Langham, John William v Commonwealth

[1984] FCA 426

Re: JOHN WILLIAM LANGHAM
And: COMMONWEALTH OF AUSTRALIA
No. V G22 of 1984
Workers Compensation (Cth)
5 FCR 284

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Northrop(1) and Keely (2) JJ.

CATCHWORDS

Workers Compensation (Clth) - compensation under Compensation (Commonwealth Government Employees) Act 1971 - aggravation of disease arising out of or in the course of employment by the Commonwealth - termination of weekly payments - appeal from Administrative Appeals Tribunal.

Compensation (Commonwealth Government Employees) Act 1971 ss.5,27,29,45

Administrative Appeals Tribunal Act 1975

Workers' Compensation - Compensation paid under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Personal injury - Aggravation of a disease - Causal connection between previous aggravation and present incapacity - Compensation payments terminated - Administrative Appeals Tribunal - Judicial review - Test formulated by Tribunal - Whether the Tribunal had erred in law - Evidence - Sufficiency and whether "properly considered" - Administrative Appeals Tribunal Act 1975 (Cth), ss 33(1)(b) and (c), 44(1)(3) - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 5(11), 27, 29, 45, 46, 62, 63 and 65.

HEADNOTE

The applicant applied to the Administrative Appeals Tribunal for a review of a determination of a delegate of the Commissioner for Employees' Compensation that the Commonwealth was no longer liable to pay to the applicant any further compensation under the Compensation (Commonwealth Government Employees) Act 1971 with respect to an injury (back strain) sustained seven years earlier in 1974 during his employment and for which he had received compensation, on the basis that his present incapacity was not due to personal injury sustained during employment within the terms of s 27 of that Act, nor was it the result of the aggravation of a disease within the terms of s 29 of the same Act.

The Tribunal affirmed the determination of the delegate, and in the course of so doing:
(i) found that the applicant had, in 1974, suffered an aggravation of a back disease rather than an injury to the back, as had been claimed, that the employment of the applicant by the Commonwealth was a contributing factor to that aggravation and that the aggravation resulted in the total incapacity of the applicant;
(ii) stated that a question that had to be decided was whether the aggravation continued to incapacitate the applicant up to the present application for compensation and concluded, without there being medical evidence to support that conclusion, that if there had been a total remission of pain at any time since the aggravation in 1974, then thereafter, any incapacity for work resulted not from the 1974 aggravation but from the disease itself, and;
(iii) found that by 1977 the aggravation that had occurred in 1974 had ceased to have effect and that any pain suffered after 1977 was accordingly the result of the disease in its natural progression and not of the aggravation occurring in 1974.

Held (per curiam): Section 29 of the Compensation (Commonwealth Government Employees) Act 1971 is a provision relating to the medical condition of an applicant and the Administrative Appeals Tribunal errs in law if it tests the application of that section without medical evidence that the test applied is valid. Hence, in the absence of supporting medical evidence, a decision that an aggravation of a pre-existing disease which gives rise to a right to compensation payments cannot continue once total or complete remission of pain has occurred and that any incapacity thereafter is due to the original disease and not to the aggravation, can not be sustained.

Observations by Woodward and Northrop JJ on the nature and extent of the medical evidence which the Administrative Appeals Tribunal should have before it in considering whether any present incapacity for work has arisen as a result of a previous aggravation of a disease within the terms of s 29.

Ex parte Portelli (1981) 53 FLR 78; Commonwealth of Australia v. Whillock (1983) 48 ALR 433, referred to.

Observations by Keely J. on s 33(1)(b) of the Administrative Appeals Tribunal Act 1975 which provides that the "Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" and on s 33(1)(c) which requires "a proper consideration of the matters before the Tribunal" and, in the light of those two provisions, on the weighing of evidence by the Tribunal, in particular, that evidence adduced from the files of a Rehabilitation Centre which had cared for the applicant.

HEARING

Melbourne, 1984, December 12. #DATE 12:12:1984

APPEAL

Appeal from a decision of the Administrative Appeals Tribunal affirming a determination of a delegate of the Commissioner for Employees' Compensation.

E. D. Lloyd QC and B. J. McCullagh, for the applicant.

J. G. Larkins QC and M. B. Kellam, for the respondent.

Solicitors for the applicant: J. N. Zigouras & Co.

Solicitor for the respondent: T. A. Sherman, Acting Crown Solicitor.

GFV

ORDER

1. The appeal be allowed and the decision of the Tribunal be set aside.

2. The matter be remitted to the Tribunal for hearing and determination according to law after hearing such further evidence it may decide to receive.

3. The respondent pay the applicant's costs of the appeal.

Appeal allowed with costs. Matter remitted to the Tribunal for rehearing

JUDGE1

The applicant, John William Langham, appeals from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a determination of a delegate of the Commissioner for Employees' Compensation. The delegate determined that:

(1) any incapacity for work suffered by the applicant on and from 5 January 1981 was not the result of personal injury arising out of or in the course of his employment by the Commonwealth,

(2) any incapacity for work suffered by the applicant on and from 5 January 1981 was not the result of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor, and

(3) on and from 5 January 1981 the Commonwealth was not liable to pay compensation to the applicant in respect of any incapacity for work.

Under sub-section 44(1) Administrative Appeals Tribunal Act 1975 ("the A.A.T. Act") the appeal is limited to a question of law and is within the original jurisdiction of the Court, but under sub-section 44(3) the Court must be constituted as a Full Court.

The applicant is 59 years of age. In February 1974 he was employed as a civilian steward by the Commonwealth in the Department of Defence. On 15 February 1974, in the course of his employment, while bending down to remove a plate from a food warmer he experienced severe pain in his back. He was unable to continue his work. On 20 February 1974 he was referred to Mr. A.W. Searle, an orthopaedic surgeon, for treatment. Mr. Searle diagnosed ligamentous strain of the lumbar region caused by the lifting injury at work. He prescribed physiotherapy including short wave and back extension exercises. On 21 March 1974 the applicant made a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). The claim was made with respect to an injury, namely a "Back (Sprained Ligament)", arising out of or in the course of his employment by the Commonwealth. Under the Act, the Commissioner for Employees' Compensation, or his delegate, is empowered to determine all matters and questions under the Act; see s.20 of the Act. On 9 April 1974 a delegate made a determination that the applicant"sustained personal injury arising out of or in the course of his employment by the Department of Defence (Army Office) on 15 February 1974 namely:- BACK STRAIN", and made provision for the payment of compensation under s.45 of the Act from 20 February 1974 to 13 March 1974. The material before the Tribunal did not include any other determination relating to the applicant except the determination of 5 January 1981. Of necessity, there must have been other determinations as the applicant continued to receive payment of compensation under s.45 of the Act until 5 January 1981.

Mr. Searle gave a number of medical reports to the Commonwealth relating to the condition of the applicant. The first report was dated 23 April 1974. The applicant did not respond to treatment. He remained totally incapacitated for work. Other medical reports weresought and obtained by a delegate from Mr. W. Stenning, an orthopaedic surgeon. Mr. Searle ceased treating the applicant in October 1976. In November 1976 the applicant was admitted to the Mt. Wilga Rehabilitation Centre. In June 1977 he was discharged from that centre. On 6 June 1977 he commenced employment with the Australian Bureau of Statistics but after three days left that employment because of the pain in his back. Thereafter he attended a number of doctors and received treatment from some of them, but the pain persisted. Some of those doctors submitted medical reports to the Commonwealth relating to the applicant. The Commonwealth received reports from Dr. J. Galati and Dr. H. Rivett.

During 1980, a delegate, pursuant to the provisions of the Act, required the applicant to be medically examined by Mr. E. Hedberg, an orthopaedic surgeon, Mr. Hedberg submitted a report to the delegate containing the opinion that any current incapacity for work resulting to the applicant was not related to the incident of 15 February 1974. On 28 July 1980 the delegate forwarded a copy of Mr. Hedberg's report to the applicant, notified him of his proposal to make a determinationto give effect to the opinion expressed therein and gave the applicant an opportunity to present material to show why the compensation payments should continue. The applicant presented voluminous material including a report from Mr. Searle dated 9 October 1980. That report followed an examination of the applicant by Mr. Searle on 30 September 1980. Mr. Searle had not seen the applicant since 12 October 1976. In that report Mr. Searle said:

"He continues to suffer from lumbar spondylosis which is sufficient to prevent him carry (sic) out such activities as lifting and bending, and especially makes it difficult for him to maintain the slightly flexed posture."

On 5 January 1981, the delegate issued the determination which forms the basis of the appeal before the Court. It is desirable that the determination be set out in full:

"COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971, AS AMENDED John William LANGHAM, formerly Temporary steward Department of Defence ---------------------------------------------------

In the matter of the claim of John William LANGHAM for compensation in respect of "back" (injury).

DETERMINATION

(1) On the evidence before me, including specialist medical opinion, I amunable to find that any incapacity for work suffered by the said John William Langham on and from the date of this determination, is the result of either, personal injury arising out of or in the course of his employment, or, a disease, or the aggravation, acceleration, or recurrence of a disease, to which his employment was a contributing factor.

(2) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including sections 27 and 29 of that Act, and further to the determinations previously made in this matter, I hereby determine:-

(a) any incapacity for work suffered by the said John William Langham on and from the date of this determination, is not the result of personal injury arising out of or in the course of his employment;

(b) any incapacity for work suffered by the said John William Langham on and from the date of this determination, is not the result of a disease, or the aggravation, acceleration, or recurrence of a disease, to which his employment was a contributing factor;

(c) therefore, on and from the date of this determination, the Department of Defence is not liable to pay compensation to the said John William Langham in respect of any incapacity for work.

(signed)

Delegate of the Commissioner for Employees' Compensation. -5 JAN 1981"

That determination, together with other documents including a notice about rights given to the applicant under the Act, was forwarded to the applicant under cover of a letter which included the following paragraph:

"The medical evidence available, including Dr Searle's report, indicates that you are not totally incapacited for work. In his report, Dr Searle has stated that you suffer from lumbar spondylosis which imposes certain restrictions upon some activities. However, Dr Searle does not mention any link between the lumbar spondylosis and your employment by the Department of Defence. Even if it was shown that the restrictions mentioned by Dr Searle resulted from your employment by the Department of Defence, it would still be necessary to determine that you are not entitled to receive payments under section 45 of the Act in respect of total incapacity for work (the section under which you have been receiving payments)."

Thereafter the solicitor for the applicant requested further material from the delegate. Some of that material was supplied under cover of a letter dated 7 May 1981.

At this stage it is necessary to make reference to some of the provisions of the Act, but in doing this it is useful to refer to Ex parte Portelli (1981) 35 A.L.R. 207 in which Northrop J. examined the nature of the Act and the procedures to be followed by the Commissioner and (at that time) by the Commonwealth Employees' Compensation Tribunal. The provisions of Part V of the Act which at that time provided for the Commonwealth Employees' Compensation Tribunal have since been repealed.

Section 27 of the Act provides that:

"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth . . . is liable to pay compensation in respect of that injury . . . "

For the purposes of the Act the word "injury" is defined in s.5 to exclude a "disease or the aggravation, acceleration or recurrence of a disease". In the same section the word "disease" is given no definitive definition but is to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". Reference should be made also to sub-section 5(11) of the Act. The difficulties arising from the meanings ascribed to the words "disease" and "injury" in the Act are discussed by Northrop J. in Commonwealth of Australia v. Whillock (1983) 48 A.L.R. 433 commencing at p.447. Section 29 of the Act provides, for present purposes, that in the event that an employee suffers "an aggravation, acceleration or recurrence of a disease" and that any employment of the employee by the Commonwealth was "a contributingfactor" to the "aggravation, acceleration or recurrence" of the disease, and that a "total or partial incapacity for work by the employee" arises as a result therefrom, the "aggravation, acceleration or recurrence" shall be deemed to be a personal injury to the employee arising out the employment of the employee by the Commonwealth.

Section 45 of the Act providesthat where an injury to an employee results in the employee being totally incapacitated for work, compensation payments shall be paid to the employee in accordance with the provisions of that section. Section 46 of the Act contains corresponding provisions applying where an injury to an employee results in the employee being partially incapacitated for work.

At this stage it should be noted that the claim for compensation by the applicant and the determination of 9 April 1974 were based on s.27 ofthe Act and not on s.29. The claim was for strained ligaments and thus there was no need for the delegate to consider the effect of s.29 of the Act or to consider whether a discrete event in the course of a progressive disease could in law amount to an "injury" within the defined meaning of that word; see the differing views on this issue expressed bySmithers and St. John JJ. on the one hand and Northrop J. on the other in Whillock's case above. Likewise there was no need to consider whether the employment of the applicant by the Commonwealth was a contributing factor to the aggravation, acceleration or recurrence of a disease.

Prior to 1 July 1981, a party to a determination made under the Act had the rightto request the Commissioner to refer the matter to the Commonwealth Employees' Compensation Tribunal for consideration or to apply to a prescribed Court for a judicial review of the determination. The provisions prescribing those procedures, which were contained in Part V of the Act, are discussed in Portelli's case above. Those provisions were repealed by the Commonwealth Functions (Statutes Review) Act 1981, see s.149 and the Second Schedule. Part V of the Act now comprises s.62 to s.65 inclusive. Section 62 identifies the parties to a determination. Under s.63 a party may make application to the Administrative Appeals Tribunal for a review of the determination. Section 65 contains modifications of the A.A.T. Act with respect to reviews of determinations by the Commissioner. The procedures andpowers of the Tribunal, when conducting a review, are contained in sections 33, 40 and 43 of the A.A.T. Act. Under the last section the Administrative Appeals Tribunal has power to exercise all the powers and discretions conferredupon the Commissioner.

Pursuant to the provisions of the Act, and in particular s.63 of the Act, the solicitor for the applicant made application to the Tribunalfor a review of the determination made on 5 January 1981. The grounds of the application appear to have been directed to a s.27 injury rather than to a s.29 aggravation of a disease. The application was contained in a letter dated 18 August 1981 and the relevant parts are set out:

"RE: MR. JOHN WILLIAM LANGHAM

We refer to the determination of the Delegate of the Commissioner for Commonwealth Employees Compensation dated 5th January 1981 and also the letter of the Commissioner dated7th May 1981 in which reasons for the determination were given, and hereby request that this matter be referred to the Administrative Appeals Tribunal. The grounds of this appeal are as follows:-

1. That the Commissioner was wrong in law in making the determination of the 5th January 1981.

2. Was wrong in law in determining that Mr. Langham was suffering from no incapacity as a result of personal injury arising out of and in the course of his employment.

3. Was wrong in law in that the incapacity that Mr. Langham is, and still is, suffering from was an injury suffered in the course of his employment.

4. That the Commissioner should have taken into account the medical evidence of Dr. Allan Searle in coming to any determination with respect to Mr. Langham's incapacity."

On 13 April 1983, in accordance with the requirements of s.37 A.A.T. Act, the Commissioner lodged with the Tribunal a statement of findings on the material questions of fact, evidence and reasons for decision. The reasons for decision are set out:

"The Reasons for the decision are:-

20. The delegate had regard to Dr Hedberg's report of 11.6.80 which indicated that the condition suffered by the employee at the time of his examination and his continued incapacity for work was not related to his employment with the agency, specifically the incident of 15.2.74.

21. The delegate noted the contents of Dr Searle's report of 9.10.80 whichindicated that the employee continued to suffer from lumbar spondylosis, but noted also that Dr Searle made no comment on the relationship of this condition to his employment with the Commonwealth.

22. The delegate noted that both Drs Hedberg and Searle indicated the employee was not totally incapacitated for work. The delegate therefore considered that even if a link was conceded between the restrictions imposed and the employee's employment with the agency and this was not conceded, it would still be necessary to determine that the employee was not entitled to payments pursuant to section 45 of the Act in respect of total incapacity for work.

23. As the requirement had been stressed to the employee that he should provide evidence to show why liability should continue, and the delegate considered that the evidence supplied by the employee failed to satisfy that requirement, the delegate considered that the determination as proposed should be made."

It is apparent from this summary, that the issues raised before the Tribunal were limited to questions under s.27 of the Act and not under s.29. In fact, during the hearing of the appeal, counsel informed the Court that no reference was made to s.29 of the Act during the hearing of the review by the Tribunal. A reference to the transcript of the evidence given before the Tribunal supports this statement. No questions were directed to the medical witnesses as to whether the back pain which manifested itself on 15 February 1974 was an aggravation of the disease of lumbar spondylosis from which the applicant was then suffering, albeit without his knowledge. There was no question directed to the pathology of any aggravation. There was no explicit evidence as to the nature of any aggravation of the disease or how the employment by the Commonwealth contributed to that aggravation. It is clear that the pain which occurred on 15 February 1974 was caused by an identifiable event which occurred in the course of the applicant's employment by the Commonwealth. That may, of itself, be sufficient to found a claim under s.27 of the Act but, without a causal connection, will not be sufficient to found a claim under s.29. On the material before it, the Tribunal found that that event constituted an aggravation of the disease of lumbar spondylosis and that the employment of the applicant by the Commonwealth contributed to that aggravation. On the appeal to this Court, the Commonwealth has not challenged that finding. The opinions of the medical witnesses called by the Commonwealth were directed to an injury and incapacity resulting from that injury and not to the aggravation of a disease and incapacity resulting from that aggravation. The Tribunal asked some questions of one of those medical witnesses, Mr. Dooley, an orthopaedic surgeon, which suggested that s.29 may have been relevant. In re-examination, Mr. Searle, who was the last witness to be called to give evidence before the Tribunal, expressed opinions relating to activities that could have "aggravated or accelerated a symptomatic spondylosis". Nevertheless, these matters were not taken up and developed in relation to a claim based upon s.29 of the Act. Likewise, although in one context Mr. Searle used the word "remission" in relation to the cessation of pain, it was not in the context of providing evidence of the ending of incapacity resulting from an aggravation of a disease. It was not expressly related to problems arising from the application of s.29 and s.45 of the Act.

The distinction between a s.27 injury and a s.29 aggravation of a disease is of great importance in this case because of the way the Tribunal expressed its reasons for decision, particularly with respect to incapacity resulting from the aggravation of a disease.

In its reasons the Tribunal referred to the history of the claim. It referred to the fact that, at the hearing, it had before it not only all the reports available to the delegate who made the determination, but further reports from Mr. Searle and Mr. Hedberg dated 22 September 1981 and 31 August 1983 respectively and a report from Mr. Dooley who had examined the applicant on 29 August 1983. There were tendered in evidence the files on the applicant kept by the Western General Hospital, Footscray, by the Commonwealth Employment Service at Yarriville and the records of the Department of Social Security relating to the applicant's attendance and treatment at the Mt. Wilga Rehabilitation Centre. In addition, evidence was given by the applicant, Mr. Searle, Mr. Dooley, Mr. Hedberg and an officer of the Department of Employment and Industrial Relations.

The Tribunal made reference to s.29 of the Act and stated, correctly in our view, that if an employee suffered an aggravation of a disease, and his employment by the Commonwealth was a contributing factor to that aggravation, and as a result of that aggravation the employee was incapacitated for work, the Commonwealth was liable to make payments of compensation under the provisions of s.45 or s.46 of the Act.

The Tribunal accepted the evidence of Mr. Searle that in February 1974 the applicant suffered an aggravation of a disease and that his employment by the Commonwealth was a contributing factor to that aggravation. In this regard the Tribunal preferred the evidence of Mr. Searle to that of Mr. Hedberg and Mr. Dooley who expressed the opinion that the applicant had suffered an injury in February 1974. The Tribunal accepted that the aggravation resulted in the total incapacity of the applicant. It then stated the question that had to be decided as follows:

"There is no doubt that the aggravation of the disease incapacitated the applicant totally for some time at least. What is in issue is whether it continued to do so on 5 January 1981."

The Tribunal then considered the material relating to the continuation or otherwise of the pain in the applicant's back. The Tribunal acted on the basis that if there had been a "complete remission" or a "total remission" of pain since February 1974, that would be sufficient to show that thereafter any incapacity for work did not result from the aggravation of the disease which occurred on 15 February 1974 but from the disease itself. On this issue the Tribunal made the following finding:

"I have, therefore, come to the conclusion that, certainly by the time that he completed the rehabilitation course at the Mt Wilga Rehabilitation Centre in June 1977, the aggravation of the disease which he suffered on 15 February 1974 had ceased to have effect and that thereafter any pain which he has suffered has been the result of the disease in its natural progression and not of the aggravation which occurred on that day."

Before this Court the applicant challenges that finding. The questions of law raised by the applicant were formulated in different terms but are illustrated by the following formulations which were accepted by councel in the course of argument:

"1. Whether the Tribunal, on thematerial before it and properly directing itself as to the relevant law, could reasonably have reached the conclusion that it was satisfied that any incapacity for work suffered by the applicant, John William Langham, on and from 5 January 1981 was not the result of personal injury arising out of or in the course of his employment.

2. Whether the Tribunal, on the material before it and properly directingitself as to the relevant law, could reasonably have reached the conclusion that it was satisfied that any incapacity for work suffered by the applicant, John William Langham, on and from 5 January 1981 was not the result of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor."

At the hearing before the Court counsel for the applicant contended that the Tribunal was in error in making the finding that the aggravationof the disease had ceased to have effect by June 1977. Counsel submitted that improper use of material contained in the file of the Mt. Wilga Rehabilitation Centre had been made and that the Tribunal had erred in not accepting the sworn evidence of the applicant that since February 1974 he had never been entirely free from pain, and frequently the pain was too severe for him to be able to do any work.

That contention raised by counsel for the applicant raises serious questions concerning the entitlement of the Tribunal to act upon unsupported hearsay file material in the face of contrary direct sworn evidence from a credible witness. But those questions arise only on the assumption that the correct test was applied by the Tribunal in accepting that incapacity for work resulting from the aggravation of the disease on 15 February 1974 ceased upon there being a "complete remission" or a "total remission" of pain. The validity of such a test was not put to any of the medical witnesses. The test itself is ambiguous. For what period must there be a complete or total remission of pain? Under what conditions must there be a complete or total remission of pain? In any event is that the relevant test? The answer to these questions, and possibly many other questions, must depend upon medical evidence as to the nature of the aggravation of the disease suffered by the applicant in February 1974, the pathology of that aggravation, whether incapacity for work arising from the aggravation was of a temporary nature and whether subsequent incapacity for work resulted from that aggravation or from the disease itself. These are not easy questions to determine and they cannot be determined in the absence of medical evidence.

In our opinion, the Tribunal was in error in applying a test for which the evidence laid no foundation. A layman may consider that the aggravation of a disease would result in temporary incapacity only, but appropriate medical evidence might establish that a particular aggravation could itself result in permanent incapacity. In the present case it is easy to see how the error arose. The presentation and hearing of the applicant's case in the Tribunal was based on the assumption that the case involved an injury under s.27 of the Act. Questions relating to the aggravation of a disease under s.29 of the Act and the consequences of any incapacity arising therefrom were not directed to the medical witnesses. Accordingly there was no evidence to support the test applied by the Tribunal.

It follows therefore that the appeal must be allowed and the decision of the Tribunal be set aside. The matter should be remitted to the Tribunal to be heard and determined according to law after the hearing of such further evidence as it may decide to receive. The Commonwealth should pay the applicant's costs of the appeal.

JUDGE2

I have had the benefit of reading, in draft form, the joint reasons for judgment of Woodward and Northrop JJ. and it is unnecessary to repeat the factual matters, the statutory provisions and the terms of the determination of the delegate of the Commissioner for Employees' Compensation, dated 5 January, 1981 which are there set out. I agree with them that there was no medical evidence upon which the Tribunal could reasonably have reached the conclusion that, from the time when he completed a rehabilitation course at the Mt. Wilga Rehabilitation Centre (the Rehabilitation Centre) in June 1977, any incapacity for work suffered by the applicant was not the result of the aggravation, on 15 February, 1974, of a disease.

The applicant's counsel submitted that, on the material before it, the Tribunal properly directing itself as to the relevant law, could not reasonably have reached the conclusion that the applicant had been "pain-free at the end of his course of treatment" at the Rehabilitation Centre in June 1977. As that was the applicant's primary submission, it is desirable to refer to it, notwithstanding what has already been said as to the absence of medical evidence dealing with the significance of a period of freedom from pain, if such a period ever occurred.

The finding that the applicant was "pain-free" was based upon two documents:

1. An entry, dated 10 June, 1977, in the Australian Department of Social Security file (the file entry), in the following terms:-

"John Langham

. . .

I did not see him during his stay at Mount Wilga but have been told that his programme was successful. At the completion of his stay at Mount Wilga he was symptom free and was participating in full activities at Mount Wilga.

. . .

R.J. Oakeshott"

2. A letter written by the applicant on 14 June, 1977 to the Rehabilitation Centre which the Tribunal said "appears to support what was stated" in the file entry (i.e. that the applicant "was symptom free").

The applicant's counsel submitted that neither document was sufficient to support the Tribunal's finding that the applicant was "pain free". As to the applicant's letter of 14 June, 1977, he pointed out that the mere fact that the applicant applied for work could not be read as meaning that the applicant had no pain in his back - particularly when regard was had to the express references in the letter to his "injured back" and also to the effect upon his back of working as a clerical assistant in the preceding days. As to the file entry, counsel pointed out that it was made by Dr. Oakeshott, a Rehabilitation Medical Consultant, who had never seen the applicant and accordingly had no personal knowledge of the facts and that it did not disclose who had told Dr. Oakeshott that "the programme was successful" or who had told him that Mr. Langham "was symptom free; further, that neither the file entry nor any other evidence explained the meaning of those statements in the file entry.

The Tribunal in expressing its finding said that "it is much more likely that in fact it (the file entry) was correct". As to that issue, the only information to which the Court was referred as a possible basis for the file entry is a hand-written entry in the file, dated 3 June, 1977, stating that Mr. Langham "was symptom free". However, the respondent's counsel did not deny that that entry appeared to be another entry by Dr. Oakeshott and it also stated "I have not seen him".

The respondent's counsel relied upon s. 33(1)(c) of the Administrative appeals Tribunal Act 1975 which provides that "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". However, paragraph (b) of that section requires "a proper consideration of the matters before the Tribunal". The Tribunal, in considering whether the applicant was symptom free at the end of his course of treatment at the Rehabilitation Centre, was required to give proper consideration to the material before it and to take into account all relevant considerations including the following matters :

(1) The file entry showed on its face that the maker of the statement had no personal knowledge of the information recorded in it.

(2) The source of that information was not disclosed by the file or by any other material before the Tribunal and it was not known by the Tribunal whether that source was a medical practitioner or some other member of the staff e.g. the statement that "the programme was successful" may have been made by an occupational therapist.

(3) Neither the maker of the entry on the file nor the person who was the source of it was called as a witness.

(4) No explanation was given as to the reason why neither of those persons was called as a witness.

(5) The entry on the file that the applicant was "symptom free" had "surprised" Dr. Searle, the specialist physician who had been treating the applicant and whose opinion on another aspect had been preferred by the Tribunal to those of other specialists called as witnesses by the respondent.

(6) The file disclosed that, while the applicant was attending the Rehabilitation Centre, it had been arranged that there would be an orthopaedic examination of him on 28 July, 1977; an attempt was made to have that examination held earlier but the file recorded that it had been decided "to cancel the orthopaedic examination and declare (Mr. Langham) fit to commence employment". No oral evidence was called as to this aspect.

(7) The applicant on leaving the Rehabilitation Centre commenced working in a clerical capacity but said, in the letter of 14 June, 1977, which was one of the two bases for the Tribunal's finding, that "the constant sitting and bending forward which my position requires is undermining the good work done at Mount Wilga for my injured back". In this connexion it may be noted that the Tribunal described the applicant "as a person who genuinely wishes to work".

(8) During a well prepared cross-examination of some length, the correctness of the file entry was specifically denied by the applicant. It would, of course, have been open to the Tribunal to reject the applicant's sworn evidence as being unreliable. However, the Tribunal said "although he impressed me as generally an honest witness and was adamant that (Dr. Oakeshott's file entry) was incorrect, I think that it is much more likely that in fact it (the file entry) was correct".

The Tribunal's reasons for decision carefully reviewed the medical evidence and the history of the matter but expressed rather briefly the reasons for making the finding that the applicant "was pain-free at the end of his course of treatment" at the Rehabilitation Centre. Having regard to the opinion expressed earlier as to the absence of relevant medical evidence, it is not necessary for me to express a concluded opinion as to the applicant's submission that the Tribunal could not reasonably have found, on the material before it, that the applicant was "pain-free at the end of his course of treatment" at the Rehabilitation Centre.

The appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal to be heard and determined according to law after the hearing of such further evidence as it may decide to receive. The applicant's costs of the appeal are to be paid by the Commonwealth.