Sea Culture International Pty Ltd v Scoles
[1991] FCA 523
•29 AUGUST 1991
Re: MOHAMAD OMRAN
And: THE AUSTRALIAN POSTAL COMMISSION
No. G783 of 1989
FED No. 523
Administrative Law
14 AAR 51
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)
CATCHWORDS
Administrative Law - Australian Postal Commission - employee - claim for compensation - claim rejected - review by Administrative Appeals Tribunal - decision refusing compensation affirmed - appeal to Federal Court - no question of law - appeal dismissed
Compensation (Commonwealth Government Employees) Act 1971
HEARING
SYDNEY
#DATE 29:8:1991
Counsel for the appellant: P. Jones instructed by Colin, Daly,
Quinn and Dwyer
Counsel for the respondent: P. Sharp instructed by Australian
Government Solicitor
ORDER
1. Appeal dismissed.
2. Applicant to pay respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal in proceedings in which the applicant sought a review of a decision by a delegate under the Compensation (Commonwealth Government Employees) Act 1971 rejecting a claim for compensation under that Act. The Tribunal affirmed the delegate's decision.
The applicant suffered an injury on 25 August 1983 while employed as a cleaner by the respondent. He was absent from work between 29 August and 2 September 1983 and was paid compensation in respect of incapacity for work during that period. He again injured his back on 14 December 1983 and was paid compensation for various periods when he was absent from work between 15 December 1983 and 14 March 1984. On 1 December 1984 and 14 January 1985 two further incidents occurred which resulted in the applicant being absent from work from 14 January 1985 to 29 August 1986. He was paid compensation for total incapacity during that period.
On 11 February 1987 he made a further claim for compensation. He was absent from work due to what he claimed to be a recurrence of back pain caused in a previous work accident. He was off work from 11 February 1987 until 14 November 1987 but his claim for compensation in respect of this period was refused. It was this refusal which was the subject of the application to the Tribunal.
Before the Tribunal the real issue was whether the back pains of which the applicant complained were the result of normal age degeneration of the spine or whether they were the result of some trauma suffered in the course of the applicant's employment. After a consideration of a considerable volume of lay and expert medical evidence, the Tribunal concluded that the sources of any incapacity which the applicant suffered were degenerative changes in the lumbar spine and the continuing process of age degeneration. It concluded that any incapacity from which the applicant suffered was not the result of any incident of or in his employment.
The great bulk of the medical evidence before the Tribunal consisted of written reports furnished by some ten or more medical experts who had examined the applicant. Only one such expert Dr Kendall, who was called in the applicant's case, gave oral evidence.
The Tribunal's reasons disclose that in reaching its decision it placed some reliance upon reports furnished by Dr Alexander, who had examined the applicant on behalf of the respondent. Dr Alexander was overseas when the matter was heard in the Tribunal and thus could not be cross-examined. The inability of counsel for the applicant to cross-examine him formed the basis of a submission to this Court that the applicant was denied natural justice before the Tribunal. I turn now to consider that submission.
It is necessary to refer in some detail to the circumstances in which Dr Alexander's reports were received into evidence notwithstanding his inability to attend for cross-examination. Both the applicant and the respondent were represented by counsel before the Tribunal. At an early stage of the proceeding both counsel tendered the medical reports upon which they proposed to rely. These were received into evidence without objection. However, it is fair to say that, at the time of tender, both counsel implicitly, if not expressly, reserved the right to require the authors of the reports to attend for cross-examination.
After the applicant's and other lay evidence had been taken, there was some discussion between the presiding member, Deputy President McMahon, and counsel as to the future course of the proceedings. Counsel for the respondent informed the Tribunal that she did not wish to cross-examine most of the authors of the reports tendered in the applicant's case. She advised the Tribunal that counsel for the applicant had informed her that he required Dr Alexander for cross-examination but that the doctor was overseas. The learned Deputy President thereupon advised counsel for the respondent that it would be open to her in due course to make an application for an adjournment but that, whilst he would not pre-judge any such application, "... it will not be one that will be greeted with open arms". He then said:
"It may well be that Dr Alexander's evidence by way of report should be discounted or the value of it should be given less weight by reason of the fact that he is not available for cross-examination. That is something that may be submitted. I will not rule on that until the position has
(been) considered and everybody understands where they are going."
Counsel for the applicant took no direct part in the discussion as to Dr Alexander's availability but at the end of it he remarked to the Tribunal:
"We will endeavour to work out some pattern of examination .... and find out who is available ...".
On the following morning the availability of witnesses was again raised with the Tribunal, on this occasion by counsel for the applicant. He informed the Tribunal that both he and the respondent's counsel were in a difficulty in that Dr Selby-Brown (whom the respondent's counsel wished to cross-examine) and Dr Alexander were both overseas but that Dr Kendall (whom he proposed to call) was available for cross-examination. Thereupon the following exchange took place between Deputy President McMahon and counsel for the applicant:
"MR McMAHON: Then Dr Kendall will be the only medical witness? MR CHIPPENDALL: I think my friend requires Dr Selby-Brown, but he, like her doctor, Dr Alexander is apparently in foreign parts.
MR McMAHON: That shortens things considerably."
Thereafter further evidence was called, including evidence from Dr Kendall.
On the hearing of the appeal to this Court, Mr Jones submitted on behalf of the applicant that counsel who appeared for his client before the Tribunal was at all times insistent upon Dr Alexander being available for cross-examination and did not agree to the Tribunal taking account of what was said in his reports. I do not think this submission is sound. I think it is implicit in the exchanges which took place between counsel and the Tribunal that, having regard to the difficulties which both sides had with their witnesses, the matter would proceed before the Tribunal on the basis that the Tribunal would be entitled to have regard to the contents of the reports furnished by Dr Alexander and Dr Selby-Brown, notwithstanding their inability to attend for cross-examination. At no stage of the proceedings did counsel for the applicant press a submission upon the Tribunal that Dr Alexander's reports should be disregarded. On the contrary, during the course of his final submissions to the Tribunal he referred to evidence given by Dr Kendall as to the contents of Dr Alexander's reports. He also made submissions as to why Dr Alexander's evidence should be discounted, in the course of which he referred to the fact that Dr Alexander had not appeared before the Tribunal. No submission was put to the Tribunal that it would be a denial of natural justice to the applicant to have regard to Dr Alexander's evidence. In these circumstances, I think there is no substance in the submission that the Tribunal denied natural justice to the applicant.
I should add that I cannot see any basis for criticism of the way in which the applicant's case was conducted before the Tribunal.
His counsel had to decide whether or not it would be in his client's best interests to cross-examine Dr Alexander. He knew the applicant had the benefit of Dr Kendall's oral evidence and he may well have taken the view that the applicant would be in a stronger position at the end of the case if the Tribunal had not seen Dr Alexander in the witness box. Furthermore, had he pressed for Dr Alexander's attendance for cross-examination, counsel for the respondent may have insisted on cross-examining Dr Selby-Brown. I think the decision taken by the applicant's counsel was one which many other competent counsel would have taken under similar circumstances.
Being of the opinion that the Tribunal did not deny counsel for the applicant the right to cross-examine Dr Alexander, it is unnecessary for me to determine whether, if there had been such a denial, it would have amounted to a denial of natural justice such as would have vitiated the Tribunal's decision. It is not in doubt that although the Tribunal is not bound by the rules of evidence (vide s.33 of the Administrative Appeals Tribunal Act 1975) it is under a duty to observe the rules of natural justice: Sullivan v Department of Transport (1978) 20 ALR 323 at 342; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 686 and McMullen v Commissioner for Superannuation (1984) 61 ALR 189 at 208.
Whether or not a denial of the right to cross-examine is a denial of natural justice will depend on the facts of the particular case: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 686 per Deane J. In Barbaro v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 at 694, the Court said:
"The admission of an adverse hearsay report, without an opportunity being provided to cross-examine the author, does not by itself amount to a denial of natural justice (T.A. Miller v Minister of Housing and Local Government
(1968) 2 All ER 633; (1968) 1 WLR 992; Kavanagh v Chief Constable of Devon and Cornwall (1974) 2 All ER 697 at 698; see also R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 244, 250). Consideration of whether there has been a denial of natural justice must have regard to statutory provisions, such as s. 33 of the Administrative Appeals Tribunal Act (as well as ss. 30, 31 and 32). In the present case, it seems to us that the appellant was treated fairly. He had an opportunity by his own evidence, and by any other he could produce, to refute statements in the Report, and he had a legal representative through whom all appropriate submissions could be made."
However, on the facts of the present case, I would have thought that if the Tribunal had been pressed by counsel for the applicant to adjourn the proceedings until Dr Alexander could attend for cross-examination, it would have been incumbent upon it to have done so, or to have taken some other course which would have been fair to the applicant. One such course may have been to reject the tender of Dr Alexander's reports, or since they had already been admitted into evidence, to pay no regard to them.
It is important that proceedings before the Tribunal be not attended by the formality which attends proceedings in court. It must often be the case in proceedings before the Tribunal that a medical expert is not readily available for cross-examination. In such cases it may well be a sufficient compliance with the rules of natural justice for the Tribunal to make an arrangement whereby questions may be put to the expert by telephone without requiring his personal attendance. Such an arrangement would obviously be unsatisfactory in a case where the credit of a witness is concerned but this would rarely, if ever, be the case with a medical expert.
I turn now to consider another submission put by counsel for the applicant, namely, that the Tribunal erred in law in that some of its findings were unsupported by evidence or, alternatively, were reached on the basis of a background of knowledge which was not disclosed to the parties. In support of this submission it was argued that the Tribunal erroneously treated a reference in a radiologist's report to "degenerative change" in the applicant's lumbar spine as not referring to post-traumatic degeneration, but rather to a continuing process of age-degeneration. In my opinion, having regard to the whole of the evidence before the Tribunal, it was well open to it to construe the radiologist's report as it did.
It was also submitted that statements made by the Tribunal in its reasons that "... none of the work (carried out by the applicant) appeared to us to be repetitive heavy work different from that normally carried out by cleaners. None of it could, in our view, cause spinal damage simply through the cumulative effect of repeated minor traumata." were insupportable. I do not think that these statements vitiate the Tribunal's decision. Having regard to the evidence, the Tribunal was entitled to draw inferences justifying those conclusions.
An appeal to this Court from a decision of the Tribunal lies only on a question of law: s.44(1) of the Administrative Appeals Tribunal Act 1975. It has not been shown that the Tribunal erred in law in reaching its decision. Accordingly, the appeal to this Court must be dismissed with costs.
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