Perring, G.H. v Australian Postal Commission

[1993] FCA 260

GRACE HANNAH PERRING v. AUSTRALIAN POSTAL CORPORATION
No. NG217 of 1992
FED No. 260
Number of pages - 22
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal (AAT) - claim for work sustained injury - excessive cross examination by AAT - reasonable apprehension of bias - whether evidence before the Tribunal that no injury sustained - whether adequate reasons given by the AAT - effect of failure to call two witnesses - obligations to call witnesses before the AAT - assessment of gaps in which party's case caused by witnesses not called

Administrative Appeals Tribunal Act 1975 ss 28, 33(1)(c)

Jones v Dunkel (1959) 101 CLR 298

Reg v Watson ex parte Armstrong (1976) 136 CLR 248

Muratore v Commonwealth (1978) 141 CLR 296

Livesey v NSW Bar Association (1983) 151 CLR 288

Vakauta v Kelly (1989) 167 CLR 568

Grassby v The Queen (1989) 168 CLR 1

Barker v Australian Telecommunication Commission (1990) 95 ALR 72

GIO (NSW) v Glassock (1991) 13 MVR 521 at 533

Jones v National Coal Board (1957) 1 All ER 155

Jones v Repatriation Commission, Einfeld J, unreported 5 April 1993

Secretary, Department of Social Security v Mariot, Einfeld J, unreported 8 April 1993

HEARING

SYDNEY, 3 December 1992 #DATE 28:4:1993

Counsel and solicitor Mr M J Sweeney QC
for the applicant and Mr T.F. McKenzie

instructed by Peacocke Dickens and Price

Counsel and solicitor Ms C Adamson
for the respondent instructed by the

Australian Government Solicitor

ORDER

1. Application dismissed.

2. Any party seeking costs shall apply in writing within 14 days stating the bases upon which costs are sought.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

EINFELD J The applicant Grace Hannah Perring appeals to this Court from a decision of a senior member and two members of the Administrative Appeals Tribunal, General Administrative Division, given on 23 March 1992. The case arises from a claim for compensation made by the applicant following an incident alleged to have occurred when Mrs Perring was employed by Australia Post (the respondent) as a cleaner at Gulgong Post Office on 31 May 1989. At about 7.45 am on that day, shortly after commencing work, Mrs Perring alleges that she hurt her back and stomach while using an industrial polisher to strip the vinyl floor in the public area of the post office (the incident). Mrs Perring left work not long after the incident and has not resumed work. Some compensation appears to have been paid but on 30 October 1989 the respondent determined to make no payments from and after 13 July 1989. The respondent's case before the Tribunal was that the incident did not occur and that Mrs Perring suffered no injury at work that day.

1. This decision was first upheld by the Compensation Reconsideration Section of Australia Post on 12 February 1990. The Section accepted a medical report from Dr B J Eggins dated 22 September 1989 that Mrs Perring did suffer a minor injury at work but that she had made a complete recovery and was fit for work "within a matter of two to three weeks and certainly within six" of the incident. The applicant sought review by the Tribunal which for its part found on the balance of probabilities (paragraph 84 appeal book 373) that the incident did not occur and that no back injury occurred at work on 31 May 1989.

2. By her amended notice of appeal filed in this Court on 3 November 1992, Mrs Perring claimed that the Tribunal erred in its approach to the evidence in respect of the alleged injury and conducted its hearing in a way which gave rise to a reasonable apprehension of bias. This means that careful attention to the evidence before the Tribunal is necessary. There were two basic issues:
   (a) Did Mrs Perring have an injury at work on 31 May 1989? (b) If so, did the injury cause incapacity for work on and after 13
   

July 1989?

1. The evidence before the Tribunal established a number of facts:
   

1. At the time of the alleged injury, Mrs Perring was aged 57 years.

2. She had minimal schooling and worked in unskilled jobs prior to her marriage. She returned to the workforce at the age of 32 years, when her children were teenagers, as a cook at the Gulgong Hotel where she stayed for 17 years. She was then out of the workforce for five years, commencing at the Gulgong Post Office in 1987, nearly two years before the alleged injury. Her hours were 7.30 am to 9.54 am Monday to Friday.

3. In the months before the alleged incident, she had been off work because of abdominal pains in March 1988 and severe lumbar back strain in February 1989. She was treated respectively by a general practitioner and a chiropractor.

4. Mrs Perring completed a report of accident form on 24 July

1989. Referring to the incident, it stated (sic): I was stripping the floor in the front of the counter and the floor was wet with stripper and water my right foot slipped and the polisher was in motion it slipped across the floor and took me with it hurting my back and stomach which I have been in constant pain ever since. She claimed that she had "three discs out in the lower part of the back".

5. In a statement dated the following day but apparently part of the same form, she added in relation to the discs that they "won't stop ... slipping out". The description of the injury was: I was stripping the floor. My right foot slipped on the stripper which was on the floor and the polisher also slipped while in motion and took me with it.

In this statement Mrs Perring said that she reported the incident to her supervisor John De Graaf on the day it occurred. She said that she had never had a similar injury or condition. The statement provides a pro forma declaration which Mrs Perring signed but varied by adding the underlined words: NOT BEING A LAWYER, I am NOT fully aware of my rights and obligations (as outlined in the "How to Claim" leaflet) in this matter and elect to claim benefits under the Commonwealth Employees' Rehabilitation and Compensation Act 1988. ...

6. The manager of the post office, Terence John Hill, completed a report on 26 July 1989, answering the question: Are the circumstances of the claim as asserted by the employee substantially correct and should the claim be accepted?

with the comments (in part):

More Investigation -

...

Mrs Perring complained of stomach pain before 31/5/89

Mrs Perring stated that she had not had back trouble in her life. However she took sick leave in February 89 for back trouble.

7. The applicant's husband, Eric Perring, also completed a statement on 25 July 1989. He said that he had last seen his wife before the incident at 7 am on 31 May 1987 outside the post office and that she appeared to be free of injury at the time.

8. The same form was also completed by Mr De Graaf on 26 July 1989. He had first seen the applicant after the incident in the public space of the post office counter at 8.30 am on 31 May. She had complained of a sore back caused by (the) polisher "taking her across the floor".

9. The applicant consulted her general practitioner Dr Glenys Caterson on the day of the alleged injury. The doctor's certificate of that day stated:

Grace Perring has abdominal pain. She is unfit for work until 5/6/89.

10. Having arranged a pelvic ultrasound for Mrs Perring on 1 June 1989 which revealed a loaded colon in the right iliac fossa that may, according to the radiologist, have been the site of the pain, Dr Caterson certified on 6 June 1989:

Grace Perring continues to have abdominal pain. She is unfit for work from 5/6/89 until 19/6/89.

11. On 25 July 1989, Dr Caterson further wrote: Grace Perring's pain has been localised to her back. She had a back injury at work stripping the floor 31/5/89.

She is now unable to work at a cleaning job or she will continue to have pain.

12. On 16 August 1989, she further certified: Grace Perring continues to have severe low back pain and sciatica. She is unfit for work until 16/9/89.

13. Meanwhile, on 13 June 1989, Dr Caterson referred or wrote about Mrs Perring to Dr Stuart Porges, a general surgeon in Orange. Her letter of referral or introduction stated: The present pain is in her RIF and goes across her abdomen. It is worse on lying down and eases with legs up. There has been no fever, no dysuria but slight frequency. Examination reveals lower abdomen tenderness from right to left. I gave her flagyl 200 mg, amoxil 250 mg.

14. Armed with normal IVP and barium enema examinations by a radiologist who noted a "slight spasm in the sigmoid colon during the examination", Dr Porges certified that Mrs Perring was suffering from back pain and was unfit for two more weeks. Later, on 28 February 1990, Dr Porges stated that he had received no history of trauma, only pain in the right abdomen for six months.

15. Five post-incident certificates of the practice of the chiropractor who had also treated her for lumbar back trouble in February 1989 stated that Mrs Perring was suffering from: 30 June 1989: Severe left hip pain 14 July 1989: Sciatica/femoral neuralgia L4- L5; L5-S1 subluxation 28 July 1989: Lumbar strain - femoral (two certificates) neuralgia. (These certificates were from a different practitioner who added the comments:

(a) This patient must

refrain from bending and

lifting. Her spine will

not stabilise.

(b) Fit for normal duties

from 5/8/89.)

4 August 1989: Femoral neuralgia. (This certificate was from the same chiropractor as those of 28 July. This time Mrs Perring was certified as fit for normal duties from 18 August 1989.)

16. On 3 August 1989, Mrs Perring was seen by a Commonwealth medical officer at Gulgong, Dr Fletcher. He obtained a history of an injury to the lower back in February 1989 and of absence from work since May. The diagnosis was of lumbar spondylosis causing 50% incapacity and the opinion was that Mrs Perring was unfit for work. In a letter of 4 May 1990, Dr Fletcher added that Mrs Perring's pain was in the L5/S1 joint on extension, and that she reported a cold feeling of the right leg and constant pain of the right leg from hip to foot. He expanded: She claimed that all movements produced low lumbar pain and right leg pain. She was adamant that she would never work again and completely lacked motivation to return to work.

17. Dr Eggins' examination and report of 22 September 1989 have been mentioned earlier. Dr Eggins belongs to a practice, the members of which are said to consult in occupational and rehabilitation medicine. Mr Perring was present during the doctor's consultation with the applicant. Doctor's history of the injury and the immediate aftermath was the most detailed obtained to that point. Against a background of reasonably good past general health (appendectomy, hysterectomy and chronic duodenal ulcer were its starker features), he reported her claim regarding the incident this way:

I was stripping the main floor in the Gulgong Post Office, and after applying the stripper and some water, I was using the polisher fitted with its scrubbing pad. When used in this mode the polisher can be difficult to control, and as I was struggling to keep the machine on course, my right foot slipped and I saved myself from a heavy fall by hanging on to the polisher. I wrenched my back.

18. In the light of her complaints, Dr Eggins' examination findings are revealing:

Mrs Perring looks well. She walked into the examination room displaying a slow gait and a mild limp favouring the right leg. Contrary to her statement, she sat in the chair for more than half an hour without any sign of discomfort. She removed and replaced her clothing and footwear using speedy and orthodox movements, and her movements on the examination couch were normal in form, swift in execution and unaccompanied by any signs of discomfort. Specifically, Mrs Perring had no difficulty lying down and sitting up on the examination couch by simply extending and flexing the spine. When allowed to use her hands, she sat up quickly and without discomfort, but complained of some back discomfort after sitting up without the aid of her hands. She was able to roll over from the supine to the prone position and back again without discomfort.

.....

Mrs Perring concedes that she became very anxious when told of the possibility of cancer, but currently denies any fear or sadness. Her husband interjected to report her a chronic worrier. Examination of the Spine, Pelvis and Lower Limbs Standing erect, Mrs Perring displays a back with a straight spine and a level pelvis. There are no signs of skin damage, swellings, muscle wasting, or joint deformity.

Palpation of the spinal column, pelvis, sacro-iliac joints, and the course of the sciatic nerves evokes a complaint of mild tenderness deep to the crest of the right buttock, but not elsewhere. Compression and distraction force applied to the pelvis does not cause discomfort.

From the erect position, Mrs Perring flexed her spine in a toe-touching manoeuvre and got her fingertips to lower shins when they were 25cm above the carpet. She complained of pain at this point. She went on to display a full range of painless extension, lateral bending, and rotation.

Mrs Perring had no difficulty standing on her toes, standing on her heels, and carrying all of her weight on either foot and rising up on the toes of the weight-bearing foot. When asked to squat, she descended about half way and said she could go no further because of increasing back pain. When lying supine on the examination couch, Mrs Perring displays legs that are normal to inspection and not tender to palpation.

Movements in the hip, knee and ankle joints are full in range and free from pain, and straight leg raising on each side is to 90 degrees without apparent discomfort. Later, Mrs Perring said that elevating her legs had triggered off pain in the back, but nevertheless she had no difficulty sitting up with her legs straight out in front of her trunk, and when sitting in the legs-dangling position over the side of the couch, she happily tolerated straight leg elevation to well above the equivalent of 90 degrees.

The knee, ankle and plantar reflexes are present, equal and normal, and skin sensation to cotton wool and pinprick pain is normal.

19. Dr Eggins' opinion and diagnosis were: Mrs Perring asserts that she was injured at work on 31/5/89 when she jerked her trunk while saving herself from a fall when a foot slipped while she was polishing a floor. She subsequently developed bizarre symptoms with pain across the lower abdomen, up the right side of the abdomen into the lower ribs, and then down through the right buttock and the leg to the five toes in the right foot.

Unfortunately, when Mrs Perring consulted her general practitioner, she received not assurances but a confession of bewilderment, and this may well have got her worried. Through her daughter she arranged an appointment with a general surgeon, who appears to have voiced his concern about the presence of cancer. In total defiance of the original musculo-skeletal injury, the surgeon performed a series of expensive and unnecessary investigations, and when he found nothing, handed Mrs Perring over to a chiropractor. On examination of Mrs Perring on 22/9/89, I find a generally healthy mature woman who has not the slightest difficulty demonstrating a full range of normal function in her spine and lower limbs, with her only complaint being minor back pain at full spinal flexion.

I cannot find any signs of a work-related injury, and the chiropractor's diagnosis of three displaced discs is utter nonsense. I believe that Mrs Perring sustained a minor musculo-ligamentous injury at work on 31/5/89, and that with rest and reassurance she would have made a complete recovery within a matter of 2-3 weeks, and certainly within six. Mrs Perring is now fit to return to normal duty and I recommend that further liability be declined.

20. A further examination by Dr Eggins took place on 10 January 1991. Mrs Perring's additional history included that she had constant pain and spent many hours lying on her bed at home and that she could not sleep because of pain. "On some days, the pain is so bad that I cry all day."Any movement including a bump from her husband caused an exacerbation of pain. Her husband now slept in a separate bed and sexual activity had been abandoned. She could not sit in a chair for more than ten minutes and after that she would stand and walk around the room. She could drive a car but could only do so for five or ten minutes. She travelled to the consultation from Gulgong by car driven by her husband. She said the trip took almost five hours, and that they had to break the journey once or twice so that she could rest and take two Digesic tablets. She said that they completed their journey by train to Redfern, and that climbing the stairs at Redfern Station was an ordeal. She experienced so much pain when ascending the stairs that she thought her husband might have to carry her to the top, but she just made it.

At the consultation there was no mention of any abdominal pain and no tenderness in the abdomen on palpation. Dr Eggins' examination findings were as follows:

Mrs Perring continues to look physically well, but she appears despondent. She again walked into the room displaying a mild limp on her right leg, and was observed to ascend and descend a flight of stairs with slow but orthodox movements. She again appeared comfortable sitting in the chair for at least 30 minutes during the giving of the supplementary history. When asked to remove her outer clothing and footwear, Mrs Perring complied but at snail's pace, and was observed to remove and replace pantyhose with slow movements that were entirely orthodox in form. When asked to lie down on the couch, Mrs Perring used the stool to attain the seated position, with her legs dangling over the side of the couch, and then slowly lifted the left leg and swung it onto the surface of the couch and did the same thing with the right. She achieved the supine position by simply extending the spine. Later, when asked to sit up from the supine position, she rolled onto her right side and levered her trunk into the vertical position with her legs dangling over the side of the couch. ... She was not wearing a surgical corset at this consultation.

Mrs Perring appears to be depressed, miserable and angry. When asked about her mood state, she simply said she was "fed up".

Examination of the Spine, Pelvis and Lower Limbs As before, in the erect position, Mrs Perring displays a back and lower limbs that are normal in contour and configuration. The spine is straight, the pelvis level, and there are no signs of any skin damage, swellings, muscle wasting or joint deformity. Palpation of the spinal column evokes a complaint of tenderness when the palpating fingers are in the area extending from the 12th thoracic vertebra to the tip of the coccyx, and this diffuse tenderness extends laterally for only a few centimetres before fading away in normal tissue. Specifically, palpation of the buttocks, sacro-iliac joint lines, and the course of the sciatic nerves does not reveal any tenderness, and compression and distraction force applied to the pelvis does not cause discomfort. When asked to display spinal movements in the erect position, Mrs Perring flexes in a toe-touching routine and gets her fingertips to her knee but says she can go no further because of the back pain. She then achieved only a token range of extension and reported pain as limiting further movement. Both lateral bending and rotation were to about half of the normal range, and were reported as limited by pain. As before, Mrs Perring has no difficulty standing on her toes, standing on her heels, and carrying all of her weight on either foot, and rising up on the toes of the weight-bearing foot. When asked to squat, she flatly refused, and said this movement would cause severe back pain.

When lying supine on the examination couch, Mrs Perring tolerates straight leg raising on each side to 90 degrees, but reports that this movement on the right side resulted in severe back pain after the movement was executed. There was no reflex muscle spasm in either leg. Later, when sitting in the legs-dangling position over the side of the couch, Mrs Perring was unconcerned as each leg was elevated beyond the equivalent of 90 degrees of straight leg elevation. Measurements

Right Left Thigh (15 cm above kneecap) 47 cm 47 cm Calf (maximum) 32.5 32.5 These circumferential measurements are taken at identical levels and they refute any wasting in the right or symptomatic leg.

The peripheral pulses and the hip, knee, and ankle joints are normal.

The knee, ankle, and plantar reflexes are present, equal and normal, but when skin sensibility is tested with cotton wool touch and pin prick pain, Mrs Perring identifies both hypoaesthesia and hypoalgesia in the right leg from the groin and buttock to the tips of the toes. This sensor impairment is clearly behavioural.

When asked to demonstrate power and control in lower limb muscles in the supine position, Mrs Perring proffers extreme weakness in the flexors and extensors of the toes, ankle, and knee, in the right leg, and extreme weakness in the extensors of the right hip. This diffuse muscle impairment is also behavioural.

21. Dr Eggins' view of a CT scan taken a little over a year earlier was that the L4/5 disc showed only a slight bulge which was not pathological. He concluded:

I do find signs of abnormal illness behaviour which was reflected in the global sensory and motor impairment in the right leg with the latter impairment being clearly contradicted by her ability to stand on her heels and toes, and carry all of her weight on her right leg when rising up on the toes of this foot. The abnormal illness behaviour will continue for as long as it is rewarded. ... The rewards may be extremely complex.

22. On 8 December 1989, Mrs Perring was referred to an orthopaedic surgeon, Dr David Meachin. He extracted the additional history that Dr Porges had sent Mrs Perring for physiotherapy which, together with the chiropractics, made her worse. Her complaints were noted as:

She tells me she has not been back to work since because of ongoing back and leg pain. She complains of a constant low backache with intermittent radiation down both legs but mainly the right associated with paraesthesia going down the right leg into the foot and toes. She says the right leg intermittently feels weak. She has problems sitting, bending, coughing and sneezing and is somewhat received by lying down. In contrast to Dr Eggins' findings of about ten weeks earlier, Dr Meachin's examination revealed:

On examination she walked stiffly. She was tender in the L4/5/S1 area. Forward flexion and spinal movements were 85% of normal in flexion, extension, rotation to both sides. Straight leg raise on the left was normal. On the right she had signs of nerve root tension and a positive bowstring sign at 70 degrees. I felt she had some hyperaesthesia over the right L5 possible S1 distribution but power reflexes appeared to be equal and present on both sides.

23. Reporting to Dr Caterson's locum, Dr Meachin concluded: In summary, I feel, like you, that she has probably injured a disc, possibly in the L4/5 whilst at work in May this year. She needs to have a CT scan of her lumbar spine and if this confirms a disc injury then she may require epidural steroid which can be arranged with Graeme Worsley. In the meantime she is unfit to go back to work.

24. Dr Meachin saw Mrs Perring again on 18 December after her CT scan.

This showed:

... a slight bulging at the L4/5 disc but there does not appear to be any significant indentation to the thecal sac. There is no evidence of any encroachment onto the nerve root or lateral recesses at any of the levels.

As a consequence Dr Meachin formed the opinion that Mrs Perring had a "relatively minor disc injury at L4/5", not bad enough for surgery. He recommended an epidural steroid which he expected would "give her significant relief" within two weeks.

25. This procedure was carried out by Dr Worsley, a consultant anaesthetist, on 29 January 1990. Before doing so, Dr Worsley read the CT scan as showing a left L4/5 posterolateral disc protrusion. He felt, and told Mrs Perring, that "there was only a 50% chance of achieving any significant ongoing relief" from the lumbar epidural injection of steroid and local anaesthetic.

26. However, on 19 February 1990, Dr Meachin reported: On re-examination I was unimpressed with her presentation in that she was excessively tender to palpation and complained of pain at the extremes of movement ... she could straight leg raise 90 degrees with no signs of nerve root tension. ... I noted that when she was standing she could only go just beyond whereas sitting on the couch with the knee extended she could touch her toes. In other words, I am a little suspicious as to the degree of organic pathology in this lady. ... I felt initially she had probably injured a disc at work in May 1989 but I just wonder whether a lot of the factors might now be complicated by medico/ legal considerations. This view was expressed on 29 June 1990 in a letter to Mrs Perring's solicitors as:

I just wonder now whether a lot of her factors might be non-orthopaedic.

27. The applicant was also examined by a number of other practitioners, including Dr Peter Kendall, a consultant physician, Drs Paul Stalley and Ian Stratton, orthopaedic surgeons, and Ms Susan Chadwick, clinical psychologist. None of their reports added much to those earlier mentioned, although Dr Stalley proffered the new diagnosis of arachnoiditis which he said could not be caused by trauma or accident.

28. Drs Eggins, Stalley and Stratton (by telephone) gave oral evidence to the Tribunal.

1. That then provided the background to the first question for determination by the Tribunal - viz. whether the incident and an injury to Mrs Perring's back occurred on 31 May 1989 at work. The Tribunal heard evidence on that question from Mr and Mrs Perring and Postmaster Hill. Neither Supervisor De Graaf nor Dr Caterson was called. The major features of Mrs Perring's evidence were:
   

(a) The injury occurred when "her foot slipped in some water which was on the floor; I had the polisher in motion and the polisher veered away from me, took off, flinging me around, wrenching my stomach and back ... the polisher swirled around and took me with it, wrenching my stomach and back. It just took off ... I didn't have control over the polisher at the time because I had slipped and I was only using - trying to balance on one foot ... I tried three or four times to pull the brake off and the brake would not go off ... it twisted and pulled (me) along ... towards the counter and I hit the counter with my arm and then I jerked the polisher three or four times real hardly (sic) to get the brakes to release, to stop it". It eventually stopped.

(b) She had complained about the machine on several previous occasions but nothing had been done to fix it.

(c) Immediately after the incident, she "had the trembles and ... felt really sick in the stomach". She guided herself along the counter out into the sorting room where she leant on or over the back of the chair.

(d) There she heard a noise at the door which turned out to be her son Michael who was employed at the post office as a post boy. In answer to his query, she told her son that "the polisher and myself had a go in across the floor". Michael made her a cup of tea and she had a cigarette.

(e) "... just after Michael came in, John De Graaf came in. (De Graaf's statement had said that he saw her in the public area of the post office.) He was acting as postmaster because the postmaster was away that morning.

(f) She told Mr De Graaf "that the polisher had had a go at me across the floor and I'd hurt my back and stomach". He said: "I think you'd better go home".

(g) She went home to bed and took two Panadol. Mr Perring came home for lunch about noon and she told him what had happened.

(h) Later her girlfriend came over and made an appointment for Mrs Perring to see Dr Caterson. The Perrings had no telephone.

(i) Mrs Perring challenged Dr Eggins' observations about her ease of movement in his surgery especially at the initial consultation.

(j) Mrs Perring stated that she "can't do my own work at home ... I can't vacuum, my husband hangs the washing on the line, the sheets and the heavy clothing ... I can't do my vacuuming because I'm in too much pain ... I can't even stoop over. I can do dusting and cook a meal and wash up. I try to do different little odd jobs in the house but anything heavy or big like I used to be able to do it I just can't do it now."

(k) She was diagnosed as having pancreatitis in August/ September

1991. Knowledge of this condition seems to have originated in an endoscopy earlier in 1991 by Dr Canalese, a consultant physician at Dubbo, following a complaint of abdominal pain in April. For a week in May 1991 Mrs Perring was in Dubbo Base Hospital and for a few weeks in July in Blacktown Hospital for epigastric pain. She saw a gastroenterologist who diagnosed inflammatory pancreatic disease. She "was in a lot of pain in the stomach and I couldn't eat. I couldn't even drink a glass of water or milk. I couldn't even get anything down my throat unless I was in a lot of pain". The pain was right into the pancreas ... (from) up high between

(her) ribs down ... into the stomach "and my stomach used to swell and I had a centre line put in through the skin and down ... into the stomach."

(l) Although she had filled out a form for workers compensation in relation to a different injury on another occasion, she did not do so on this occasion because Mr De Graaf did not ask her to.

1. In cross examination Mrs Perring said that she did not report the injury to Mr Hill at the time because he was not there, or later because she had reported it to Mr De Graaf. Despite apparently writing into the attendance book that she worked her full shift to 9.54 am on 31 May 1989, Mrs Perring said that she actually only worked to 8.45 am and she signed the book then. She denied noticing that Mr Hill had signed on at 8.30 am, maintaining that she did not see Mr Hill that morning and that he must have come in after she finished work. In re-examination she said that her son had come in a matter of minutes after the incident and Mr De Graaf about 8.15 or 8.20 am. She also mentioned having told her two neighbours, Flo Donnelly and Jane Baxter, about the incident on the same day.

2. The Tribunal summarised this evidence reasonably fairly and comprehensively. It added the observation at paragraph 50:
   

The applicant gave evidence for about an hour and a half in the afternoon when, quite suddenly, she began to look acutely uncomfortable. As the Tribunal adjourned the applicant was observed to bend forward over her abdomen almost to her knees.

1. Mr Hill testified that he arrived at work about 8.30 am on the morning in question. He saw Mrs Perring who was not stooped or holding her stomach or back or otherwise acting as if she was in pain. He said that Mrs Perring had been complaining of stomach pains for a few days previously and she mentioned them again on 31 May. Mr Hill stated that his wife, who also worked at the post office, had said to Mrs Perring in his hearing that she should see a doctor and Mrs Perring had replied "I am going today". Any such conversation would of course have been after the incident but before the appointment was made with Dr Caterson by Mrs Perring's friend after she had gone home early from work. Mrs Perring's evidence did not explain this anomaly because she was not asked about it.

2. Mrs Perring had not told Mr Hill of the incident, or any incident, even when she returned later in the day to hand him a medical certificate, or on each later occasion she had brought in a certificate. Neither Michael Perring who arrived at 8.45 am that day nor Mr De Graaf had mentioned to him any incident that day although Mr De Graaf later confirmed to Mr Hill that it had been reported to him at the time. Mr Hill said that Mrs Perring did not finish early that day.

3. Mr Hill also said that he had always stressed to his staff the need for accident claim forms to be completed immediately. Yet it was not until 24 July 1989 that Mrs Perring had come to the post office and said that she "wanted to claim compo for this leave". She was clearly unwell. As his belief was that she had been off for a non-work related stomach problem, Mr Hill inquired about the proposed claim and was then told for the first time that she had hurt her back in "a run in with the polisher". Mr Hill agreed that Mrs Perring had previously complained about the switch on the machine but after examination it was found that there was nothing wrong with it. He said that the problem was the way she was operating it. Mr Hill said that the machine was old and heavy and that "they have a tendency to get away from you ... if not used properly". He had told Mrs Perring that "if she ever got into any problem with it just to let it go".

4. Mr Hill said that he did not suggest that Mr De Graaf was lying when he completed the witness statement on 26 July 1989 that he was at the post office at 8.30 am when Mrs Perring reported the incident to him. He agreed that Mr De Graaf was often in the premises early reading the paper work but not treating himself as being at work, although the attendance book for the day showed his arrival that day at 8.45 am. He had no way of knowing that Mr De Graaf was not present at the time both he and Mrs Perring said he was. Mr Hill said that he himself usually filled out the book when he arrived, not later in the day. Once again the Tribunal succinctly summarised this evidence without comment.

5. The other factual witness was Mr Perring who was actually the last person to give evidence at the hearing. Mr Perring said that on the day in question he came home for lunch as usual and saw his wife in bed. She told him she had had a "bloody run in with that bloody polisher" and had wrenched her stomach and back. She was clearly in pain then and has been ever since. It has significantly affected her and her enjoyment of life. He agreed that he did not take his wife to the doctor on 31 May or to the post office to deliver the medical certificate that day. He described his wife as "highly strung" and said that she worried about her health. He said his son Michael lived in Mudgee and occasionally visited them for dinner, sometimes bringing Mr De Graaf with him. Mr Perring retired in September 1991.

6. Mr Perring's evidence in chief occupied two and a half pages of transcript. In cross examination he agreed that his wife had had back pain of varying degrees of severity for ten years prior to 1989. He also agreed that she mentioned stomach pain on 31 May but maintained that she mentioned back pain as well. His cross examination occupied one and a half pages of transcript.

7. After a few questions from one member of the Tribunal occupying about a page of transcript, the Senior Member then commenced to question Mr Perring. This questioning occupied twelve pages of transcript and comprised 125 questions. There were about seven interruptions by Mrs Perring's counsel, including one objecting to the whole line of questioning, and two interventions by another member of the Tribunal, one of which took more than a page of transcript. It is the Senior Member's interrogation of Mr Perring, in particular, that is said to justify the applicant's ground of appeal based on apprehended bias. Actual bias is not suggested. The applicant argued that the questioning was inferentially hostile, excessive and in material respects irrelevant to the issues in the case. Although it was virtually all concerned with Mrs Perring and her actions and health, most of it had never been put to her and much of it had not been asked of the doctors who gave evidence.

8. To understand and deal with this matter, it is first necessary to consider some other evidence before the Tribunal and its findings. The clinical notes of Dr Caterson recorded a significant history of abdominal pain in Mrs Perring, mostly of some severity, during 1986, 1987, 1988 and 1989. She had had two weeks off work for abdominal pain in March 1989 just prior to the alleged incident. Dr Caterson's notes have a specific entry for 31 May 1989 stating that Mrs Perring was suffering from "(R)IF pain - across abdo - months: worse on lying down. Eases with leg up. Brown spotting. No itchy - 2 days. Fever. Dysuria. Slight "frequency". A diagram in the notes recorded a complaint of extreme tenderness in the right lower abdomen. On 5 June 1989, Mrs Perring was shown as being still tender in the RIF. Other notes that day were:
   

U/S ovary (N)

? bowel

BS degrees

No mass

1. Again a diagram showed tenderness in the right lower abdomen. It was 25 July 1989 before the notes mention Mrs Perring's back. The history then noted by Dr Caterson in this connection was: "Note fell at work flat on back 31/5/89 while stripping floor."This was the day after Mrs Perring first reported the incident to Mr Hill and completed a compensation claim form.

2. Earlier medical records show at least two relevant physical injuries. In June 1982, Mrs Perring broke her right fibula and sprained her left ankle while working at the Gulgong Hotel. In 1984 she had pain at the fracture site and instability in her left ankle, and had trouble with her right knee through possible arthritis. A specialist noted in June 1985 that Mrs Perring had weaknesses in both ankles which "tended to give way". The left ankle was weaker than a normal ankle and the right ankle had osteoporosis, needing a stabilising iron to stop it "turning". Just prior to the specialist's June examination, namely in April 1985, she had fallen over when the right ankle gave way on a lawn and she fractured her left wrist. It was in plaster for some time. On 1 February 1988, she fell over at work and bruised her left ring finger. It may have been fractured. She was off work for one week.

3. The treatment notes of the chiropractor show that from September 1980 to 1987, Mrs Perring made between two and six visits each year. In each of 1988, 1990 and 1991 there was one visit, in 1989 there were eleven visits and in 1992 no visits. The Gulgong Hospital notes for the 1982 fall and injury to her legs contain the entry:
   

discomfort (lower back) following fall - (history of problems with back following old injury) - fracture boards on bed.

1. A gastric ulcer condition goes back to the 1970s. Mrs Perring was in Dubbo Base Hospital in 1984 and 1986 for investigation of this condition. She has had many other health problems including smoker's bronchitis and pharyngitis, right otitis externa, a spastic colon, diarrhoea, haemorrhoids, osteoarthritis of the fingers and legs, and significant nocturnal cramps. She had pneumonia and pleurisy during a trip to England in 1968 when she and her husband struck a bad winter and, according to Mr Perring, "saw the sun only three times in 50 days". It seems that her family history includes two uncles who have died of cancer, one of the oesophagus and one of the throat. Her mother had rheumatic fever and her brother died from what was called epilepsy but may have been an intracranial tumour.

2. There are a number of significant inferences or conclusions open from Mrs Perring's unhappy medical history. The first is that it is strange that little of this history, especially relating to her back and stomach, was given to the doctors who examined her in connection with this claim. In fact previous back trouble was specifically denied to all of them. In a case where credit is the major issue, this situation raises serious doubts. The second is that it is difficult to explain, and Mrs Perring did not attempt to do so in her evidence, how she could have attended her own general practitioner on 31 May 1989 -- deliberately, as she alleged, because of what had happened to her at work that day -- and not mention either the incident itself or the supposedly intense pain in her back of which she had complained to her husband and her neighbour/girlfriend earlier in the day. Indeed, her failure to complain to Dr Caterson of a back problem until two months later emphasises the credibility issue considerably.

3. A third problem is the failure to submit a claim for the injuries sustained in the incident, even verbally, at anywhere near the date of the incident. When she did complain of a back problem to Dr Caterson in late July, the account she gave of the incident was quite different to that which she gave on the claim forms, to the other doctors and to the Tribunal. This gives the lateness of the claim even greater significance. She had made a compensation claim some years before when she had broken her right ankle. It is certainly possible that she may have forgotten the need to fill out a claim form on or soon after 31 May 1989 but her own evidence was that her son reminded her that day. The evidence established that her husband certainly knew that reporting an injury was important. Yet no explanation was given of why a claim was not made before 24 July 1989, and perhaps more importantly, why it was made then.

4. Apparently during Mrs Perring's absence from work earlier in 1989, she received sick pay. For her absences after 31 May 1989, she said that she received only $500 in total. This apparently included some compensation but may also have comprised some sick pay and some holiday pay. It was not put to Mrs Perring, or Mr Perring for that matter during his extensive cross examination by the Tribunal, but an inference may be available that her belated claim for compensation arose from a recognition that despite her submission of several medical certificates without a claim for compensation, she would not be receiving any more regular voluntary payments from her employer. Moreover, failing to disclose the past history to anyone might lead to the inference that recurrence of back trouble or the instability of her ankles was the cause of anything unusual that happened on 31 May, or she may simply have had a recurrence of her longstanding epigastric problem.

5. None of these inferences was drawn by the Tribunal to assist it to decide where the truth lay between the inconsistent accounts of Mrs Perring and Mr Hill. The Tribunal found that:
   

1. Mr Hill saw Mrs Perring at about 8.30 am and spoke to her. She looked normal, displayed no sign of illness or accident, and did not mention the injury.

2. Although Mrs Hill was not called, there was a conversation on the same day between Mrs Hill and Mrs Perring (evidenced by Mr Hill) in which Mrs Perring complained to Mrs Hill, not for the first time, of abdominal pain. She was advised by Mrs Hill to see a doctor to which she responded that she already had an appointment with her doctor that day for that purpose.

3. Mrs Perring drove herself home from work, then to the doctor from her home, then to the post office to deliver Dr Caterson's medical certificate to Mr Hill, then back home. Her husband did not accompany her to the doctor, see any need to get immediate medical attention, or remain with her when her saw her at lunchtime on the day of the incident, although he was told of her condition. The appointment with the doctor was at 3 pm despite her evidence of the incident having occurred at 7.45 am and of having left work at 8.45 am.

4. Although the immediate delivery of the medical certificate to Mr Hill was not essential -- and Mrs Perring claimed not to know anything about her obligations in connection with workers' compensation claims despite earlier work injuries -- and certainly did not have to be performed by her, she herself did so despite her alleged severe pain. She did not mention the incident.

5. Dr Caterson could not have omitted to note significant back pain and quite a serious accident at work that could have caused considerable injury to Mrs Perring.

6. The same comment applies in relation to the consultation with Dr Caterson a week later, on 6 June 1989, when again there is no note of the incident or of back pain. Mrs Perring again delivered Dr Caterson's certificate to Mr Hill personally at the post office but did not mention the incident or her back to him despite his enquiry as to her welfare.

7. One week later, Mrs Perring was referred to Dr Porges. Dr Caterson's letter of introduction does not mention the incident or a back problem but is exclusively concerned, as was Dr Porges, with the abdomen. No history of the incident or of back pain was given.

8. Mrs Perring first told Mr Hill of her compensation claim in late July. Not only had she not mentioned the accident before; neither Michael Perring nor Mr De Graaf had told him of it, despite their alleged almost contemporaneous and specific knowledge of it.

9. Mrs Perring broke her leg in 1982, her wrist in 1985 and, apparently, a finger in 1988. Two of them occurred at work and compensation claims were made. She had been having regular chiropractic treatment for her back for nearly nine years before the alleged accident -- she had had boards placed under her mattress in hospital in 1982 and four days off work with lumbar trouble three months before the incident. Yet none of this was mentioned to a single doctor or the psychologist. In fact prior back trouble was always denied.

10. The radiologist's report on 12 December 1989 showed that the slight bulge in the lumbosacral disc was left sided but her symptomatology was almost exclusively in the right leg. I doubt that the medical evidence agrees with these findings and the suggested discrete anomaly.

11. Until Mrs Perring was referred to Dr Meachin in December 1989, she had allowed the primary focus of her treatment to be her abdomen. This finding ignores the visit to Dr Caterson on 25 July 1989, her visits to the chiropractor on 28 July and 4 August 1989, her visit to Dr Fletcher for the Commonwealth on 3 August 1989, and Dr Eggins' examination on 22 September 1989. Although the latter doctors were not strictly treating doctors, their examinations were important in other respects and their conclusions could easily and probably would have led to treatment. The inference the Tribunal apparently sought to draw, namely that a back injury at work was invented, is not supported by the link to Dr Meachin.

12. There has been no active treatment to Mrs Perring's back since early 1991 when she last visited the chiropractor. She has had no orthopaedic supervision since early 1990 when she had the epidural injection.

13. No doctor had actually made a specific diagnosis of a true back condition. Musculo-ligamentous strain had been mentioned, and minor disc abnormality was evidenced, but no one accepted that anything could have resulted in any degree of true pathology, still less justified Mrs Perring's claims of extreme back pain and disability.

14. The weight of evidence was that Mrs Perring's major health problem was abdominal, and was unrelated to the alleged incident. Her abdominal problems date back more than ten years before 31 May 1989 and have resulted in hospitalisation in 1984, 1986 and twice in 1991, the second of which was for a pancreatic cyst and pancreatitis. She was off work in March 1988 from abdominal pain for which she has been treated by Dr Caterson and Dr Canalese since 1983.

15. The Tribunal rejected the adverse inference sought by the applicant from the respondent's failure to call Dr Caterson.

16. The Tribunal described Mr Perring's evidence in these words: Mr Perring's evidence on most material matters was vague, he was reluctant to describe the applicant's health problems prior to the accident and he appeared to have little independent recall. There was little of substance in his evidence which could assist the Tribunal.

1. These last two findings throw up the matters raised by the applicant in her amended notice of appeal. The precise grounds are:
   

(i) That there was no evidence before the Tribunal that could reasonably lead to the conclusion that the Applicant did not suffer an injury at work on 31st May 1989.

(ii) That the Tribunal misdirected itself as to the weight to be placed on the Respondent's evidence concerning the incident at work on 31st May 1989.

(iii) That the Tribunal failed to consider the rule in Jones v Dunkel (1959) 1010 CLR 298 in regard to the Respondent's evidence as to the above incident in that the Respondent failed to call evidence from:

(a) Mr John De Graf; and

(b) Dr Caterson.

(iv) That the conduct of the hearing by the Tribunal could give rise to a reasonable suspicion of bias and therefore was in breach of the rules of natural justice.

(v) That the Tribunal relied upon irrelevant consideration (sic) in coming to its determination that the Applicant did not suffer an injury at work on 31st May 1989.

(vi) That the Tribunal failed to take into account and give weight to the following relevant considerations:

(a) that the applicant reported the injury to her immediate superior Mr John De Graf on 31 May 1989;

(b) that the Respondent determined on 30 October 1989 that the Applicant did sustain an injury on 31 May 1989 and was liable for compensation from 1 June 1989 to 12 July 1989; and

(c) that reports from Mr T.J. Hill had been considered by the Respondent when it made its Determination of 30 October 1989.

(vii) That the Tribunal gave no reasons or no adequate reasons for its conclusion that "the incident on 31 May 1989 ... did not occur and that no back injury occurred on that day".

1. Of these, ground (v) was not pressed. In substance the grounds raise four questions, one of which has two parts:
   

1(a) Was there evidence which could found the Tribunal's ultimate conclusion that there was no injury?

(b) Did the Tribunal give adequate reasons for its conclusions in

this regard?

2. What weight or effect should be given to the fact that the respondent determined, initially and on reconsideration, that there was an injury and that it paid compensation from 1 June to 12 July 1989?

3. Did an inference materially adverse to the respondent arise from its failure to call Mr De Graaf and Dr Caterson such as to invalidate the decision under appeal?

4. Did the questioning by the Tribunal of Mr Perring give rise to a reasonable suspicion of bias such as to taint the hearing and decision?

1. I shall deal with each of these questions separately.

1(a) The "no evidence" ground
27. The applicant made no submissions on this matter and it can therefore presumably be ignored. There is no doubt that there were ample inferences from the evidence to support the Tribunal's finding of no injury. The Tribunal clearly accepted that Mr Hill's evidence was to be preferred to Mrs Perring's in relation to the events of the day in question. It found that the failure for two months both to report either the incident or a back injury to Dr Caterson, and to make a claim for workers compensation, no doubt especially because of the pain and disability alleged from the first moment, were devastating to the credibility of the allegations made. In this regard, Mrs Perring's denial to the various medical and other practitioners of any previous back trouble or other physical injuries was very destructive of her credit. In my opinion, this evidence together with the medical history and the various reports and testimonies of the doctors and other persons who saw Mrs Perring provided a perfectly proper evidentiary basis for the Tribunal's decision.

(b) Inadequate reasons
28. Section 28 of the Administrative Appeals Tribunal Act 1975 requires the Tribunal to set out in writing the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

1. It is true enough, as the applicant submitted, that it is not sufficient to record a large amount of evidence and then draw an ultimate conclusion without revealing the process of reasoning: see the authorities I gathered in Secretary, Department of Social Security v Mariot unreported 8 April 1993. The applicant said that in any event most of the evidence related to the incapacity not the injury issue. It is also true that the Tribunal did not draw the strands together as clearly as it might have done. But this submission misconstrues what the Tribunal was actually doing and fails to appreciate why I have had to go through a similar even more painstaking analysis myself.

2. The so-called injury issue in this case was not merely a contest between different recollections or the observations of eye witnesses. Because Mr De Graaf, Michael Perring, Dr Caterson, even Flo Donnelly and June Baxter, were not called, there was no one other than Mr and Mrs Perring who testified that Mrs Perring had back pain at all on and from 31 May 1989 to 25 July 1989. There was a factual dispute between Mrs Perring and Mr Hill which would always have caused a few evidentiary problems but Mrs Perring could still have had her incident and her back injury without requiring much concession by or any conclusion seriously adverse to Mr Hill.

3. Thus the only way by which the Tribunal could test Mrs Perring's credibility effectively was to trace through the clash with her claim concerning the incident thrown up by
   

(a) Dr Caterson's failure to obtain/record on 31 May 1989 a history of trauma and back injury

(b) Doctor's recording then only of abdominal pain, and

(c) Mrs Perring's frequent denials, quite contrary to the truth, of other previous back and other physical problems.

1. Having done so, the Tribunal came to the conclusion that Dr Caterson's notes were not negligent or accidental but in fact revealed a consistent history going back over 10 years of Mrs Perring's significant abdominal and related ill health and some back problems. Although the certificate of Dr Caterson which first recorded the incident stated that Mrs Perring's pain had "localised" to the back, no one put to the doctors or submitted to the Tribunal or this Court that abdominal pain may have masked or been mistaken for back pain. No doctor actually ever diagnosed a true back condition or accepted that Mrs Perring's claims in relation to her back were credible. The evidence revealed no sense of urgency in her seeing a doctor for a back injury soon after the incident, the effects of which, the applicant claimed, contrary to the post office attendance register, caused her to leave work an hour early.

2. As a consequence, the Tribunal was enabled to conclude that Mrs Perring's longstanding stomach pain was what sent her to Dr Caterson on 31 May 1989 and that the 3 pm appointment reflected the regularity of the visit and the probability that it had been arranged beforehand, as the conversation with Mrs Hill had asserted. It was after all Mrs Perring's habit to provide lunch for her husband at home each day at around 12 noon. As her normal leaving time for work was around 10 am, it was presumably more convenient to see Dr Caterson after than before lunch.

3. This was the Tribunal's fundamental reasoning. I think it was adequately and widely open on facts found. 2. Initial acceptance of liability
   

4. The applicant's complaint was that despite the submission being put to it, the Tribunal failed to give any weight to the initial acceptance of liability and payment of compensation. The submission is based on my judgment in Barker v Australian Telecommunication Commission (1990) 95 ALR 72 which was not relevantly overturned on appeal: (1990) 12 AAR 490. See also my judgment in Jones v Repatriation Commission, unreported 5 April 1993. But this case has no similarity or analogy to Barker or Muratore v Commonwealth (1978) 141 CLR 296 on which it was based. The applicant's contention amounted to a proposition that where an employer accepts liability in doubtful circumstances such as those revealed by Mr Hill's report to the compensation authorities on 26 July 1989, the Tribunal cannot carry out its statutory mandate to review the claim on the merits "standing in the employer's shoes" without being significantly perhaps decisively influenced by what the employer did originally. That is not what Barker decided. The Tribunal recorded the history, albeit very briefly and indirectly, that the claim was initially accepted. It had no reason to do more. The circumstances of this case do not bring it within the types of cases envisaged by Muratore, Barker and Jones. Even if it was such a case, the evidence would in my view have discharged any evidentiary burden borne by the respondent.

1. The 'Jones v Dunkel' ground
   36. Jones v Dunkel (1959) 101 CLR 298 was a jury case where the parties were subject to the strict rules of evidence including the onus of proof. Although an appeal to the Tribunal is not such a proceeding, it will sometimes be appropriate to make a 'Jones v Dunkel' submission. But the whole of the principle it enunciates must be applied. One of the essential parts of the decision, often forgotten, is that the relevant failure in such a case to call a witness must be by the party whom the witness might be expected to favour. The ground of appeal mentions Mr De Graaf and Dr Caterson and the transcript of argument reveals some discussion concerning the possibility of calling both. The applicant herself had foreshadowed the possibility of calling at least Dr Caterson. I assume, and the evidence implies, that both were available to give evidence if called.

2. During and after the cross examination of Mrs Perring, if not before, it was clear that the respondent was contending that the incident did not occur, and that Mrs Perring had suffered no back injury on 31 May 1989. It was even clearer after Mr Hill had given evidence. The medical evidence both written and oral demonstrated with crystal clarity how the respondent was seeking to advance its argument. Indeed the respondent had apparently not intended calling Dr Eggins and only did so at the applicant's request, requiring an additional hearing day to the previous allocation. After Dr Eggins had given evidence, the applicant expressly declined to call Dr Caterson.

3. In the circumstances, there was no obligation on the respondent to call either Mr De Graaf or Dr Caterson and no particular reason for it to do so. In the circumstances of this case, they were not natural witnesses for the respondent. I can see no difference in principle between Mr De Graaf on the one hand, and Michael Perring and Mrs Jan Hill on the other, but no complaint is made about the respondent's failure to call them. It seems to me that once the happening of the incident became a live and important issue, the decision not to call Mr De Graaf, Dr Caterson and Michael Perring assumed greater significance as gaps in the applicant's rather than the respondent's case.

4. It is true that there was a brief written statement from Mr De Graaf and some hearsay evidence from Mr Hill of Mr De Graaf's confirmation of Mrs Perring's incident, but this did not impose any obligation or pressure on the respondent to call him. Once Mr Hill had revealed the statement to his wife by Mrs Perring that she had already made an appointment to see Dr Caterson that day for her stomach trouble, the assertion by Mrs Perring that her neighbours Flo Donnelly and/or June Baxter, who had telephones, had made the appointment after and because of the back injury could have been corroborated by those two women. The failure to call Dr Caterson on whether the appointment was of longer standing and whether her notes and her recollection concerning the complaints of Mrs Perring on 31 May coincided, left another significant gap in the applicant's case if the inferences available from the doctor's notes and the rest of the evidence were to be countered.

5. In my opinion there are no inferences to be drawn adversely to the respondent for its failure to call Mr De Graaf and Dr Caterson. The Tribunal made no error in not applying Jones v Dunkel, adversely to the respondent, to their failure to give evidence.

6. Apprehended bias
   41. The law has been stated several times in recent years, most authoritatively in Livesey v NSW Bar Association (1983) 151 CLR 288 where at 293 the High Court said:
   

... a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

1. See also Reg v Watson ex parte Armstrong (1976) 136 CLR 248; Vakauta v Kelly (1989) 167 CLR 568; Grassby v The Queen (1989) 168 CLR 1; GIO (NSW) v Glassock (1991) 13 MVR 521 at 533; Jones v National Coal Board (1957) 1 All ER 155 at 158 per Denning LJ.

2. There can be little question that the questioning by the Tribunal, especially the Senior Member, went far beyond what was reasonable and proper for an independent tribunal. It should have been remembered that Mr Perring was not the claimant. His credit was not at issue, or not seriously so. He was a man of apparently limited education and sophistication who was accustomed to a quiet country existence. His evidence provided minor corroboration or support to his wife's claim, as demonstrated by the minimal time he was kept in the witness box by the two parties combined. Although section 33(1)(c) of the AAT Act permits the Tribunal to ignore the rules of evidence and procedure and inform itself of any matters in any way it thinks appropriate, the section does not envisage the Tribunal calling the evidence itself or taking over the conduct of cases. It must always respect the rights of the parties and the perceptions of others about the system. It ought also to pause long before substituting itself as the actual or possible adversary especially where both parties are represented by apparently competent legal practitioners. Here there were two professional barristers. The questioning under criticism in this case exceeded those simple time-tested rules and should not have occurred.

3. But the issue posed by the authorities on this ground of appeal is whether a reasonable member of the public would envisage the questioning as indicating bias in the Tribunal. I have read the evidence of both Mr and Mrs Perring, in fact all the evidence relevant to the occurrence of the incident, several times. I have taken into account that Mr Perring was the very last witness at the hearing, when the issues in this unusual case had become very obvious and when the difficulty of resolving them in favour of the applicant was stark. I have also considered what the precise questions were and where they took the case, especially the applicant's case, and I have compared them with the Tribunal's, I believe, correct categorisation of Mr Perring's evidence as substantially irrelevant to or unsupportive of the applicant's case. His support for her complaints of an incident and of back pain is discountable by the generality of the description of the incident, his failure to take her to the doctor or at least arrange or try to arrange an appointment earlier than 3 pm, his evidence of her tendency to complain of her health, and his failure to ensure that she completed a compensation or accident claim form promptly. The significance of his evidence was also diminished by the absence from the witness box of his son Michael, the two female neighbours, Dr Caterson, Mr De Graaf, and by the other uncontested evidence of her prior history of back trouble and other illnesses which he somehow failed to reveal.

4. On this basis, although the interrogation of Mr Perring by the Tribunal should not be countenanced or supported in any way, I have concluded on balance that what reasonably flows from the Tribunal's questioning concerned was an unwisely executed but understandable effort to discover the motivations of the applicant and a truthful explanation of the complex web of events it was being asked to decide. The evidence was to all intents and purposes complete when the questioning took place. It is not unlikely that the Tribunal held some tentative views about the case but I doubt that anyone could reasonably have apprehended bias against the applicant's claim.

5. The appeal is dismissed. Any party seeking costs can apply in writing within fourteen days stating the bases upon which costs are sought.