Quigg v Australian Postal Corporation
[1999] FCA 1374
•22 SEPTEMBER 1999
FEDERAL COURT OF AUSTRALIA
Quigg v Australian Postal Corporation [1999] FCA 1374
ADMINISTRATIVE LAW – natural justice – whether the applicant’s legal representative was mislead on a matter in issue and denied the opportunity to put further submissions
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 14(1), 16(1)
Re: Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17
LUCIA QUIGG V AUSTRALIAN POSTAL CORPORATION
N 385 OF 1999JUDGE: BEAUMONT J
DATE: 22 SEPTEMBER 1999
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 385 OF 1999
BETWEEN:
LUCIA QUIGG
ApplicantAND:
AUSTRALIAN POSTAL CORPORATION
RespondentJUDGE:
BEAUMONT J.
DATE OF ORDER:
22 SEPTEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application is dismissed with costs, including the reserved costs of the application for extension of time.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 385 OF 1999
BETWEEN:
LUCIA QUIGG
ApplicantAND:
AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
BEAUMONT J.
DATE:
22 SEPTEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given in the review of a decision made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
The background to the matter before the Tribunal may be summarised as follows. The applicant sought review of a reconsideration decision of a delegate of the respondent, Australian Postal Corporation. That decision varied a primary determination dated 17 July 1996, which had ceased liability for the applicant’s “acute exacerbation of back pain on 28/08/1989”. Specifically, in the reconsideration, the delegate had determined that the applicant was capable of performing her present work for the respondent and therefore she was not entitled to payment of weekly compensation.
By its decision, the Tribunal set aside the reconsideration decision and remitted the matter to the respondent with the direction that at no time on and from 22 January 1996 has the applicant suffered from a work-related back or left leg condition.
The legal context in which the matter arose before the Tribunal was the provisions of Part II of the Act, which deal with the subject of compensation.
By s 14(1) of the Act it is provided that subject to Part II Comcare is liable to pay compensation in accordance with the Act in respect of “an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
Reference should also be made to the provisions of s 16(1) of the Act. It is there provided that:
“16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.” (Emphasis added)
It would seem, therefore, that the definition of “injury” is critical for present purposes. By s 4(1) of the Act, injury is relevantly defined to mean:
“‘injury’ means:
...
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
...”
At the hearing before the Tribunal, evidence was given by the applicant and by several experts. Some of the medical evidence expressed the opinion, in support of the applicant’s case, that she had suffered an injury in the form of a prolapsed disc, or at least an aggravation of that condition. However, there was other medical opinion evidence to the effect that the applicant’s injury was something different, namely a bursitis condition of the femur. That, it appears, was the principal issue for determination by the Tribunal.
At the conclusion of the evidence, the Member constituting the Tribunal (Mrs Lewis) inquired of Mr Hart, who was the legal representative of the applicant, whether he was ready to commence his submissions. The transcript of that part of the proceedings reads as follows:
“MRS LEWIS: Are you ready to start, Mr Hart?
MR HART: Yes, Senior Member. Diagnosis must be in favour of the applicant and against the – I do not even know how to say it, trochanteric bursitis that Govind and Cameron come up with. Olsen, for the respondent, accepts there is disc pathology that is the cause of her problems. Tarrant accepts disc asymmetry, his report of 14 April 1997 and in his later report of 19 June 1997 says that the incident in February ’96 was an acute exacerbation of a chronic problem arising from the injury in ’95. Govind had no X-rays to look at to start with so you would have serious doubts about his diagnosis and Cameron no doubt had Govind’s report and adopts his assessment against the weight of medical evidence.
Govind and Cameron see the applicant once. Ghabrial, on the other hand, who has seen the applicant on four occasions as far as I can work out in the period 1985 to ’96, supports her in terms of an intervertebral disc problem that has become chronic, permanent and stable in recent times. He, as a treating specialist, his opinion should be accepted over the respondent’s opinions of Govind and Cameron. Now, that in my view gives the applicant an entitlement to hold a claim for medical treatment arising from that, reasonable related medical treatment.
MRS LEWIS: That is not in doubt.
MR HART: Well, only in doubt in the sense that you mentioned to me that you have an ability to do as you see fit with the evidence and I would like you to say – the second thing I would say that you would accept is that from time to time the nature of this condition is such that she will require time off and her evidence about the time off that occurred most recently was telling in the sense that she was told come back when you are fit, do not come to us when you are not; stay at home or I may be liable for your further injury. Now, she must be accepted that that occurred because there is no representative of the respondent to come and refute it.
That in my view is telling and in my view she should be entitled to have the sick leave claimed reimbursed as compensation. Dr Olsen commenting on incapacity and the applicant would concede - - - .”
The applicant’s evidence before this Court consists, in the main, of an affidavit sworn by Mr Hart on 18 March 1999. In that affidavit Mr Hart, who was not cross-examined, relevantly said as follows:
“1.I am the Applicant’s solicitor advocate. I appeared for the Applicant in the hearing before Senior Member Lewis on 4 December, 1997. The Applicant gave oral evidence and was cross examined and medical evidence was tendered from the tribunal documents and further documents which can be identified from the Exhibit List. On Page 42, lines 15 through to 35, on the invitation of the Tribunal, I addressed on the issue of injury and the conflicting medical evidence.
2.After submissions were made Senior Member Lewis stated to me from the Bench the words:
‘That is not in doubt’.
3.At that time it was clear to me that she accepted the submission I had made on the issue of the existence of a continuing back injury, causally related to the Applicant’s employment. I also formed an opinion at that time that Senior Member Lewis accepted that the Applicant was entitled to, at least, the reasonable expenses of her medical treatment for her back injury.
.
4.I did not further address the issue of injury and went from there to address issues of incapacity (sick days that have been lost) and the appropriate way of assessing permanent impairment.
5.In relation to my further statement on page 42 at point 35:
‘Well, only in doubt in the sense that you mention to me that you have an ability to do as you see fit with the evidence ...’.
I say those words were used by me so that there was no ambiguity in my reliance on her statement that the issue of injury was not in doubt. If I considered that there was any doubt on the way of resolving the conflict in the medical evidence, I would have taken that opportunity to address her further.
6.It will be seen from the Transcript after page 42 that the issue of sick leave, being claimed as compensation, was then addressed and Senior Member Lewis states on page 43 at line 23:
‘I am just wondering whether there is going to be any quibble as to what sick leave has been taken in respect of the back condition’.
7.I state that those words, also mislead me, insofar as she referred to the back condition, and thus I assumed that she accepted, at that point, that the Applicant remained suffering a back condition.
8.The decision (ultimately published on 12 November, 1998) at paragraph 2 includes a direction that at no time on and from 22 January, 1996 the Applicant suffered a work related back or left leg condition. That decision is clearly inconsistent with the two statements referred to above from the Bench during the course of submissions after the evidence had been heard and medical reports tendered.”
The appeal to this Court from the Tribunal is, of course, an appeal on a question of law only. By her notice of appeal, the question of law raised by the applicant is stated to be a denial of natural justice in the course of the hearing of the matter before the Tribunal, in that the legal representative (her legal representative) was misled (by the Tribunal) and thus, in effect, denied the opportunity to put further submissions on a matter in issue.
That question, which, if sustained, will undoubtedly be a question of law, was developed by counsel for the applicant in his written outline of argument dated 21 September 1999 and in oral argument today. In essence, that argument is, as the notice of appeal had indicated, that there was a denial of natural justice by reason of the circumstance that the advocate, Mr Hart, solicitor, appearing on behalf of the applicant at the hearing before Mrs Lewis, was misled by comments by Mrs Lewis in relation to the issue of causation and as a result thereof, did not further submit on that matter. It is said that this, in effect, denied the applicant the opportunity to be fully or properly heard on these matters.
The general principles in this area are not in doubt. They are, for present purposes, conveniently summarised in the decision of the High Court of Australia in Re: Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17. There (at 24) the Court said in the context of holding that the Australian Industrial Relations Commission was bound to observe the rules of procedural fairness in exercising its arbitral function:
“... one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd the court said that the commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.
Of course, what is reasonable will depend upon the circumstances of the case. In this instance, the parties were given an adequate opportunity to call evidence and put submissions, but that evidence and those submissions were directed to the issue of whether an interim award should be made and, if so, whether it should include the apprentices. The PTC, it is true, submitted that because the Commission lacked jurisdiction to make a final award extending to the apprentices and alternatively, that because such an award would be inconsistent with TCR principles, it ought not to make an interim award extending to them. But those submissions and the manner in which they were developed may well have fallen short of the submissions which the PTC would have wanted to make had it appreciated that the Commission was contemplating a final award giving severance benefits to the apprentices. The PTC submitted in this court that if it had appreciated that the Commission was contemplating the course which it ultimately took, then it would have regarded as relevant evidence material explaining why apprentices and other persons on fixed term contracts had been excluded from the TCR cases and showing how circumstances had not changed. It would, it said, have wished to show that employers would be adversely affected if they were required to pride TCR benefits to apprentices who were not employed at the conclusion of their apprenticeships. This, it said, would discourage employers from shouldering their social responsibility of engaging apprentices, which was one of the considerations which influenced their exclusion from the TCR cases. But, having regard to the events which occurred, the PTC did not have the opportunity of addressing those matters and was not required to turn its mind to them.”
As the High Court has there observed, what is reasonable will depend upon the circumstances of the case. As I have already indicated in the course of argument, although Mr Hart was not cross-examined on this occasion (and to that extent it must be accepted that his evidence is not challenged), his evidence must be received as evidence of his state of mind or beliefs; that is to say, it is subjective evidence in that sense. The inquiry before this Court is, however, an objective one in the sense that what is reasonable must depend upon the circumstances of the case.
In my opinion, the applicant was given a reasonable opportunity to be heard in the circumstances of the present case. The primary matter relied upon by the applicant is, as has been noted, the statement made by Senior Member Lewis at page 42 of the transcript – “That is not in doubt”.
I have already set out the context in which that remark was made. It will be recalled that the immediate context was the submission of Mr Hart that the applicant had an entitlement to hold a claim for medical treatment in the circumstances previously described. Those circumstances, as Mr Hart had described them, were picked up by his word “that” appearing at line 30 of the transcript at page 42.
The word “that” there used by Mr Hart clearly could refer to only one thing. This was Mr Hart’s submission, then made, that the Tribunal should prefer the medical opinion evidence that supported the applicant’s version of events, and that the Tribunal should reject the contrary medical opinion supporting the position of the respondent. As a matter of contextual analysis, so much is, in my opinion, clear beyond question.
If one goes beyond a contextual analysis and embarks upon a logical inquiry, the same answer will, in my view, follow. When Senior Member Lewis said that “That is not in doubt”, she could not, in any logically understood sense, have meant to refer to anything other than the obvious consequence that an upholding of the views expressed by the medical opinion advanced on behalf of the applicant would lead to an entitlement to be compensated for medical treatment. So much is plain from the terms of s 16(1) of the Act, to which I have referred.
Not only is it obvious, in my opinion, that Mrs Lewis had this in mind, it is the only reasonable interpretation of the language she used. It is fanciful to suggest that Mrs Lewis could have intended or could, on any reasonable view, be interpreted to have intended to state that it was not “in doubt” that the medical evidence established an intervertebral disc problem. Not only was it plain beyond demonstration that there had been a contentious issue joined between the parties on the question, but Mr Hart had immediately referred to that contention in the submissions he had just made. I therefore reject the primary submission made on behalf of the applicant. In my view, Mr Hart could not, in any reasonable sense, have interpreted Mrs Lewis’ comment in the sense suggested on behalf of the applicant.
But the matter goes further than that. Even if I were wrong in the view that I have expressed, it is quite clear from a reading of the transcript at page 42 alone, in the passage I have set out above, that Mr Hart did have an opportunity to address on the matter now complained about.
The secondary argument advanced on behalf of the applicant is the further reference made, which appears in the transcript in paragraph 6 of Mr Hart's affidavit. In fairness to counsel for the applicant, this was not strongly pressed before me. I would only wish to add to the comment I have made already, an argument that the observations made by Senior Member Lewis at page 43 line 23 are, at best, quite equivocal on the question of the existence of the back condition and, at that stage, properly so. No decision had then been given by the Tribunal. The existence or otherwise of the back condition was the issue to be determined. The reference made by Senior Member Lewis at line 23, page 43 arose in a quite a different context, namely, in the form of a question as to whether sick leave had been taken in certain circumstances. That statement could not, in my view, have reasonably misled the applicant’s legal representative into believing that the contentious medical issue to which I have referred had been resolved in favour of the applicant.
For those reasons, I am of the opinion that the appeal should be dismissed.
ORDERS
The application is dismissed with costs, including the reserved costs of the application for extension of time.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate:
Dated: 22 September 1999
Counsel for the Applicant: R W Tregenza Solicitor for the Applicant: Bale Boshev & Associates Counsel for the Respondent: B J Skinner Solicitor for the Respondent: Graham Jones, Lawyers Date of Hearing: 22 September 1999 Date of Judgment: 22 September 1999
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