Ian Murdoch Markland v Commonwealth of Australia and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1993] FCA 639 (22 December 1993)

FEDERAL COURT OF AUSTRALIA

IAN MURDOCH MARKLAND v. COMMONWEALTH OF AUSTRALIA AND COMMISSION FOR THE
SAFETY, REHABILITATION AND COMPENSATION OF COMMONWEALTH EMPLOYEES
No. VG341 of 1992
FED No. 977/93
Number of pages - 15
Compensation - Natural Justice - Appeals

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
BLACK CJ(1), JENKINSON(2) AND EINFELD(1) JJ

CATCHWORDS

Compensation - review by Administrative Appeals Tribunal of refusal of lump sum redemption - aggravation of pre-existing mental or psychological disease

Natural Justice - possibility that Tribunal considered and decided wrong question(s) - alleged failure to draw these matters to appellant's attention to permit evidence and submissions including on Tribunal's jurisdiction to deal with vexed matters

Appeals - application for leave to add grounds of appeal not argued before primary judge

Commonwealth Employees' Compensation Act 1931 s. 10

Compensation (Commonwealth Government Employees') Act 1971 ss 29, 46, 49

Commonwealth Employees' Rehabilitation and Compensation Act) 1988 s. 124(2)(c)

The Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32

The Commonwealth v Rutledge [1964] HCA 63; (1964) 111 CLR 1

Commonwealth v Ford (1986) 65 ALR 323

Esber v The Commonwealth [1992] HCA 20; (1992) 66 ALJR 373

HEARING

MELBOURNE, 1-2 and 11 March 1993
22:12:1993

Counsel for the Appellant: Mr S.B. Spittle

Instructed by: McMullin, Coate and Co.

Counsel for the Respondents: Mr P.G. Misso

Instructed by: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The appellant have leave to amend his notice of appeal to include

the grounds set out in the draft amended notice of appeal filed on
2 March 1993;
2. The appeal be dismissed;
3. The appellant pay the costs of the respondents.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

BLACK CJ and EINFELD J This is an appeal from a judgment of a judge of the Court dismissing an application by way of appeal against a decision of the Administrative Appeals Tribunal. The Tribunal's decision was made after the hearing of an application to it by the appellant, Mr Markland, for the review of a determination made in November 1988 by a delegate of the Commissioner for Employees' Compensation in the exercise of his powers under the now repealed Compensation (Commonwealth Government Employees) Act 1971. The history of the proceedings and the other relevant facts are set out in the reasons for judgment of Jenkinson J which we have had the advantage of reading.

2. We agree, for the reasons given by Jenkinson J, that the appeal should be dismissed. We add some observations of our own about the application to amend the grounds of appeal to include grounds claiming that the Tribunal denied the appellant procedural fairness.

3. The grounds of appeal that the appellant seeks leave to introduce claim that the appellant was denied procedural fairness by the Tribunal in three respects. First, it is said that the Tribunal failed to identify the issues upon which it intended to determine "the appeal". Secondly, it is said that the Tribunal failed to indicate one way or another whether it accepted the submissions made on behalf of the respondent as to the matters that were within its jurisdiction. Thirdly, it is said that if the Tribunal did adequately identify the issues, it failed to give the appellant a reasonable opportunity to consider them and to prepare and present a case to meet them. That was said to involve the opportunity to have additional medical examinations of the appellant, the opportunity to call further medical evidence and to recall the respondent's medical witnesses for further cross-examination. These issues of procedural fairness do not appear to have been raised before the learned primary judge but a further ground of appeal was proposed by which it was contended that the primary judge "erred in not perceiving or having regard to" the circumstance that the Tribunal had failed to accord the appellant procedural fairness.

4. The Court adjourned the hearing of the appeal beyond the day originally set aside for that purpose to enable counsel for the appellant to develop argument on these and other points. On a later day the Court heard argument from counsel for all parties on the proposed additional grounds of appeal and reserved its decision on the application for leave to amend.

5. We shall describe briefly the relevant facts and circumstances concerning the hearing before the Tribunal. The hearing began with a brief opening of Mr Markland's case by his counsel, Mr McCullagh. He outlined the nature of the determination of the delegate that the Tribunal was asked to review. The issue identified by Mr McCullagh in his opening related to the applicant's fitness for work. The delegate had determined that the applicant's capacity for work was such that there was no liability to make any payments under s. 46 of the Act and therefore no liability to be redeemed; that determination was made by reference to s. 46(3) of the Act and not on the footing that the work-related aggravation of Mr Markland's condition had ceased. It was contended by counsel that the applicant had a limited capacity for work such that he was entitled to a continuing weekly payment under s. 46 of the Act and that he therefore had an entitlement that was capable of redemption under s. 49. In the course of counsel's opening address medical reports were tendered on behalf of both Mr Markland and the Commonwealth and reference was made to the opinion of Mr Markland's treating doctor, Dr Moore, to the effect that he continued to suffer from a severe anxiety depressive condition which was aggravated by his employment, that Mr Markland continued to suffer from that aggravation, was unfit for any full- time employment and was, at best, only fit for therapeutically suitable work such as gardening.

6. Mr Markland gave evidence. He was asked about his work history, his medical condition and his capacity for work. A film of Mr Markland engaged in various activities was shown and he was cross-examined by counsel for the respondents about his capacities. Dr Moore, the treating doctor, was called. Counsel for Mr Markland specifically put to Dr Moore for his comment a statement made in a report by Dr Conron, a specialist who had examined Mr Markland for the Commonwealth, that:

" ... the effect of his (Mr Markland's) work on his psychiatric
condition would have ceased two years after he stopped work."

7. Dr Moore was cross-examined at some length by counsel for the Commonwealth about Mr Markland's medical condition and its relationship to his former employment, although he did not put directly to Dr Moore what Dr Conron had said about that matter. The statement of Dr Conron was in one of the medical reports that had been tendered during the opening address of counsel for Mr Markland. The statement was obviously an important one and one that counsel for Mr Markland would expect to put to his own medical witness if the continuing effect of the employment on the applicant's condition were a live issue or potentially a live issue.

8. Counsel for the Commonwealth called Dr Conron to give evidence. He confirmed the opinions expressed in his reports. His attention was directed to his statement about the cessation of the effect of Mr Markland's work on his condition. He was asked why he had expressed that view and he gave his reasons for it. He was also asked about Mr Markland's fitness for work and he confirmed the opinion expressed in his most recent report that although Mr Markland was permanently unfit for work as a customs preventative officer, he was fit to do half-time work, such as house or garden maintenance. Counsel for Mr Markland cross-examined Dr Conron about various matters including his opinion that the work-caused aggravation would have ceased some two years after he stopped work.

9. It is clear from the transcript of the evidence before the Tribunal that counsel were treating as at least a potentially live issue whether, as Dr Condon said, the aggravation of Mr Markland's condition ceased some two years after Mr Markland stopped work.

10. In fact, the issue had been raised by the respondent's statement of facts and contentions dated 25 August 1989. Paragraph 5 of the section dealing with facts states:

"The effect of his employment on the applicant's condition was
temporary and ceased two years after his retirement."

Under the heading "Contentions" the following was stated:

"The effect of the applicant's employment on his condition ceased two
years after his retirement. The applicant is therefore not entitled
to any compensation by way of weekly payments or otherwise and is
therefore not entitled to any sum by way of redemption."

11. It is hard to see how the respondent could have raised the issue any more directly. It did so with perfect clarity in the very document by which, in accordance with the Tribunal's procedures, issues of fact and law are to be raised.

12. At the conclusion of the evidence Mrs Hallowes, the Senior Member constituting the Tribunal in the present matter, raised with counsel the extent of the jurisdiction of the Tribunal to review the delegate's determination. The Tribunal was evidently concerned that whilst the determination was concerned with Mr Markland's capacity for work, there was evidence before the Tribunal of something with which the delegate had not been concerned, namely whether there was still a work-related condition. In the course of that discussion the Tribunal drew attention to the respondent's notice of facts and contentions. There was also discussion about the possibility of written submissions being prepared but Mrs Hallowes said that she would hear oral argument first and would then consider the need for written submissions. The Tribunal then adjourned until the afternoon.

13. When the Tribunal resumed the hearing after the luncheon adjournment, counsel for the respondent conceded that Mr Markland was unable to work full-time, although making it clear that this involved no concession that the inability to work full-time was related to Mr Markland's employment with the Commonwealth. He argued that the Tribunal was not bound in any way by the course of events before the delegate and he said that it did not matter if the Tribunal and the delegate reached the same end point by a different route as long as, so far as the respondent was concerned, the end point was the same. His primary submission was to the effect of that foreshadowed in the parts of the notice of facts and contentions to which we have already referred, a submission for which he derived support from the evidence of Dr Conron. Since, he said, there was no entitlement to compensation at all there could be no entitlement to a lump-sum redemption.

14. Counsel for Mr Markland then addressed the Tribunal. His primary submission was that it was not open to the Tribunal to deal with the matter in the manner contended for by the respondent because the delegate had never determined the question whether or not there was still present a work-related aggravation.

15. After both counsel had addressed the Tribunal, Mrs Hallowes took care to give counsel an opportunity to put further submissions before the Tribunal if they wished. It was fair and quite correct for Mrs Hallowes to do so because, before the luncheon adjournment, the need for written submissions had been raised by counsel but left for resolution later. The transcript is not clear at this point but it is obvious that Mrs Hallowes was drawing attention to the issue raised by her before luncheon adjournment. She then said:

"I had been trying to alert you both to what I perceived were possible
difficulties I might run into and wanted you to turn your minds to
them, I do not know whether you feel that you have had an adequate
opportunity to do that or if there is any matter arising out of the
submissions by the applicant that you wish to also put a written
submission in or whether the Tribunal can accept that you feel you have
completed your task."

Counsel for Mr Markland replied:

"The only matter I would submit, madam, is that insofar as the question
as to whether or not work contributed to a material degree in this case
does not arise, because this is not part of the determination. And
again I would rely upon those two decisions of Portelli."

16. That was the extent of his reply. Counsel did not ask for further time to consider the matter, he did not ask for leave to put in written submissions and he did not ask for leave to re-open his case to call further evidence or to recall. But this was peculiarly a matter for counsel to decide and in drawing attention to the course adopted, we are not to be taken as being critical of him. He had again referred the Tribunal to the cases upon which he relied and he had dealt with the question of aggravation in his examination of Mr Markland's treating doctor and in his cross-examination of the Commonwealth's medical witness. It was very much a matter for the judgment of counsel to decide whether, in response to the Tribunal's remarks, he wished to apply for leave to put in further submissions or to apply to recall witnesses and to call further witnesses. He may very well have concluded that it would not be in his client's best interests to have done any of those things.

17. It will be apparent from this account of the hearing before the Tribunal that there is no substance in the contention that Mr Markland was denied procedural fairness. The issue as to the continuation of the work-related aggravation had been identified by the respondent's notice of facts and contentions well before the hearing and counsel for Mr Markland led evidence from his own medical witness and cross-examined the medical witness for the Commonwealth on the footing that the issue was at least a potentially live issue. Moreover, the Senior Member was herself careful to draw the attention of counsel to the issue and sought counsels' submissions about it. Having directly raised the issue, Mrs Hallowes gave counsel time to consider the matter and took care to ensure that they had an opportunity to say more about the issue if they wished.

18. It was contended before us that it was much worse for Mr Markland to be denied the redemption he sought on the footing that there was no continuing connection between his former employment and his condition than if the matter was dealt with in the way it had been dealt with before the delegate. Accepting that this is so, that fact must have been obvious from the time the Commonwealth's explicit notice of facts and contentions was delivered, some considerable time before the hearing. It must have been obvious at the hearing too.

19. The applicability of the rules of procedural fairness to a situation where a party wishes to change on appeal the course taken at first instance is important and will require consideration in an appropriate case. For reasons given, this is not such a case. It was also not a case in which one of the parties could have been misled about the issues upon which the Tribunal might decide the application and there was clearly no obligation upon the Tribunal in the circumstances to indicate to the parties, in advance of its determination of the application for review, which of the competing submissions on the scope of the Tribunal's functions it would uphold.

20. There is thus no basis at all for the contention that the appellant was denied a reasonable opportunity to consider the issues identified by the Tribunal and to prepare and present a case to meet them.

21. Having heard full argument on the issues sought to be raised by the amendments set out in the draft amended notice of appeal filed on 2 March 1993 and having concluded that there is no substance in the new grounds sought to be raised, we would allow the appellant to amend his notice of appeal but we would dismiss the appeal with costs.

JENKINSON J Appeal from the judgment of a single judge of the court by which an appeal against a decision of the Administrative Appeals Tribunal was dismissed.

2. The appellant was born in 1931. In January 1970 he commenced employment by the respondent as a Preventive Officer in the Australian Customs Service. On 18 February 1982 he was retired on medical grounds. On 17 March 1982 he claimed compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") in respect of what the claim designated "Production, aggravation and acceleration of anxiety condition". On that claim a delegate of the Commissioner for Employees' Compensation ("the Commissioner") made on 22 April 1983 the following determination:

"In pursuance of the provisions of the Compensation (Commonwealth
Government Employees) Act 1971, including sections 29 and 27 of that
Act, I hereby determine:-
(a) the said Ian Murdoch Markland suffered an aggravation of a
pre-existing condition of obsessional personality resulting in
anxiety and depression to which his employment was a contributing
factor and that aggravation is deemed to be a personal injury to
the said Ian Murdoch Markland arising out of his employment;
(b) in accordance with the provisions of the Act, the Department of
Industry and Commerce is liable to pay compensation in respect of
the said personal injury."

Weekly payments of compensation were made to the appellant pursuant to determinations founded on that determination, at first in respect of total incapacitation for work resulting from that deemed "personal injury", and from 3 March 1986 in respect of partial incapacitation. By letter dated 22 October 1987 the appellant's solicitors made on his behalf to the Commissioner the request in writing contemplated by s.49(1) of the 1971 Act, that the liability of the Commonwealth to make further weekly payments of compensation in respect of his partial incapacitation be redeemed by the payment to him of a lump sum. Later the solicitors requested the Commissioner to make a determination in respect of that request before the commencement of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (other than ss. 1 and 2 thereof) on 1 December 1988. A delegate of the Commissioner made a determination dated 30 November 1988 which reads:

(1) On the evidence before me, I find:
(a) the employee works from time to time as a relief groundsman at the
Peninsula Hospital and is entitled to payment at an hourly rate
equivalent to full time earnings of $341.24 per week;
(b) as the employee is medically fit to perform these duties and has
demonstrated an ability to earn income as a groundsman on a full time
basis it would therefore be more appropriate that his ability to earn
for the purposes of Section 46 of the said Act be assessed as that of a
full time groundsman;
(c) the average weekly earnings of the employee, calculated under
Section 25 of the said Act, are $533.94 per week;
(d) the employee satisfies the provisions of paragraphs 46(3)(a) and
46(3)(b) of the said Act and is in receipt of a superannuation pension
of $289.02 per week;
(e) the employee has made an application under Section 49 of the said
Act for redemption of the liability of the Australian Customs Service
to pay compensation under Section 46 of the said Act by the payment of
a lump sum
2. In pursuance of the provisions of the Compensation (Commonwealth
Government Employees) Act 1971, I hereby determine:
a) the entitlement of the employee under Section 46 of the said Act,
having regard to the provisions of sub-section 46(3), is NIL and,
accordingly, the Australian Customs Service is not liable to make any
payments under Section 46 of the said Act to the employee, with effect
from close of business on 30 November 1988.
b) the liability of the Australian Customs Service under Section 46 of
the said Act shall therefore not be redeemed by the payment of a lump
sum to the employee."

An application for review of that determination was dated, and was received by the Administrative Appeals Tribunal on, 30 November 1977.

3. The Tribunal held that the application for review should be determined in accordance with the substantive provisions of the 1988 Act. The Tribunal's decision was published before the judgment of the High Court was given in Esber v. The Commonwealth [1992] HCA 20; (1992) 66 ALJR 373, that an application for review of such a determination instituted in the Tribunal, but not completed, before 1 December 1988 was to be determined in accordance with the 1971 Act. It was a ground of the appeal to the single judge, and of the appeal to this court, that the Tribunal's erroneous conclusion as to the application of the 1988 Act had resulted in an error of law in the Tribunal's reasoning to its conclusion. The error was to be discerned, according to the submission of Mr. Spittle of counsel for the appellant, in paragraph 18 of the Tribunal's reasons for its decision, which reads:

"One of the matters about which Mr Markland expressed concern was the
fact that younger employees were promoted over him. The definition of
'injury' is sub-section 4(1) of the 1988 Act provides that a disease
suffered by an employee does not include a disease which results from
the failure of an employee to obtain promotion. It was put to the
Tribunal by Mr Gunst that the definition of disease in sub-section 4(1)
and the inclusion of the need for an ailment to be contributed to in a
'material degree' raises the threshold of eligibility above that
required by the 1971 Act. In Re McDermott I referred to 'material
degree' as to the relative intensity of the contribution. The degree
must be of sufficient intensity for it to be of consequence."

As the single judge, Keely J, pointed out in his reasons for judgment, the Tribunal clearly eschews consideration of the question whether findings in favour of the appellant required by the substantive provisions of the 1988 Act could be made. Paragraphs 20 and 21, which constitute the conclusion of the Tribunal's reasons read:

"20. The Tribunal finds that after 30 November 1988 the applicant was
no longer entitled to compensation under the provisions of the 1971
Act. It is therefore unnecessary to consider whether or not he is
entitled to compensation under the provisions of the 1988 Act,
sub-section 124(2) providing:
's.124.(2) A person is not entitled to compensation under this
Act in respect of an injury, loss or damage suffered before the
commencing day if compensation was not payable in respect of that
injury, loss or damage:
(a) ...
(b) ...
(c) in any other case - under the 1971 Act as in force when the
injury, loss or damage was suffered.'
21. It is for these reasons that the applicant's request for
redemption by way of lump sum payment of his compensation payments for
partial incapacity cannot be redeemed, there being no entitlement to
payment. If the applicant had continued to be entitled to compensation
for partial incapacity under the provisions of the 1971 Act and
entitled to compensation under the provisions of the 1988 Act, section
137 of the 1988 Act would apply."

Paragraph 18 is thus seen to be obiter : the Tribunal's compliance with paragraph 124(2)(c) of the 1988 Act freed it from the necessity to reach a conclusion about the submissions noticed in paragraph 18.

4. It will be apparent from what I have so far written that the Commissioner's delegate had determined that the liability of the Commonwealth to make payments under s.46 of the 1971 Act in respect of partial incapacity had ceased on 30 November 1988 by reason of the amount per week the appellant was able to earn in suitable employment (see s.46(3)). When paragraphs 20 and 21 of the Tribunal' reasons are read with paragraph 17 of those reasons it is apparent that the Tribunal's conclusion that the liability had ceased on that date was based on a quite different reason. Paragraph 17 reads:

"Dr Conron reported Mr Markland exhibited clinical evidence of anxiety
state and depressive reaction at consultation in 1989. His personality
appeared obsessional. Dr Conron formed the opinion that Mr Markland's
condition was aggravated by his inability to handle changing work
conditions but the effect of his work on his psychiatric condition
would have ceased two years after he stopped work. Mr Markland's
symptoms had improved somewhat since Dr Conron saw the applicant in
1982 but he was still tense and anxious. As Mr Markland's work
experience had not been 'horrendous', seven years was a long enough
period of time for the aggravation of his disease to be related to his
work experiences. The factors at work which concerned him would no
longer be operating seven years later. In Dr Conron's opinion
Mr Markland's condition was endogenous and arose out of his
personality. The effects of his conditions at work would not be
ongoing. The fact that Mr Markland perceives that his work is still
causing or aggravating his disease does not mean that it is so."

5. Mr. Spittle of counsel for the appellant submitted that in the paragraphs of the Tribunal's reasons I have quoted and in another passage, where the Tribunal propounded its function as determining "whether the effects of the applicant's employment on his condition have ceased', error of law was disclosed. It must be admitted that the conceptual regime enacted in the 1971 Act, like the similar, but less clearly enunciated, regime enacted in the Commonwealth Employees' Compensation Act 1931 ("the 1931 Act"), concerning incapacitation by aggravation or acceleration of a disease, is not always easily adapted either to popular or to medical notions of causation. In the course of resolving some of the difficulties caused by the language of the 1931 Act - "that vexing piece of legislation", as he called it - Menzies J in The Commonwealth v. Rutledge [1964] HCA 63; (1964) 111 CLR 1 at 9-10 repeated what he had written in The Commonwealth v. Bourne [1960] HCA 26; (1960) 104 CLR 32 at 43-44:

"(I)f suffering from a disease causes the incapacity of or a disease
causes the death of a worker, it is the disease at the state of
development that it has reached and not its aggravation, acceleration
or recurrence that brings about incapacity or death. In the last part
of s.10(1) where the word 'disease' is used twice the incorporation of
the definition would seem to require that it is the contraction of the
disease either for the first time or as a recurrence, or its
aggravation or acceleration that is to be treated as personal injury by
accident arising out of or in the course of the employee's employment
if the contraction, recurrence, aggravation or acceleration was due to
the nature of the employment, and incapacity or death was caused by the
disease in the sense already stated."

The 1971 Act gave explicit expression to the construction which the High Court had given s.10 of the 1931 Act, in s.29, the first two sub-sections of which read:

"(1) Where -
(a) an employee contracts a disease or suffers an aggravation,
acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a
contributing factor to the contraction of the disease or to the
aggravation, acceleration or recurrence, as the case may be, whether
or not the disease was contracted or the aggravation, acceleration or
recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If -
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in section 39 of 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or
recurrence of the disease, or the employee obtained medical treatment
in relation to the disease, or the aggravation, acceleration of
recurrence of the disease, as the case may be, then, for the purposes
of this Act, unless the contrary intention appears -
(f) the contraction of the disease, or the aggravation, acceleration
or recurrence, as the case may be, shall be deemed to be a personal
injury to the employee arising out of the employment of the employee
by the Commonwealth; and
(g) the date of the death, the date of the loss, the date of the
disfigurement, the date of the commencement of the incapacity or the
date on which the medical treatment was first obtained, whichever is
the earlier, shall be deemed to be the date of the injury."

The word "disease" is defined to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". The appellant's mental defect was called by his own psychiatrist, Dr. Moore, a "perfectionist obsessional personality". That "disease" had been the subject of "aggravation", to which his employment by the Commonwealth had been a contributing factor, and incapacity, at first total and later partial, had resulted from the aggravation. The "aggravation", like the disease, could not be described in physiological terms. Only by description of its symptoms can either be identified. So much was common ground for the medical witnesses before the Tribunal. They were in substantial agreement also that the symptoms by which "aggravation" was identified at the time of the first determination on 22 April 1983 were still present on 30 November 1988, although not of such intensity at the later as at the earlier date. Mr. Spittle took the words "the aggravation" as existing and applicable both in respect of the earlier and the later date and at all times between those dates, and he submitted that in law the only question for determination by the Tribunal was whether the appellant's incapacity for full-time work on and after 30 November 1988 resulted from "the aggravation". The choice of the definite article in the expression "the aggravation" tends to determine in the affirmative the answer to that question. But the evidence of Dr. Conron, which the Tribunal accepted, denies the validity of the definite article. I quote the following passages from the transcript of that evidence:

"And that condition was temporarily aggravated in your opinion by his
employment?...Yes.
And that in your opinion - that temporary aggravation caused him to
stop work?---Yes, it lead to an increase of symptoms so he had to stop
work.
Doctor, would you recommend that he resume work with the Customs
Department?---No, I - - -
Is that because by resuming work with the Customs Department he would
probably suffer a further aggravation?---Yes, I think that if he
happened to resume the same job that he might in fact, because of his
personality, he might suffer an exacerbation of the symptoms if he
returned to the job, yes.
And Doctor, would you agree that if this man had this underlying
condition, that - did you take a history that this was the first
episode of an aggravation - I am sorry I withdraw that. Did you obtain
a history from him that this was the first period of inability to work
as a consequence of anxiety and depression?---That was the history that
I got from him on two occasions: that he had been in good health until
1980.
...............................................
Would you agree doctor, that once having been brought to the fore, that
is this underlying condition by this work that his underlying condition
would be more recalcitrant to treatment?---No, I do not think it would
be more recalcitrant to treatment. I mean, I have said that I thought
that he should not return to his previous job of working with the
Customs and if he did return to that job, I think that he would be
likely to get an exacerbation of his depression and anxiety and be
unable to work, but the - and while he was working there would
certainly be no treatment: treatment would not help him but in the
unlikely event that he returned to work and then got ill again, then -
and if he stopped work - then the treatment would help.
What I am trying to say is that once you take this man's
pre-disposition to that extent, what you say is that that extent is a
temporary occurrence and once you remove the work environment, after
two years, it reverts to its normal condition. Is that the - - -?---
No, I am saying that the effect of his work goes after two years. I
think that if you look at the overall picture of people who get
anxiety, you go from the 20s to the 30s and up unto the 70s you get an
increasing incidence of depression decade by decade, and I suppose that
in the decade of between 50 and 60, most depressions - that is probably
the commonest decade when depressions become manifest. Whether a
person is working or not, or whether they are a housewife or not - - -
Yes?---That seems to - - -
MRS HALLOWES: I will withdraw that?---Oh, well - - -
Some housewives work?---Oh, sure, yes.
It is all right?---I was trying to make the point that this increase in
incidence in depression as people get older happens whether it is work
related or not.
Paid employment or unpaid employment?---Yes.
MR McCULLAGH: Yes. Right. But that is not to the same extent as in
this man's case is it, surely doctor?---Well, I would have - I mean, I
would have thought that this man, given that he has got his depression
symptoms now, in my opinion that he would have some degree of depressive
symptoms now no matter what sort of work that he happened to have been
doing seven years ago.
...............................................
Well, Doctor, do you agree that this man is in his current position
because of a combination of his employment and his underlying
condition?---No, I think that his condition now is largely a reflection
of his personality and his constitution and at this point not related to
his Customs employment. But it was - - -
You say that whatever his work relationship was ceased in 83?---Yes.
Do you say after two consultations, Doctor, that this man probably would
still be working with the Customs Department work not for the
aggravation which he suffered initially. If you exclude any
aggravation, would he still be at the Customs Department?---I really
cannot answer that question. If he had not had - but he did have - the
aggravation.
You see, as I understand it, with respect, you are saying that in
retrospect this man's condition - his injury, which is the aggravation,
ceased in 83?---Yes."

6. This evidence in my opinion is capable of supporting a conclusion that the aggravation to which the appellant's employment had been a contributing factor had by 30 November 1988 become an aggravation to which the employment was not a contributing factor, an aggravation identifiable by the same symptoms, but not of the same aetiology. I think there is no error of law in the Tribunal's reasoning to its conclusion. The first function committed to the Tribunal by s.49 of the 1971 Act while reviewing the Commissioner's delegate's determination was to determine whether the liability of the Commonwealth to make further payments of compensation under s.46 is to be redeemed. Section 46 imposes such a liability during any period of partial incapacity resulting from compensable injury. If incapacity is not, at the time the decision of the Tribunal is to be made, resulting from the compensable injury, and no prospect of future incapacity resulting from the compensable injury is found by the Tribunal to exist, there is no liability to make further payments and therefore nothing to be redeemed. In this case the compensable injury was the aggravation, of the appellant's pre-existing disease, to which his employment was a contributing factor. The appellant's partial incapacity having been found no longer to be resulting from that particular aggravation, and there being no suggestion of future incapacity resulting from that particular aggravation, there was no case for a redemption. Had the case been one of aggravation of a skin disease by a substance encountered only in the course of employment followed after termination of employment by a continuing aggravation of the disease by another substance encountered for the first time after the termination of employment, the conceptual analysis involved might have been less difficult to accept. But it would be the same as in this case, in my opinion, except that in lieu of a substance encountered for the first time after termination of employment there is the tomorrow and tomorrow and tomorrow of ageing and the strains of living, according to the evidence which the Tribunal accepted.

7. It was no obstacle to the Tribunal's consideration of the question whether partial incapacity was resulting from the compensable injury that the Commissioner's delegate had not in making the determination dated 30 November 1988 given consideration to that question : see Commonwealth v. Ford (1986) 65 ALR 323.

8. It was submitted that the Tribunal had failed during the hearing adequately to identify the issues it regarded as within its jurisdiction to determine and had by that failure denied the appellant procedural fairness. The determination dated 30 November 1988 by the Commissioner's delegate, which the Tribunal had for review, assumes that any incapacity subsisting on 30 November 1988 resulted from the compensable injury. So much appears by paragraph 1(d) of the determination. Each of the parties before the Tribunal was required to file and serve on the other a statement of facts and contentions intended to be asserted at the hearing. Included in the respondent's statement, which was served several months before the hearing, were the following:

"Facts.
...............................................
5. The effect of his employment on the applicant's condition was
temporary and ceased two years after his retirement.
...............................................
Contentions.
The effect of the applicant's employment on his condition ceased two
years after his retirement. The applicant is therefore not entitled to
any compensation by way of weekly payments or otherwise and is therefore
not entitled to any sum by way of redemption."

Those assertions repeated an opinion expressed by Dr. Conron in a medical report which was received in evidence when the hearing began. Counsel for the appellant asked the appellant's treating psychiatrist, Dr. Moore, about Dr. Conron's opinion while adducing oral evidence to the Tribunal from Dr. Moore in chief. And he cross-examined Dr. Conron about the opinion. Immediately after the evidence concluded the Tribunal said to counsel for the parties:

"One of the things that has been concerning me in this case,
particularly arising out of the evidence we have just heard, is looking
at the determination that is before the tribunal and the opinion
expressed as to the source of the applicant's present symptoms and that
was why I also raised earlier the question of not only the legislation,
but I do not know whether any submissions are going to be made by the
respondent as to - and whether any question of how broad the
jurisdiction of this tribunal is in reviewing the determination under
review in what it can turn its mind to."

A short time later Mr. McCullagh of counsel for the appellant before the Tribunal responded to what had been said by the Tribunal. The transcript of the discussion which ensued may be inaccurate. I have inserted suggested emendations in brackets. The following is the transcript:

"MR McCULLAGH: Madam Chairman, before you rise, it was my proposal
Madam Chair, that in view of the complexities raised by this case,
which, if I may follow - I may be presumptuous - but there is certainly
the first question, which is what you have raised, and that is: there
has never been a determination made by a delegate that this man's
work-related condition has abated.
MRS HALLOWES: Well, this is what I - apart from present legislation,
that was what I was wanting to make sure; that the issue was narrowed
and that that was not something that was before the tribunal.
MR McCULLAGH: If my friend is prepared, and if that is not an issue -
in other words, it is conceded at this stage that the employee - the
former employee persists with a compensible injury - - -
MR GUNST: No.
MR McCULLAGH: Well, I thought that that may be the case and that and
some of the other issues raised in this case, in my submission, warrant -
and I am prepared to do it - written submissions.
MRS HALLOWES: Well, I do not think we are getting that from Mr Gunst.
I think I would prefer, in case there are matters this tribunal wants to
raise, not to have written submissions. I prefer to have oral
submissions and should - arising out of what is put to the tribunal in
oral submissions - any matters requiring further written submissions,
any issues that is not perceived by either side, having come to this
tribunal after a preliminary conference with - and statements of case -
that then there may be - may give leave for further written submissions
should there be some issue that is addressed by the respondent that the
applicant did not have warning of.
MR McCULLAGH: It has never been contended at the preliminary
conferences in this case, as I am instructed, that this worker has - and
his condition - had- - -
MRS HALLOWES: As compared to the conditions (contentions?).
MR McCULLAGH: Yes.
MRS HALLOWES: Yes, well this is - - -
MR McCULLAGH: It may have been by implication of a report from Dr
Conron, but it was never suggested that in fact was the case.
MR GUNST: That he has a compensable condition.
MR McCULLAGH: That he does not have a compensable condition.
MRS HALLOWES: Well, given the statement of facts and contentions - - -
MR McCULLAGH: Yes.
MRS HALLOWES: - - - does not paragraph 5 say:
The effects of his employment on the applicant's condition was
temporary and ceased two years after his retirement
MR GUNST: Yes. And on the next page as well. These are the respondents
submissions, dated 25 August 1989:
The effect of the applicant's employment on his condition ceased
two years after his retirement
MRS HALLOWES: Yes. And it is for that reason that I want to be
satisfied that, if those are the contentions, that they arise - they are
squarely based arising out of the determination before me.
MR GUNST: Yes. Those are the contentions of the respondents and I will
come back to my submissions after lunch if I may.
MRS HALLOWES: Yes. And that has been - that was 25 August - so there
has been a long lead time and it is open to the - and I presume the
applicant may, in putting submissions to this tribunal - would be
redressing (addressing) that question as well; whether there is any
jurisdiction for the tribunal - whether those contentions fall under the
matter before the tribunal.
MR McCULLAGH: Well, part of the submission of the former employee,
madam, is that the statement of facts and contentions do not in any
matter or way, support the determination this tribunal has been asked to
review.
MRS HALLOWES: Yes, well that was - I was assuming would be the position
put by the applicant.
MR McCULLAGH: Well, as I understand it, then we come back here some
time this afternoon and have oral submissions and if the need arises,
written submissions."

After lunch counsel for the respondent addressed the Tribunal. Mr. McCullagh then addressed the Tribunal. He submitted, inter alia, that "it is not open to this tribunal to deal with the question as to whether or not this injury, if it is in fact an aggravation, had in fact abated, as no determination of a delegate has ever been made in relation to that". At the conclusion of his address the following exchange occurred:

"I do not believe, madam, I can be of any further assistance unless
there are any matters I overlooked.
MRS HALLOWES; Now you had raised the question of witness ..............
before lunch. I had been trying to alert you both to what I perceived
were possible difficulties I might run into and wanted you to turn your
minds to them. I do not know whether you feel you have had an adequate
opportunity to do that or if there is any matter arising out of the
submissions by the applicant (respondent?) that you wish to also put a
written submission in or whether the tribunal can accept that you feel
that you have completed your task.
MR McCULLAGH: The only matter I would submit, madam, is that insofar as
the question as to whether or not work contributed to a material degree
in this case does not arise, because that is not part of the
determination. And again I would rely upon those two decisions of
Portelli.
MRS HALLOWES: Thank you."

9. The grounds of appeal concerning procedural fairness are expressed thus:

"14. The Tribunal failed to accord the appellant procedural fairness
in that:
(a) It failed to identify and/or adequately identify the
issue and/or issues upon which it intended to determine
the appeal;
(b) It failed to indicate one way or the other whether it
agreed to accept as falling within its jurisdiction for
determination as part of the application the submissions
made on behalf of the respondent;
(c) Further or in the alternative having appropriately
identified such issue and/or issues failed to afford the
appellant a reasonable opportunity:
(i) to consider the same;
(ii) to prepare a case to meet the same, including,
inter alia, the opportunity to have fresh and/or further
medical examinations of the appellant to be carried out;
(iii) to present his case to meet the same, including,
inter alia, the opportunity to call further medical
evidence with respect to such issues and/or recall the
respondent's medical witnesses for further
cross-examination with respect to such issue."

The grounds stated in paragraph 14(c) are not sustained by the transcript of the hearing before the Tribunal. As to the grounds stated in paragraphs 14(a) and 14(b), the Tribunal was at pains adequately to identify each issue of fact and each question of law upon the determination of which the Tribunal's decision might turn. The Tribunal was under no obligation before publishing its reasons for decision to specify any particular issue of fact or question of law as one on which its decision would turn. These two grounds misconceive the Tribunal's obligations on the hearing.

10. Several of the grounds I have considered had not found expression in the notice of appeal. The appellant's application for leave to add those grounds was opposed. Having considered those grounds and found them not sustained, I would grant the leave sought.

11. The appeal should in my opinion be dismissed.