Fabac, C. v Commission for Safety, Rehabilitation & Compensation of Commonwealth Employees

[1992] FCA 842

JUDGMENT No. ... ... l .%?L.

IN TFlE FEDERAL COURT OF AUSTRALIA )	1 No. NG 28 of 1992
GENERAL DIVISION	i

BETWEEN:	CVITA FABAC Applicant
AND :	COMMISSION FOR SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH EMPLOYEES
Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	29 SEPTEMBER 1992

1661 AON 61

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an appeal against a decision of the Administrative Appeals Tribunal constituted by Senior Member Jocelyn McGlrr in relation to a claim for compensation by the present applicant, Cvita Fabac. The respondent is the Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees.

according to her evidence, a further injury on 5 April 1988.

I do not think it is necessary to set out in detail the facts of the matter. The applicant was employed for a number of years by the Australian Customs Service as a cleaner. She sustained an injury in October 1985 and,

l

. ..

The section 37 statement which was provided for the Administrative Appeals Tribunal set out the relevant	' l ' ,	I
I .
I
'	,.
reviewable decision in this way:
:	! .
I
c
i .
! t ,	/

"The reviewable decision of 19 April 1990	i
reconsidered a determination made on 11 April
1989 and a determination dated 15 June 1989	i '
which purported to amend part of the 11 April	t
1989 determination. The reviewable decision
found:

(i) that compensation is not payable in , ,

respect of the head and back injury

sustained by the applicant on 2	' l
l i
October 1985 on and from 23.1.87; and	1 %
j

(ii) that compensation is not payable in respect of an aggravation of back injury suffered on 5.4.88 on and from

19.12.88."

It will be noted that this statement of the reviewable decision refers to an aggravation of back injury suffered on 5 April 1988. This was the document which, in effect, defined the issues for consideration by the Administrative Appeals Tribunal.

The tribunal concluded that the applicant had not

shown that she suffered a residual injury from work related causes after 19 December 1988. Consequently, the decision under review was confined, with the result that she was?

adjudged not entitled to compensation after that date. The appeal to this Court is, of course, limited to questions of

I

law. Two matters were raised, although one of them was not

i

! a pressed at length after discussion between cou_nsel and myself.

I should shortly mention the first matter. A

complaint was made of the extent of the questioning of the witnesses - particularly the applicant herself and her general practitioner, Dr Pukanic - by the Senior Member who constituted the tribunal. The questioning was lengthy, but it seems to me that there was nothing improper about it. In the case of each witness, the questioning did not commence until after completion of the evidence in chief and the cross- examination of the witness. After the questioning ceased, the Senior Member invited the cross-examiner to ask questions arising out of her questions. Counsel for the applicant then had the opportunity to re-examine, in respect of both the cross-examination by counsel for the Commonwealth and the questions asked by the Senior Member.

A question of degree is involved in regard to questions asked by the bench, whether in a court or in a tribunal such as the Administrative Appeals Tribunal. It is undesirable that the fact finder descend into the arena of

combat. But I do not think that the circumstance that the fact finder asks questions in order to clarify matters left	obscure by the evidence necessarily involves any impropriety.
The questioning in this case was not in aggressive terms or
indicative of a prefoned view. It was certainly searching
and, as I say, lengthy. But it was consistent with a genuine
desire by the Senior Member to get to the bottom of the case
and to clarify matters which were troubling her. This was no
more than her duty. Despite the comments of counsel, I cannot

-

L I .r

feel critical about the questions which were asked.

The second matter has more substance. As I have said, the section 37 statement specifically accepted that there was an incident involving an aggravation of the back injury on 5 April 1988. The case was conducted on that basis. The applicant gave evidence and was cross-examined by counsel for the Commonwealth. On a number of occasions counsel referred to the incident of 5 April 1988, accepting in his questions that there was such an incident. He made no suggestion to the applicant that there was no incident on that day.

The evidence of Dr Pukanic was that he saw the applicant on the following day, 6 April. He then wrote a short certificate certifying the applicant to be unfit for work until 20 April 1988, the diagnosis being aggravation (of) pain in the lower back[?], right hip and leg. Those symptoms, as I understand the evidence, were consistent with the

result of an incident the evening before when a bucket slipped	problems which the applicant had told him she suffered as a
away from her while she was mopping a floor.
Five weeks later, on 10 May 1988, Dr Pukanic completed a medical questionnaire sent to him by the
Commonwealth authorities, writing in his own handwriting the
following, " W s Fabac has had an exacerbation of pain in her
right hip, lower back radiating to right leg on 5.4.88. .

.:

Aggravation was due to the pre-existing compensible condition arising out of her employment. On 5.4.88 she was cleaning and washing a linoleum floor with a mop when she experienced a sudden onset of pain in the lower back, right hip and leg. She was bending over and lifting the bucket. These factors have produced the symptoms she describes". I t s e e m s , therefore, that, within at most a few weeks of the accident, W s Fabac gave an account of an incident on 5 April 1988 to Dr Pukanic. The questionnaire completed by Dr Pukanic on 10 May 1988 was tendered in evidence before the tribunal. No questions were put to Dr Pukanic about the circumstances in which he obtained the information set out in the questionnaire. In the result, both the applicant and her general practitioner, the doctor who had the most association with her problems, were allowed to depart from the witness box without any suggestion being made to them that there was no incident on 5 April 1988.

During the course of the applicant's evidence, some

questions were asked by the Senior Member regarding the

lodgement of a compensation claim form. It appears that the

claim form was not lodged until 27 June 1988, and then because

of advice given to Mrs Fabac by an officer of the Commonwealth

Employees Compensation Commission that what had occurred in

April required the lodgement of a new form. A particular

memorandum which is in evidence refers to a discussion between

that officer and Mrs Fabac wherein the officer "explained that

as this is an aggravation of a previous condition and that

.

h . , .

there is a specific occurrence precipitating this aggravation, it is a new condition and needs to be claimed." That memorandum is dated 19 July 1988. It seems to explain how it came about that the clalm form was submitted on 27 June. Of course, the fact that this memorandum was written does not prove that there was an incident in April, but it does indicate that there was a claim being made at that time by Mrs Fabac to that effect.

The Senior Member was interested in why the claim form was not submitted earlier, and also about the reporting of the accident. She asked some questions of 14rs Fabac about the latter matter. Mrs Fabac referred to the circumstances in which she completed the claim form. The Senior Member raised the question of making a claim earlier. Counsel for tlrs Fabac referred to the circumstances under which payment was made and pointed out that the reporting of the injury was referred to in two documents before the tribunal: T34, indicating that Mrs Fabac notified the watchman and that the matter was investigated, and T47. It appears from the latter document	that the person who completed the form did not witness the	incident. He relied upon information given to him by another
worker. This worker was unable to complete a witness form because he could not write English. Unfortunately, he had left the Australian Customs Service by the time, later in the

l

!	year, when the incident was investigated. This leaves the matter in an unsatisfactory condition but the situation is
!	understandable. Presently relevant is the fact that, after
I

.

L

*r

this explanation was given, the Senior Member apparently accepted that the fact that there was no contemporaneous accident report had no continuing significance. She did not pursue the matter with the applicant herself, but simply acknowledged what was said by counsel.

During the course of addresses, counsel for the Commonwealth made an equivocal reference to the 1988 incident.

I quote what he said:

"Now, if I can turn to the 1988 incident, in my submission you would not place great weight on the significance of that accident in terms of the future symptoms suffered by the applicant for these reasons: firstly, in my submission, there is some exaggeration by the applicant in relation to the extent to which it affected her symptoms and clearly - and I don't make the submission that it didn't occur, but on the evidence that question must arise, given the fact that no mention of the incident was made to Dr Mahony and certainly there was a significant delay between the incident of 4 February 88 - "

[I think that should be a reference to 5 April 19881

"- and the time in which the compensation claim

was lodged."

No reference was made to this statement by counsel for the applicant. There was a short adjournment. The Senior Member then delivered an oral statement of her reasons for decision. She referred to the alleged incident of 5 April 1988 in this way:

"On the balance of probabilities the tribunal does not accept that the April 1988 incident occurred in the manner described by the applicant. It notes that there was no accident filed for some time. -

[I interpolate that I think this should be a reference to an accident report.]

"The applicant did not notify her supervisor at the time. Dr Pukanic took no history of the incident when she visited him the next day. She made no mention of it to Dr Hughes, to Dr Mahony or to Dr Van Gelderen and it seems from Dr Pukanic's oral evidence that he did not consider the incident to be significant but merely to be one of a number of aggravations similar to the aggravations arising where there was no incident at all."

Counsel for the applicant did not dispute the factual accuracy of any of the statements of the Senior Member in the paragraph which I have quoted. However, he did make the point that any adequate explanation of the case, particularly concerning the question of whether there was an incident on 5 April 1988, would have to take account of	evidence bearing upon some of the statements; for example, the	statement that there was no accident report filed at the time.
After the delivery of her oral reasons, the Senior Member was requested to give written reasons. She did this.
She prepared and handed down, on 20 December 1991, a lengthy
statement of reasons. It must, I think, in fairness be sald
that the written reasons evidence an effort to deal

.

L I 5-

comprehensively with a l l of t h e i s sues before t h e t r i b u n a l .

I n r e l a t i o n t o t h e a l l eged i nc iden t of 5 Apr i l 1988 t h e Senior

Member s a i d t h i s :

" I n cross-examination t h e app l ican t admitted

t h a t t h e pa in i n he r back and neck w e r e no t

brought on by t h e i nc iden t of 5 Apr i l 1988, and

t h a t before t h e i nc iden t she had been i n g r e a t

pa in with neck and backache. She s a i d however, t h a t t h e shoulder problem had been caused i n t h e 1988 i nc iden t by her grabbing t h e t a b l e t o

s t o p her f a l l . Having taken account of a l l of

t h e evidence on t h e balance of p r o b a b i l i t i e s ,

t h e t r i b u n a l does no t accept t h a t t h e Apr i l

1988 inc iden t occurred i n t h e manner described

by t h e app l ican t , o r a t a l l .

The argument which i s put by counsel f o r t h e

app l ican t i n r e l a t i o n t o t h i s a spec t of t h e case i s i n e f f e c t

a na tu r a l j u s t i c e claim. Counsel say t h a t t h e i s s u e s

formulated p r i o r t o t h e commencement	of	t h e hearing,	being
those set ou t i n t h e T37	s tatement ,	accepted t h a t t h e r e was	an

inc iden t on 5 Apr l l . They say t h a t t h e case was conducted

upon t h a t b a s i s and t h a t t h e equivocal statement by counsel

f o r t h e Commonwealth mentioning reasons why one would perhaps

no t accept t h a t t h e r e was an inc iden t on 5 Apr i l , wh i l s t 'at

t h e same time saying t h a t he d i d no t submit t h a t t h e r e was no

such inc iden t , does not d e t r a c t from t h e proposi t ion t h a t t h e

whole course of conduct of t h e case w a s on t h e b a s i s t h a t

t h e r e was such an i nc iden t . Although counsel f o r t h e

Commonwealth says t h a t t h e app l ican t , and her counsel, should

have taken from t h e Senior Member's quest ions about t h e

f a i l u r e t o produce t h e acc iden t r epo r t some doubt about t h e

L I .r

i nc iden t , counsel f o r t h e app l i can t suggest t h a t t h i s is not a

reasonable view a t a l l . I t h ink t h a t is r i g h t , p a r t i c u l a r l y having regard t o t h e apparent acceptance by t h e Senior Member

of t h e explanat ion about t h i s mat ter .

Counsel f o r t h e Commonwealth responds t h a t t h e t a s k

of t h e t r i b u n a l i n a mat ter such a s t h i s i s t o hear a l l of t h e

evidence and t o make t h e dec i s ion which t h e primary dec i s ion

maker should have made upon t h e ma te r i a l before it. Reference

is made t o such well-known cases a s Drake v Minis ter f o r Immiqration and Ethnic A f f a i r s (1979) 46 FLR 409 a t 419 and McDonald v Direc tor General of Soc ia l Secur i ty (1984) 1 FCR

354 a t 357. Counsel a l s o po in t s ou t t h a t t h e t r i b u n a l s t ands

i n t h e shoes of t h e dec i s ion maker and has a l l of t h e powers

and d i s c r e t i ons of t h e dec i s i on maker f o r t h e purposes of

reviewing t h e decis ion . I n t h a t regard counsel c i t e s F l e t che r

v Deputy Commissioner of Taxation (1988) 84 ALR 295 a t 306-307

and Commonwealth v Ford 1986 65 ALR 323 a t 328.

There is no doubt about t h e proposi t ions t o which I

have j u s t r e fe r red . It was c l e a r l y open t o t h e Senior Member

not t o accept t h a t t h e r e was an inc iden t on 5 Apr i l 1988, bu t

only provided t h a t t h i s mat te r had been i d e n t i f i e d a s an i s s u e

a t some s tage p r i o r t o he r f i n a l decis ion . I do no t t h i n k

e

t h a t t h e i d e n t i f i c a t i o n need neces sa r i l y have been done i n a

formal way. For example, t h e Senior Member might not have

begun t o e n t e r t a i n doubts about t h a t ques t ion w h i l s t t h e

app l ican t o r D r Pukanic was g iv ing evidence; bu t , i f she

entertained doubts at a ldter stage, I think she was bound to inform counsel for the applicant that this was a matter troubling her and give counsel the opportunity, perhaps, to re-open his case or, certainly, to address her on the matter. None of these things happened. Counsel was allowed to dispose of the case upon the basis that there was no serious issue about the incident having occurred.

In further response to the submissions made today counsel for the Commonwealth says that it is not necessary for a matter such as this to be specifically flagged for the attention of an applicant, that the applicant knows that he or she has the onus of establishing the elements in the case and that one of the matters which must be demonstrated is the persistence of a compensable injury after the date to which compensation has been paid.

All of this is true. I do not think that it would
be a breach of natural justice to fail to put to an applicant

a suggestion that he or she was exaggerating the claim, or

are matters which any applicant knows will be in contest.	some matter of detail about the extent of an injury. These
Counsel referred to Hoskins v Repatriation Commission (1991)
14 AAR 299; in particular to what was said by Pincus J at 302
and 303. I do not disagree with anything which His Honour
there sald. But I think that the situation which he was there
considering, namely a suggestion of exaggeration of symptoms,
is quite different from the present situation, where the

.

.I.

L

8                 ,

l
i

. 3 . <

12.

i /

question is whether a particular incident occurred at all. It

is interesting to note that Pincus J quoted from the judgment	l i
of Bray CJ in Thomas v Van Den Yssel (1976) 14 SASR 205 at 207
in relation to the rule in Browne v	(1893) 6 R 67:

"The rule in Browne v has much more force when applied to evidence relating to a particular fact or topic than when sought to be applied to the general credit of the witness even though in the latter case the failure to cross-examine at all may in appropriate circumstances, be taken as acceptance of the general credit of the witness as well as the truth of his evidence on particular matters unless that evidence is patently absurd or incredible."

I think that the distinction there made between putting to the witness quite clearly a challenge relating to a

particular fact or topic, as distinct from a general

suggestion that evidence is exaggerated, is pertinent in this

area. It would be unfortunate if this Court required undue	( i_
formality in hearings before the Administrative Appeals
1 i:

Tribunal. But there is a basic requirement of fairness that, I ! 3 i

where the existence of a fact accepted by all concerned up to	j
. .
that date is to be questioned, this be clearly stated before
~
the termination of the hearing.

n Counsel for the Commonwealth also submits that, in	I
' ,

any event, it makes no difference whether or not the incident , -

of 5 April 1988 occurred.	He rightly points out that the	i !
l "

question for the tribunal was 14rs Fabac's condition after 19	I .~
December 1988. He says that the ultimate decision may be

I .-

. '

!

supported, even leaving out of account the view ot the
tribunal in respect of the incident of 5 April.

There is an onus of persuasion upon a party in the position of the Commonwealth to demonstrate that this is so. Counsel has not discharged that onus. When I asked counsel whether he submitted that the finding as to the alleged incident of 5 April 1988 played no part in the ultimate decision, he indicated that he could not go so far. The thrust of his argument, in effect, was that there was other material to support the ultimate decision. In particular, he said that the tribunal preferred the opinion of one group of medical witnesses to that of the group relied upon by the applicant.

No doubt that is correct. But I think that counsel was right to accept that it cannot be said that the view of the tribunal regarding the April incident played no part in the ultimate decision. There was a period of less than nine

months between the date of the alleged incident and the date	upon which the compensation terminated; and, therefore, the
relevant period commenced. Moreover, one of the reasons why the Senior Member was not prepared to accept the applicant's evidence was that she thought there was a deal of exaggeration about her claim. If she thought that the April incident did not occur, it would be much more easy to find exaggeration than if something did occur in April.

.

l	i	l -
!.

14.   l

It may well be that the ultimate decision can be supported, notwithstanding a finding, if it is ultimately	!
: .
:  i .
made, that there was an April incident. Conversely, it may be	i
possible to support it on the basis that there was no April	i

I	-
_ I

incident. In other words the April incident may ultimately	l
;
prove unimportant. However, the reasons of the tribunal do not demonstrate that she took that view.
l ' .

Although it is with some regret that I reach the	I I i
b.

conclusion that the matter has to go back for re-hearing, this , . '

is the only satisfactory course to take. I am sure that the , ,

Senior Member approached the matter with a desire to do	i
t
justice to the parties and in a very conscientious way. But,
in the result, I think there was a failure to give the	, ,
applicant an opportunity to deal with a matter which seems to	! ,- !
have played a part in the ultimate decision. Justice requires	L
such an opportunity. The appeal must be allowed. The orders	i
I make are those set out in the amended notice of appeal which
I '
was filed today, namely:

1.	The decision of the Administrative Appeals	l : ,	, .
I
Tribunal dated 25 November 1991 be set aside.	1 . I

2. The matter be remitted to the Administrative

Appeals Tribunal for re-hearing or re-	i
determination according to law.
1 >

3 .    The respondent pay the appSXcant1s costs of

I

this proceeding.

I certify that this and the preceding fourteen (14) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate :	a4
Dated:	29 September 1992

APPEARANCES

Counsel for the Applicant:	T J Christie QC and
J Hatzisteigos
Solicitors for the Applicant:	Steve Masselos & CO
Counsel for the Respondent:	G Johnson
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	29 September 1992