Borg, C. v Commonwealth of Austrlaia

[1990] FCA 612

612 90

JUDGMENT NO. .... ........ ... / .... -..-

GENE- DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUST-IA	)
VICTORIA DISTRICT REGISTRY	1
) . No. VG 404 of 1989
)
GENERAL DIVISION	1

QN APPEQ from the General Division of the

Administrative Appeals Tribunal

B E T W E E N :

CATHERINE BORG

Applicant

A N D :

COMMONWEALTH OF

AUSTRALIA

Respondent

COMMISSION FOR THE SAFETY. REHABILITATION AND COMPENSATION OF DMMONWEALTH EMPLOYEES

Party Joined

JUDGE MAKING ORDER:  KEELY J .

DATE ORDER MADE:	2 NOVEMBER, 1990
PLACE ORDER MADE:	MELBOURNE

given on 17 November 1989 be set aside.

MINUTES OF ORDER

RECEIVED

THE COURT ORDERS THATL - 5 NOV 1990

FEDEM CO1)RT

A W T R W A

1.     The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal

3. The case be remit_ted to the Administrative Appeals

. Tribunal to be heard and decided again either with or without the hearing of further evidence as the Tribunal in the exercise of its discretion may decide.

4.   The respondent Commonwealth of Australia pay the applicant's costs.

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

36 of the Federal Court Rules.)

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA	)
YICTORIA DISTRICT REGISTRY.	No. VG 404 of 1989

1

DN APPEAL from the General Division of the

Administrative Appeals Tribunal

B E T W E E N :

CATHERINE BORG

Applicant

A N D :

C O M M O N W E A L T H	0	F
AUSTRALIA

Respondent

Party Joined

2 NOVEMBER, 1990 KEELY J .

PEASONS FOR JUDGMENT

Catherine Borg ("the applicant") has appealed from a

decision ("the decision") of the Administrative Appeals Tribunal ("the Tribunal"), .given on 17 November 1989, which affirmed a determination, dated 25 July 1988, by the Delegate ("the Delegate") of the Commissioner for Employees' Compensation ("the Commissioner") made under the Com~ensation

-fCommonwealth Government E ~ D ~ O V ~ ~ S ) Act 1971 ("the Actw). The

determination waa in the following terms:

Determination

1..	On the evidence before me, including .specialist medical evidence, I find that any incapacity suffered or medical expenses incurred by the employee are no longer the result of the personal injury sustained by her on 12 July 1984.
2.	NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, I hereby determine:

On and from the date of this determination, the employer is not liable to pay compensation to the employee."

That determination had been .preceded by a large number of determinations, the first of which, dated -12 December 1984, as amended by a determination dated 2 May 1985, determined that, "in respect of soft tissue injury, cervical spine and neck injury", the applicant's employer was "liable to pay compensation" at certain rates. A delegate also determined, on 1 March 1985, in "accordance with the provisions of section 37 of [the Act]" that "the cost of medical treatment amounting to $3,299.75 in relation to the injury shall be paid"; that

Hospital. On 23 October 1986 (appeal book 35) a delegate	figure included an amount of $2,230.20 for Bundoora Private
determined various weekly rates of compensation in respect of periods between 28 March 1985 and 30 April 1986 and determined an increased weekly rate "from 1/5/86 to indefinitely".
On 27 October 1986 (appeal book 73) a delegate of the Commissioner made a determination with respect to the applicant which included the following:-

"

Determination

1.   On the evidence before me, I find that the personal injury to the employee on 12/7/84, namely, soft tissue injury, cervical spine and neck injury, in respect of which the Australian Taxation Office is liable to pay compensation under the said Act, has resulted in aggravation 0f.a pre-existing condition of depression.

2.   NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to the determination(s) previously made in this matter, I hereby determine:

(a) in accordance with the provisions of sub- section 27(1) of the said Act the

. Australian Taxation Of £ice is liable to pay compensation to the employee in respect of aggravation of a pre-existing condition of depression.

On 18 July 1988, one week before the date of the determination which was affirmed by the Tribunal, a delegate of the Commissioner made a determination that the applicant's weekly rate of compensation be increased to a specified amount "from 17.6.88 until a date to be determined by the Commissioner or his delegate" (appeal book 87). Overa.11, the applicant was

respect of the period from 12 July 1984 until 25 July 1988.	paid weekly compensation for more than four years i.e. in	The respondent Commonwealth of Australia and the party joined in the prbceedings before the Tribunal were represented
before the court by the same counsel; it is convenient to refer to him as the respondent's counsel. The applicant also appeared by counsel. The notice of appeal, as amended at the hearing without objection ("the amended grounds of appeal"),
set out 9 grounds of appeal and 16 questions of-law.
It is convenient to deal first with ground 4, which was in the following terms:

"4. The Tribunal in the exercise of its discretion erred in law in permitting:

(a) The report of Dr. Robert Myers dated the 22nd June 1987 to be tendered into the evidence as part of the T documents;

and -

(b) Dr. Robert Myers to give evidence on behalf of the Respondent in the proceedings."

The Tribunal, after hearing argument, refused to uphold the present applicant's submission in respect of those two matters. It cited the reasons for decision of the Administrative Appeals Tribunal in Re Lindsev and Australian postal Commission (Mr. Justice Gray, Presidential Member, Mrs. J. R. Dwyer, Senior Member, and Professor R. W. Webster, Member). In that case the Tribunal said ((1989) 18 ALD 340 at

345-6) :-

"It must be doubtful at the very least whether the Tribunal has any power to refuse to accept relevant evidence tendered in an appropriate form by a party

. to a proceeding. Such a rejection of evidence would amount to a denial of natural justice, .no warrant for which appears in any legislation."

I agree with that statement. Having considered the submissions advanced by the applicant's counsel, in my opinion the Tribunal did not err in law in the exercise of its discretion; accordingly ground 4 fails.

. Before dealing with other grounds of appeal, reference should be made to the submission by the applicant's counsel that the onus of proof was upon the respondent to show that the effects of the injury had ceased. He cited Philli~s v m c o m m o n w e u (1964) 110 CLR 347 and The Commonwealth v Nuratore -(1918) 141 CLR 296. The respondent's counsel submitted that there was no onus of proof and cited the decision of Hill J. in Elleissy v Australian Telecommunications Commission (1989) 18 ALD 240. That decision referred to the decision of a ~ u l l Court of this court in VcDonald v Director-General of Social Security (1984)

1 FCR 354.

In v comcare (unreported - delivered 15 June 1990)

von Doussa J., at pp. 11-12, said:-

"As the applicant was in receipt of compensation pursuant to a- determination in her favour immediately before the determination was made on 30 March 1987, the onus of proof of matters which would entitle the respondent to have the earlier determination varied rested on the respondent: v The Commonwealth (1964) 110 CLR 347, The

Commonwealth v pluratore (1978) 141 CLR 296. The Tribunal cited the second of these cases and correctly stated that the onus was on the respondent to establish on the balance of probabilities that the appellant had ceased to be rightfully entitled to further payments of compensation."

In e r v Australian Telecommunications Commission

(1990) 95 ALR 72 Einfeld J. said (at 76):-

"The relevance and repository of an onus of proof in situations of this kind have been matters of some discussion in the cases. Philli~s v Commonwealth (1964) 110 CLR 347 was an appeal to the County Court of Victoria against a determination by the Compensation Commissioner terminating a worker's

compensation which had been awarded in an earlier determination. The High Court (Kitto, Taylor and Owen JJ) held that the rejection of a claim by the Compensation Commissioner ordinarily casts an onus on the worker in the County Court to prove the necessary facts for an award of compensation. However, when the Compensation Commissioner has purported to terminate the worker's right to compensation "under . an antecedently existing determination by reason of a material change of circumstances", the onus of proving the "critical facts" is on the employer."

After referring to other authorities his Honour said (at 77):-

"A fortiorh it would seem to me that where an

employer alleges no entitlement to compensation at all and the worker, having received compensation for years, resists the employer's move and seeks to retain what she has, a burden must fall on the employer to prove the facts it wishes to have found. If after the fact-finding process, the tribunal of fact is then left in a position where it cannot decide the relevant issues of - fact, the employer must be held to have failed and the worker's
entitlement should be left intact.
Commonwealth v Muratore (1978) 22 ?&R 176 concerned
a worker who had been granted compensation on the
basis of having been found partially incapacitated
for work by the Compensation Commissioner. Several

years later, the Compensation Commissioner

not prevent the worker from earning at least the	determined that the degree of partial incapacity did
amount of his pre-injury average weekly earnings. Compensation was therefore terminated. The High Court held that the Commonwealth bore the onus of proving the facts necessary to establish the reduction of the payable compensation to nil."

An appeal against the latter decision has been heard by a Full
Court of this court, which has reserved its decision.

In the circumstances I have assumed for the purpose of this appeal - but without so deciding - that there was no onus

7/.

of proof on the respondent.

Ground 2 of the amended grounds of appeal was in the

following terms :

"2. It was not open to the Tribunal as a matter of

law to find on the evidence that the effects of the aggravation of the Applicant's cervical spondylosis ceased as at the end of 1985."

Paragraph 34 of the decision contained the following

passage:

"34. The medical evidence satisfies me that the accident in July 1984 temporarily aggravated Mrs Borg's underlying degenerative condition in her neck but any effects of that aggravation on her neck and

arm ceased by the end of 1985." -

The Tribunal had already said, in paragraph 31 of its reasons, that ."[t]he applicant also sustained an aggravation of her underlying degenerative disc disease."

The hearing occupied more than four days before this court; the evidentiary material before the Tribunal was the subject of detailed submissions by both counsel. The respondent ' S counsel - accepted (transcript p. 186 j that the

Tribunal had not said anything which suggested that it disbelieved the applicant's evidence as to the pain that. she in fact felt. In support of the finding of the Tribunal that

"any effects of that aggravation on her neck and arm ceased by the end of 1985" he relied upon the evidence of Dr. Kenny and of Mr. Swaney and the medical report of Mr. Wilson, dated 10 April 1985.

Dr. Kenny was a psychiatrist who first examined the applicant on 3 February 1989. In my opinion his evidence did not give any support to the Tribunal's finding that the "aggravation of her underlying degenerative disc disease" (paragraph 31) had "ceased by the end of 1985" (paragraph 34).

The Tribunal accepted the diagnosis of Mr. Wilson (who did not give evidence before it) "that Mrs. Borg suffered .

aggravation of the mild degenerative changes in her neck as a result of her accident" (paragraph 31). Mr. Wilson's report (appeal book 51-52) said that (1) "it was felt that she

sustained aggravation of these mild degenerative changes [of the C5-6 level] as a result of a jarring incident on 12th July, 1984"; (2) when he last examined the applicant (29 January 1985) she gave him a history of "still experiencing

pain in the right side of her neck, the right shoulder and a shock-like sensation in the index and thumb of the right	hand"; (3) on examination he could "elicit tenderness at the
C6 spinous process"; (4) there was "slight limitation of rotation to the right"; (5) from "an orthopaedic point of view, I feel that she is unlikelv to be left with any residual
disability . . . I feel that she has a good prognosis" (emphasis added) .

Although Mr. Swaney gave evidence before the Tribunal in

9/.

- August 1989, the only occasion on which he had seen the

applicant was on 6 September., 1985. In his evidence (appeal book 262) he said that his findings were as set out in his report, dated 9 September 1985. That report said (appeal book

61) "I think she has a minor neck discomfort, which could well

be relieved by a mani~ulation of her under a general anaesthetic. But I do not think this is bad enough to stop her working" (emphasis added). In his evidence he explained (appeal book 269) the "benefit of a manipulation on the neck"

saying:

"It just loosens up the joint, that is all it does.

... Because with degenerative changes in the disc,

the joint capsules do tend to thicken up and if you stretch those beyond their limited range of movement, they get pain. Now, if you can stretch those up under an anaesthetic, as we frequently do these patients go on for three or four vearq without any pain. ... a manipulation does not always work." (emphasis added)

The Tribunal referred (paragraph 31) to "an aggravation of her underlying degenerative disc disease". In my opinion the

Tribunal's finding that the aggravation "of the underlying	degenerative condition in her neck [had] ceased by the end of
1985" (paragraph 34) is not supported by the statements in Mr. Wilson's medical report nor by the evidence of Mr. Swaney, or Dr. Kenny.

Having considered the submissions of the respondent's

counsel and the evidence, in my opinion it was not open to the Tribunal to so find on the evidence. Accordingly ground 2 has been established by the applicant.

10/.

Ground 1 of the amended grounds of appeal was:

"1. It was not open to the Tribunal as a matter of law to find on the evidence that the effects of the injuries sustained on the-12th July 1984 had ceased."

In paragraph 37 of its reasons the Tribunal said that "the physical and psychiatric effects of that compensable injury have ceased". The Tribunal made a finding as to the physical injury (in paragraph 31, quoted earlier in dealing with ground 2), and it made a finding as to the aggravation of her psychiatric condition in the following terms:-

"31. ... The applicant's underlying psychiatric disease which I am satisfied had not resolved before the accident, was also aggravated and the accident was a contributing factor to this. As a result the applicant was incapacitated for work and the aggravation is deemed by section 29 of the 1971 Act to be a personal injury."

Having considered the submissions of the respondent's

counsel and the evidence, including the particular passages

upon which he relied, in my opinion it was not open to the	Tribunal to find on the evidence that the physical and
psychiatric effects of the injuries sustained on 12 July 1984 had ceased. Accordingly ground 1 has been established by the applicant.
It follows from my conclusions as to grounds 1 and 2 that the appeal must be allowed. The amended notice of appeal
sought that "the matter [be] remitted to the . . . Tribunal for
reconsideration" (appeal book 411). The case will be remitted to the Tribunal to be heard and decided again (S. 44(5) of the
Administrative A ~ ~ e a l s Tribunal ~ c t 1975).
It is not necessary to deal with the other grounds of appeal but I shall make some fairly brief comments on two of them; nor is it necessary to deal with all of the questions of law raised by the amended grounds of appeal.

Ground 8 of the amended grounds of appeal read as

follows:

"8. The Tribunal made a decision on the evidence before it that no reasonable person acting judicially and properly instructed as to the relevant law could have made."

There is much force in the submissions put by the applicant's counsel in support of this ground, citing passages from the evidence, including that of Mr. Schofield, an orthopaedic specialist who examined the applicant on 15

Australia. His report (appeal book 366-7) referred to "the	February 1989 on behalf of the respondent Commonwealth of
previously noted C5-6 disc degeneration" and said "if the patient was agreeable to surgery, .then it may be worthwhile performing a CT Myelogram". His opinion was that she "has had a fairly minor injury to a previously degenerate disc at C5-6
... I would put no more than ten percent disability in her
neck as a xesult of the iniurv in 1984 but I believe that she
is fit for m types of employment " (emphasis added) . That
evidence was quoted by the Tribunal (paragraph 20) without any

12/.

express or implied suggestion that it was rejected. It is difficult to reconcile the Tribunal's findings, the subject of grounds 1 and 2 of the amended grounds of appeal (set out earlier), with that evidence. However, because of the conclusions already expressed that grounds 1 and 2 have been established, it is not necessary to express an opinion as to whether ground 8 has also been established.

Ground 9 of the amended grounds of appeal was in the

following terms :

"The Tribunal erred in law in taking into account an irrelevant consideration namely the absence of any change in the X-ray taken in 1989 compared with the X-ray taken in 1984".

The respondent's counsel submitted that the Tribunal had not taken into account the "absence of any change in the X- ray". An examination of the Tribunal's reasons for decision shows that it referred to that matter in three separate paragraphs. (1) In paragraph 20, after referring to medical

evidence it said, "X-rays taken by Mr. Schofield [on 15

February 19891 demonstrated C5-6 disc degeneration without any increase of the degeneration as seen in 1984". ( 2 ) In paragraph 33, after referring to the evidence of three medical practitioners, it said "[tlhere was, however, no increase in the degeneration at C5-6 seen in X-rays taken in 1984". (3) The following passage, in paragraph 34, gives further support to the contention of the applicant's counsel:-

"I find that there has been no acceleration of her underlying cervical spondylosis such that her disease is further advanced now than it would have been had she not been involved in the accident in

1984. The X-rays do not show a further deterioration in her spondylosis since the accident. The pain that Mrs. Borg now reports in her neck. and arm is due to her underlying condition and her psychiatric disease."

The three passages, in their context, have led me to reject the submission by the respondent's counsel that the Tribunal's references to the absence of change in the X-rays were mere passing comments by the Tribunal; in my opinion the absence of change was taken into account as a significant matter in reaching its conclusions.

The respondent's counsel submitted, in the alternative, that, if that matter had been taken into account by. the Tribunal, then it was entitled to do so because the absence of change in the X-rays was evidence from which the Tribunal could infer that the accident in 1984 "did not have a significant physical effect". However, he accepted that there

was evidence before the Tribunal that the absence of changes	in the later X-ray was not necessarily significant. Further,
he did not suggest that there was any evidence to contradict the evidence of Mr. Johnson (appeal book 255) that "neither of those structures show up on an X-ray so they can be appreciably damaged and scarred without there necessarily being any alteration on the radiological appearances". For the reasons given earlier it is not necessary to express an opinion as to whether ground 9 has been established.
It is convenient to set out the terms of the remaining grounds, as set out in the amended grounds of- appeal.

" 3 . The Tribunal erred in law in that it failed to

provide adequate reasons for its decision in
that: -

(a)	Such reasons would not enable an Appeal Court to ascertain the reasoning upon which the decision was based!
(b)	Such reasons were inadequate because justice was not seen to have been done.

5.   Upon the Tribunal finding that, at the date of hearing, the Applicant's cervical spondylosis was now no further advanced than it would have been had she not been injured in the accident in 1984, the Tribunal misinterpreted S. 5(11) and S. 29 of the Com~ensation lcommonwealth IGovernmentl Em~loveesl

&& 1971 in deciding that, by reason of that finding

alone, the effects of the acceleration had thereby
ceased.

6.    The Tribunal erred in law in deciding that the sequelae of the injury sustained in the accident of 1984 were to be determined pursuant to S. 29 and S. 27 of the Com~ensation

m o n w e a l t h IGovernmentl Em~loveesI Act 1971

only.

Ground 7 of the amended grounds of appeal was not pursued.

For the reasons already given, the appeal from the Tribunal's decision must be allowed, the decision of the Tribunal set aside and the case remitted to the Tribunal to be heard and decided again either with or without the hearing of further evidence as the Tribunal in the exercise of its discretion may decide.

The respondent's counsel submitted that, if the court

15/.

allowed the appeal- but the applicant had only succeeded "on one or -two of the grounds", the court should consider making an order that the applicant be awarded only a portion of her costs. Having considered that matter, including the fact that only one ground of appeal has been decided adversely to the

- applicant (ground 4 - which occupied only a very small percentage of the hearing time), in my opinion the proper exercise of the court's discretion as to- costs in the present case is to order that the respondent, the Commonwealth of Australia, pay the whole of the applicant's costs.

I hereby certify that this and the

fourteen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 2 November 1990.

Associate: ,v- :< - /,. f C LC;: ,,c.A L, Y 'I

Date:  2 November, 1990

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ATTACHMENT A

Dates of Hearing	18, 19, 22, 23 and 24 October, 1990
Date of Judgment	2 November, 1990
Solicitors for the Applicant	: Slater & Gordon
Counsel for the Applicant	: . W. Nightingale
Solicitor for the Respondent	Australian Government Solicitor
Counsel for the Respondent	Mr. J. Lenczner