WanaComputer Ptv LtQ (1978) 35

F.L.R. 346

m e Auetralian Gas LLiPbt CO v he V	-	-	(1940) 40
S.R.(N.S.W.) 126

-die V 0- [l9471 K.B. 349

Commie- of w n v (1987) 16 P.C.R. 359

S O C ~ S e r ~ i c a (1981) 57 P.L.R. 262

Of m (1987) 163 C.L.R. 54

[l9561 A.C.	14
Services	[l9811 1 All

E.R. 984

v B v ~ (1981) 40 A.L.R. 296

p (198l) 147 C.L.R. 635

for G t r - v o v AdmdJs (1961) 106 C.L.R.

29 2

Caearotto v A u e w Postal w e e i o n (1989) 86 A.L.R. 399

ox Ptv Ltd v F - e of Taxation (1988)

79 A.L.R. 267

l v R e ~ C o n r m i e e f o n (1982) 4 A.L.N. Note 29

van v D~D- of T - (1978) 20 A.L.R. 323

Ryan J
Melbourne

4 December 1990	RECEIVED
~ O W R T O F

REOlsTRY

RAL COURT OF AUSTRALIA )

VICTORIA DISTRICT R E G I S W	)
) NO VG 411 of 1989
1

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: -	S	A	I
-	C

(Applicant)

AND :

- SOULTANA LAMBROGLOU

(Respondent)

Judae Makina Ordel;: Ryan J.

Date of Order:	4 December 1990
Where Made:	Melbourne

HINUTES OF ORDER

THE COURT ORDERS:

1. That Sub-~aragraphs 2(A)r (B), (C), (Q), (E), (F), (G), (I), and (J) and paragraph 4 of the notice of appeal be struck out.

2.      That the applicant have leave to amend its notice of appeal by substituting for all or any of the paragraphs struck out pursuant to paragraph 1 of this Order such statements as it may be advised of other questions of law (if any) to be raised on appeal and of the grounds relied on in support of the order sought by paragraph 2 of the notice of appeal.

3.      That an amended notice of appeal be filed and served by 21 December 1990.

1. That if the applicant or the respondent should consider that the notice of appeal as amended pursuant to the leave granted by paragraph 2 of this Order requires documents or matters to be included in the appeal papers which were not referred to in the index settled by Deputy Registrar Agnew on 9 May 1990 that party should approach a Registrar of

   the Court for further settling of the index accordingly.

2. That the application be restored to the list of cases awaiting fixture to be fixed for hearing not before 4 February 1991.

3. That the applicant pay the respondent's costs of and

   incidental to the motion on notice dated 10 May 1990 and

   any costs thrown away as the result of the amendment of the notice of appeal, such costs to be taxed in default of agreement.

-:  Settlement and entry of orders is dealt with in 0.36 of
the Federal Court Rules.

INTHEFEDERAZ~STRALIA	)
)

VICTORIA	D I S T U T RE-	)	No VG 411 of 1989
)
1

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: -1AN TELECOMMUNICATIONS

!zzmumm

(Applicant)

m: -

(Respondent)

W: Ryan J.

Date: 4 December 1990

p , :  Melbourne

By notice of appeal dated 20 December 1989, the applicant,
Australian Telecommunications Corporation ("Telecom"), has

instituted an appeal from a decision of the Administrative

Appeals Tribunal ("the A.A.T.") constituted by a Senior Member. By that decision, it was decided that compensation pursuant to

the Qnrmaation I Coqpnwealth G o v e r n m e n t ~ l o v e e s Act 197 1

("the 1971 Act") and the Commonwealth Em~lovees' Rehabilitation and Com~ensation Act; 1988 ("the 1988 Act") should be paid to the respondent, Soultana Lambroglou, in respect of the death of her husband who died on 2 August 1986 from a myocardial infarction which he suffered after attending work on 1 July 1986 in the course of his employment by Telecom as a cleaner. It was further decided that Telecom should pay Mrs Lambroglou's costs of the proceedings before the A.A.T.

By motion on notice dated 10 May 1990, Mrs Lambroglou has moved for an order that Telecom's appeal be struck out on the ground that the notice of appeal does not raise any question of law.

The right to appeal to this Court from a decision of the A.A.T. is conferred by 8.44 of the	. . strative ADDeals
Tribunal Act	("the A.A.T. Act") 1975 which provides:

"(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

(2) Whero a person has applied to the Tribunal for a review of a decision, or ham applrod to be made a party to a proceeding before the Tribunal for a reviow of a decision, and the Tribunal decides that the rnterests of the person are not affectod by the decision, the person may appeal to the Federal Court of Australia from the docinion of the Tribunal.

(2A) An appeal by a person under subsection (1) or (2) shall be instituted:

(a) not later than the tmnty-eighth day after tho day on which a document setting out the terms of the docinion of tho Tribunal is furnished to the person or within such further times as tho Fedoral Court of Auntralia (whether before or after the expiration of that day) allows; and

(b)	in such manner as is prescribed by rules of court mad0
under the - 1 Court of Aus- 1976.

(3) The Fodoral Court of Australia has jurisdiction to hear and determin. appoaln inntitutod in that Court in accordance with eub-sections (1) and (2) and that jurisdiction:

(a) may b . exercised by that Court constituted an a Pull

court ;

(b) shall be 80 exercised if:

(i) the Tribunal's decision was given by tho Tribunal conetituted by a momber who wan, or by member. at leant ono of whom was, a presidential munbor; and

(ii) aftor consulting tho Pronidont, the Chiof Judge of that Court considorn that it is appropriate for tho appal from tho decision to b. hoard and determined by that Court conntitutod a0 a Pull Court; and

(c) shall be so exerc~sed if the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.

(4) The Federal Court of Australia shall hear and

determine the appeal and may make such order as it thinks
appropriate by reason of its decision.

(5) Without limrting by implication the generality of subsection ( 4 ) , the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, erther with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

Telecom's attempt to identify the questions of law which it wishes to raise by its appeal is embodied in paragraph 2 of the notice of appeal which is in these terms:

"2.	THE questions of Law raised on Appeal are:-
A. Whether the Tribunal was entitled to find that LEONIDAS LAMBROOWQ ("the Deceased") -

(i)  Walked, clambed, lrfted and exerted himaelf when ueing floor scrubbing machines and a vacuum cleaner;

(ii) Suffered from emotional stress by driving himself from the work place at Kings Way South Melbourne to Richmond to attend his Doctor in preaence of chest pain, on the morning when he aufferd the infarct;

B.

Whether the Tribunal was entitled to find that -

(L)	The metional stream of change of work location;
(ii)	The Deceased undertaking the activity of driving himself from the work place in Kinga Way South Melbourne to Richmond to attend hi* Doctor;

were matters which aggravated the Deceased's coronary artery disease precipitating acute myocardial infarction which ultimately reaulted in his death#

C.	Whether the Tribunal was entitled to take into account the fact that the Deceased drove hkaself from the work place in Kings Way South Melbourne to Richmond to attend his Doctor ae contributing to the occurrence of the infarct or its extent;
D.	Whether tho Tribunal errd in Law in failing to conaidor the competitive views on the question of causation expressed by Doctors Dortfwr, Ro*enbaum, Sloman and Fuller;
E.	Whether the Tribunal was entitled to construe the evidence of Dr. Rosenbaum to be that the Deceased experienced chest pain on the day of the infarction as a result of work being performed by him on that morning;
P.	Whethor the Tribunal erred in Law in considering any general employment contribution to the occurrence of the infarct in the absence of any relevant evidence of the effect of such contribution;
G.	Whether the Tribunal improperly failed to consider whether any aggravation or acceleration occasioned by the Deceased's employment activities were material;
H.	Whether there was any evidence on which the Tribunal was able to find that the Respondent was dependent upon the Deceased;

I.     Whether the Tribunal erred in Law in deciding that the Respondent be paid Campenoation pursuant to section 43(4) of the 1971 Act for the period prior to 1st December, 1988 and theroaftor until tho 16th February, 1989 pursuant to Section 17(4) of the 1988 Act;

J. Whethor the Tribunal erred in Law in awarding coats in favour of the Reapondont."

By paragraph 3 of the notice Of appeal it is recited that the order sought is that the decision of the A.A.T. be set aside. In purported compliance with 0.53 r.2(d) of the Rules of this Court the grounds relied upon in support of the order sought are then set out as follows in paragraph 4 of the notice of appeal:

"4. GROUNDS

That the Tribunal erred in Law -

A.

In finding that the Deceaaed

(i)	Walked, climbed, lifted and exerted himself when using floor scrubbing machines and vacuum cleaner;
(ii)	Suffered from emotional stress by driving himself from the place of work in Kings Way South Melbourne to Richmond to attend h ~ s Doctor in the presence of chest pain;

on tho morning when he suffered tho infarct.

B.	In finding that -
(i) Tho emotional stress of change of work location;
(ii) The Deceased undertaking t h e a c t i v i t y of d r iv ing

h m s e l f from t h e work p lace i n Kings Way South

Melbourne t o Richmond t o a t t end h i s Doctor;

were mat te r s which aggravated t h e Deceased's coronary

a r t e r y d i sease p rec ip i t a t ing a c u t e myocardial

i n f a r c t i o n which reaul ted u l t ima te ly i n death i n t h e

absence of evidence t o t h a t e f f e c t .

C. I n t a k i n g i n t o account t h e f a c t t h a t t h e Deceased

drove himself from t h e work p lace i n Kings Way South

Melbourne	t o	Richmond	t o	a t t end	h i s	Doctor	am
con t r ibu to ry	t o t h e	occurrence	of	t h e	i n f a r c t	o r	i ts
ex ten t .

D.	I n f a i l i n g t o consider t h e competitive views on t h e ques t ion of causat ion expressed by Doctors DortFmer,
Rosenbaum, Sloman and Ful ler .
E.	I n cons t ru ing t h e evidence of D r Rosenbaum t o be t h a t
t h e Deceased experienced ches t pa in on t h e day of t h e
i n f a r c t i o n a s a r e s u l t of t h e work being performed on

t h a t morning.

P.	I n considering any general employment con t r ibu t ion t o
t h e occurrence of t h e i n f a r c t .
G.	I n f a i l i n g t o consider whether any aggravation o r
a c c e l e r a t i o n occasioned by t h e Doceased'a employment
a c t i v i t i e s were material .
H.	I n f ind ing t h a t t h e Respondent was dependent upon t h e

Deceased.

I.	I n decid ing t h a t t h e Reapondent be paid Compensation
pursuant t o Section 43(4) of t h e 1971 A c t f o r t h e
period p r i o r t o t h e 1st December, 1988 and t h e r e a f t e r
u n t i l t h e 16th February, 1989 pursuant t o Sect ion
17(4) of t h e 1988 Act.
J.	I n awarding c o s t s i n favour of	t h e Respondent."

I consider it to be clear that this Court has power to strike out either the whole or certain parts of a notice of appeal under 9.44 of the A.A.T. Act, as not disclosing a question of law. The so-called "appeal" provided for by 8.44 is a proceeding within the original jurisdiction of this Court which is accordingly empowered by 8.23 of the Federal Court of

a Act 1976 to make in relation to it "orders of such kinds, including interlocutory orders ... as the Court thinks

appropriate". Section 38 of the same Act provides:

(1) Subject t o any provision made by o r under t h i s o r any

o the r A c t with respect t o practLce and procedure, t h e p rac t i ce and procedure of t h e Court s h a l l be i n accordance with Rules of Court

made undar t h i s A c t .

( 2 ) In s o f a r a s t h e provisions f o r t h e time being

appl icable i n accordance with sub-section (1) are i n s u f f i c i e n t ,

t h e Rules of	t h e High	Court,	a s i n fo rce f o r t h e time being,
apply,	p u t a t i s mutandig,	so f a r a s they a r e capable of	appl ica t ion

and sub jec t t o any d i rec t ions of t h e Court o r a Judge, t o t h e

p r a c t i c e and procedure of t h e Court.

(3 ) In t h i s sec t ion , ' p rac t i ce and procedure' includes a l l

matters	i n r e l a t i o n t o which Rules of Court may be made under t h i s
A c t . "

Except for s.44(2A)(b) of the A.A.T. Act quoted above, no provision has been made by the B.A.T. Act or otherwise with respect to practice and procedure governing appeals under 9.44 of that Act. Accordingly, resort must be had in the first instance to the Rules of this Court to determine the practice and procedure applicable to such appeals. As already indicated 0.53 of those rules deals specifically with appeals under the &A.T.

p&. However, by contrast with 0.54 dealing with applications to this Court under the Administrative Decisions ( J u c i a l Reviewl

m 1977, 0.53 is not prefaced by a recital that "subjecz to this

Order, the Rules of Court prescribe the manner of making an	application underM the BgLT Act. I do not consider therefore
that a notice of appeal under 8.44 of the A.A.T. Act is a "pleading" as defined in 0.1 r.4 so as to make applicable to it the provisions of 0.11 r. 16; cp. the reasoning of Lee J. in
u e e k C o n s w t e d NL v C o l w (1989) 89 A.L.R. 83 at 85-86 which concerned an application under the Administrative DecisiQna
Reviewl Act . However, in my view, the general power conferred by 0.53 r.15(1) is wide enough to allow the Court to strike out the whole or part of a notice of appeal under 8.44. That sub-rule provides: "On a directions hearing under this Order the Court or a Judge shall give such directions with respect to the conduct of the proceeding as is thought proper". As well, the express provision in 0.53 r.3 that "the Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended" implies, I consider, that the Court may first
direct that certain parts of a notice of appeal be struck out.
Even if I be wrong in gleaning from 0.53 a power to make an order of the kind sought in the present case, I consider that such a power is conferred by s.23 of the Federal Court of Australia Act. or exists as part of the inherent jurisdiction of the Court which was invoked by Lee J. in Creek Consolidated
NL v Colaan ( S U D ~ ) at 86 citing Buahes Motor Service Ptv Ltd v
Wana Comouter Ptv Ltd (1978) 35 F.L.R. 346 at 351.
I turn now to the question of whether some or all of the should be struck out as not raising what are truly questions of sub-paragraphs of paragraph 2 of the present notice of appeal
law.
There has been so much judicial and academic exposition of the distinction between questions of law and questions of fact that it is difficult to formulate it in terms which are at the same time comprehensive enough for general application and sufficiently succinct to be useful. To my mind one of the most satisfactory analyse8 is that of Jordan C.J. in A u s w
Gas Liaht CO v The Valuer-General (1940) 40 S.R.(N.S.W.)	126 at
137-138:

'Before proceeding to the questions which have been submitted, it is necessary to keep in mznd that thzs Court has jurisdiction to determine only questions of law and only such questions of law as are submitted to it. In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:

CLR 292, conmiciarations such am arm thara wntionad m n m to um to support in a general way tha conclumion at which m hava arrived."

In Commissioner for Government Transport v Adamcik cited by the Full Court, the High Court refused to interfere with a jury verdict for a plaintiff which involved acceptance of a theory propounded by an expert medical witness as to a causal link between a fracture of the acetabulum with accompanying mental stress and the onset of lymphatic leukaemia despite the fact that the opinion in question was not supported by scientific or statistical information or any other expert medical opinion. Windeyer J. observed at

"This is not a case in which the appellant was asking that a jury's verdict be examined to see whether being against the overwhelming weight of the evidence it should bo set aside and a new trial ordered. A new trial was not sought. Whether one might have been had we do not have to dotermine. What was said is that there was no evidence at all on which the jury could roach its finding, and that, as a matter of law, the verdict must be, not merely set aside, but reversed. We are not to weigh the evidence as a whole. That was the ]ury:s task. We are asked to say that Doctor Haines' testmony was obvzoualy worthless. The case of Bockina v.

(1945) 71 C.L.R. 430; (1947) 75 C.L.R. 125 is in point. The cases to which the appellants referred did not really assist them. mckstock v. Postg~: [l9581 S.R. (N.S.W.) 341; 75 W.N. 393 was a decision of the Supremo Court of New South

Wales (m J., gpp2~; C.J. in Eq. and m J.. It	concornod a gr-h that it was claimed had boon converted
from a bonign to a malignant state by a blow. The most that any medical witnoss in that caso would say was that it was possible that tho developent of malignancy and the blow wore co~octod. The Court said: 'We are of opinion that tho evidence ... could not justify the inferonco that it was more probable than not that thoro was a causal co~exion
betmen tho blow and the malignancy of the growth. It is obvious from the evidence that, in the presont state of medical and scientific knowledgo, little is known of the causes of malignant growths, and if modical scionco is unable to supply the necessary link betweon such a growth and a blow in the region of it, it is not for a layman to do so'. That came was thus quite unlike this, whoro a modical witness said that the onset of leukaemia was not only possibly but more probably than not tho result of tho accident. Moroovor, what the appllant in that caso mought and got was a now trial. As for -0Stovodorina CO,
Ltd. v. Porst (1940) 64 C.L.R., at p. 538 it is h u d to 900
what the appllants h o p to gain from it. Tho majority judgmontm do not help thom. And the can0 was ono in which an appllato court had to considor the ovidonco am a whole. It was an appal on fact and law - a procnding very difforont
from the motion made in this matter. It ia not enough that we may think the ]ury'a verdict waa wrong. The appeal8 should I consider be dramraaed."

The question of law which may emerge from the A.A.T.'s treatment of an issue of causation like the present is whether there was any evidence at all on which the A.A.T. could reach a finding of a causal link between a change of

Mr Lambroglou's work location or his driving himself from

the work place to attend his doctor, and the aggravation of his coronary artery disease. Paragraph 2B of the notice of appeal does not unequivocally identify that or any other similar question of law. The "ground" stated in paragraph 4B by concluding with the words "in the absence of evidence to that effect" does suggest that the draftsman of the notice intended to raise a contention that there was no evidence at all of a causal link between one of the events specified in paragraph 2B and one or more of the other events there described. However, the element of causation for which	evidence is said to have been completely lacking has not	been specified. In any event, for reasons which I have
already given, a ground stated in support of an order sought cannot be relied on to cure an ambiguity in the identification of a question of law which is a condition of the Court's jurisdiction under 8.44 of the A.A.T. Act.
Paragraph 2B of the notice of appeal must therefore be struck out as well.

C. This sub-paragraph fails to state with sufficient precision or at all a question of law as required by 0.53 r.3(2) (b). The introductory clause, "Whether the Tribunal was entitled

to take into account ..." like that in questions A and B

makes it similarly uncertain whether the question which the
paragraph attempts to identify is:

(i) whether the deceased's driving himself from the work

place to his doctor was precluded by the terms of the

1971 Act or the 1988 Act from giving rise to a

compensable injury;

(ii) whether there was any evidence at all to support a

finding that the act of driving contributed to the
infarct; or

(iii) whether on the evidence, or the weight of the evidence, the A.A.T. should have found that the

driving was a contributing factor.

Only (i) and (ii) are questions of law. If it is desired to raise either of them by the notice of appeal it should be disentangled from the other and unambiguously stated. Paragraph 2C in its present form will be struck out.

D. In my view it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law." If the

question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. As explained in the course of argument, the formulation of question D is intended to enable Telecom to complain that the A.A.T. merely summarized the evidence of the four medical practitioners named in that sub-paragraph without expressing a preference for one or other of the competing views which emerged from that evidence. In this context I was referred to these obselvations of Hill J. in Casarotto v

Australian Postal Commissio~  (1989) 86 A.L.R. 399 at 402:

"SectLon 43(2) of the Administrative Appmala Tribunal Act 1975 provides, subject as set out in the section, that the tribunal shall give reasons either orally or in writing for its decision. Those reasons are directed by s43(2B) to rnclude its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Not every failure on the part of the tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s43(2). However, it clearly would constitute an error of law if rt can be demonstrated that the contention in question, being material, was not considered in deciding the matter before the tribunal. Thua in &&Q&

W ox Ptv Ltd v F q (1988) 79 ALR 267 it was held that a &re by the tribunal to conmider a suhi*aion made to it,

that in aacertaining whether the appellant had gained a 'profit' on the sale of certain shares there should be deducted from the proceeds of sale not only the price paid for the aharem but also the amount by which the value of the shares at the time the appellant purchased them exceeded that prico, brought about a miscarriage of juatico."

As I gather it, Telecom contended before the A.A.T. that a myocardial infarction which the deceased suffered on 1 July

1986 was not contributed to by anything which he did at work

on 30 June or on the day of the infarction itself when he apparently drove himself from the workplace to his doctor. The passage in its reasons in which the A.A.T. expressed its conclusions after summarizing what have been called the "competing views" of the four medical experts is as follows:

'I am satisfied that the deceased suffered aggravation of

coronarv artery disease and the emDlovment was a contribLting fictor to that aggravation- particularly emDlovment on 30th June and 1st July 1986. For the purpomes of' t6e 1988 Act, I am also satisfied, that the coronary artery disease was contributed to in a material degree by the employment generally and particularly on the 30th June and let July 1986.

By the presence of coronary artery disease the deceased suffered severe restriction of blood flow which manifested in chest and left a m pain and which wam observed by the deceased's family following work on 30th June being the day prior to the infarct.

I am satisfied that by the deceased continuing to work on

1st July 1986, involving as it did periods of walking, climbmg, lrfting and exirtion when uaing floor scrubbing machines and a vacuum cleaner, together with the awtional stress of change of work location and driving himself from the workplace in Kings Way South Melbourne to Richmond to attend his Doctor when in the presenca of chest pain, aggravated his coronary artery dimease precipitating an acute myocardial infarction which ultimately remulted in him death. "

In my view that statement, in the context, amounts to a clear preference for the expressions of opinion that the deceased's activities at work on 30 June and 1 July 1986

A.A.T. did not expressly state that it preferred the opinion contributed to the myocardial infarction. The fact that the of Dr Dortimer or Dr Rosenbaum, or that it did not accept the view of Dr Sloman, does not entail that it fell into the error of law identified in &nnis Willcox Ptv. Ltd. v

. . (m) of failing to

Federal Commissioner of Taxation
mention a contention seriously advanced on behalf of

Telecom. As was pointed out in the joint judgment of

Northrop and Sheppard JJ. in m	v R~D-
-8sion	(1982) 4 A.L.N. Note 29:

"A court exorcising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decrsrons even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously pick. the Tribunal up in the way rt has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply."

Of course, my view of the effect of a passage from the reasons of the A.A.T. cannot preclude Telecom from seeking to contend, under cover of a properly formulated question of law, that the A.A.T. erred in law in failing to consider a presumptively relevant piece of evidence. (See e.g. Sullivaq v DeDartInent of TranSDort (1978) 20 A.L.R. 323 esp. per Fisher J. at 350).

However, I do not consider that question D in its present form raises a possible failure of that kind to take account of a material fact. Rather, it seems to point to a wrong finding of fact reached by failing to give sufficient weight to the views of Dr Sloman. Accordingly, for reasons already

expressed, paragraph 2D of the notice of appeal must be struck out.

E. To ask "whether the Tribunal was entitled to construe the evidence" of a particular witness in a certain way, only serves to obscure the question of law which may underlie such an inquiry. That question, as Counsel for Telecom conceded in the course of argument, is really one of whether there is any evidence to support a finding, for example, that work performed by the deceased on the morning of 1 July

1986 contributed to the infarction which he suffered on that day. If a question is framed in that way it makes clear to the legal advisers of the respondent that they are called upon to identify one or more pieces of evidence tending to establish the finding impugned by the applicant. The question in paragraph 2E is not so framed and should not be allowed to stand.

F.	The verbosity of this question has obscured the real inquiry and its character as a question of law. It again emerged in the course of argument that it was directed at the issue of whether there was any evidence to support a finding that the deceased's general history of employment by Telecom, as distinct from the specific incidents of 30 June and 1 July 1986, had contributed to his myocardial infarction. The supererogatory reference to "any relevant evidence" is as objectionable in begging the question as the prefatory words
persist in raising the question which I have distilled from "Whether the Tribunal erred in law ..." If Telecom wishes to
the present form of paragraph 2F as clarified by Counsel in his submissions, it will have to be reformulated.
G.	If there is put to one side the irritating tendentious

formulary which recurs in the prefatory words of paragraph

26, it comes down to another question of whether there was

any evidence to support a finding expressly or implicitly made by the A.A.T., i.e. that the deceased's employment by Telecom aggravated or accelerated his coronary disease. In the course of argument, Counsel for Telecom was inclined to concede that paragraph 2 6 was by way of a make-weight and

was "not the ground of greatest significance" . Because S . 44

and 0.53 require the identification of questions of law and not the formulation of grounds of appeal, paragraph 2 6 cannot remain in its present form.

H. Paragraph 2H raises, in what I consider to be an acceptable way, the question of law of whether there was any evidence on which the A.A.T. could have found that the respondent was dependent on the deceased. The need for such a finding arose from the definitions of "dependant" and "dependent" in s.5 of the 1971 Act and s.4 of the 1988 Act which, so far as relevant for present purposes were:

"'dependant' in relation to a deceased employee, meanm -

(a) the mpoume ... of the employoo;

being a pormon who was wholly or partly dependent upon the

smployee at the date of the death of the employee." "'dependent' means dependent for econamic mupport."

Although Counsel for Telecom conceded that "there was a lot of evidence led about what the parties did by way of contributionsn to defray the expenses of their joint domestic establishment, he indicated that Telecom desired to contend that no part of that evidence supported a finding that Mrs Lambroglou was wholly or partly dependent on the

deceased within the meaning of s.43 of the 1971 Act. In my view paragraph 2H of the notice of appeal identifies a question of law which permits that contention to be advanced. It should therefore be allowed to stand.

I.   Paragraph 21 of the notice of appeal is intended to identify a question of law arising from the following conclusion reached by the A.A.T. at p.16 of its reasons for decision:

"The determination under review will be set aside and in these circumstances, the Tribunal decides that the Applicant be paid Comp.noation in accordance with the earlier finding, which, having regard to S124(7) of the 1988 Act, shall be pursuant to S43(4) of the 1971 Act for the period prior to 1 December 1988 and thereafter, until 16 February 1989, pursuant to S17(4) of the 1988 Act."

The reasoning in support of that conclusion is expressed at p.7 of the A.A.T.'s decision in these terms:

"Subsequent to the date of death of the deceased the Applicant has remained partly dependent to the extent of the deprivation of the support of her husband's incam and I find that having regard to the fact that the anticipated retirommnt age of the humband would havm b n n at a point in

applicant, that the Applicant ham suffered loms of	time prior to the anticipated retirement age of the
dependency from the date of death until 16 February 1989 when the deceased would have achieved 65 yeara and thereby would have retired. That the doceamed would have retired at that date is not diaputed by the facts. Having bmon satisfied therefore that she was a dependant at the time of death I am matimfied that at that tinn and subamquently mhe has been partly dependent.
I find that thm loss of dependency from the date of death
until 16 February 1989 is that loss of dependency which can be assessed with regard to the losm of support by the Applicant of the benefit of the husband's earnings, which having regard to aection 43(4) of ths 1971 Act, 'the lomsem euffered by those dependants am a result of the cessation of the earnings of the employw' can be quantified as follows:

(1) for the period htwamn the date of death until October 1986 at 508 upon the basis that the Applicant and the deceased each earned therefore $250 per wwk;

(2 ) f o r t h e poriod O c t o k r 1986 u n t i l 16 F e b ~ a r y

1989 a t 60* upon t h e baaia t h a t t h e Applicant

was receiving 802 of her pre-accident earning.,

t h a t i a $200 por week."

Section 43(4) of the 1971 Act as in force on 2 August 1986,

provided :

" (4 ) I f t h e omployw dies without leaving depondanta

who wore, a t t h e d a t e of t h e death of t h e mnployw, wholly

depondent upon him but leaving depondanta who wore, a t t h a t

da te , p a r t l y dependent upon him, then-

( a ) aubject t o t h i a aoct ion and t o aoctiona 37 and

44, t h e componaation payable i n reapoct of t h e in ju ry auch higher amount am is preacribod, a s t h e i a auch amount, not e x c o d i n g $28,000 o r

Cowismioner determinaa should b. paid, taking i n t o account any loasaa aufferod by those depondanta am a r e s u l t of t h e ceaaat ion of t h e

earninga of t h e omployw; and

(b ) t h a t ccmponaation f a payable t o , o r i n

accordance	with	t h e	directions	of ,	t h e
Copmiaaioner	f o r	t h e	k n o f i t	of	thome
depondenta."

Section 17(4) of the 1988 Act is in similar term8 except that the maximum amount of compensation payable is $120,000. The transitional provision of the 1988 Act which was invoked

by the A.A.T. in its reaeons is s.124(4) which provides:

"(4) The amount of cmponaation i f any) t h a t a

poraon is, by v i r t u e of t h i s aoct ion, e n t i t l o d t o rocmivo

under aoction 24 o r 25 i n reap.ct	of a permanent lmpairwnt ,
o r under aoction 17 i n	of t h e death of m mnployn,

k i n g m i m p a i m n t o r death t h a t occurrod tmform t h e

c-ncing day, a h a l l k t h e muno a s t h e amount of t h e

componaation t h a t would have b w n payable t o t h a t poraon,	i f
t h i a ~ c t	had not boon enactod, under:

(a) where t h e lmpa i rwnt o r death occurrod k f o r e

t h e c-ncamnt of t h e 1930 Act - t h e 1912 Act;

( b ) where t h e impaiewnt o r death occurrod a f t e r t h e

c-ncamnt	of t h e 1930 Act but k f o r m t h o
c-ncamnt	of t h o 1971 Act - t h e 1930 Act am
i n fo rce when	tho i m p i r w n t o r death occurrod;

(C) i n m y o the r came - t h e 1971 Act am i n fo rce

when t h e lmpa i rwnt o r doath occurrod.'

Counsel for Telecom pointed out that the A.A.T. considered it open to the respondent to be paid compensation at differential weekly rates for the period from 2 August 1986 to 1 December 1988 and for the period from 2 December 1988 to 16 February 1989. At all events, it seems to have allowed the 1988 Act some application which Telecom contended that, on its proper construction, it could not be given. I consider the questions of law raised in these circumstances to be:

(a) whether compensation is payable otherwise than in a

lump sum to an adult dependant who was partly dependent on an employee at the date of his death on 2 August 1986;

(b) whether the 1988 Act has any application to the

determination of compensation payable to an adult

the date of his death on 2 August 1986. dependant who was partly dependent on an employee at

If paragraph 21 of the notice of appeal were recast to raise questions like that, it would be necessary for the statement of the orders sought in paragraph 3 to be amended to provide, at least in the alternative, for an order that the matter to be remitted to the A.A.T. for the amount of compensation to be determined according to law. The grounds relied on in aupport of that order would also have to be stated briefly but specifically as required by 0.53 r.3(2)(d).

J. The question expressed in paragraph 2J of the notice of

appeal was understandably interpreted by Counsel for the respondent as founding an argument that the A.A.T. had wrongly exercised a discretion to award costs to the respondent. However, Counsel for Telecom in the course of his submissions indicated that the formulation of the question was intended to draw attention to what was said to be a lacuna in the 1988 Act in respect of the power of the A.A.T. to award costs.

The respondent's application for review by the A.A.T. was made on 4 November 1988, so as to attract the operation of s.129(2) of the 1988 Act which provides:

"Where t h e Ccmmonmalth is a party t o any procndings

r e l a t ing t o any matter ar is ing under t h e 1912 Act, the 1930

Act or t h e 1971 Act (including procodingm under P u t V of
t h e 1971 A&),	being procndinge inmtitutod but not

caup1mt.d	h f o r e the cormnncing day,	those procndings m y
b.	continuod on and a f t e r t h a t day and,	where the

procudingm u e so continuod, the relevant authority and the

Ccmaonmalth sha l l k part ies t o those procodings."

The phrase "the Commonwealth" in that eub-section by virtue of its definition on s.4(1) and the provisions of s.5(7) of the 1988 Act includes a Commonwealth authority such as Telecom. Accordingly, the proceedings instituted by the applicant under the 1971 Act could be continued under that Act which included the following sub-section6 (so far as relevant) inserted by Schedule 2 to Act No. 74 of 1981:

"64. (1) Subject to thim moction, the comtm incurred by a party in rmlation to proceedingm inmtituted before the Adminimtrative Appaalm Tribunal under thim Part shall b. borne by that party.

(2) Where -

(a) the Administrative Appals Tribunal gives a dacimion -

i varying a determination of the Commimmioner in a manner favourable to a party to the determination other than the Cormonwealth; or

(ii) setting amid. a determination of the Commimmioner and making a determination in mubmtitution for the determination mo met aside that im more favourable to a party to the determination other than the C-nwealth than the determination so met aside;

the Administrative Appoalm Tribunal may order that the comtm of the proceedingm before it incurrd by that party, or a part of those comtm, shall b. paid by the Ccmmonwealth.

(3) Where the Adminimtrative Appals Tribunal givem a dmcimion metting amid* a determination of the Commimmioner and rmitting the came for re-determination by the Commimmioner, the Adminimtrative Appalm Tribunal mhall order that the comtm of the proceedingm before it incurred by partiem to the determination other than the Cormonwealth shall be paid by the Commonwealth."

(By s.7(6) of the 1971 Act a reference elsewhere in the Act

to the Commonwealth shall be read as a reference to a

preacribed authority of the Commonwealth such as Telecom.)

The decision of the A.A.T. on its face was to set aaide a determination of the Commissioner for Employees' Compensation and to make a determination in substitution for it that was more favourable to the respondent than the decision so set aeide. It is difficult therefore to see why the power to award costs conferred by 8.64(2)(a) of the 1971 Act was not attracted. However, if Telecom seriously wishes to argue that the A.A.T. had no power in the circumstances to award costs to the applicant it should frame the relevant question as whether the 1971 or the 1988 Act (whichever was applicable) on its proper construction conferred power on the A.A.T. to award costs in consequence of a decision to the effect pronounced by the A.A.T. on 1 December 1989. Paragraph 21 of the notice of appeal in its present form is not apt to raise that question, and, accordingly, should be struck out.

CONCLUSION

In the result, therefore, sub-paragraphs A, B, C, D, E, P, G, I and J of paragraph 2 of the notice of appeal will be struck out and the whole of paragraph 4. I grant leave to Telecom to amend the notice of appeal by substituting for all or any of those paragraphs such statements as it may be advised of other questions of law (if any) to be raised on the appeal and of the

of the notice of appeal. The notice of appeal as so amended grounds relied on in support of the order sought by paragraph 2	should be filed and served by 21 December 1990. Should either
Telecom or the respondent consider that the notice of appeal as so amended requires documents or matters to be included in the appeal papers which were not referred to in the index settled by Deputy Registrar Agnew on 9 May 1990, that party should approach a Registrar of the Court for an appointment for further settling of the index accordingly. I shall direct that the matter be restored in the list of cases awaiting fixture and be fixed for
hearing not before 4 February 1991. Telecom must pay the respondent's cos t s of and incidental t o the motion on notice dated 10 May 1990 and any cos t s thrown away as the r e s u l t of the amendment of its notice of appeal.

I c e r t i f y t h a t t h i s and the preceding

t h i r t y (30) pages a r e a true copy of the Reasons f o r Judgment of H i s Honour Mr

Jus t i ce	Ryan.
Associate: d&briy	y
d

Date t 9 &e-@~~/h!% /W@

Solicitors for Applicant:	Australian Government Solicitor
Counsel for Applicant:	Mr J. Lenczner
Solicitors for Respondent:	Williams, Winter S Higgs
Counsel for Respondent:	Me D.S. Mortimer
Date of Hearing:	17 May 1990
Date of Judgment:	4 December 1990