Mashallah Kermanioun v Comcare [1998] FCA 1529 (20 November 1998)

Last Updated: 3 December 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - application for review from Administrative Appeals Tribunal - contents of written Statement of Reasons - failure to advert in Reasons to a material question of fact - failure to indicate whether corroborating evidence accepted or rejected

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Comcare v Lees (1997) 151 ALR 647 (referred to)

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (applied)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 (referred to)

Commissioner of Taxation v Osborne (1990) 26 FCR (referred to)

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 (referred to)

Mifsud v Campbell (1991) 21 NSWLR 725 (referred to)

Dodds v Comcare Australia (1993) 31 ALD 690 (referred to)

Copperart Pty Ltd v Commission of Taxation of the Commonwealth of Australia [1993] FCA 462; (1993) 30 ALD 377 (applied)

Kandiah v Minister for Immigration and Multicultural Affairs, Federal Court of Australia, unreported, 3 September 1998, Finn J (referred to)

Connell v Auckland City Council [1977] 1 NZLR 630 (referred to)

MASHALLAH KERMANIOUN (Applicant) v COMCARE (Respondent)

AG 23 of 1998

FINN J

CANBERRA

20 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 23 of 1998

BETWEEN:	MASHALLAH KERMANIOUN APPLICANT
AND:	COMCARE Respondent
JUDGE:	FINN J
DATE OF ORDER:	20 NOVEMBER 1998
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. the application be allowed

2. the decision of the Administrative Appeals Tribunal be set aside

3. the matter be remitted to the Administrative Appeals Tribunal for reconsideration

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 23 of 1998

BETWEEN:	MASHALLAH KERMANIOUN APPLICANT
AND:	COMCARE Respondent

JUDGE:	Finn J
DATE:	20 NOVEMBER 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal') must be allowed but on an unfortunate basis. The written Reasons provided by the Tribunal for its decision are inadequate.

Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") requires that:

"Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

There is now a considerable body of case law dealing with the burden imposed on decision-makers by s 43(2B) and by its mirror images in other statutes eg the Migration Act 1958 (Cth), s 430(1). The courts have emphasised variously (i) the importance to the parties, to the public and to review bodies of adequate reasons for decision; (ii) the understanding and restraint that courts should demonstrate when reviewing and construing reasons for administrative decisions; and (iii) the appropriate content in terms of findings and recitation of evidence that properly and reasonably can be expected of administrative decision-makers. Many of the authorities are collected and considered in Comcare v Lees (1997) 151 ALR 647 at 655ff and in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 94 ff. I will not reiterate here what was said there. I should, though, add to it the later admonition given by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at 491 that:

"the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

For the purposes of the present application it is sufficient if I note the following propositions concerning the s 43(2B) obligation.

(i) A breach of the obligation is not necessarily shown by pointing to matters which might, with advantage have been the subject of further or more detailed discussion or to possible issues which have not been mentioned: Commissioner of Taxation v Osborne [1990] FCA 362; (1990) 26 FCR 63 at 65; the Tribunal member, no less than a judge, is not required to deal expressly with "every consideration which passes through his mind": Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621; Mifsud v Campbell (1991) 21 NSWLR 725 at 728;

(ii) The Tribunal's Reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic: Dodds v Comcare Australia (1993) 31 ALD 690 at 691; where a matter significant to the decision is in issue and material is advanced by a party to support his or her version of it, that party is entitled to know whether it has been accepted or rejected by the Tribunal: "[w]ithout this knowledge the parties will have but an incomplete idea of the tribunal's process of reasoning and a lessened respect for the tribunal's decision-making process": Copperart Pty Ltd v Commission of Taxation of the Commonwealth of Australia [1993] FCA 462; (1993) 30 ALD 377; see also Kandiah v Minister for Immigration and Multicultural Affairs, Federal Court of Australia, unreported, 3 September 1998, Finn J. In the case of an unsuccessful applicant, it is that "incomplete idea" of why the decision went as it did that differentiates the "disturbed" from the "disappointed" applicant (to adapt the description used in Connell v Auckland City Council [1977] 1 NZLR 630 at 634).

It is the second of the above propositions of which the Tribunal has fallen foul in the instant case.

The applicant, Mashallah Kermanioun, had made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a back injury alleged to have been sustained at work in an incident involving the lifting of a heavy drum of chemicals on 28 May 1996. It was common ground before the Tribunal that Mr Kermanioun had a back condition. But having regard to his conduct subsequent to the alleged incident and to his explanations thereof, the Tribunal appears to have concluded that the incident relied upon did not occur. It expressed its conclusion in the following way:

"14. All in all, the Tribunal is in a position where it has come to the conclusion that the applicant's account of affairs does not hang together. In particular, his inability to link the work incident with his injury right through from May until some time in October seems to us to be quite incredible. We are not satisfied that Mr Kermanioun's back injury is related to his employment with the agency."

Save for one matter to which I will refer below, the Tribunal's Reasons were otherwise adequate to justify this conclusion. Mr Kermanioun's story of the 28 May incident was not believed and the Tribunal gave appropriate reasons for its credibility finding.

The difficulty with the Reasons is that evidence concerning the incident was provided to the Tribunal by another person as well. The incident is said to have occurred when Mr Kermanioun was making a delivery of the chemical drum to a depot of the government agency by which he was employed. The depot manager, though unable to give evidence to the Tribunal because of ill-health, had provided Comcare with a statement and that statement was provided to and was put in evidence by Mr Kermanioun.

That statement (omitting formal matters) is in the following terms:

"I have been employed by the Commonwealth and ACT governments for about 23 years. I have been a supervisor at the Greenway Depot of Cityscape Services for about 6 to 7 years. I hold the position of GS08 (Gardening Services Officer).

I recall a worker named Mashallah Kermanioun who usually worked at the Fyshwick depot. He and his supervisor, namely Mr Robert Head, would attend at the Greenway depot about once each fortnight or once each month to deliver an order of Roundup "shuttles". These shuttles were 110 litre drums of Roundup. The number of shuttles delivered could vary, depending on the size of an order, between one to five drums. The delivery might be made at any time of day, as Robert Head had a key to the store-room. I never had any documents recording the deliveries.

I did not see Mashallah Kermanioun or Robert Head make a delivery to the Greenway depot on Tuesday 28^th May, 1996. I rarely saw the deliveries being made, as the storemans entrance cannot be seen from my office. The usual procedure was for Robert Head to drive his government Toyota Hi-Lux utility to a position near the entrance door to the storeroom. Then he and Mashallah Kermanioun would lift the shuttles off the ute and move them into the storeroom with the aid of a four wheel trolley.

I was in my office at the Greenway Depot at about 11.20am on Tuesday 28^th May 1996 when Mashallah Kermanioun entered the office and said that he had just delivered a shuttle. He was holding his lower back and said that he had hurt the back when he twisted while unloading a shuttle from the utility. He looked to be in some pain and discomfort because he kept holding his lower back. We talked about a few other things before he walked out of my office. I did not leave my office and I did not go to the storeroom, so I do not know if Mashallah was working alone or with Robert Head or some other person.

Mashallah had never previously mentioned any injuries. I do not know why he mentioned his back injury to me on 28^th May 1996 because I was not his supervisor. However, when he left my office I made a note in the depot diary to record the discussion. The note is in my handwriting on the page for 28^th May 1996 and it reads as follows:

`Mashala hurt back today in morning. 11am.'

I think that Mashallah continued to make some deliveries to the depot after May 1996 but I am not sure, as I did not take much notice.

Deliveries of the 110 litre drums are now made to the depot by MIA Rural Services. The shuttles are moved into the storeroom by depot workers. MIA Rural Services occasionally uses an hydraulic lifter to unload the drums, or a forklift is borrowed from Totalcare. Workers at the depot have been told not to lift the drums off the back of the truck.

I declare that I have read the above and that it is true and correct to the best of my knowledge or belief."

The diary entry to which reference is made was put in evidence. On the page for 28 May 1996 appears, as stated, the writing:

"Mashala Hurt back today in morning. 11 am."

The portions of the entry I have underlined appear to have been written with a different pen or biro from the other parts of the entry and subsequent thereto. I note, though, that the underlined material does not alter the essence of the notation nor the communication it makes.

Having referred in its Reasons to the various matters that were to result in its finding adverse to Mr Kermanioun, the Tribunal dealt with "the Graham evidence" if I can so call it in the following way:

"13. Then there is the problem relating to the corroboration said to be contained in the diary of the depot where the delivery was made on 28 May 1996. There is a notation said to have been put in by the depot manager, Mr Graham, when Mr Kermanioun mentioned the `twinge' in his back. Normally, this would be capable of amounting to corroboration of Mr Kermanioun's evidence, but it is clear that the diary entry has been added to at some stage by use of a pen of a lighter colour. We do not know when the original entry was put in. We do not know when it was added to. The problem is that Mr Graham, supposedly the maker of the entry, is unavailable to give evidence, not even by telephone."

I would note immediately that no reference at all is made in the Reasons to Mr Graham's statement nor to his claim to the authorship of the note. At best he is characterised as "supposedly the maker of the entry". Why Mr Graham's statement and credibility were so bluntly called into question is left unstated - if, of course, it was even adverted to and, on the face of the Reasons, there can be no reasonable assurance that such occurred. Herein lies the vice of the Reasons. If Mr Graham's evidence was to be rejected, Mr Kermanioun was entitled to be informed of this and why it was so. The 28 May incident was the "key element" in his case: cf Muralidharan's case, above, at 96. I would emphasise there was no material before the Tribunal that could reasonably suggest that Mr Kermanioun and Mr Graham were acting in concert to deceive Comcare.

Mr Graham's evidence was not that of a witness to the 28 May incident. As such it could not of itself constitute proof of the incident. Nonetheless it was capable of corroborating Mr Kermanioun's story - provided, of course, it was accepted that Mr Kermanioun was truthful in his report to Mr Graham. But these were matters that the Tribunal seems not to have entered upon, or if it did it did not betray that in its Reasons. One is simply left to speculate as to how Mr Graham's evidence was dealt with, if it was dealt with at all.

Mr Kermanioun was entitled to know whether Mr Graham's evidence was accepted or rejected and, given its significance to the case he advanced (i) the reason for its rejection if rejected it was; or (ii) the reason he nonetheless failed in his claim, if it was accepted. This lack in the Reasons is of so fundamental a character as to necessitate allowing the appeal.

Accordingly I would allow the application, set aside the decision, and remit the matter to the Tribunal for reconsideration.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated: 20 November 1998

Counsel for the Applicant:	Mr B Salmon QC
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondent:	Ms J Bonsey
Solicitor for the Respondent:	Barker Gosling Solicitors
Date of Hearing:	23 October 1998
Date of Judgment:	20 November 1998