Christine Lodowski v Comcare [1998] FCA 158 (5 March 1998)

Last Updated: 9 March 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - compensation for injuries suffered in motor vehicle accident during employment - appeal from Administrative Appeals Tribunal to cease liability to pay compensation - whether another injury suffered by applicant was a "work related injury".

PRACTICE AND PROCEDURE - procedural fairness and natural justice - whether denied by Tribunal's introduction of new issue at hearing drawn to attention of counsel at end of evidence and before final submissions - whether Tribunal's role is adversarial or inquisitorial.

Administrative Appeals Tribunal Act 1975 : s 44

Safety, Rehabilitation and Compensation Act 1988 : ss 16, 19, 24, 62(2), 62(5)

Mills v Australian Postal Corporation (1994) 32 ALD 489, considered

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, considered

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, considered

Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626, considered

CHRISTINE LODKOWSKI v COMCARE

VG 271 of 1997

GOLDBERG J

MELBOURNE

5 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 271 of 1997

ON APPEAL from the General division of the administrative appeals tribunal constituted by mr b h pascoe (senior member)

BETWEEN:	CHRISTINE LODKOWSKI Applicant
AND:	COMCARE Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	5 MARCH 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's taxed costs of the appeal including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	vg 271 of 1997

ON APPEAL from the General division of the administrative appeals tribunal constituted by mr b h pascoe (senior member)

BETWEEN:	CHRISTINE LODKOWSKI Applicant
AND:	COMCARE Respondent

JUDGE:	GOLDBERG J
DATE:	5 MARCH 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction and background

The applicant appeals to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") on 14 May 1997 which affirmed the decision of the respondent to cease liability to pay compensation to the applicant under the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of injuries sustained by the applicant in a motor vehicle accident on 1 October 1990.

The applicant commenced employment with the Health Insurance Commission ("the Commission") in July 1990 and on 1 October 1990 she was involved in a motor vehicle accident in which she sustained injuries to her neck, right shoulder and back. As a result she was absent from work on several occasions and her claim for compensation under the Act in respect of the injuries was accepted by the respondent. By March 1993 she had returned to work at the Centrepoint office of the Commission in a part time position with extended hours which made it equivalent to a full time position. An incident involving the applicant occurred in November 1993 to which I shall later refer and thereafter she had further absences from work from time to time.

On 6 July 1995 the respondent notified the applicant that it had recently reviewed all the information held on her file and that the respondent was not satisfied that the applicant was still seeking treatment or was incapacitated as a result of injuries received in the motor vehicle accident. By letter dated 6 July 1995 the respondent notified the applicant that it was ceasing liability for her claim. On 4 August 1995 the applicant requested the respondent to reconsider that determination pursuant to s 62(2) of the Act and on 9 November 1995 the respondent made a reviewable decision in accordance with s 62(5) of the Act affirming the determination of 6 July 1995. On 3 January 1996 the applicant applied to the Tribunal to review the decision to cease payment of compensation in respect of injuries sustained by the applicant in the accident on 1 October 1990.

At the hearing before the Tribunal on 14 May 1997 the applicant claimed not only that she was entitled to weekly compensation pursuant to s 19 of the Act from 6 July 1995 (together with reasonable medical expenses pursuant to s 16 of the Act) but also claimed through her counsel, compensation for permanent impairment pursuant to s 24 although no such claim had been indicated prior to the hearing. The applicant claimed that she continued to suffer from injuries to the neck and right upper limb and from stress, anxiety and insomnia caused by the initial injury on 1 October 1990, which was aggravated, it was said, by the incident which occurred in November 1993.

That incident arose in the following way. The applicant was born on 24 July 1970 and became pregnant at the age of nineteen when unmarried and the applicant and the father of the child, later to become her husband, decided to have the pregnancy terminated. This occurred prior to the commencement of the applicant's employment with the Commission. No other person was told of the pregnancy or the termination. In her evidence-in-chief the applicant gave evidence that in November 1993 she, her husband and their infant daughter had visited a friend's place for the weekend and the friend had told her that she thought that the applicant should know that one of the other employees of the Commission, who was also a mutual friend, had informed her that the applicant had had a termination before she was married. Apparently the mutual friend had ascertained the fact of the termination from Commission records. The applicant made a formal complaint and charges were laid against the Commission employee and apparently a conviction was recorded. The applicant gave evidence that she was shocked at finding out what the mutual friend had done and as a result the applicant took a month's leave without pay from her employment. She said she consulted a psychologist about what had happened. The applicant continued to have pain in her shoulder and neck and the psychologist assisted her with pain management. Medical evidence was called on behalf of the applicant to the effect that she was suffering from fibromyalgia which was affected by emotional stress. The respondent called medical evidence to the effect that the applicant's problems, which included psychological problems, were psychologically based and of long standing and that such condition as she now had was not caused by or related to the accident on 1 October 1990, and was exacerbated by the November 1993 incident. The Tribunal found that the November 1993 incident did not arise out of, nor did it occur in the course of, the applicant's employment with the Commission and that it could not be satisfied on the balance of probabilities that after 6 July 1995 the applicant continued to suffer an ailment or injury caused by the accident on 1 October 1990.

The proceeding before the Tribunal

Prior to the commencement of the hearing before the Tribunal the parties filed and exchanged statements of facts and contentions. In the applicant's statement she set out her history and the facts giving rise to her claim for compensation. Paragraph 7 was in the following terms:

"While on return to work as a Customer Services Officer the claimant was working at the Centrepoint Branch Office of the Commission and was approached by a co-worker, Ms Connie Tabacco, who was employed at the Northland Office of the Commission. Ms Tabacco had improperly obtained access to the claimant's claims history from the Commission's computerised records, in particular, about a termination procedure undergone by the claimant some time earlier".

In the respondent's statement in answer there appeared the following:

"The incident at work in 1993 in which a fellow employee divulged confidential information concerning the applicant to other employees would have been a temporary aggravating factor and, according to Dr Strauss, is not particularly relevant at the present time."

When the matter was opened by counsel for the applicant before the Tribunal on 10 February 1997, counsel for the applicant announced that the decision under review related to the applicant's injuries arising from the accident on 1 October 1990 when she sustained physical injuries. At the conclusion of the applicant's counsel's opening, counsel for the respondent made the following observation:

"It is just, I suppose, to define the matter that is before the Tribunal because there may well be evidence of other matters with respect to other prospective claims, or another prospective claim. Now as I understand it, the claim that is before the Tribunal is in respect of physical injuries arising out of the car accident, and I anticipate there will be evidence given about another matter that arose out of the course of the employment which may be alleged to have given rise to a psychological condition of itself, and I just wanted to ventilate that now to ensure that that is not an issue that is before the Tribunal, because there will be, I would imagine, a lot of evidence about that other matter."

The Tribunal asked whether that was "the 1993 incident" and counsel for the respondent said that was so and that he understood that there may be prospective claims in respect of that incident and alleged injury which were not before the Tribunal. He continued:

"The matter I am raising is that I am just wanting to confirm, if I can, that that `93 incident and any alleged injury consequent upon that incident, is not being litigated in this application, because there will be a lot of evidence given about it, as I understand it, as I understand the materials."

The Tribunal then said:

"Well as I say, from the statements that I have on file, it appeared to me that that was being part of this case and presumably argued by the applicant as an aggravation of a work related injury".

Counsel for the respondent said that his instructions were that there had never been a claim or decision made in respect of any stress related reaction to the November 1993 incident and counsel for the applicant responded:

Well, it is a pretty fundamental point, if the Tribunal pleases because, as the Tribunal has correctly observed, it is fundamental to the applicant's case that this incident and the ramifications thereof are before the Tribunal. It is certainly referred to in the facts in the applicant's facts and contentions, and we had not perceived that the respondent would attempt to exclude from consideration by this Tribunal the effects of that work related incident on the applicant's medical condition. It is also raised, in my submission, by Dr Kostos's report, which is at T16, which talks about fibromyalgia and pain amplification and relates that to anxiety and stress, and we would have thought that report itself raised the same issue.

Now if it is now to be said that for one reason or another this release of very private information and its consequences upon the applicant and its effect on her capacity to work, if that is to be excluded as being some new injury in respect of which a claim for compensation has not been filed, then we should have been told about that a long time ago, and we would object most strongly to the course that my friend now suggests being taken, and if it is to be taken then clearly we would wish to have that claim, if a new claim was to be lodged, considered at the same time. It would be extremely unfair to the applicant to split the case and to consider one aspect now and not the other, but as I say, our view was that all of these aspects were presently before the Tribunal."

Counsel for the respondent then sought to clarify one matter and said:

"I did say no claim had been made in respect to the `93 incident, that is probably incorrect. I understand a claim for permanent impairment has been made in respect of that but no decision has been made. I do not appear to have a copy of the applicant's statement of facts and contentions. Certainly, the respondent's statement does not allude to any issue specifically arising out of the `93 incident. And certainly the respondent is not geared today to be defending certainly any claim for the permanent impairment aspect."

The Tribunal then noted that, putting the permanent impairment question on one side, he saw that the November 1993 incident was clearly outlined in the applicant's statement of facts and contentions of 26 November 1996 and he said that:

"... it is pretty clear from that that the applicant was intending to rely on that incident as part of this overall claim".

The Tribunal then said it could not believe that the respondent was taken by surprise by the November 1993 incident being included in the claim and counsel for the respondent responded:

"Yes, I hear what the Tribunal is saying. I have not got possession of that applicant statement which unfortunately assists. But if the Tribunal is saying that it is probably before it, so be it, in terms of what the respondent's conduct has been like up to this point in time, then I am bound to say that it probably is in front of the Tribunal. I would, however, seek the Tribunal's clarification as to whether the permanent impairment aspect is before the Tribunal. It is certainly not a matter that we have been geared to face."

The Tribunal then said that it had taken from the applicant's counsel's opening that the only question before the Tribunal was ongoing compensation and legal expenses and not a claim for impairment. Counsel for the applicant responded that he was in a position to proceed on the permanent impairment question and did have evidence to lead before the Tribunal. In response to a question from the Tribunal whether he was proposing to seek compensation under s 24 of the Act he said:

"We are certainly wanting the permanent impairment question determined and we have got evidence before the Tribunal."

The matter proceeded and evidence was called. The applicant gave evidence which included evidence as to the November 1993 incident and its consequence for her. The applicant had been examined by a psychiatrist Dr Timothy Entwisle and in the course of his evidence-in-chief he gave evidence as to the existence and significance of the November 1993 incident. In his written report he had said:

"In this sense her motor vehicle accident triggered unresolved issues from her past, and in that sense its occurrence is highly significant. In addition her private details in regard to her termination being made public exacerbated her symptoms of pain in May 1994 and led to an increased sense of vulnerability."

Counsel for the applicant then asked Dr Entwisle:

"So you, as I read what you are saying there, put two things of great importance into her condition. One is the motor vehicle accident, and secondly the release of private information?"

Dr Entwisle replied:

"Yes."

Counsel for the applicant also referred Dr Entwisle to the passage in his written report where he had said:

"As such the accident and the subsequent revelation of her personal details have acted upon her experience of her accident and has led to a fibromyalgic condition in which these factors clearly play a significant role in the maintenance of, and experience of pain."

Counsel for the applicant then asked Dr Entwisle:

"And on that basis you say that there is a very significant involvement from employment in the applicant's current condition: is that your opinion?"

A transcript records Dr Entwisle's answer as being:

"Hm."

Counsel then responded "alright" and went on to other matters.

Further on in the examination-in-chief, after objection was taken to a leading question relating to the release of information in November 1993 and its effect on the applicant's marriage, counsel for the applicant asked Dr Entwisle:

"Well, what is your opinion as to the reason that the issue still affects her marriage?"

Dr Entwisle's reply was "well, one thing exacerbates I think". Counsel for the applicant then said:

"Yes. And the exacerbating factor is ...?"

and Dr Entwisle replied:

"The accident and then the release of the information".

This exchange had occurred in the context of counsel for the applicant taking Dr Entwisle through a report of 3 December 1996 to the respondent's solicitor by a psychiatrist Dr Strauss as a result of seeing the applicant on 3 December 1996. That report had referred to the fact that the applicant had told Dr Strauss of the November 1993 incident and its consequences for her. Counsel for the applicant read that part of the report which dealt with the account the applicant had given Dr Strauss about the November 1993 incident and then read to Dr Entwisle the following passage from Dr Strauss' report:

"Although this woman was upset by the information that was divulged by an alleged friend and workmate a few years ago regarding her termination, I do not believe that this is particularly relevant at the present time."

Counsel for the applicant then asked Dr Entwisle "What do you say to that?" Dr Entwisle's answer was:

"No, I thought it was quite relevant, significantly so. She was very shamed by that, was my experience of her."

I should also point out that in Dr Entwisle's report dated 21 June 1996 which was before the Tribunal, he had referred to the November 1993 incident and its effect on the applicant. In that report, after referring to the fact that the applicant was emotionally fragile and that such state pre-dated the accident (it nevertheless was strongly contributory in terms of her fibromyalgic condition and her experience of pain) Dr Entwisle said:

"In this sense her motor vehicle accident triggered unresolved issues from her past and in that sense its occurrence is highly significant. In addition her private details in regard to her termination being made public, exacerbated her symptoms of pain in May 1994 and led to an increased sense of vulnerability."

The applicant also called Dr Andrew Ramsay, a general practitioner who had been treating the applicant since May 1994. He had given two reports to the applicant's solicitors dated 7 October 1994 and 22 May 1996 which were before the Tribunal, and in these reports he had referred to the November 1993 incident. In a report of 7 October 1994, he had said:

"I was aware that there was a breach of confidentiality within the Health Insurance Commission concerning some details from her past and I was aware that this was a point of aggravation for Christine.

...The breach of confidence that occurred in October 1993, has caused Christine much anger and emotional tension, which undoubtedly has worsened her degree of pain."

In the report of 22 May 1996, Dr Ramsay said:

"I have already mentioned the breech (sic) of confidence which occurred in October 1993. This caused a lot of anger and hurt and was a serious factor in the aggravation of her pain syndrome."

In the last paragraph of this report Dr Ramsay said:

"There is a very direct relationship between Christine's current condition and her employment. Her initial injuries were caused by a motor car accident in 1990. These injuries were further aggravated by repetitive manual tasks, both in the mail room and when working on the keyboard. Furthermore, there has been extreme psychological aggravation by a breech (sic) of confidence which occurred in October 1993 and caused Christine much anger and emotional tension."

Dr Ramsay was called to give evidence and in examination-in-chief, counsel for the applicant read part of his report to him and asked:

"They are the matters that you have got from this patient that are of important (sic) in her current condition, is that so?"

To which question Dr Ramsay replied "Yes".

The applicant also called a psychologist Ms Muradiye Selvi to whom Dr Ramsay had referred the applicant on 29 May 1994 for pain management relaxation therapy and overall assistance in rehabilitation. She first saw the applicant on 17 June 1994. She had given a report dated 22 March 1996 to the applicant's solicitors which was before the Tribunal. In that report Ms Selvi said that the applicant had informed her that she had become severely traumatised as a result of the November 1993 incident and she had told Ms Selvi of the consequences of the November 1993 incident for her. In her summary and prognosis in the report Ms Selvi said:

"A further aggravating problem of the pain and psychological condition has been a breach of confidential information about Ms. Lodkowski's very personal medical history from her past which apparently was obtained by a staff member working for the Health Insurance Commission. The devastating and traumatising event has caused a severe reactive response in Ms Lodkowski as the personal information was very private and had been very distressing at the past and that is where she would have prefer that it stayed."

Ms Selvi was asked what was her manner of dealing with the stressor of the November 1993 incident and she replied in some detail. The applicant's counsel's final question in examination-in-chief to Ms Selvi was:

"But just in closing I would ask you again that in your opinion further treatment is warranted in this case for those conditions that you describe and which you put as arising directly from the 1990 accident and the 1993 release of information?"

Ms Selvi's answer was:

"Yes, I do. I think they would have been beneficial to help her to manage this better than what she is already doing so, yes."

I have set out these passages of the evidence before the Tribunal in some detail for the purpose of demonstrating that although the applicant's counsel seized upon what would seem to be the significance of the November 1993 incident, so far as the applicant's present condition is concerned, he did not investigate the issue as to whether the November 1993 incident was work-related. I have not set out any of the cross-examination because the point I am seeking to make is to identify the manner in which the applicant's counsel approached the November 1993 incident which paid little regard to its relevance and significance as a work-related issue.

After the evidence concluded and when the time came for final submissions the Tribunal said:

"One factor which I should mention, I have not interrupted you, but on a number of occasions you have referred to the 93 incident as a work related one. I would need you to think about the question of that incident, and whether it arose out of or in the course of employment. It is a question which I need to think about. I am not suggesting I have any concluded view on it, but it seemed little to be taken for granted that it was a work related aggravation, and I am not completely convinced of that. Yes, I would need to be convinced that it is a matter that arose out of it."

There was then a luncheon adjournment after which counsel for the applicant said:

"I have spoken to my instructing solicitor in relation to the matter raised by the tribunal immediately before we adjourned. To put it mildly we are somewhat perturbed by it, it is a matter that has not previously been raised in this case. It is a matter in respect of which no issue is taken by the respondent's facts and contentions."

There was then a discussion between the Tribunal and the applicant's counsel relating to the respondent's counsel's initial objection to evidence in relation to the November 1993 incident because the respondent had not dealt with it and the fact that the Tribunal had said that it would admit that evidence. The Tribunal then said:

"My point made before lunch was simply this: irrespective of the normal adversarial position in these cases, it is still the tribunal's responsibility to come up with the correct or preferable decision, not necessarily bound by only limited to matters which either party might raise. In fairness, if the tribunal sees an issue, then it is appropriate that I raise it prior to submissions.

Now, in this case, you were asking questions at times, have referred to this as an employment-related incident. I simply wanted to say that the matter that has been exercising my mind as to whether necessarily the 1993 incident can be said to be employment related."

There was then a discussion about what is involved in an injury becoming work related and counsel for the applicant then said:

"In any event, the effect of all of this has been that this is something totally unpredicted in this case."

The Tribunal responded:

"I cannot understand that. I mean, the whole basis of a claim for compensation has got to be an injury or an aggravation of an injury arising out of or in the course of employment."

The following exchange then occurred between the counsel for the applicant and the Tribunal:

"MR INGRAM: With the greatest respect, there are two sides here; there is the respondent and there is the applicant. The respondent's material refers ---

MR PASCOE: I am in the middle with the requirement to make a correct and preferable solution.

MR INGRAM: That is right, you are in the middle. What has happened now is that you have put forward an idea which is conceded by the respondent, and the Tribunal has - because the respondent's facts and contentions say the incident ---

MR PASCOE: If Mr Ferwerdo [counsel for the respondent] can tell me that he has conceded clearly this point, that that 93 incident did arise out of the course of employment, then that is a factor that clearly I have to take into account.

MR INGRAM: I just want to read out from his facts and contentions refer to the incident at work in 1993, in which a fellow employee divulged confidential information - is at the bottom of those facts and contentions. This was not a point in issue, and it has been brought in issue, in my submission, solely by the Tribunal. It is most disconcerting that it has happened after all of the evidence has been led and without any objection having been taken to relevance or admissibility on the basis that it did not concern a work-related injury."

Counsel for the applicant then read the passage from the respondent's statement of facts and contentions to which I have referred above, and the dialogue then continued:

"MR INGRAM: Now, it seems to be an implicit part of the respondent's case that the point that is raised by the Tribunal of its own volition is not in issue between the parties. What I am saying, it is particularly disconcerting to have the Tribunal raise it, because even if my friend now says, yes, our statement of facts and contentions is there, and they are binding, we are concerned about the importance the Tribunal is going to attach to the evidence concerning the 1993 incident, given the raising of an objection as to whether it is linked to the employment at all.

And to say that you have not determined the point, but you would be inclined against it ---"

I interpolate again that the evidence given concerning the November 1993 evidence differed from the first statement of the November 1993 incident in the applicant's statement of facts and contentions. That evidence had been given by the applicant and was in the following form:

"Whilst you were at the Prahran office, did an incident occur involving a release of some information from your HIC records?---Yes.

Can you just tell the Tribunal, in your own words, what happened, as you were informed of it?---We had gone - my husband and I and my daughter had gone to a friend's place for the weekend, and she had taken me aside, and she said that she thought I should know that one of the other employees of the HIC, who was also a mutual friend, had informed her that I had had a termination before I was married. Since that time we have broken up our friendships.

What was the effect on you of finding out that this woman had done this?---I was just shocked. My thoughts were, you know, that this never should have happened, this was never meant to come out. At the time when I had the termination, my partner was saying to me `But nobody will ever know. No one will ever find out about it,' so it was a shock to the system to have to come to terms with other people finding out.

The person who found out was a Miss Tobacco I think her name was, who was an HIC employee?---That's right.

After finding out, did you have any time off away from work?---I took approximately a month off, leave without pay.

Was that in February and March of 1994?---Yes."

The dialogue between the Tribunal and counsel continued:

"MR PASCOE: No, I am not saying I am inclined against it. All I am saying is that it is a - to find in favour of your client I have to find that she is entitled to compensation pursuant to section 19. She has to have an injury as defined. All I am saying is in order to find that, there has to be a finding of fact, that it is related to employment. All I am saying is that I see it as an appropriate matter on which counsel, for both sides, could address me.

Now, if Mr Ferwerdo is prepared to say that he is conceding that and he is not prepared to argue against it, then that is clearly a significant factor which I will take into account.

MR INGRAM: Well, in my submission, unless it is a conclusive factor that would still create a problem for the applicant.

MR PASCOE: Well, no.

MR INGRAM: No, sorry, a problem for giving comprehensive submissions on matters of law now, because there is a great deal of case law on this point, and it has come out of nowhere that this issue is going to be relevant.

MR PASCOE: I am sorry, I cannot understand the view that it comes out of nowhere when the Act itself requires it as a very specific requirement in order for compensation. All I am saying is that in just about every case that I have been involved in in compensation, one of the factors that has to be addressed is whether or not the injury arose out of consequence of employment.

MR INGRAM: That is not in dispute. What is in dispute is that the respondent in its statement to the tribunal said the point was not in dispute, and now the tribunal has said, well, as far as I am concerned, it is.

MR PASCOE: Before we go any further, Mr Ferwerdo, perhaps you can ---

Counsel for the applicant then said that the Tribunal had put forward an idea which was conceded by the respondent and the Tribunal inquired as to where that concession had been made. Counsel for the applicant contended that the work-related nature of the November 1993 incident was not an issue in the respondent's facts and contentions but had been brought in issue solely by the Tribunal. The Tribunal then said:

"There has to be a finding of fact, that is related to employment. All I am saying is that I see it as an appropriate matter in which counsel, from both sides, could address me."

Counsel for the respondent then said:

"Can I just very briefly make a couple of points. Firstly, my recall is that I objected to evidence of the claim relating to the 93 incident being ventilated in this application. I cannot recall saying that I objected to any airing of the psychological state as such. But rather the 93 incident, because there had been no claim in respect of it or no decision by an administrative officer.

Secondly, I do not make the concession that the tribunal has adverted to. I would seek to argue that it is not arising out of employment. It certainly does not arise in the course of employment and I would argue that it does not arise out of it. I respectfully submit that whilst it is adversarial the decision has got to be the right one. The Act has got to be followed.

Further, I submit that the statement of facts and contentions does not make the concession. It says an incident at work; that does not mean it is compensible although it does go on to say it might have been a temporary aggravating factor, but I submit that should not be read as a concession. Finally, I am prepared already to make submissions to the tribunal on all those matters."

Mr Pascoe then said:

"It is not long ago that I was berated by a Federal Court judge for making a decision on the basis of the quality of the submissions made by counsel, and I should not make a decision or finish up with an answer because of the failure of counsel. It is my role to come to the right decision".

Counsel for the applicant said he was taken "totally by surprise" because the point was conceded in the respondent's outline of statement of facts and contentions. After further dialogue counsel for the applicant said:

"With due respect, it is my submission that this is a preliminary point that has now been raised that must be determined. So much of the evidence that has been led has been led on the basis that this is all encompassing. In other words, the claim encompasses the original motor vehicle accident and the 1993 release of that very personal information. Because there was no indication to the contrary all of the evidence has been led to a cumulative effect."

...

MR INGRAM: I understand that. If the tribunal decides in the line favourable to the applicant then there will not be any problems. The tribunal has indicated though in its mind is the fact that this 1993 incident is not related to employment and is not compensible.

MR PASCOE: No, I am saying that is something they need to be satisfied as (sic) and there are two, as I would see it, two bases upon which it could be said to be employment related. One with the aggravation incident itself is related to employment, arose out of employment. The other is that that was an aggravation which would not have had the effect it did if it had not been for the previous susceptible nature of the ...(indistinct)... the result of a previously clearly work-related injury. Either of those can then come within the definition of injury. I am just simply raising the question but I need to be satisfied as to one or other of those. I did not want you to just - all I am saying is I did not want you to just accept as automatic that it was accepted that that injury or that `93 incident could be accepted as a ---

MR INGRAM: Well, that is how the whole case has been conducted.

MR PASCOE: That is why I raised it because it seemed to me that that was the course you were taking and I simply said that it seemed to me that included in your submissions needed to be a submission which drew the connection between the `93 incident and employment.

MR INGRAM: Can I say this to the tribunal. The point that has been raised throws a totally different complexion on how the applicant's submissions are framed. That is what I am saying and that is what catches us by surprise because the point was not a live one til that was said.

MR PASCOE: I understand your concern. How do you propose that we deal with it?

MR INGRAM: I propose to deal with this solely by written submissions. In my submission, it would be most unfair to go into submissions now not knowing the relevant legal background against which those submissions were framed."

Counsel for the applicant continued to maintain that the applicant's case had been conducted on the basis that there was no issue that the November 1993 incident was not work-related, and as a result of his claim that he was taken by surprise. He was given an opportunity to reply to the oral submissions made by counsel for the respondent by written submissions which he did within fourteen days thereafter.

In the course of the respondent's counsel's final submissions he submitted that the November 1993 incident did not arise out of, or in the course of, the applicant's employment and he amplified that submission.

Grounds of appeal

The notice of appeal raises eleven grounds of appeal which can be conveniently summarised as follows:

(a) the Tribunal misconceived the basis of the proceedings before it;

(b) did the Tribunal fail to accord procedural fairness to the applicant by the manner in which it dealt with the November 1993 incident;

(c) did the Tribunal improperly confine its consideration of whether there had been an injury as defined to the facts surrounding the November 1993 incident;

(d) did the Tribunal consider properly the evidence before it;

(e) there was no issue before the Tribunal as to whether the November 1993 incident was an injury as defined.

The grounds of appeal were amplified by the applicant's counsel in oral argument as follows:

(a) the issue whether or not the November 1993 was a work-related incident was not before the Tribunal at the time evidence was led. Accordingly, the applicant has been denied procedural fairness and natural justice because the case was determined on a point in respect of which she was not given the opportunity to lead evidence;

(b) the Tribunal took the view that the proceeding before it was adversarial which was a misconception of the Tribunal's role as the proceeding was inquisitorial. This had two consequences:

(i) it impacted on the denial of procedural fairness point as it demonstrated that the Tribunal did not have a proper appreciation of the natural justice issue;

(ii) the Tribunal's view that the proceeding was adversarial infected and affected the whole proceeding and its intrinsic nature as the Tribunal should have approached this task on the basis that the proceeding was inquisitorial;

(c) the Tribunal's decision did not address properly the relevant legal issues to determine whether the November 1993 incident was work-related;

(d) the Tribunal failed to have all the relevant evidence before it so that it prevented itself from considering all the legal issues.

The respondent submitted that natural justice had not in fact been denied to the applicant and that she had been given the opportunity to address the issue raised by the Tribunal at the end of the evidence. The respondent also submitted that irrespective of what view the parties took of the issue the jurisdiction given to the Tribunal was such that it was bound to determine the issue whether the November 1993 incident was work-related and that the Tribunal had not confined its analysis of the facts only to the November 1993 incident.

The Tribunal's reasons

In order to understand the context of these submissions it is necessary to set out a number of passages in the Tribunal's reasons for its decisions. The Tribunal set out the applicant's personal history and history of employment with the Commission, identified the motor vehicle accident which had occurred on 1 October 1990, the November 1993 incident and then set out in summary form the medical evidence led by the applicant and the respondent. The Tribunal then said:

"At the conclusion of the evidence and prior to the submissions, the Tribunal indicated that it was expected that submissions would deal with the question of whether the incident in 1993, alleged by Mrs Lodkowski to be an aggravation of her condition, arose out of, or in the course of, employment. This comment was made as it had appeared to the Tribunal from the opening by Mr Ingram and subsequent comments, that he believed the matter was not in dispute".

The Tribunal then set out in summary form the dialogue which occurred between the Tribunal and counsel to which I have already referred. The Tribunal then said:

"In his written submission, Mr Ingram argued that the suggestion of the Tribunal that submissions as to whether the 1993 events arose out of, or in the course of, employment would be required resulted in a denial of procedural fairness and natural justice to Mrs Lodkowski. It was said that this was so coming in the face of the respondent's concession on that issue contained in the statement of facts and contentions and the suggestion not coming until the conclusion of the evidence. It was said that, in failing to raise the matter prior to the conclusion of evidence, and to provide Mrs Lodkowski's legal advisors with sufficient time to obtain further instructions and evidence in relation to a matter which prior thereto was not in issue, the applicant was deprived of `a fair opportunity to deal with the issue'. It was considered that, as the point was not in issue, the applicant did not lead detailed evidence as to the nexus between the 1993 events and her employment to her significant disadvantage. Mr Ingram considered that the decisions in Tuite v Administrative Appeals Tribunal (1993) 17 ALR 165 and Marelic v Comcare [1993] FCA 599; (1993) 32 ALD 155 supported his views."

The Tribunal then considered the applicant's submission that the respondent had conceded that the November 1993 incident was employment related and did not accept that any concession on the matter was made by the respondent. It referred to the applicant's statement of fact and contentions (to which I have already referred) and noted that the relevant statement of the November 1993 incident was contrary to the evidence given by the applicant at the hearing. The Tribunal said that the words used in the respondent's statement of facts and contentions were in the context of a statement that the respondent was relying on the report of Dr Strauss and his views of the relevance of the 1993 incident. (I should also point out that as the respondent's statement of facts and contentions was responding to the applicant's statement, I consider that the words used in the statement should be taken to be a reference to the incident as stated and described by the applicant. This description was not borne out by the evidence.) The Tribunal then noted in any event the question of the nexus with employment went to the heart of the applicant's entitlement to compensation and that it was not a case where it was appropriate for the Tribunal to be bound by a concession.

The Tribunal then said it was not able to accept that the applicant suffered any disadvantage as a result of the employment nexus being raised by it and said:

"Subsequently, Mr Ingram sought leave to consider the matter and provide a written submission within 14 days. The submission was dated 16 days after the completion of the hearing and filed on 17th day. No indication was given that the applicant sought a resumption of the hearing nor of the nature of any `detailed evidence as to the nexus between the 1993 events and her employment'. At the hearing, Mrs Lodkowski gave evidence of the circumstances of the disclosure of the information, the nature of the information and the identity of the employee who divulged the information. It is difficult to see how Mrs Lodkowski herself could have provided any further factual evidence of any nexus. This is a matter for the Tribunal to find on the basis of the evidence of the facts surrounding the incident."

The Tribunal then distinguished two cases on their facts and then said that the Tribunal's observations about whether the November 1993 incident arose out of, or in the course of, the applicant's employment and the possibility of using that issue in its decision were put to counsel. The Tribunal expressed itself as follows:

"They were put to counsel prior to submissions and with ample time for counsel to consider their significance. They were put at the earliest time at which the Tribunal recognised that counsel may not have considered employment nexus as a relevant issue. As indicated earlier, other than a request for a further 14 days in which to consider the position, no request for the giving of further evidence or the indication of what further evidence, other than the opinion of Mrs Lodkowski was made. As a consequence, the Tribunal does not accept that the applicant was denied a fair opportunity to deal with the issue nor procedural fairness."

The Tribunal then considered the evidence for the purpose of determining whether there was a sufficient nexus between the November 1993 incident and the applicant's employment. It noted that the incident was the disclosure by a co-worker to a mutual friend and said that the information disclosed had no relationship with her employment duties or conditions. The Tribunal then said:

"Given the circumstances, the employment nexus can be shown only if it can be said that her records had been inspected and the information conveyed to a third party because she was an employee of HIC".

The Tribunal then distinguished the facts from those in Mills v Australian Postal Corporation (1994) 32 ALD 489 and concluded:

"Here there was no involvement of the employer, the information was unrelated in any sense to the employment of Mrs Lodkowski and the communication was unrelated to the work place. The Tribunal finds that there was no contribution by her employment and the incident did not arise out of, or in the course of, employment."

The Tribunal then went on to consider whether subsequent to July 1995 the applicant continued to be incapacitated for work as a result of the accident in 1990 and whether the respondent should be liable for the costs of further medical treatment. The Tribunal analysed the evidence and in particular the medical evidence and said:

"The Tribunal cannot be satisfied, on the balance of probabilities, that, after 6 July 1995, Mrs Lodkowski continued to suffer an ailment or injury caused by the accident in 1990".

Having concluded that it could not find that there was any employment related reason for any ongoing symptoms beyond 6 July 1995 the decision under review was affirmed.

Did the Tribunal misconceive its function?

The applicant submitted that as the Tribunal took the view that its function was adversarial rather than inquisitorial, the whole proceeding was infected and affected and should be set aside. It is true that the Tribunal at one stage in the course of argument said that the proceeding before it was adversarial and that in its reasons for judgment it came to a conclusion related to its satisfaction on the balance of probabilities. However, in my opinion, these statements did not result in the Tribunal misconceiving its function and proceeding in a manner that was not appropriate having regard to the issues before it. It is important to identify the context in which the relevant passages attacked arose. After the Tribunal had raised with counsel the issue as to whether or not the November 1993 incident was work-related the Tribunal gave counsel the opportunity to consider the matter over the luncheon adjournment. After the adjournment counsel for the applicant said that the matter had not been raised previously and that counsel for the respondent had not objected to any evidence about the November 1993 incident. The Tribunal then said:

"No, because I said that I would admit it. My point made before lunch was simply this: irrespective of the normal adversarial position in these cases, it is still the Tribunal's responsibility to come up with the correct or preferable decision, not necessarily bound by only limited to matters which either party might raise. In fairness, if the Tribunal sees an issue, then it is appropriate that I raise it prior to submissions."

If the Tribunal was saying that the proceedings before it were adversarial then it was incorrect because they are rather to be characterised as inquisitorial: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425 per Brennan J. However, in my opinion, the Tribunal was doing no more than adverting to the fact that although counsel for one party may not have objected to evidence, it was not the Tribunal's role simply to be guided on the issues by the way the parties conducted their cases, but rather the Tribunal had to come up with what the Tribunal referred to as "the correct or preferable decision". These are precisely the words used by Brennan J in Bushell (supra) at 425. This view is made clear by the Tribunal saying that it was not necessarily bound or only limited "to matters which each party might raise". Even if the Tribunal was under the impression (which I do not accept) that the proceedings were adversarial rather than inquisitorial, it did not misconduct the proceedings or misdirect itself as to the manner in which the proceedings should be conducted.

The only other reference made in the course of argument to the fact that the proceedings were adversarial was by counsel for the respondent when he was responding to the applicant's counsel's submission that whether the November 1993 incident was work-related had not been an issue. He said that he had not made the concession that the November 1993 incident was work-related and said that the incident did not arise in the course of the applicant's employment and he would argue that it did not arise out of it. He then said:

"I respectfully submit that whilst it is adversarial the decision has got to (be) the right one. The Act has got to be followed."

Counsel's words in this respect may have been loose but the point he was seeking to make was that the Tribunal had to reach the correct result irrespective of the parties' submissions. This point was picked up by the Tribunal who then said:

"It is not long ago that I was berated by a Federal Court judge for making a decision on the basis of the quality of the submissions made by counsel, and I should not make a decision or finish up with an answer because of the failure of counsel. It is my role to come to the right decision."

In this passage I consider the Tribunal was properly identifying the function which it had to carry out. Although Counsel for the respondent had said that the proceeding was adversarial he made this statement in the context of submitting that the Tribunal had to reach the right result, in effect, independently of what the parties had submitted. The other basis upon which it was submitted that the Tribunal had misconceived its function was its reference in paragraph 25 of its reasons, after considering the medical evidence in relation to the applicant's condition of fibromyalgia, to the fact that:

"The Tribunal cannot be satisfied, on the balance of probabilities, that, after 6 July 1995 Mrs Lodkowski continued to suffer an ailment or injury caused by the accident in 1990".

It was submitted that the notion of onus of proof has no part to play in the administrative proceedings before the Tribunal, reliance being placed on the decision in Kuswardana v Minister for Immigration (1981) 35 ALR 186; Bushell (op cit) at 425. I do not consider that the Tribunal's expression of non-satisfaction "on the balance of probabilities" resulted in the Tribunal misapprehending "the matters of which it has to be satisfied in reaching a decision": Kuswardana (supra) at 194. The Tribunal was faced with conflicting evidence as to whether after 6 July 1995 the applicant continued to suffer an ailment or injury caused by the 1990 accident. It was apparent that the Tribunal was not satisfied that this was so. But how else could the Tribunal express itself? "If it simply said that it was not satisfied ..." it might be open to the criticism that it had applied an incorrect or inappropriate approach to determining its level of satisfaction. Faced with conflicting evidence, if the Tribunal was unable to form the view on the evidence that the applicant continued to suffer an ailment or injury caused by the accident in 1990, it was appropriate, in my opinion, to apply language akin to the civil standard of proof to determine its level of satisfaction. The applicant's reliance on Kuswardana is, in my view, misconceived. By using the language appropriate to an onus of proof analysis, the Tribunal did not misapprehend the matters of which it had to be satisfied in reaching a decision on the matter before it.

Was the applicant denied procedural fairness or natural justice?

In my opinion the extensive analysis of the evidence and the submissions to which I have referred discloses that the applicant had not been denied procedural fairness or natural justice in relation to the manner in which her case was presented to the Tribunal. The relevance and significance of the November 1993 incident as work related was not only raised at the close of the evidence but the applicant's counsel was specifically given the opportunity to respond to the issue.

It is a trite proposition of law that the issues to be determined by a tribunal or court should be identified to the parties to enable them to address those issues and lead evidence and make submissions in relation to them during the currency of the hearing: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582, 584; Jung Sheng Xia v Minister for Immigration [1992] FCA 248; (1993) 27 ALD 668, 673 - 674; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, 714 - 715. But that is exactly what occurred before the Tribunal. It appears there was a misunderstanding during the leading of evidence as to whether or not it was accepted or conceded by the respondent that the November 1993 incident was work-related. The evidence which was lead, particularly from the applicant, as to the circumstances in which the November 1993 incident arose, differed significantly from the version set out in the applicant's statement of facts and contentions. As the Tribunal set out in its reasons it was after the conclusion of the evidence that this matter was raised by the Tribunal and at that time, the parties and, in particular, the applicant and her legal advisers were well apprised of the issue. At that stage it was open to the applicant's counsel to seek an adjournment to consider the matter or to seek a further hearing or a re-opening of the evidence at which further evidence could be called. No such opportunity was sought by the applicant's counsel but, rather, he took the approach of seeking fourteen days within which to make written submissions. Those submissions were subsequently filed and were before the Tribunal for the purpose of it considering its reasons. It appears from paragraph 17 of the Tribunal's reasons that those submissions refer to either the existence or the possible existence of "detailed evidence as to the nexus between the 1993 events and her employment". These words appear in paragraph 17 of the Tribunal's reasons and are not found in the transcript of the hearing which was in evidence. I therefore infer that this quotation is taken from the applicant's written submission. Whether or not such detailed evidence was available to the applicant was a matter for the applicant and her legal advisers to consider. The applicant's counsel could have sought the opportunity to lead further evidence of such a nexus at the time the matter was raised by the Tribunal but he did not do so.

I am satisfied that the Tribunal observed the requirements dictated by the principles of natural justice or procedural fairness by bringing the issue of whether or not the November 1993 incident was work-related to the attention of the parties in such a manner as to give the applicant and her legal advisers the opportunity to take such steps and make such submissions as they may be advised in all the circumstances. It was not incumbent, in my opinion, for the Tribunal to require the applicant to lead further evidence on the issue. It was not within the knowledge of the Tribunal whether such further evidence might be available and as I have noted earlier, this matter had been touched on in earlier evidence. This was noted by the Tribunal in paragraph 17 of its reasons and, on the material before it, it was not inappropriate for the Tribunal to say:

"It is difficult to see how Mrs Lodkowski herself could have provided any further factual evidence of any nexus".

To the extent to which the Tribunal may have been in error in this respect, it was for the applicant and her legal advisers to consider whether such further factual evidence was available and to make application to lead such further evidence, if it existed, at the time the Tribunal raised the matter with them. I am satisfied that the Tribunal gave the applicant's counsel the opportunity to consider whether or not he wished to call further evidence. The matter was specifically brought to his attention and although it may be said that the proceedings were inquisitorial rather than adversarial, having regard to the fact that both parties were represented by counsel, it was not inappropriate for the Tribunal to say, in effect - how do you wish to deal with this issue?

It was submitted by the applicant that the denial of procedural fairness deprived the applicant of the possibility of a successful outcome and that it is not open to say that a properly conducted trial could not have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. However, as I have found, there was no denial of procedural fairness by the Tribunal and the proceeding was properly conducted by the Tribunal.

Did the Tribunal address relevant issues properly and have relevant evidence before it?

The applicant submitted that the Tribunal defined too narrowly the inquiry as to whether or not there was an employment nexus with the November 1993 incident. The Tribunal set out the applicant's evidence in relation to the circumstances in which the November 1993 incident came about and said:

"Given these circumstances, the employment nexus can be shown only if it can be said that her records had been inspected and the information conveyed to a third party because she was an employee of HIC".

The Tribunal's conclusion was that there was no employment involvement in, or in relation to, the November 1993 incident. On the evidence before it, it was quite open to the Tribunal to make that finding of fact and I can find no error in the manner in which the Tribunal approached that finding of fact. The applicant's termination had taken place before the commencement of her employment and the communication of the information to the applicant was unrelated to the workplace. It was submitted that the Tribunal failed to take into account, address or evaluate the evidence of a threatening phone call but the totality of that evidence did not advance the applicant's case. The applicant had given evidence about the circumstances in which the November 1993 incident had come about, had said she consulted a psychologist and had made a formal complaint which was investigated and charges were laid against the HIC employee. The following question and answer then appears in the transcript:

"Did anything happen at home in relation to phone calls as a result of this complaint?---I had threatening phone calls made to myself, and I also had her husband coming over and threatening me."

What was there in this evidence for the Tribunal to take into account, address or evaluate? The answer is - nothing.

If the evidence before the Tribunal was deficient on the issue of the work-related nature of the November 1993 incident, or if the Tribunal defined narrowly the inquiry as to whether or not there was an employment nexus with the November 1993 incident, that deficiency did not come about due to any default of the Tribunal or a failure on its part to allow the applicant's counsel to address the issue. The Tribunal directed its enquiry to the evidence relating to November 1993 incident which was before it. If the applicant's case was conducted on a limited basis in this respect and was not expanded when the Tribunal brought the matter to the attention of the parties that is not the fault of the Tribunal.

Counsel for the applicant submitted that the Tribunal did not look at relevant evidence and that the reason for this was that the Tribunal confined itself too narrowly as to how the employment nexus could be established. However, the Tribunal identified the manner in which the employment nexus might be shown by reference to the evidence before it. In other words, the Tribunal examined the evidence and then asked itself the question "how can the employment nexus be established from this evidence?" It was submitted that the concept of whether or not an injury arises out of, or in the course of, employment is far wider than the manner in which the Tribunal approached the evidence: Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632 - 633. The applicant relied upon that decision to say that it was relevant for the Tribunal to look at the juxtaposition of the applicant and the employee who looked at the applicant's records. This juxtaposition was the applicant's employment. It was then submitted that the evidence of this juxtaposition of these two persons was not expanded. If that submission be correct it was not due to any default on the part of the Tribunal. That was a matter for the applicant's counsel to consider when the matter was brought to his attention by the Tribunal. If it be correct that the Tribunal adopted too narrow a view of the facts for the purpose of applying the law (a proposition which I do not accept), the reason for that is because the facts only warranted such an analysis. The applicant's real submission in this respect was rather that the full facts had not come out before the Tribunal and that if the Tribunal had considered the full facts it would have adopted a more expansive view of the evidence. As I have noted earlier, if that be correct it was not due to any default of the Tribunal but was a matter for consideration and action by the applicant's counsel.

The applicant relied upon the decision of Ryan J in Mills v Australian Postal Corporation (supra) and submitted that the manner in which the Tribunal distinguished Mills did not deal with the substance of the principles set out in it. In Mills it was found by Ryan J that the Australian Federal Police search which caused the relevant injury to the employee was part of an investigation instigated by the employer into alleged misappropriation of cleaning chemicals by the employee. The Tribunal distinguished Mills on the basis that in the case before it there was no involvement of the employer incident, that the information which had been improperly communicated was unrelated to the applicant's employment as the communication was to the mutual friend. The passages in Mills relied upon by the applicant at 496 and 497 - 498 do not assist the applicant.

The applicant criticised the Tribunal for limiting its consideration of the facts before it and not considering whether the performance, employment duties or any association or possible association of, or with, the employee who disclosed the information leading to the incident could arise out of, or in the course of, the employment within the provisions of the Act. On the evidence before it, it was open to the Tribunal to find that no such consideration by the Tribunal was warranted. I do not consider that the Tribunal limited its consideration of the facts before it in an impermissible or inappropriate way having regard to the nature and extent of the evidence which was led before it.

It is important to remember that the jurisdiction being exercised by the Tribunal was such that the Tribunal was bound to determine the matter, namely, the liability of the respondent to cease paying compensation, notwithstanding the submissions of either side. It is apparent from ss 14, 16, 19 and 24 of the Act that it was for the Tribunal to make this decision.

I am also satisfied that the Tribunal analysed the evidence not only in relation to the November 1993 incident but also the evidence as to the medical consequences and effect on the applicant of the 1990 car accident. In my opinion the Tribunal did not confine itself to a consideration of the circumstances surrounding the November 1993 incident but rather reviewed and considered the evidence relating to the accident on 1 October 1990 and the applicant's evidence in relation to the consequences of that accident. In paragraphs 7 to 12 of its reasons the Tribunal considered the medical evidence in a comprehensive manner and considered that evidence not only in relation to the November 1993 incident but also in relation to the 1990 car accident. Its conclusion was that, after 6 July 1995, no symptoms suffered by the applicant were caused by the accident in 1990. The Tribunal did not confine itself to the November 1993 incident but dealt with all matters arising after 1990.

In my opinion the Tribunal committed no error of law in its reasons nor did it commit any error of law or deny the applicant natural justice or procedural fairness in the manner in which it conducted the hearing.

The appeal will be dismissed with costs.

I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated: 5 March 1998

Counsel for the Applicant:	M Croyle
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Ms J Bonsey
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 February 1998
Date of Judgment:	5 March 1998