Re Australian Postal Commission v Kassem Idriss [1992] FCA 32; (1992) 26 ALD 257 (7 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN POSTAL COMMISSION
And: KASSEM IDRISS
No. N G250 of 1991
FED No. 21
Administrative Appeals Tribunal - Practice and Procedure
[1992] FCA 32; (1992) 26 ALD 257

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Appeals Tribunal - Failure to comply with s 43(2b) Administrative Appeals Tribunal Act 1975 - Duty of Tribunal to include findings on material or other fact and refer to evidence of material on which findings based.

Practice and Procedure - Administrative Appeals Tribunal - Appeal to Federal Court of Australia - Appeal on question of law only.

Administrative Appeals Tribunal Act 1975 - s 43(2B)

Compensation (Commonwealth Government Employees) Act 1971

Pettitt v Dunkley (1971) 1 NSWLR 376

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited and Anor (1983) 3 NSWLR 378

Politis v F.C.T. (1988) 88 ATC 5029

Bisley Investment Corp Limited and Anor v Australian Broadcasting Tribunal and Anor (1982) 59 FLR 132

Dornam and Ors v Riordan (1990) 24 FCR 564

HEARING

SYDNEY
7:2:1992

Counsel for the applicant: C.C. Simpson QC with G.T. Johnson

Instructed by: Australian Government Solicitor

Counsel for the respondent: J. Hatzistergos

Instructed by: Steve Masselos and Co

ORDER

That the appeal be dismissed.

That the applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal from a decision of the General Administrative Division of the Administrative Appeals Tribunal given on 23 April 1991. The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (the "Act") and is restricted to questions of law.

2. Although a number of matters are raised in the Amended Notice of Appeal, counsel for the appellant indicated at the outset of her submissions that the only questions of law relied upon were alleged failures on the part of the Tribunal to comply with its obligations under s 43(2B) of the Act. It was submitted that, in particular ways, the Tribunal did not in its written reasons for its decision include its findings on material questions of fact with a reference to the evidence or other material on which those findings were based.

3. Before coming to these submissions I find it convenient to refer to the interpretation of s 43(2B) in decisions of this Court. I have been referred to a number of decided cases but do not intend to undertake a review of them. I shall merely indicate what I consider to be the established principles governing the proper approach to the application of the section. I should say, however, that I have also been taken to cases dealing with errors of law that can be committed by a judge through failure to give adequate reasons (e.g. Pettitt v Dunkley (1971) 1 NSWLR 376 and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited and Anor (1983) 3 NSWLR 378). In the latter case, an important passage, if I may say so with respect, appears in the judgment of Hutley J.A. (at p 381) where his Honour said in relation to the judgment then under review:-

"It was submitted that the appellant had the right to have
findings so explicit that it would know whether the decision
was based on fact or law. This is an extension of the
principles enunciated in Pettitt v Dunkley and, in my
opinion, that case should be confined to the special case
where there are no reasons, or a mere caricature of reasons,
on an issue depending upon a view of the law. Cripps J.'s
detailed judgment is sufficiently voluminous for any
purpose. The extent to which a court must go in giving
reasons is incapable of precise definition. A court must
not nullify rights of appeal by giving no or nominal
reasons, but there is no duty to expound reasons so as to
facilitate appeals. This applies particularly to the
situation where a judge has to decide between conflicting
witnesses, including experts. The choice between
conflicting experts may have to be a matter of judgment, not
of detailed reasoning."

4. Similar considerations have led to decisions in this Court as to the operation and effect of s 43(2B). Thus, in Politis v F.C.T. (1988) 88 ATC 5029 at 5032, Lockhart J. said:-

"The Administrative Appeals Tribunal is required by para 43(2B) of
the Administrative Appeals Tribunal Act to include in its written
reasons for decision `its findings on material questions of fact
and a reference to the evidence or other material on which those
findings were based'. I repeat what has been said by other
members of this Court in the cases mentioned below and by myself
on more than one occasion, that when this Court hears appeals from
administrative tribunals - which are the bodies entrusted by
Parliament with the task of reviewing decisions of a particular
administrative character - the Court should approach its task
sensibly and in a balanced way, not reading passages from the
reasons for decision in isolation from others to which they may be
related or taking particular passages out of the context of the
reasons as a whole."

5. Also in Bisley Investment Corp Limited and Anor v Australian Broadcasting Tribunal and Anor (1982) 59 FLR 132 at 157 Sheppard J. said in relation to an equivalent section:-

"The section does not impose upon the Tribunal, which is often
composed of members who are not trained in the law, any standard
of perfection. I consider the provisions of the section to be
directory rather then mandatory. Substantial compliance is what
is required and clearly that is here present."

6. In the same case Lockhart J. said (at p 152):-

"It is for the appellants to satisfy this Court that the
Tribunal erred in law. There is no presumption that the
Tribunal has failed to discharge its duty under s. 43(2).
It is true that in the course of its lengthy reasons for
decision the Tribunal did not say expressly that it made
particular findings of fact; but it referred to many matters
of fact relevant to the issues before it. Plainly the
Tribunal regarded these matters as relevant and material;
otherwise it is difficult , if not impossible, to conceive
why any reference was made to them at all.
We were referred to no case where it has been held that an
administrative tribunal has overlooked or treated as
irrelevant or immaterial matters expressly referred to in
its reasons for decision and not there expressly stated to
have been treated as irrelevant or immaterial.
A reading of the reasons of the Tribunal as a whole
establishes to my satisfaction that the matters of fact
referred to by it in those reasons were considered by it to
be both relevant and material."

7. I do not consider that the approach embodied in these passages is affected in any significant way by later decisions such as Dornam and Ors v Riordan (1990) 24 FCR 564. I shall approach the determination of this appeal on the basis of these principles.

8. The Tribunal had before it an application to review a decision of a delegate of the present applicant, Australian Postal Commission (the "Commission"), who had determined that from 12 September 1988 the applicant was not liable to pay weekly compensation to the present respondent, Kassem Idriss ("Idriss"), under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the "1971 Act"). It was agreed that the 1971 Act was the relevant legislation for the determination of the present respondent's entitlement, if any.

9. It is clear from a reading of the Tribunal's reasons that it found that Idriss was involved in two relevant incidents at his work with the Commission. The Tribunal's findings as to the occurrence of the incidents and other relevant circumstances were as follows:-

"The Applicant is 41 years of age and commenced employment
with the Respondent in 1970 as a mail officer. That work
exposed him to sorting of mail and carrying bags of mail.
For the purposes of these reasons, mail includes parcels.
For approximately nine years prior to 1985 the Applicant's
job was essentially the lifting of bags of mail at the State
Mail Centre at Alexandria.
Prior to 26 May 1985 the Applicant said that he had no
difficulty with the job or with lifting the bags despite
`some of them (were) real heavy'.
His work would require him to lift between 20-50 bags per
shift either onto a trolley (a wheeler) and into shutes,
often lifting bags `up high'. Sometimes the wheeler would
need to be pushed a considerable distance to a loading dock,
preparatory to the bags being loaded on to trucks when
shutes were not working. Bags would be carried to the
wheeler over a distance of two or three metres.
Prior to 26 May 1985 the Applicant said he had not ever
suffered back injury. he described his health as `I was
fit, like a rocket'.
On this day, in the course of lifting a heavy mail bag which
was suspended from hooks fitted around the top edge of a
steel frame, he felt sudden back pain. His intention was to
remove the bag from its suspended position and then carry it
to the wheeler. He said he felt `stiff, I could not move'.
He was referred to a hospital, had treatment and returned to
work after 6 or 7 weeks. He said he returned to work,
despite being in pain, because he did not `like to stay at
home ... because I don't like to take money from anybody
without doing nothing'.
After returning to work he continued to have treatment from
his doctors.
In this period of time he said he did `not feel good at all'
but continued to work because he wanted to work.
The Applicant continued to work for the next six or seven
months until 12 January 1986 when he again suffered back
injury and/or the aggravation of previous back injury and a
right shoulder injury.
His work in this period of time was as an overseer and he
was promoted to the position as a senior mail officer. This
work did however require him to continue to lift mail bags.
On 12 January 1986, having lifted a bag with an estimated
weight of 25 to 30 kilos, the Applicant said he felt pain in
his back and right shoulder.
He then ceased work and has not worked since except for 1
1/2 days in 1987 and for a few hours in 1988, when, on both
occasions he attended a training course preparatory to him
returning to work."

10. Whilst it is true that the Tribunal in this passage does not expressly indicate that it accepted the respondent's evidence as to these matters, I am satisfied, on a reading of the whole of the Tribunal's reasons, and in the light of the principles referred to above, that it did so. Insofar as it was but faintly submitted that the Tribunal had not made findings as to these matters, I reject that submission.

11. The Tribunal, therefore, had to consider the effect of these two incidents, which I shall refer to as the "1985 incident" and the "1986 incident" respectively, upon Idriss and more particularly upon his capacity to work. Idriss alleged, and the Tribunal accepted, that the incidents had resulted in physical injury to his back and had also produced in him a reactive anxiety depressive state which was, itself, disabling. The Tribunal held, on the basis of these findings, that as at the relevant date, 14 September 1988, the respondent was totally incapacitated for employment.

12. Idriss's claims were vigorously contested by the Commission. There was considerable conflict between the evidence of expert medical witnesses called on either side. There was no dispute as to the occurrence of the work incidents themselves. Indeed, the Commission had accepted liability and paid compensation to Idriss up until its termination of payments on 14 September 1988. Notwithstanding this, it asserted that Idriss suffered no relevant incapacity or, if he did, that incapacity was not related to his employment. In this regard, the Commission contended, through its medical testimony, that any disabling pain suffered by Idriss in his back as at 14 September 1988 or earlier was the result of progressive degenerative changes at relevant levels of his spine, which degeneration was not work related. This was, in effect, the familiar "temporary aggravation" argument whereby it was maintained that the effect of the work incidents upon the relevant levels of Idriss's spine was spent at some time in the past, with the result that subsequent painful symptoms experienced by him were attributable only to an underlying progressive deterioration for which the respondent's employment was not responsible. This case was rejected by the Tribunal which held "that the back injury was not of a spondylitic or degenerative non-work related process as was contended by the respondent's counsel".

13. In coming to this conclusion the Tribunal made quite specific findings that certain medical witnesses called by Idriss were "credible" whereas others called by the Commission were not. These findings, of course, are not reviewable in these proceedings. Indeed, the Commission's main submission as to error of law, is based upon certain evidence given by one of the medical practitioners called on behalf of Idriss. Before coming to this question, however, it is necessary to recount briefly the Tribunal's findings in relation to the medical evidence.

14. After the 1986 incident Idriss was treated by Dr Costa, whom the Tribunal found to be a credible witness. Dr Costa was in general practice but also specialised in occupational medicine in a rehabilitation unit. He held a higher degree, Master of Public Health. Idriss has remained under Dr Costa's care throughout. Dr Costa referred him to Dr Maniam, an orthopaedic surgeon who has also treated him. After the compensation payments were terminated, it appears that Dr Maniam recommended surgery to the affected levels of the back. Idriss was scared of surgery and, accordingly, Dr Costa referred him to Dr Smith, another orthopaedic specialist for a further opinion. Dr Smith was accepted by the Tribunal as being "credible". All three doctors gave evidence before the Tribunal. All three deposed to the respondent's having significant problems as the L4/L5 and L5/S1 spinal levels.

15. Dr Costa also referred Idriss to Dr Hansen, a psychiatrist. He has consulted with Dr Hansen on a monthly basis since October 1988. Dr Costa referred him to Dr Hansen because of his severe nervous depression and "alarming psychiatric symptoms". It appears that Dr Hansen was of the view that Idriss was suffering from a paranoid psychiatric illness which would not have occurred had he not sustained the injuries to his back. He was of the view that he was not fit for work. It may be noted that Idriss was examined on behalf of the Commission by Dr Frame and Dr McMurdo, psychiatrists, who gave evidence before the Tribunal. It would appear that there was some difference in diagnosis in that Dr Frame considered that he was not psychotic but was suffering from a reactive depression and conversion reaction. Dr McMurdo considered that it was "more than probable" that the back injuries had precipitated his depression. Nothing turns on these differences, in my view. The Tribunal concluded that "the common opinions held by Drs Costa, Hansen and McMurdo persuade us of the relationship between the back injuries and the subsequent anxiety and depressive illness". They were satisfied "that were it not for the back injuries having been sustained by the applicant in the course of his employment with the respondent the applicant would not now suffer from an incapacitating anxiety and depressive illness". The Commission complains of this finding in a manner to which I shall make reference later in these reasons.

16. In answer to Idriss's orthopaedic evidence, the Commission called two medical practitioners who gave evidence to the effect that such difficulties as the respondent had from the work incidents had resolved and that any continuing problems related to degenerative processes in the relevant levels in the spine, not associated with his employment. It is clear that the Tribunal rejected these witnesses. It gave its reasons for so doing. There is no need for me to repeat them here.

17. The Tribunal also had regard to radiological evidence. There was no direct evidence of this kind before it in relation to the 1985 incident. However, it accepted, from a report of Dr Costa, that x- rays taken in relation to that incident had shown "minimal degenerative joint disease". A CT scan of the respondent's back taken approximately 10 weeks after the 1986 incident satisfied the Tribunal that the latter incident was a far more serious one. Certain parts of the report of this examination are of major importance in the arguments presented to me. Accordingly I set them out in full:-

"At the L4/5 level there is a broad-based posterior bulging
of the disc with effacement of the thecal sac. There is no
evidence of focal protrusion however.
At the L5/S1 level there is evidence of focal medial and
right paramedian disc protrusion with slight posterior
displacement of the right S1 nerve root. The thecal sac is
not compressed."

18. The Tribunal held that these findings were consistent with the evidence of Drs Costa, Smith and Maniam that the back injury was of traumatic origin.

19. On 6 September 1988 a magnetic resonance scan was performed. I do not need to refer to the details of this examination. It may be noted, simply, that the findings were for practical purposes identical with the earlier CT scan and confirmed the earlier findings.

20. It appears that Dr Maniam was the last witness to give evidence. Certain answers given by him resulted in a submission being made to the Tribunal by counsel for the Commission. The main complaint of the Commission, in these proceedings, is that that submission was either not considered by the Tribunal or, if it were, was not dealt with in its reasons in a manner sufficient to satisfy the Tribunal's obligations under s 43(2B) of the Act.

21. Dr Maniam made a distinction between the L4/5 and L5/S1 levels as seen in the CT scan. He said that the small but focal right sided protrusion seen in the scan at L5/S1 was indicative of trauma. However, he said that at the L4/5 level "there is a broad-based bulge not of any significance, not intruding upon the neurological structures. Being that, we would accept that as being degenerative".

22. The doctor went on to say that as the L4/5 level was degenerative it could be expected that there could be pain symptoms at that level. As the L5/S1 level showed impingement on a nerve root, it could be expected that the injury to that area could produce pain radiating into the leg.

23. On the basis of these answers, counsel for the Commission made a submission to the Tribunal. It was a submission made as part of a document containing a number of written submissions supplied by him to the Tribunal, which were answered by written submissions on behalf of Idriss, which were then replied to by counsel for the Commission. These written submissions form part of the appeal book. They are extensive. As it would appear that the main thrust of the Commission's submissions was that Idriss had suffered no significant injury in the work incidents and was merely experiencing discomfort associated with degeneration occasioned by age, the submission did not then achieve the prominence now given to it in this appeal.

24. The submission, based upon Dr Maniam's evidence, assumed that the damage to the L5/S1 disc related to a work caused trauma but that the damage to the L4/5 disc was merely degenerative in nature and therefore not work related. In these circumstances it was submitted that "it becomes impossible to say, even if one accepts that the L5/S1 protrusion is work related, that the L5/S1 protrusion produces any practical incapacity over and above that which results on the purely degenerative condition at L4/5". Accordingly, so the submission ran, it could not be said that the incapacity complained of related to a work caused injury, it being equally attributable to a merely degenerative condition. The argument was further developed in relation to the disabling psychiatric symptoms: insofar as they were a reaction to the pain and frustration of the back condition, it was not established that, as such, they were related to a work caused condition rather than merely a non-work caused degenerative condition.

25. Counsel for the Commission submitted to me that there was a clear indication in the Tribunal's reasons for decision that it accepted Dr Maniam's evidence. It was said, therefore, that the necessary consequence of his evidence as expounded in this submission, had either been totally ignored by the Tribunal or, if it had been considered and rejected that the reasons were defective for failing to show the basis for such rejection.

26. I have come to the conclusion that it is not correct to say that the Tribunal ignored or failed to appreciate this submission. I am, indeed, satisfied that it considered and rejected it. The submission was in fact dealt with in the written arguments filed by counsel for Idriss. In my view the answer made was effective to dispose of this submission and was accepted as such by the Tribunal.

27. It is fundamental to this submission that the Tribunal accepted Dr Maniam's evidence and derived from it that any painful incapacitating problems experienced by the respondent at the L4/5 level were due solely to degenerative changes and were totally unrelated to the traumatic incidents of 1985 and 1986. However, the situation revealed by the evidence was not so starkly black and white as this. Whilst the radiological picture indicated only degenerative changes at L4/5 as against an additional superimposed traumatic focal change at L5/S1 this did not necessarily mean that the traumatic incidents relied upon by the respondent had no bearing upon problems associated with the L4/5 area. The evidence of Dr Costa and especially Dr Smith amply indicated that even though the L4/5 area received no traumatic damage as such in the incidents, those incidents were nevertheless productive of incapacity in the respondent in that area insofar as they caused pre-existing degenerative changes to be productive of painful symptoms. It was the production of pain and its continuance that caused incapacity in the respondent. The production of this pain was clearly, on the evidence of these witnesses, attributable to the trauma of the incidents. The second incident additionally caused actual physical damage to the L5/S1 area and was therefore the more serious incident in producing the respondent's incapacity for work.

28. If, and I have considerable doubt about this, it could be said that Dr Maniam's evidence ran counter to this analysis, then there was a clear question of fact for resolution by the Tribunal posed by these differing medical opinions. If that be so, then, in my opinion, the reasons of the Tribunal make it quite sufficiently clear that they preferred the views of Dr Costa and especially Dr Smith in this regard. The language used in relation to those gentlemen clearly indicates general acceptance of their evidence. In relation to Dr Maniam the Tribunal merely said that his evidence was "useful to assist comprehending the nature of injury upon a disc - whether it be by trauma or by degeneration". This somewhat guarded statement does not, in my view, suggest that the Tribunal was doing other than accepting Dr Maniam's exposition of the differences between the two disc areas as radiologically displayed. It does not suggest that the Tribunal was rejecting the view that trauma to a disc area already affected by degenerative processes could not, in itself, be productive of pain and incapacity without the necessity of there being further radiological evidence of damage to the disc.

29. The passage to which I have already made reference in which the Tribunal rejected the Commission's submission that the back injury was a spondylitic or degenerative non-work related process indicates sufficiently to me that counsel's written submission in this regard was considered, understood, and rejected on the evidence, particularly that of Dr Smith.

30. Insofar as Idriss's psychiatric condition was found to be one of anxiety and depression reactive to the back injuries, I am satisfied that the foregoing analysis of the Tribunal's reasons and the evidence upon which those reasons appear to have been based sufficiently indicates that the Tribunal did not overlook the Commission's argument that if the psychological reaction was to pain caused by mere degenerative processes then it could not be regarded as a work related disease within the meaning of the Act. The relevant pain to which the reaction occurred was pain induced by the trauma of the incidents to the two levels of the back referred to. There was, therefore, a clear causal nexus between those incidents and the supervening disabling psychiatric state.

31. What I have said is probably sufficient to indicate that I am satisfied that the applicant's claims as to breaches of s 43(2B) have not been made out. Whilst it is true that the submissions, which are the basis of argument in this appeal, were not precisely isolated and dealt with in the Tribunal's reasons, they nevertheless, in my opinion, clearly appear, from the Tribunal's reasons, to have been considered and rejected. Although the evidence provided by Dr Smith is not specifically set out in the Tribunal's reasons, in my view, it is sufficiently referred to. There is no breach of the section as it is interpreted in the authorities that I have referred to .

32. Accordingly I dismiss this appeal and order the applicant to pay the respondent's costs.