Jacobson v Telstra Corporation Ltd
[2005] FMCA 994
•18 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBSON v TELSTRA CORPORATION LTD | [2005] FMCA 994 |
| ADMINISTRATIVE LAW – Appeal from decision of the Administrative Appeals Tribunal – liability of employer for impairment – whether error of law – denial of natural justice – claim by appellant that issue decided by tribunal not the subject of claim or submissions at hearing – procedural fairness – obligation to ensure parties have opportunity of addressing key issue – whether incorrect findings as to date of applicant’s return to work an appealable error – whether a failure to give reasons on why evidence of one medical expert is preferred to another constitutes inadequate reasons. |
Safety Rehabilitation and Compensation Act 1988, ss.4, 14, 64, 65, 66
Administrative Appeals Tribunal Act 1975, ss.25, 37, 43, 44
In Re: Hare (1996) 45 ALD 400 and In Re: Tradigrian (1979) 2 ALD 233
Re Donald and ASIC (2001) 64 ALD 717
Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329
Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219 (AALA)
Lodkowski v Comcare (1998) 52 ALD 371 (Lodkowski)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Telstra Corporation Ltd v Warren (Unreported 26 February 1997)
FCT v Cainero (1988) 15 ALD 368
Waterford v Commonwealth of Australia (1987) 163 CLR 54
| Applicant: | MERREL ELIZABETH JACOBSON |
| Respondent: | TELTRA CORPORATION LIMITED |
| File No: | BRG 4 of 2005 |
| Delivered on: | 18 July 2005 |
| Delivered at: | Brisbane |
| Hearing Date: | 6 May 2005 |
| Date of last written submissions: | 11 July 2005 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| Counsel for the Applicant : | Mr P Smith |
| Solicitors for the Applicant: | Richardson McGhie |
| Counsel for the Respondent: | Ms E Ford |
| Solicitors for the Respondent: | Sparkes Helmore |
ORDERS
That the application filed 12 October 2004 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 4 of 2005
| MERREL ELIZABETH JACOBSON |
Applicant
and
| TELSTRA CORPORATION LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
There is a notice of appeal against the decision of the Administrative Appeals Tribunal (“the Tribunal”) before the Court which was filed by the applicant on the 12 October 2004. The appeal was originally filed in the Federal Court of Australia and transferred to this Court by Justice Dowsett on 4 January 2005. The appeal is opposed by the respondent who seeks that the appeal be dismissed with costs. The appeal is against the decision delivered by Senior Member Mr KL Beddoe in Brisbane on 14 September 2004.
The hearing before the tribunal related to the review of a decision made or deemed to have been made under the Safety, Rehabilitation and Compensation Act 1988 (“the 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"). Other documents and exhibits were tendered during the hearing.
The senior member upheld the Applicant’s appeal against the rejection of her Worker’s Compensation claim by finding that the applicant suffered a compensable aggravation of a pre-existing psychiatric condition as a result of the workplace stress and harassment she suffered in her employment with Telstra and by finding that she was entitled to compensation pursuant to s.14 of the Safety Rehabilitation and Compensation Act 1988. Finally he found that the effects of such aggravation of that condition ceased upon the applicant’s return to full-time employment with Telstra in May 2003.
Background Facts
On 16 October 2001, Ms Jacobson lodged an application for Worker’s Compensation. It was stated in her application that the incident was “work related due to harassment and stress as per medical certificate”. The relevant medical certificate certified that Ms Jacobson was absent from work due to “harassment at work”.
On 11 December 2001the GIO determined it was not liable to pay compensation in respect of this claim. In written reasons it stated –
“If this claim is to succeed the available evidence must be able to establish on the balance of probabilities as distinct from possibilities, work factors have materially contributed to the development of the claimed stress due to harassment in the workplace. After careful consideration of all the available evidence I am unable to find evidence which would support the argument that Telstra Management have acted in an unreasonable manner and have not followed the correct procedures.”
On 21 December 2001 Ms Jacobson made application for a review of this decision and on 28 December 2001 the original decision was affirmed. In reasons given for that decision it was stated –
“For compensation to be payable in respect of this claim, it must be established on the balance of probabilities, as opposed to possibilities, and in accordance with the provisions of the Act, that the Claimant’s condition is contributed to in a material degree by her employment with Telstra... I am unable to find any objective collateral evidence to substantial the allegation and accusations made by the Claimant in respect of PDRP, Training or that she was harassed or treated in an unreasonable manner by her supervisors and managers.”
On 11 June 2002 Ms Jacobson lodged an application with the Administrative Appeals Tribunal for review of the above decision. In her application she state that –
“The Senior Claims Officer ought to have found that, on the balance of probabilities, liability exists to pay compensation pursuant to Section 4 or other provisions of the Safety Rehabilitation and Compensation Act 1988, in respect of major depression”.
Ms Jacobson appeals against the part of the decision of the Senior Member which found that the aggravation of the pre-existing psychiatric condition ceased upon her return to full-time employment with Telstra in May 2003.
It is not in dispute between the parties that the reasons for decision and the findings of the senior member of the Tribunal incorrectly identify May 2003 as the date when Ms Jacobson returned to work rather than February 2002. It is not agreed however how the court should treat that error. The appellant says it is a material error which gives weight to her appeal and the respondent says that it is an immaterial error of fact.
The Tribunal’s Reasoning
The appellant claimed that her supervisor, Mr Dudley had subjected her to degrading and humiliating treatment at work. The Tribunal accepted that the appellant had grounds in fact for her perceptions’ and that she was distressed by her perceptions of the actions of her supervisor especially in the circumstances of staff development and relationships.
The Tribunal was satisfied that the appellant had a pre-existing psychiatric condition which was aggravated by the circumstances of the appellant’s employment with Telstra and accepted that the appellant reasonably perceived that she was being denied access to training and appropriate performance review mechanisms.
On the basis of those findings the Tribunal was satisfied that the circumstances of the appellant’s employment contributed in a material degree to the aggravation of her psychiatric conditions pursuant to s14 of the Act.
The Tribunal then found that the appellant had commenced a return to work program in January 2002 initially for two days a week and that this had increased to fulltime work by May 2003. On the basis of this finding the Tribunal was satisfied that the effects of the aggravation of the appellant’s psychiatric condition had ceased by May 2003 when she successfully completed her return to work program. The tribunal found that if there was continuing incapacity after that time it was caused by factors not connected with or arising out of the employment.
The grounds of appeal
It is convenient to set out the questions of law and grounds raised in this appeal by Ms Jacobson under the following headings:
·That the Tribunal lacked jurisdiction to determine the length of the period of the appellant’s liability;
·That it was a denial of natural justice by the Tribunal to determine the length of the period of the appellant’s liability;
·That the Tribunal made an error at law in not disclosing in his Reasons his findings on the medical evidence for concluding that the aggravation to the appellant’s pre-existing medical condition ceased in May 2003.
When the matter was listed before me to provide my reasons for decision on 1 July 2005, the appellant sought leave of the court to provide additional written submissions. Such leave was granted by the court to enable the appellant to respond to a point raised in the respondent’s submissions. This related to whether the mistake of fact made by the Senior Member as to the date that Ms Jacobson returned to full time work in May 2003 rather than February 2002 was an immaterial error of fact as contended by the respondent.
Therefore the last matter to be considered in this appeal is
·Does the mistake as to the date of the appellant’s return to full time work constitute an error of law?
Lack of Jurisdiction
The appellant submits that the issue before the Tribunal was one as to whether any injury she had sustained was caused by her employment within the meaning of that term contained in Section 4(1) of the Act. It is submitted by her that there was no issue before the Tribunal as to the length of time for which compensation should be paid. Therefore in essence the argument of the appellant is that the issue for determination and therefore all of the medical evidence at the trial was directed to “liability” and not to the issue of “quantum”.
It is submitted for the appellant that section 64 of the Act provides that application be made to the AAT by a Claimant for review of a reviewable decision. It is submitted that in this case the Tribunal found a number of matters in the appellant’s favour;
·That the appellant’s adjustment disorder was a disease for which compensation may be payable under the Act;
·That the appellant’s had grounds for her claim that she had been subjected to degrading and humiliating treatment by Mr Dudley;
·That the appellant was distressed by her perception of the actions of her supervisor;
·That the only possible cause of the aggravation of her psychiatric condition was her treatment in the workplace and it was accepted that Mr Dudley behaved in an inappropriate and demeaning manner towards the appellant in the workplace;
·That the circumstances of the employment contributed in a material degree to the aggravation of the appellant’s psychiatric condition;
·Accordingly the appellant was entitled to compensation for her injury.
It is the submission of the appellant that there was no jurisdiction for the Tribunal to go any further than those findings as the Tribunal’s power under ss.25 and 43 of the AAT Act is only to review decisions and it cannot itself exercise the powers and discretion of a primary administrator. Reliance in this regard is placed upon the decisions of In Re: Hare (1996) 45 ALD 400 and In Re: Tradigrian (1979) 2 ALD 233. The appellant submits that the Tribunal must confine itself to the issue which was before the Tribunal and that in this case the Tribunal erred in determining the length of time with respect to which compensation should be paid.
The respondent submits that this argument as to jurisdiction is entirely misconceived and that the Tribunal’s approach in deciding this case was unremarkable and within it’s power pursuant to s.43 of the AAT Act. It is submitted for the respondent that the Tribunal stand’s in the shoes of the original decision maker and that in reviewing the decision is charged with the task of making the “correct or preferable decision” based on the law and the facts as at the date of the Tribunal’s decision. Reliance was placed upon the decision of Re Donald and ASIC (2001) 64 ALD 717 at page 728 where it was held that:
“…the tribunal must then identify the powers and discretions that rested in the decision made when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. Those are the powers and discretions that then rest in the tribunal by virtue of s43 (1) of the AAT Act.”
The respondent relies also on the decision of Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 33 when he described the general approach of the AAT as being “to regard the administrative decision–making process as a continuum and to look upon the tribunal’s function as part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant’s entitlement from the date of the application, or other proper commencing date, to the date of the tribunal’s decision.”
The respondent contends that the Tribunal has the power pursuant to s.43 of the AAT act to, inter alia, vary the decision under review.
I find that the in this matter the Tribunal clearly exercised it’s proper powers of review of the original decision maker in accordance with s.43 of the AAT Act and in so doing properly had regard to ss.4(1), 14 and 64 of the Safety Rehabilitation and Compensation Act 1988. The original decision maker had rejected outright that Telstra had any liability for the aggravation of the appellant’s psychiatric condition. The Tribunal found that such liability did exist. I am satisfied that the Tribunal had jurisdiction to determine the extent of that liability. This is a decision that the original decision maker would have been required to make had it come to the same view of the facts as the Tribunal had come to as to the question Telstra’s liability as a result of the actions of Mr Dudley. This ground of the appeal must therefore fail on the basis that the Tribunal did not make a decision which was outside its jurisdiction to make.
Denial of natural justice
It was submitted by Counsel for the appellant was the Tribunal that the finding by the Tribunal that the aggravation of the appellant’s condition ceased in May 2003 perpetuated a trial “by ambush” against the appellant due to the fact that at no stage prior to the hearing was there any issue raised that the hearing would be concerned with the length of time for which compensation was payable and the parties only prepared the matter for the trial on the basis that the only live question was whether Telstra was in fact liable for payment of compensation to the appellant.
It was argued by the appellant that at no time either prior to the commencement of the hearing did the respondent suggest that the trial was to be conducted any differently to that which was raised in the Statement of Facts and Contentions.
It is further submitted that it was not in the appellant’s treating psychiatrist Dr Hoey’s original evidence and was never put to her by the respondent nor as a result of any questions from the Tribunal that the aggravation to the appellant’s conditions had ceased in May 2003. It is further submitted for the appellant that the first time that this matter was raised only on the oral evidence given by Dr Reddan after the Appellant’s Counsel had raised objection to the possibility that Dr Reddan may be permitted to put forward any different opinion than that raised in her written report, to which the appellant had no argument. At that point the transcript reveals that Counsel for the respondent stated,“Well the facts are only emerging as we go, Sir.”
It is clear from the transcript that the appellant’s counsel raised the issue of whether a report should then be provided from Dr Reddan and stated “I am not content to run a trial when we do not know what the witness is going to say. The Section obviously, as has been pointed out during the Trial, requires reports to be exchanged so that there is no trial by ambush in the Tribunal…And in this case, if there is going to be a different opinion relied upon, we should get written notice of that, and for example, we may wish to put that to Dr Hoey or another Doctor.”
Dr Reddan was called by the respondent and at no time did she give evidence that the condition had ceased in May 2003. The appellant points out in submission that at the end of the respondent’s case and over objection, a number of documents were tendered by the respondent which were medical reports which were material in the proceedings but in relation to which the appellant had not had the opportunity of cross-examining on these documents. It is submitted by the appellant that, importantly in these documents was a report of Dr Chan dated 28 May 2002 which indicated that the appellant’s mood was better and she was returning to work full time. It is submitted that this fact seemed to have been relied upon by the member to determine that compensation should cease in May 2003.
The issue of when the compensation should cease was not raised in the appellant’s submissions and the first time that this issue was raised was by the Tribunal member himself when he simply said “Isn’t it the fact that she recovered from that in 2002”.
It is also submitted by the appellant that it is noteworthy that the general practice direction of the AAT dated 1 July 1998, specifically provides that the Statement of Issues is not to be in general form and must specifically address the specific issues in question. A Statement of Facts and Contentions must also be filed which clearly and concisely sets out the facts upon which any party relied and any contentions to be drawn from those facts. Any departure from these procedures must be with the consent of the Tribunal
Natural justice was denied, according to the appellant’s submission, particularly in circumstances where during the hearing of the application the question of such importance to the outcome received little attention. It was submitted that if the tribunal intended to determine an issue outside the ambit of the Statement of Issues and Contentions and the ambit of the medical evidence and submissions, 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 Dr Hoey and Dr Reddan should be re-called to give evidence on this issue.
It was argued that in the circumstances had the appellant 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 two medical witness called.
The respondent rejects the submissions made by the appellant. It is submitted by the respondent that the Tribunal found that the respondent was liable to pay compensation until such time as the appellant returned to full time work after her graduated return to full time work after her graduated return to work in January 2002. It is further submitted that the tribunal found that the respondent was not liable to pay compensation after that date and therefore the decision was one in respect of liability and that the tribunal did not deal with ‘quantum’.
The respondent submits that the tribunal was asked to find that the appellant’s condition after April 2003 was not work related and that there was no denial of natural justice.
It is further submitted by the respondent that the Tribunal clearly gave the appellant’s counsel an opportunity to comment upon the view that the appellant had recovered in 20902 when the tribunal said during the appellant’s closing submissions: “Isn’t it the fact that she recovered from that in 2002”.
In closing submissions to which the appellant had the right of reply it was submitted that there were two periods of incapacity – one where there were periods when she was absent from work, namely from
28 August 2001 to February 2002 and the second period from the end of April 2003 until her retirement from Telstra, which the respondent submitted, was caused by the litigation process. It is submitted by the respondent that Exhibit 14 reflected the overall evidence in stating that the appellant had returned to work in February 2002 and was working full time by at least 28 March 2002 and had only 6 days of sick leave thereafter during 2002. In that same exhibit the question was raised as to the cause of the appellant’s incapacity after April 2003 it being the respondent’s case that the work related events were no longer impacting on the appellant but rather the AAT proceedings.
It is submitted that the tribunal in effect accepted the respondent’s submission that was recovery evidence by the appellant’s return to work in February 2002. It is submitted while the reasons for decision incorrectly identify May 2003 as the date when she returned to full time work rather than February 2002, this is an immaterial error of fact.
It is submitted that the evidence before the tribunal was clear and that was that the appellant had returned to full time work and that more than a year later became distressed by the legal proceedings. It is submitted that this was in Dr Reddan’s report of 30 October 2003 where it was stated that the appellant was currently fit for employment and her usual duties and that the effect of any work related contribution had ceased. It is submitted by the respondent that the relevant passage was cited by the tribunal in its reasons for decision at paragraph 92.
It is further submitted by the respondent that the Work Solutions Group report of 13 May 2003 records that the appellant had been working full time until recently decreasing her hours to three days a week. Further it is submitted by the respondent that the report of the appellant’s treating doctor stated that he had given an extended certificate to be off work until the end of January 2002 but for financial reasons the appellant had restarted work in early January 2002 and fortunately had begun to improve by then. He further stated that when he last saw the appellant on 28 March 2002 her work was going well, and she was able to return to the same building in which the protagonist worked and remain in his presence without too much difficulty.
It is submitted by the respondent that Counsel for the appellant was clearly aware of this evidence and even referred to the fact in his oral submissions that there was an attempt to suggest that “all of these current difficulties are caused by the AAT proceedings”
It is submitted for the respondent that it was not the case that the appellant first became aware of this on the tendering of Dr Chan’s letter as is submitted by Counsel for the appellant. The respondent’s counsel points out that both Doctors Reddan and Hoey had referred to the fact that the appellant had returned to working full time with food performance reviews and it was in fact Dr Hoey who identified in her reports that the AAT proceedings ere causing the applicant anxiety and distress in 2003.
Further it is submitted by Counsel for the respondent that contrary to the appellants Counsel’s submissions, the respondent did put its case to Dr Hoey in cross-examination. Dr Hoey was taken to firstly her report of 1 April 2003 which referred to times of anxiety and distress in respect of the Tribunal hearing and mediation and that asked:
“Would you agree that it was all of these proceedings that caused the decompensation that occurred after April 2003?
…
And she got back to work full time in 2002 (sic 2002)?...
She worked for a year full time?...
Now we have a new decompensation occurring. April 2003 it begins?...”
In light of all of these submissions the respondent states that there is clearly no breach of natural justice.
The relevant principles are set out in a number of decisions. In the High Court decision of Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219 (AALA) at 247 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.”
Further in 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.
In the decision of the Full Court of the Federal Court, 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 decision of relevance to this matter is that 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.”
While it is argued that the specific issue which ultimately led to a significant finding of fact as to when Telstra’s liability to the appellant for the aggravation of her psychiatric condition was not specifically agitated and neither did the tribunal give to the appellant any warning that the matter would be decided on a basis not argued, I do not find that this in fact occurred in this case. The respondent correctly identified the fact that in this matter the tribunal was asked to determine that when Telstra was liable to pay compensation to the appellant as a result of the aggravation of her psychiatric condition as a result of her employment. This was an integral part of the tribunal’s decision as to Telstra’s liability. The tribunal was not determining the quantum of that compensation but rather, the extent of the respondent’s liability.
I find that the appellant was, during the course of submissions to the hearing, clearly put on notice by the tribunal as to this fact when the learned member said “Isn’t it the fact that she recovered from that in 2002?”. There was evidence in the appellant’s own case from Dr Hoey about this issue. There was a significant amount of other evidence about the appellant’s return to full time work before the tribunal and the appellant had been given notice of it and had the opportunity to make submissions upon that evidence.
It is my view that the tribunal has not erred by not specially seeking from the parties any 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 the appellant given the opportunity of making submissions in relation to this crucial issue during the currency of the hearing both because of the nature of the evidence in the matter which was known to the appellant and also by the tribunal members comments to the appellant’s counsel during the course of his submissions. In his comment made “isn’t it the fact that she recovered from that in 2002” the learned member was clearly bringing to the attention of the parties that this was a matter under his consideration and given the ample evidence before the tribunal as to the appellant’s return to full time work in February 2002, I find that the matter was conducted in a manner so as to enable proper consideration of the issue in a manner which afforded the appellant appropriate natural justice..
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. The issue of the when the aggravation to the appellant’s psychiatric condition as caused by her employment in fact ceased in the present application was a crucial issue. It was properly canvassed on the evidence before the Tribunal and the parties were properly given the opportunity to make submissions about that issue.
On this basis it is my view there has been no error of law such that it would be appropriate that the matter be remitted to a differently constituted tribunal for further consideration according to law.
Failure to make specific findings on the medical evidence
The applicant submits that the failure of the learned member to make reference to the medical evidence when reaching the conclusion that the aggravation concluded in May 2003 when this was contrary to the evidence of Dr Hoey, was in fact the Tribunal forming his own view of medical evidence available to him and he is not entitled to set himself up as his own expert. It is submitted by the appellant that the learned member did not deal with these issues at all.
Furthermore it is submitted by the appellant that the tribunal’s reasons were inadequate to enable an upstanding of how it reached its decision and did not expose the logic of its decision nor contain finding son those matters which were essential to that logic. It was submitted by the appellant that the Tribunal failed to adequately deal with (or deal with at all) the complex psychiatric evidence on the question of the condition (if it did) cease.
It is submitted by the respondent that the learned member did not form his own view of the medical evidence and in fact he clearly accepted the evidence of Dr Reddan who in her report of 30 October state that the “effect of any work related contribution to her condition has now ceased…”.
It is submitted by the respondent that the tribunal did give reasons which were sufficient to enable the parties to understand how it reached its decision. It is submitted that the evidence was simply and clear cut. Dr Reddan was of the view that the appellant’s condition had dully resolved and that the appellant was capable of and was in fact working full time. Dr Hoey, on the other hand while acknowledging that the appellant had been working full time with good performance reviews and while acknowledging that the AAT proceedings had caused the appellant anxiety and distress nevertheless was of the view that the condition suffered by the applicant in 2001 had not resolved.
Foster J in FCT v Cainero (1988) 15 ALD 368 at 370 said:
“... that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.”
The tribunal fully canvassed the medical evidence it relied upon from Dr Reddan and then found that the applicant’s aggravated condition had resolved upon her return to full time duties. It is clear from the learned members reason’s that he has considered all of the issues of fact and provided a sufficient indication that the ultimate facts to be decided have been fully kept in mind. He is not required to expose the logic in each and every finding that he makes. It is clear from his reasons that he accepted the evidence of Dr Reddan and implicit in that acceptance that he rejected the views of Dr Hoey.
I do not accept that there can be any inference drawn that the learned member ignored the evidence of Dr Hoey nor that he failed to adequately deal with the psychiatric evidence on this issue as to when the appellant aggravation to her condition which arose as a result of her employment ceased. I find therefore that this part of the appellant’s case must fail.
Error of fact
It is submitted by the appellant that the error of fact in the learned member’s reasons for decision in identifying May 2003 rather than February 2002 as the date when the appellant returned to work was a material error of fact. It is submitted that the finding by the tribunal that the applicant commenced a return to work program which later increased to full time work by May 2003 was incorrect. The respondent agrees that the date of May 2003 was incorrect. Clearly I accept from all of the evidence that the appellant in fact returned to full time work in February 2002 and not May 2003.
I 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.”
Therefore I must consider whether the error of fact in the finding by the Tribunal is vitiated by an error of law, that is the error of fact must vitiate the findings made or it must have led the tribunal to omit to make a finding it was legally required to make as clearly there is no error of law simply in making a wrong finding of fact.
It is submitted for the appellant that the tribunal’s findings suggest that he thought the appellant had a long slow period of recovery culminating in a successful return to full time work in May 2003.
The respondent submits that the actual date as to when the appellant achieved a full time return to work is irrelevant given the reasoning process adopted by the Tribunal because it is clear that the tribunal used as a cut off date for entitlement to compensation the date at which the appellant achieved full time hours after a graduated return to work that commenced in January 2002 – irrespective of the actual date full time work was achieved.
It is submitted for the respondent that the error is immaterial in that such error had no bearing upon the decision given that the tribunal’s decision was based upon the fact that at some point in time after commencing a graduated return to work the applicant had achieved full time hours and it was at that point, whatever the date, that the tribunal found that any aggravation caused by her employment had ceased and that there was clear support for this conclusion in the evidence as set out by the tribunal in the reasons for decision.
It is further submitted that any error in this regard is also immaterial because the appellant can only be compensated for periods when she was not at work, pursuant to the statutory scheme and therefore the respondent will have regard to her sick leave records and apply the statutory formulae to any absences from work up until May 2003.
I am satisfied that on the material provided by the appellant in this matter in this matter, including her counsel’s written submissions, that the error as to the date of the appellant’s return to full time work is an immaterial error of fact and not one that vitiates the tribunal’s actual reasoning and decision. The error had no bearing on the tribunal’s decision. I accept that when one has regard to the decision of the learned member as a whole that he had full and proper regard to the fact that the appellant began a graduated return to work program in January 2002 and that she thereafter achieved a return to full time work. He set out the evidence he relied upon both from Dr Hoey and Dr Reddan in his reasons. Both of those reports were dated before May 2003 and refer to the appellant’s achieving return to full time work. He further had available in evidence the appellant’s sick leave entitlements and importantly he stated during the appellant’s counsel’s submissions at the hearing “Isn’t it the fact that she recovered from that in 2002?”. This ground of the appeal must therefore fail.
Conclusion
For all of the above reasons I find that the appropriate order in relation to this application is that the application be dismissed as no proper ground of appeal has been established by the appellant.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate:
Date: 18 July 2005
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