Cook v ASP Ship Management Pty Ltd and ASP Ship Management Pty Ltd v Cook (No.2)
[2004] FMCA 361
•9 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COOK v ASP SHIP MANAGEMENT PTY LTD and ASP SHIP MANAGEMENT PTY LTD v COOK (No.2) | [2004] FMCA 361 |
| ADMINISTRATIVE LAW – Appeal from decision of the Administrative Appeals Tribunal – seafarer – permanent impairment – whether error of law – denial of natural justice – finding based on medical reports – issue not the subject of claim or submissions at hearing – failure to advise parties reliance would be placed on material – procedural fairness – obligation to ensure parties have opportunity of addressing key issue – ignoring evidence – inadequacy of reasons – failure to identify ‘later evidence’ relied upon – cross appeal – video evidence – valid use – no error of law. |
Seafarers Rehabilitation and Compensation Act 1992, s.39
Administrative Appeals Tribunal Act 1975, ss.37, 44
Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219
Lodkowski v Comcare (1998) 52 ALD 371
Bushell v Repatriation Commission (1992) 175 CLR 408
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Telstra Corporation Ltd v Warren (Unreported 26 February 1997)
White v Repatriation Commission (1995) 39 ALD 42
Australian Postal Commission v Wallace (1996) 41 ALD 455
Suters v Australian Postal Corporation (1992) 28 ALD 320
Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283
Re Lindsay v Australian Postal Commission (1989) 18 ALD 340; 10 AAR 457
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Waterford v Commonwealth of Australia (1987) 163 CLR 54
| Applicant: | ASP SHIP MANAGEMENT PTY LTD |
| Respondent: | GEORGE WILSON COOK |
| File No: | MZ 721 of 2003 |
| Applicant: | GEORGE WILSON COOK |
| Respondent: | ASP SHIP MANAGEMENT PTY LTD |
| File No: | MZ 720 of 2003 |
| Delivered on: | 9 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 April 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant (Mr George Cook): | In person |
| Counsel for the Respondent (ASP Ship Management): | Mr J Lenczner |
| Solicitors for the Respondent (ASP Ship Management): | Middletons Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 721 of 2003
| ASP SHIP MANAGEMENT PTY LTD |
Applicant
and
| GEORGE WILSON COOK |
Respondent
MZ 720 of 2003
| GEORGE WILSON COOK |
Applicant
and
| ASP SHIP MANAGEMENT PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two notices of appeal before the Curt. The first is a notice of appeal filed on 22 May 2003 (MZ721 of 2003) wherein ASP Ship Management (ASP) is the applicant and George Cook (Mr Cook) is the respondent (the ASP appeal).
The second appeal filed on 23 May 2003 (MZ720 of 2003) is an appeal by Mr Cook with ASP as respondent (the Cook appeal).
Both appeals are from a decision of the Administrative Appeals Tribunal ("the tribunal") delivered on 24 April 2003. The hearing before the tribunal related to the review of three decisions made or deemed to have been made under the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act). The tribunal had before it one volume of documents ("T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and relating to matters numbered V1995/97 and V1998/354, together with matter number V2000/1320. There was a supplementary volume to the T documents lodged in respect of the last matter, number V2000/1320. Other documents and exhibits were tendered during the hearing.
The first application, V1995/97, related to a claim for permanent impairment of the left leg. That application sought review of a decision refusing Mr Cook compensation for permanent impairment in respect of the left lower leg. The permanent impairment claim was made pursuant to s.39 of the Seafarers Act by the solicitors then acting for the applicant by letter dated 29 August 1994. The claim for permanent impairment related to what had been an accepted claim for a condition diagnosed on 7 July 1993 as "widely disseminated cellulitis of the left lower leg". That description of the accepted diagnosed condition was referred to in correspondence dated 7 July 1995, although the original first determination accepting the claim as compensable was apparently not provided to the tribunal and nor indeed was it provided to this court.
On 19 May 1995 liability for permanent impairment was denied and the reason for that determination was as follows:
“Your degree of permanent impairment as determined under section 39(5) is less than 10 per cent and therefore pursuant to section 39(7) compensation is not payable to you under section 39 of the SRCA.”
On 24 May 1995 Mr Cook sought a reconsideration of the determination and on 7 July 1995 a recommendation was made by a Comcare officer to the solicitors for ASP that the determination of 19 May 1995 be affirmed. Accordingly, on 10 July 1995 a reviewable decision was made affirming the determination of 19 May 1995. The application for review of matter V1995/977 was lodged on 28 August 1995.
In the statement lodged pursuant to s.37 of the Administrative Appeals Tribunal Act ASP set out reasons for the reviewable decision as follows:
(1)Any impairment suffered by the applicant has not been contributed to in a material degree by his employment with the respondent.
(2)Alternatively, the applicant's degree of permanent impairment as determined under section 39(5) is less than 10 per cent, and therefore pursuant to section 39(7) of the SRCA, compensation is not payable to the applicant.
After considering the material in relation to the permanent impairment claim of the lower left leg the tribunal made the following relevant decisions:
“1.In matter V1995/977 the Tribunal sets aside the decision under review and in substitution varies the determination of 19 May 1995 to provide that Mr Cook is entitled to compensation under the Seafarers Rehabilitation and Compensation Act 1992 ("the Act") as follows:
(i)under s.39 of the Act in respect of a 20% impairment of the left leg, and
(ii)under s.41 of the Act for non-economic loss calculated under s.41(2) of the Act on the basis that the degree of permanent impairment is 20% and the degree of non‑economic loss is to be calculated in accordance with Tables 5 and 6 of the Guide to the Assessment of the Degree of Permanent Impairment using the following ratings:
Pain 4
Suffering4
Mobility 3
Social relationships 3
Recreation and Leisure Activities 4”
In matter number V1998/354 a claim was made on 12 December 1997 for hearing aids and compensation for loss of hearing. Ultimately a reviewable decision was made. The tribunal considered the matter and made the following decision:
“2.In matter V1998/354 the Tribunal sets aside the decision under review and in substitution for the deemed refusal of the claim, decides that Mr Cook is entitled to compensation under s.28 of the Act in the sum of $6490.00 for a provision of hearing aids.”
That second decision of the tribunal is not the subject of an appeal by either ASP or Mr Cook.
The third matter before the tribunal related to the application V2000/1320. That third matter commenced with a claim by Mr Cook dated 14 May 2000 where he claimed to have suffered a permanent impairment in the following terms:
“All of my body is affected by a cellulitic organism which is 'loitering' in my blood - hence, recrudescence. [left] and [right] legs, [right] elbow, back, bilateral hearing damage/loss.”
In the third claim Mr Cook further sought compensation for the following:
“Orthopaedic boots/shoes, crutches/walking sticks, wheelchair (motorised needed soon), hand controls for motor car.”
On 13 June 2000 ASP denied liability for both aspects of the third claim and specifically denied liability for alterations, aids or appliances and household and attendant care services and property damage. On 18 June 2000 Mr Cook sought a reconsideration of the primary determination. He sent with that letter a copy of the MRI scan reported 20 July 1999 and other material which he regarded as supporting his claim. By 31 October 2000 there had been no reviewable decision. On 31 October 2000 Mr Cook applied for review of a deemed reviewable decision.
In the third matter, V2000/1320, the tribunal made the following decision:
“3.In matter V2000/1320, the Tribunal sets aside the decision under review and in substitution varies the decision of 13 June 2000 to provide that Mr Cook is entitled to the sum of $864.00 under s.43 of the Act for provision of lawn mowing services.”
The decision of the tribunal in relation to the third claim is clearly one of the orders relevant to the ASP as it seeks to set aside that order, along with order 1 referred to earlier. It is not clear whether Mr Cook wishes to appeal from the tribunal's decision in relation to the third claim. Out of an abundance of caution I will assume that he wishes to do so and will consider as best I can any relevant views expressed by Mr Cook either in submissions or his notice of appeal relating to that third claim.
By way of background it is noted that Mr Cook had worked as a third engineer on the vessel "Sea Road Tamar". He had contracted cellulitis of the left leg with evidence of widespread dissemination of infection during the course of his employment. It is not disputed that Mr Cook first noticed the condition on 5 July 1993 while sailing to Hobart, although he was not diagnosed until 7 July 1993. He left the vessel and was hospitalised that day.
The ASP appeal
It is convenient to set out the questions of law and grounds raised under the following headings:
· Denial of natural justice
· Ignoring relevant evidence of Mr Battlay
· Inadequacy of reasons
· Failure to give proper reasons as to the expression "later evidence"
To understand the main thrust of the ASP appeal grounds and questions of law it is appropriate to set out part of the conclusion of the tribunal in relation to the left lower limb impairment claim as follows:
“88. We find that the ankle only became symptomatic, and a problem, after the episode of cellulitis, and that whether or not there was an underlying degenerative condition, the pain, discomfort and impairment of the ankle resulted from the cellulitis and the capsular contraction which was probably a result of the period of immobility due to the cellulitis as explained by Mr Buzzard. We find further that the left ankle was implicated in the disseminated attack of cellulitis on 5 to 7 July 1993 and that the end result of that infection has been the degree of fibrosis of soft tissues around the ankle joint as described by Mr Neri.
89. We find as to the level of impairment in respect of the left lower limb the appropriate rating at all relevant times on Table 9.5 has been 20% which applies where a person "Can rise to standing position and walk but has difficulty with grades, steps and distances".. The medical evidence set out in the preceding paragraphs shows that to have been the assessment of Mr Neri in 1995. We consider it was also the appropriate assessment on a fair reading of Mr Buzzard's report of 1995 and is the figure chosen by Mr Battlay.
…
94. In 1995 there may have been a question as to whether Mr Cook's condition might have still improved. With the benefit of later evidence, we find that there has been no improvement such as to reduce the left leg impairment resulting from the compensable cellulitis to less than 20%.
95. Mr Cook's evidence was to the effect that his permanent impairment was more than it had been in 1995, and would be more accurately assessed as 30% on Table 9.5 which is appropriate where a person can only walk with difficulty, perhaps requiring the use of sticks or crutches. We do not make that finding. We accept the evidence of Mr Battlay that there is a component of exaggeration (trans. p277) in Mr Cook's current presentation. From seeing the videos we find that is a factor which has arisen since the making of the reviewable decision.”
It is also relevant to note that only one medical practitioner was called to give evidence, namely, Mr Battlay. There seems little doubt that the hearing before the tribunal was made more difficult by the fact that the applicant was unrepresented. That difficulty arose in the applications before this court which were prolonged significantly as a result of the fact that Mr Cook was not legally represented. Yet again it demonstrates the benefit in court and tribunal time of parties being legally represented.
The difficulty presented to the tribunal was the formulation of the claim in relation to the impairment issue and the fact that despite making a suggestion on a number of times that Mr Cook arrange for a current treating doctor to give evidence at the hearing, with a suggestion that such evidence could even be taken over the telephone, the result of the hearing was that Mr Cook did not call either of his treating doctors, Dr Penderleith or Dr Taylor, and nor did his treating surgeon, Mr Wearne, give evidence. Perhaps not surprisingly in the absence of that evidence the tribunal did not find permanent impairment of parts of the body other than the left leg. I suspect the tribunal otherwise would have had difficulty in analysing the material after the hearing had concluded. At the first hearing date before this court Mr Cook had sought leave to adduce further evidence, both for the purpose of the ASP appeal and for Mr Cook's cross-appeal. Specifically, he sought to call evidence from Mr Wearne and Dr Taylor.
On 23 January 2004 the Court ruled that the application to adduce further evidence should be refused, although indicated it was prepared to review the matter at the end of the final hearing. Nothing that has been raised during the course of the hearing persuades me that as a matter of law it is appropriate to permit Mr Cook to now adduce further evidence in support of his appeal or in relation to the ASP appeal.
It should also be added that Mr Cook expressed difficulty with hearing submissions made by counsel for ASP. A specialist interpreter could not be arranged for the hearing and instead I permitted Mr Cook to sit directly opposite counsel for the respondent at the bar table, as Mr Cook indicated that if he were able to see and hear counsel during the course of submissions, then he would be able to follow the proceedings. At one point I was minded to permit Mr Cook to have access to a transcript of the proceedings but by the end of the hearing I was satisfied, after making the inquiry with Mr Cook and upon noting that he was able to make clear and responsive submissions, albeit often relating to facts rather than the issue of an error of law, that he at least had heard the matters presented by counsel for ASP.
In addition, it is noted that a summary of argument was filed by ASP, together with a document entitled "Supplementary Submission to the Summary of Argument on Behalf of the Applicant (ASP Ship Management)" filed 29 January 2004. That document was filed as a result of a direction by this court in order to at least make clear the ASP submissions on the principles to be applied on an appeal of this type and to ensure that copies of all decisions to be relied upon were provided to Mr Cook well before the hearing. Mr Cook filed submissions dated 29 March 2004 after being granted an extension of time to do so by the court. ASP then filed a further document entitled, "Reply to Submissions Filed by Mr Cook dated 29 March 2004 (on behalf of the ASP Ship Management Pty Ltd)".
The combination of the documentary material and the special arrangements made to ensure that Mr Cook had an opportunity to adequately hear the submissions made for and on behalf of ASP satisfied me that procedural fairness had been afforded to Mr Cook to enable him to hear and understand the matters raised. That does not of course mean that he would not have difficulty, along with most unrepresented litigants, in understanding principles which arise in appeals of this kind which relate to errors of law pursuant to s.44 of the AAT Act. That lack of understanding was evident in the notice of appeal and the submissions made by Mr Cook during the course of the hearing.
Unfortunately that is a common misunderstanding and I have concluded that was in no way related to any hearing impairment Mr Cook may have had during the hearing. Accordingly, I do not consider it appropriate to prolong the proceedings any further by providing access to the transcript by Mr Cook of the proceedings. Mr Cook expressed a clear desire for the matter to proceed expeditiously and I did not see any need in the circumstances for access to be provided to a transcript of the proceedings in the event that the court obtained transcript.
Denial of natural justice
The AAT had made a finding that Mr Cook's left ankle impairment arose out of "capsular contraction" as a result of a period of immobility due to cellulitis as explained by Mr Buzzard. As set out in paragraph 88 of its decision, the tribunal found further that the -
“… left ankle was implicated in the disseminated attack of cellulitis on 5 to 7 July 1993 and that the end result of that infection has been the degree of fibrosis of soft tissues around the ankle joint as described by Mr Neri.”
Counsel for ASP submitted that Mr Buzzard had not properly examined Mr Cook's leg since 31 October 1994. Mr Neri, now deceased, had not examined Mr Cook since 1994. It is useful to set out the extract of evidence included in the tribunal's decision of both Mr Buzzard and Mr Neri.
“30. The next report in the T documents is that of Mr Neri, an orthopaedic surgeon, provided to Mr Cook's solicitors on
14 July 1994 (T11). He set out the history given to him by Mr Cook at pp32-34. He then referred to his findings at examination which included the fact that Mr Cook walked with a noticeable limp favouring the left leg. He stated that "there was no evidence whatsoever of oedema" and that the vascularity of the foot and leg appeared to be fully restored. However, Mr Neri added, at p34:
He was unable to squat, abandoning the manoeuvre very rapidly, when his knee had reached flexion of 90 degrees and dorsiflexion of the left ankle was being stressed.
Examined lying down, however, the left knee joint is capable of full flexion without restriction and without pain. Dorsiflexion of the foot, however, is restricted by 20 degrees and plantar flexion is restricted by 10 degrees when these movements are compared with the normal right leg.
There was some slight evidence of muscular wasting in the left calf [No measurements given] when compared with the right calf where the muscles were exceedingly well developed. It is my impression that this diminution of volume in the left calf is a direct indication of disuse following his experiences and the disease condition from which he suffered, from 7/7/1993 onwards.
Testing the left ankle, stress of dorsiflexion, which would put the tendo Achilles and calf muscle on stretch, produced pain and discomfort indicating an element of fibrosis and scarring in the musculature with shortening of the muscle belly, which has not yet been overcome.
The actual movement of the ankle joint is relatively supple within this limitation of dorsiflexion and plantar flexion.
Eversion and inversion are supple and normal and there is no sign here of any restriction of tarso-metatarsal movement or movement of the toes.
What was curious once again was the extraordinary sensitivity of the entire skin of the leg below the knee joint and over the foot and even on the sole of the foot when this sensitivity was compared with the situation on the right side. It appeared that even gentle touch produced an intolerable reaction.
Mr Neri's opinion contained the following passage (T11 p36):
The general clinical situation is one where the problem is resolving slowly but one has to recognise that the end result of such infection and cellulitis has been the degree of fibrosis of soft tissues around the ankle joint and possibly involving the calf muscle as well. In such a circumstance, it is only prolonged activity and exercise designed to stretch the calf muscle and improve its function that would result in complete healing and this can by no means be guaranteed as an ultimate outcome of such treatment.
In view of the fact that it is now a year since he has been treated and has recovered from the initial infection, I would believe that he may well be left with an element of restricted function in regard to mobility of the ankle joint and mobility of the calf muscle which would interfere with his capacity for walking long distances, for physical exercise and his ability to climb ladders and stairways and to squat and to kneel, activities which may well be integral to his duties as a ship's engineer where a degree of mobility is demanded of him.
At the same time it is quite likely that improvement in his function with regard to his ability to walk and stand will be progressive to a point and even at the present time would allow him to perform light and sedentary duties where change of posture and movement from time to time was allowed and encouraged.
Mr Neri expressed concern about Mr Cook's "acute and inordinate sensitivity of the skin to pressure and to touch over the left lower limb and particularly below the knee".
31. Mr Neri provided an assessment of impairment on the Comcare Guide. As stated in paragraph 22 above, it is identical to the Guide under the Seafarers' Act ("the Guide"). Mr Neri qualified his assessment by stating that there could still be some improvement over the next year. He suggested that his assessment be regarded as an "interim assessment" (which was mistyped as an "interior assessment") as provided for at p5 of the introduction to the Guide.
32. Mr Neri assessed Mr Cook when he saw him on 14 July 1994 (T11 pp29-39) as having a 4% impairment on Table 9.2 of the Guide in respect of loss of range of movement of the ankle. However that is not in accordance with Table 9.2. The impairment rating should have been 5% for "Loss of less than half normal range of movement of ankle". On Table 9.5 Mr Neri assessed Mr Cook as having a 20% impairment rating, saying, "He can rise to standing position and walk, but has difficulty with grades, steps and distances". Mr Neri combined the ratings on Tables 9.2 and 9.5 instead of choosing the higher rating yielded by Table 9.5. The introduction to Table 9.1 explains that either the musculo-skeletal Table or Table 5 should be used but not both.
…
37. As would be expected the respondent's solicitors arranged for their own medical report. They arranged for Mr Cook to see Mr Buzzard on 31 October 1994. Mr Buzzard wrote that Mr Cook told him he had the following complaints (T15 pp49-50):
PRESENT COMPLAINTS
1. Left leg trouble
The patient said he suffers from constant aching in the left leg involving the whole of the leg but in particular the left lower leg. The left leg aching has been so since "I got hurt" (July 1993). This problem is associated with swelling in hot weather. He does take Dyazide (Diuretic) and Aspirin.
2. Involuntary movement of the left leg
The patient said that when he lies in bed "my left leg jumps all over the place - and I have no control over it". He said that "as a consequence, I often don't get any sleep during the night".. This has been so for six to eight months. This is static.
3. Difficulty in walking
The patient said that he has "terrible trouble walking - there is no push in my toes...". That has been so "ever since I got out of hospital...it took me four months to walk...not properly...but to walk".. He had never had difficulty in walking before that time.
On examination Mr Buzzard reported as to the legs (p52):
Both legs were equally and normally developed by measurement. When I was examining the patient's left leg and touching the left leg, this produced shaking of the right leg.
There was some evidence of loss of subcutaneous tissue turgor in both lower legs in the gaiter area but there was no evidence of any varicose veins on standing the patient.
I couldn't detect significant hip pathology. I couldn't detect significant knee pathology.
There was no restriction in movement of the talo-crural components of the left ankle but subtalar movement was 10o in each direction. There appears not to have been significant restriction of the forefoot movement. No other significant abnormalities were noted.
38. Mr Buzzard concluded (at pp52-54):
The patient's cellulitis appears to have been associated with a very slow recovery and with recrudescence's [sic] of it. This is not uncommon. I think that the cellulitis has now recovered. The patient does however have some limitation in movement of the left foot joints probably secondary to capsular contraction itself secondary to the immobilisation for a substantial period of time.
The patient does have radiological evidence of degenerative disease in the left foot but this is fairly widespread and is probably part of degenerative disease involving other joints and unrelated to the incident of 5/7/1993 or indeed the patient's cellulitis in general. In other words, I don't think that that is significant.
I think it is reasonable to accept that the patient does have difficulty in walking because of the subtalar joint capsular contraction. I think that that will probably always be so.
I do think it is reasonable to accept that the patient does have some aching in the left leg which is consequent upon the chronic venous insufficiency.
39. Mr Buzzard then responded to questions (p53):
You have asked me about the patient's physical condition with particular reference to the injuries alleged. I think that the patient has a number of physical problems - obesity, chronic venous insufficiency in his legs, capsular contraction of the left subtalar joint, a functional problem and a hypersensitivity to mosquito toxin.
You have asked me whether or not in my opinion the accident could have caused the particular injuries. In my opinion, there was no accident in the normally accepted sense of the word. The patient's cellulitis came on spontaneously. It could have given rise to the capsular contraction of the left subtalar joint but could not in my opinion have given rise to any of the other problems.
You have asked me whether or not the patient's condition is stable. I believe that it is.
Mr Buzzard agreed that Mr Cook had an incapacity to return to work at sea.”
It was submitted by counsel for ASP that it is not clear from the AAT findings whether the "fibrosis" is said to play a part in the condition of Mr Cook's ankle and/or leg.
The main complaint of ASP is that the AAT did not advise the parties that it intended to make a finding that Mr Cook's left ankle impairment arose out of capsular contraction and nor was that issue the subject of any debate during the course of the hearing between the tribunal and the parties.
The court was referred to Mr Cook's claim before the tribunal that since July 1993 to the date of the hearing he suffered from "recurrent cellulitis". Further, he claimed that on 7 July 1993 he injured his left ankle in a fall on the ship's stairs. It was submitted that Mr Cook did not allege in support of his claim for permanent impairment that he suffered from left ankle impairment as a consequence of capsular contraction or fibrosis of soft tissue around the ankle joint.
During the course of final submissions in writing to the AAT it was claimed that neither the evidence of Mr Buzzard relating to capsular contraction, nor that of Mr Neri relating to fibrosis of soft tissue were the subject of submissions to the tribunal by either of the parties. Submissions were not sought on those issues by the tribunal.
Reference was made to the evidence of Mr Battlay who had provided a report dated 18 March 2002 and gave oral evidence. As mentioned earlier in this judgment, he was the only medical practitioner to give oral evidence. He denied that Mr Cook suffered from cellulitis when he examined him in 2002. He expressed the view that it was not likely that the ankle was injured in the fall, as alleged, and in the report stated:
“If there be some physically based contracture of the joint, then I think it was more likely to be the result of the previous osteochondral and ligamentous injuries than the recurrent attacks of cellulitis.”
It was submitted that Mr Battlay did not elaborate in oral evidence in respect of the matter and nor did the tribunal address any questions to Mr Battlay dealing with the comment he made, namely “If there be physically based contracture of the joint.”
It was further submitted that the tribunal did not raise with Mr Battlay evidence concerning pain where he stated:
“ …I would imagine that he would have pain just from that ankle osteoarthritis.” (Appeal Book 598)
It was submitted that the tribunal in the circumstances was not entitled to rely upon the evidence of Mr Buzzard as to the relationship between capsular contraction and any impairment and/or Mr Neri concerning fibrosis without raising the issue of the parties. Counsel for ASP referred the court to the High Court decision in the matter of Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219 (AALA) at 247 where the court states the following:
“[101] One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”
Counsel for ASP further referred the court to the decision of Goldberg J in Lodkowski v Comcare (1998) 52 ALD 371 (Lodkowski) at 386 where his Honour states:
“It is a trite proposition of law that the issues to be determined by a tribunal or court should be identified to the parties to enable them to address those issues and lead evidence and make submissions in relation to them during the currency of the hearing: Kioa v West (1985) 159 CLR 550; at 582-4; 62 ALR 321; Jung Sheng Xia v Minister for Immigration and Ethnic Affairs Local Government (1992) 27 ALD 668 at 673-4; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2; 34 ALD 324; 127 ALR 699. …”
It is perhaps also relevant to note in the present application that Goldberg J confirmed the tribunal proceedings were inquisitorial and relevantly referred to the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425.
It was submitted in the present case that a similar error has occurred to that identified in Lodkowski. Natural justice was denied, according to the ASP submission, particularly in circumstances where during the hearing of the application Mr Buzzard's and Mr Neri's reports received little attention. It was submitted that if the tribunal intended to rely upon matters in those reports, then it was incumbent upon it to bring the matters to the attention of the parties to enable a decision to be made as to whether Mr Buzzard should be called to give evidence and the evidence elicited during the hearing and video film brought to his attention.
Further, Mr Battlay should have been asked to justify the opinion expressed in his report in the passage referred to earlier in this judgment (at para [35]).
It was noted that ASP had argued that to the extent that Mr Cook suffered from physical disability relating to the left ankle, it was related to degenerative changes and reliance was placed upon the report of Mr Battlay. Clearly the tribunal rejected that submission, although ASP submits that it was not put to Mr Battlay that he was wrong in that regard.
It was submitted that in compensation cases it is common for various hypotheses to be raised by medical practitioners as to the possible explanation for complaints. If an hypothesis is to be seriously considered by the tribunal, then it was submitted it should be canvassed with the opposing medical practitioner, whether by the parties or by the tribunal, if it is minded that a particular hypothesis is one that it intends to consider as particularly causative. By not calling and putting to Mr Buzzard the evidence given by Mr Cook at the tribunal, together with videotapes and what was depicted on those tapes, it was submitted it was impossible to say what the opinion of Mr Buzzard may have been as to the presence or otherwise of any contraction of the ankle and/or fibrosis and relevance to the impairment in 2002.
Counsel otherwise relied upon two other decisions in support of the submission that there had been a denial of natural justice. The first of those decisions was a Full Court of the Federal Court, the matter of Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 where in dealing with an issue of the conduct and good character of a visa applicant the court had to deal with the use of evidence by the tribunal in a manner different from the way in which the applicant had been notified or warned the evidence might be used. The court specifically states the following:
[37] Nothing appears in the transcript of the proceedings in the tribunal that suggest it gave the appellant any warning that it might take that view of this matter. Counsel for the respondent confirmed that the respondent in the proceedings before the tribunal never argued that, irrespective of whether or not the appellant was guilt of the fraud charges, his failure to return to the United Kingdom to clear himself of those charges might nevertheless provide evidence of want of good character.
It should be noted in passing that reliance upon this case in no way was suggested to be relevant in a factual sense to the current appeal, but rather sets out relevant principles to this application.
A further reference was made to a decision of Tamberlin J in Telstra Corporation Ltd v Warren (Unreported 26 February 1997). The following relevant passages appear in that decision:
“Procedural Fairness
It was further submitted for Telstra, that because the AAT appears to have favoured the views of Dr McEwin over the other medical advisers on the ground of lack of specific comment by them on the condition of the right trapezius muscle, there was a lack of procedural fairness. This is said to arise because the importance assigned to this matter by the AAT was not at any stage raised with Telstra so that it could make submissions as to why this view should not be taken.
This submission, in my view, adopts too broad a view of the requirement of procedural fairness. The decision under review must be looked at in its totality and the question asked whether the parties had a reasonable opportunity at the hearing to anticipate or address on this matter. In my view they did.
As a general principle procedural fairness does not require that a line of reasoning proposed to be taken when deciding adversarial proceedings must be disclosed to the parties so that they can advance further submissions. See Luu v Renevier (1989) 91 ALR 39 at 44-46; Powerlift (Nissan) Pty Ltd v Minister of State for Small Business Construction and Customs (1993) 113 ALR 339 at 361.
There is no requirement in adversarial proceedings that the parties must be notified of tentative conclusions of offered an opportunity to make further submissions. Such a procedure would often prove disruptive and impracticable on the grounds of expense and delay. Of course a decision-maker should not generally speaking be permitted to decide questions on new independent issues not raised by submissions or pleadings or at the hearing: Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. However, there is no duty to disclose tentative conclusions or reasons to the parties where the issues have been identified and the evidence relied on has been made known to the parties: Telstra Corporation Ltd v Kendall (1995) 55 FCR 221. There is a helpful discussion of relevant principle in Judicial Review of Administrative Action 1st edn (1996) Aronson and Dwyer, at 541 ff; seel also Dobbie v Department of Social Security (1995) 85 SSR 1244b.”
In my view, it is clear that in the present application the tribunal had before it medical reports which related specifically to the issue arising in the application including reference to what ultimately became the critical issue of capsular contraction. It is clear, however, that in making its finding set out in paragraph 88 of its decision to which I referred earlier, the tribunal has embarked upon a task of analysing material and drawing a conclusion not then agitated for and on behalf of Mr Cook, nor the subject of any further exploration by ASP. This is not a case where the issue had not been raised by the parties in one sense given that it was set out in medical reports placed before the tribunal and indeed specifically a report by Mr Buzzard who had been retained by ASP to provide a report.
Nevertheless, the specific issue which ultimately led to a significant finding of fact was not specifically agitated and nor in the circumstances did the tribunal give to ASP or indeed Mr Cook any warning that the matter would be decided on a basis not argued. In this case no submissions were made at all to the tribunal on this particular aspect of the evidence set out in Mr Buzzard's report.
It was argued that in the circumstances had ASP been made aware of this issue becoming so crucial in the ultimate outcome, then at least an opportunity would have been given to make submissions in relation to the matter, to put the issue directly to the only medical witness called, Mr Battlay, to consider calling Mr Buzzard and permitting him to view video film evidence and otherwise elaborate on the opinion expressed in his written report. After all, the written report whilst suggesting it was reasonable to accept that the patient had difficulty in walking because of "subtalar joint capsular contraction" goes on to refer to the patient's cellulitis coming on spontaneously and then states:
“It could have given rise to the capsular contraction of the left subtalar joint but could not, in my opinion, have given rise to any of the other problems.”
Given the crucial and significant nature of the tribunal finding in paragraph 88 of its reasons, it is my view that it has erred by not seeking from the parties further submissions and/or evidence in relation to that issue. Applying the principles of the cases referred to by Counsel for the Applicant namely the High Court decision in AALA and the Federal Court decision in Lodkowski at the very least ASP should have been given the opportunity of making submissions in relation to this crucial issue during the currency of the hearing or before the decision had been made. Whilst no doubt the tribunal has examined thoroughly the material before it, as a matter of procedural fairness, if it is minded to draw a significant conclusion based upon an hypothesis in a medical report not put to the only medical witness called and not the subject of submissions by either party, then it should at least bring that matter to the attention of the parties to enable proper consideration of the issue in the interests of natural justice.
Whilst I accept that the tribunal proceedings are not adversarial but rather inquisitorial, the fact remains that in matters of this kind where essentially claims are made of a kind not dissimilar to a common law claim, that every effort should be made to ensure that the parties are properly permitted the opportunity of addressing what ultimately may become findings of fact which determine the outcome of the claim and review before the tribunal.
The issue of the link between cellulitis and capsular contraction in the present application was a crucial issue and the parties ought properly to have been given the opportunity to make submissions about that issue and/or adduce further evidence.
On this basis it is my view there has been an error of law and it is appropriate that the matter be remitted to a differently constituted tribunal for further consideration according to law.
Ignoring relevant evidence of Mr Battlay
Given my conclusion in relation to the issue of denial of natural justice, it is not necessary for me to consider in further detail the submissions raised on behalf of ASP in relation to Mr Battlay's evidence. It is sufficient, however, to note that in the circumstances given the importance of the issue and the fact that it was not put directly to Mr Battlay may well constitute a further error of law, as in my opinion the issue is clearly regarded as important by the tribunal and should have been put to the only medical witness called. It is clear that Mr Battlay formed the view that the left ankle condition was unrelated to the cellulitis and on the basis of his consultation and video thought Mr Cook's complaints were exaggerated.
It is arguably more important that the view ultimately reached by the tribunal should have been put to the only medical witness called in circumstances where, as indicated earlier in this judgment, on a number of occasions the tribunal invited Mr Cook to call further evidence, even by telephone. It is further noted the tribunal regrets that Mr Cook did not take advantage of the opportunity offered to him to have a medical witness of his choice look at and comment on the videos.
I accept that in a sense it may be argued, therefore, that the tribunal has ignored the evidence of Mr Battlay on the issue of causation.
Inadequacy of reasons
It was argued by ASP that if the tribunal was entitled to have regard to the evidence of Mr Buzzard as to the capsular contraction and had implicitly rejected Mr Battlay's evidence on the issue, then it failed to give adequate reasons for rejection of Mr Battlay's evidence. It was submitted that the failure to give reasons for preferring evidence of one medical practitioner to another practitioner's evidence on an issue of importance between the parties is an error of law (see White v Repatriation Commission (1995) 39 ALD 42 at 47-8, Australian Postal Commission v Wallace (1996) 41 ALD 455). Reference was made to Suters v Australian Postal Corporation (1992) 28 ALD 320 where the court held that if uncontradicted evidence is not followed then the reasons should indicate why the evidence is not followed. It was submitted in the present case the evidence of Mr Battlay on the issue was uncontradicted.
For the reasons already given, it is my view that the tribunal should have indicated the reason why it preferred the evidence in the report of Mr Buzzard to the evidence of Mr Battlay on this crucial issue. To that extent I am satisfied, having regard to the authorities to which I have been referred, that this also constitutes an error of law.
Reasons "Later Evidence"
Reference was made to paragraph 94 of the tribunal's decision as follows:
“94. In 1995 there may have been a question as to whether Mr Cook's condition might have still improved. With the benefit of later evidence, we find that there has been no improvement such as to reduce the left leg impairment resulting from the compensable cellulitis to less than 20%.”
It was submitted that the "later evidence" was not identified and to that extent there has been an error of law in the failure of the tribunal to give adequate reasons and provide no explanation for its conclusion in relation to that passage.
In my view, it would be appropriate where a tribunal refers to "later evidence" to identify precisely the evidence and then state in terms which would at least establish the basis for its conclusion why it accepted that later evidence and then reached the relevant conclusion which is clearly of significance in the application.
It should be stated that this was no doubt an extremely difficult hearing for the tribunal to conduct for reasons which I have referred to earlier, including the fact that Mr Cook was unrepresented and the material he presented less than adequate. That does not mean, however, that the tribunal should then embark upon its own fact-finding mission, oblivious to the requirements of procedural fairness and natural justice and thereby reach a conclusion not argued by the applicant nor addressed specifically by the respondent. Whilst perhaps an understandable error, it remains nevertheless an error of law sufficient, in my view, to uphold the ASP appeal.
It follows therefore that the orders which should be made in relation to the ASP appeal as are follows:-
(1)The application be granted in respect of paragraphs 1 and 3 of the Administrative Appeals Tribunal given on 24 April 2003.
(2)Paragraphs 1 and 3 of the Administrative Appeals Tribunal decision given on 24 April 2003 be set aside.
(3)The matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard according to law.
Mr Cook's appeal
As indicated earlier Mr Cook seeks to appeal from the AAT decision and in the notice of appeal seeks orders that the “true percentage of impairment is 30%”. He otherwise seeks orders challenging the manner in which the AAT applied the table of non economic loss. It is evident from the notice of appeal that matters referred to as “questions of law” are directed to findings of fact and/or irrelevant matters which cannot form a basis upon which this Court could find in favour of Mr Cook on his appeal. It is both unnecessary and inappropriate for the Court to otherwise recite in detail extracts from the notice of appeal filed and relied upon by Mr Cook to the extent that that material relates to irrelevant issues. In normal circumstances certain paragraphs in that notice of appeal may well be struck out on the basis that either the grounds relied upon or orders sought are irrelevant, vexatious and/or scandalous. In the absence of an application to strike out certain paragraphs it is nevertheless appropriate that the Court endeavours as best it can to identify the error of law claimed to be the basis upon which Mr Cook pursues his notice of appeal.
Submissions were made on behalf of ASP that essentially Mr Cook in his notice of appeal seeks to embark upon a re-hearing and/or invite the Court to review evidence in a manner not permitted in an appeal pursuant to s.44 of the AAT Act.
I have carefully examined the notice of appeal relied upon by Mr Cook. The complaint he raises in relation to the percentage impairment in my view on the material before me can only be a complaint which could be properly categorised as taking issue in relation to a finding of fact. It does not in the present case constitute an error of law.
It is noted that a further complaint was made in relation to the admission of video tape evidence by the tribunal. In some circumstances I accept that the admission of evidence may constitute an error of law. However the admission of video tape evidence does not in my opinion provide any basis upon which it could be claimed there has been an error of law. It is noted that the tribunal clearly refers to the video evidence and indeed at one point regrets “that the video evidence had not been disclosed prior to the hearing”. It goes on to state, “We think it desirable that there be a full disclosure of all relevant evidence at the time when negotiations are proceeding.” It is not clear whether there is any legislative or other basis for that view and it would clearly appear to be incorrect as a matter of law in any event having regard to various Federal Court authorities. In particular the AAT is bound by the decision of the Federal Court in the matter of Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283. Further, other decisions also relevantly considered the issue of video evidence including Gray J in Re Lindsay v Australian Postal Commission (1989) 18 ALD 340; 10 AAR 457. Although to some extent there has been some criticism of those decisions the fact remains that they are binding and relevant authorities in my view in relation to the use of video evidence (see also Australian Postal Corporation v Bessey (2001) 32 AAR 508).
In my view applying the relevant authorities to the present application the use of the video evidence by the AAT does not constitute an error of law.
In relation to any other possible grounds which may be relied upon by Mr Cook in his appeal it is important to note that it is not sufficient for Mr Cook to simply argue that he disagrees with the finding of fact. It is perhaps sufficient to refer to the often quoted authority of the High Court in the matter of Waterford v Commonwealth of Australia (1987) 163 CLR 54 where at page 70 Brennan J states the following:-
“A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia from any decision of the tribunal in that proceeding but only ‘on a question of law’. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.”
I am satisfied that on the material provided by Mr Cook in this matter including his written submissions that they relate to what essentially are perceived to be errors of fact by Mr Cook. It is clear in the circumstances therefore without reciting all the allegations in detail that Mr Cook’s application should fail. The appropriate order in relation to his application is that the application be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 June 2004
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