Telstra Corp Ltd v Graham Warren [1997] FCA 102 (26 February 1997)

CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of the Administrative Appeals Tribunal ("AAT") - whether injury the result of "reasonable disciplinary action" - whether decision not authorised by an enactment - whether improper exercise of power - whether consideration of irrelevant considerations - whether lack of comment by experts relevant - review of decisions by expert panel of the AAT considered - whether lack of procedural fairness by AAT's failure to raise the importance of the experts failure to comment - there is no obligation on the AAT to inform parties of proposed reasoning process - whether failure to take account of relevant considerations.

Safety Rehabilitation and Compensation Act 1988 (Cth) s4, s5, s14

Australian Postal Commission v Wallace (1996) 41 ALD 455, applied

Spurling v Development Underwriting (Vic) Pty Limited [1973] VR 1, applied.

Roads Corporation v Dacakis [1995] 2 VR 508, cited.

Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213, cited.

MacIntosh v Minister for Health (1987) 17 FCR 463, cited.

Chicago, Burlington and Quincy Railway Co v Babcock (1907)

204 US 585 at 598, cited.

Re Anderson and the Ulster Hotel [1969] Qd R 525, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, applied.

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, cited.

Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, cited.

Luu v Renevier (1989) 91 ALR 39, cited.

Powerlift (Nissan) Pty Limited v Minister of State for Small Business Construction and Customs (1993) 113 ALR 339, cited.

Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295, cited

Dobbie v Department of Social Security (1995) 85 SSR 1244b, cited

Telstra Corporation Ltd v Kendall (1995) 55 FCR 221, applied.

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, cited.

Mahon v Air New Zealand Ltd [1984] 1 AC 809, cited.

TELSTRA CORPORATION LIMITED - v - GRAHAM WARREN

No NG 016 of 1996

Tamberlin J

Sydney

26 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 016 of 1996

GENERAL DIVISION )

ON APPEAL FROM A DECISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: TELSTRA CORPORATION LIMITED

Applicant

AND: GRAHAM WARREN

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 26 FEBRUARY 1997

MINUTE OF ORDERS

The Court orders that the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 016 of 1996 GENERAL DIVISION )

ON APPEAL FROM A DECISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: TELSTRA CORPORATION LIMITED

Applicant

AND: GRAHAM WARREN

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 26 FEBRUARY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

This is an appeal from the Administrative Appeals Tribunal ("the AAT") against a decision that from 9 February 1994 the respondent ("Mr Warren") continued to suffer from a work-related injury and since that date has been unfit for his pre-injury work.

The AAT decision set aside the decision made by a Reconsiderations Officer of Telstra Corporation Ltd ("Telstra"), made on 3 November 1994, which in turn revoked a determination made by Telstra on 25 February 1994.

Background Facts

Mr Warren was born on 26 September 1953. On 19 January 1970 he commenced with what was then the Postmaster Generals' Department and is now Telstra. For the following twenty-two years he worked in the Broken Hill area in various positions as a technical officer. On 5 March 1992 Mr Warren was involved in a motor vehicle accident whilst at work, when he was travelling at 30 to 40 kilometres an hour in his work vehicle. Another vehicle, travelling at about five to ten kilometres an hour, hit the left side of his vehicle.

Immediately after the accident Mr Warren felt "uncomfortable" and "tense". His neck was stiff within about ten minutes of the accident, but he did not recall feeling any pain at the time. The next morning he had cramps in his right leg and his neck was tense.

He saw Dr Howarth, his local doctor, the day after the accident and returned to work which involved replacing telephones in houses. His neck continued to be stiff and caused him pain.

On 31 March 1992 he again saw Dr Howarth because his neck was giving him considerable pain. His only residual problem from the accident was the neck pain. He underwent physiotherapy which helped considerably.

In April 1992 Mr Warren took recreation leave, followed by a month's long service leave. In due course Mr Warren returned to work on normal duties and one week after returning said that he needed physiotherapy for two months for his neck condition. He subsequently continued to experience pain and stiffness in his neck.

During the latter part of 1993 Mr Warren received some treatment of a symptomatic nature. By the end of 1993 he said that his neck and shoulder were sore and aching and that his condition appeared to be getting worse compared with the time just after he sustained the injury. He complained of the injury "wearing me down".

On 13 December 1993, Dr Ellis, an orthopaedic surgeon, reported as follows:

"On examination: There is a full range of active, painless movement of all joints of both upper limbs. Although slight in build, his grasp in each hand is over 300 mm/Hg. which is well above the average adult male grasp. Forward flexion enables him to touch 4 inches from his toes. Knee jerks, ankle jerks, are [pr]esent and equal. His cervical spinal range of movement is normal. There is no tenderness of his cervical spine, his thoracic spine, his lumbar spine or of the right and left para-vertebral regions. Straight leg raising is within normal limits."

X-ray 1.4.92 of the cervical spine is normal.

I endeavoured to reassure the patient. He has had a soft tissue injury of the right shoulder region, possibly of the spine in the lower cervical/upper thoracic region but he is recovering.

....."

Mr Warren received physiotherapy treatment from May 1994 until March 1995 when he did not feel the need to continue because by then he was then on pain killers and he said he had learnt to manage what he could do and he was able to do a lot of the physiotherapy himself.

On 25 October 1994, on his way home from work, Mr Warren was involved in another motor vehicle accident. His vehicle ran into the door of another motor vehicle which was stationary and had its door open. Pain in his neck increased over the next couple of hours but he did not need to take time off.

Prior to the accident Mr Warren had difficulty sleeping and was "hard to wake" in the morning. There were numerous occasions when deductions were made from his pay for periods of lateness of between five or ten minutes. He had been involved in disciplinary proceedings because of lateness and he had been fined. He said that it was the policy of his local "management" not to allow flexi time to be worked, although he said he frequently requested to work on a flexi time basis. Mr Warren's evidence was that although he was often late for work by five or ten minutes prior to his first accident, since that time because of his neck pain and difficulties in sleeping, he was late more frequently and the periods of lateness were longer than previously. After the accident he considered the reason he had trouble getting up was because he was in pain following a day's work.

Mr Warren was prescribed Sinequan by his doctor but no pain killers. This is an antidepressive used to treat depression. Mr Warren was taking Sinequan from August or September 1992 until December 1994. The dose was increased from 10 milligrams initially to 150 milligrams nightly. Mr Warren understood that when Sinequan was prescribed for him it was known that a side effect was that of a muscle relaxant and he said that was why the drug was prescribed. He denied that between 1992 and 1994 he was treated for depression because of pressures at work and at home. He claimed that his stress at work arose from his inability to handle pain following the neck injury. He also denied that he had any difficulty in relationships with the persons with whom he worked. However, there were complaints by his work mates, who asked that he be removed from service because they had to carry his work load because of his inability to get to work on time or at all.

He agreed in cross-examination that he was first prescribed Sinequan as early as 1981 by his then general medical practitioner.

At the time of the first accident, Mr Warren was using an automatic transmission vehicle at work with power steering which was changed in May 1994 because of a problem he had with his lower back. He was provided with a small Nissan van prior to the change in duties in mid 1994. This vehicle had manual transmission with no power steering which made it difficult for him to drive. Within a few weeks of changing to the Nissan van he said he experienced more pain. He took leave from work and claimed compensation. In February 1994 he had a short experience driving another vehicle with power steering while on secondment to another location and found that vehicle to be satisfactory.

In late January 1995 Mr Warren said he had trouble with the van because it was affecting his shoulder and neck disability and he asked to be provided with a vehicle with power steering. Subsequently he refused to use the van because he knew it was going to cause him pain. His own vehicle had power steering but manual transmission.

Disciplinary charges were laid against him for refusing to perform duties and also in respect of a number of incidents when he was late for work. He said he had one week off in February/March 1995 because of stress and depression which related to his having received a list of disciplinary charges against him. Eight charges were set out, including allegations of being late in arriving for work in the order of 10 or 20 minutes; four occasions when he failed to notify his officer in charge that he would not be attending for duty; and two occasions when he disregarded a direction to carry out his work when directed by his officer in charge. The facts underlying these charges were not disputed.

On 24 March 1995 Mr Warren was instructed by his officer in charge to cease work and obtain a medical report. On returning to work on 27 March, (the next working day), without the medical report he found the words "stood down without pay" against his name in the book where staff signed on for work. He was told that he was not on duty and would have to leave the premises. This position continued until 5 June 1995.

In May 1995 his Rehabilitation Case Manager contacted him to arrange an assessment with a Rehabilitation Specialist to design a return to work program. He returned to work on 5 June 1995. Under the return to work program he was not doing any installation work. His duties were light and involved replacing a new telephone for an old one. He was required to work only every second day which he felt he could manage. By the end of July 1995 he was provided with a van with power steering and manual transmission. Mr Warren claimed that he still returned from work fatigued but less so because he was doing less work. This return to work program continued to early August 1995 when he returned to full duties. By the second week after he returned to full duties his pain had again become continuous.

On 18 August 1995 he was advised that as a result of the disciplinary charges, all of which had been found to be proved, he was demoted from a Level 3 to a Level 2 technician and he was transferred from Broken Hill to Dubbo. The transfer from Broken Hill to Dubbo related to the charges relating from lateness in arriving at work or failure to advise that he was not going to attend. He was fined for not following the directions of his Officer in Charge.

On 3 September 1995 he commenced a month's long service leave. He returned to work at Broken Hill in October 1995 doing installation work for two days which caused him pain. He was to have started in work in Dubbo on 9 October 1995 but was told by the Divisional Manager that because he objected to going to Dubbo he was requested to take paid leave until Telstra reviewed the situation. Since then he has been at home on paid leave.

Mr Warren gave evidence that he was now unable to mow his lawn or undertake home maintenance because of his neck and shoulder conditions.

Mr Warren was seen by a number of doctors, including Dr McEwin, whom he saw on 24 November 1994 and 14 June 1995. His June report records that Mr Warren complained that his condition had worsened since November, due to neck pain. Mr Warren felt that he could not do some parts of his job because of pain in his neck and right arm.

Dr McEwin records in relation to the June 1995 examination, that Mr Warren was "acutely tender" in parts of the right trapezius muscle. He confirmed his November opinion and concluded that Mr Warren had continuing pain in the neck and upper right limb. In his November 1994 report he stated that the injury to the right trapezius muscle and associated headaches were consistent with a claim that the injury resulted from the March 1992 incident, when Mr Warren was driving the Telecom vehicle.

Clinical notes were produced from the custody of Dr Nachiappan, these included the notes of Dr Howarth who had previously been Mr Warren's local doctor. Dr Nachiappan first saw Mr Warren on 25 August 1993. The clinical notes indicate that between 1986 and 1995 there were consultations in relation to neck pain. In August 1993 the dose of Sinequan was increased to 50 milligrams and was stepped up to 150 milligrams nightly by November 1993.

In November 1994 it was recorded that Mr Warren was:

" unable to keep up with work. Looks unhappy. Stressed. Verbal attacks increasing. Pain still bad although not working. Cancelled compo. In danger of losing job. Very angry....

In December 1994 it was recorded:

"Light duties - neck continued to ache. Started Prozac 20 mg daily for 4 days, nausea. Couldn't get up and out of bed this am. ... Want the pain to go away. Feels pain worse since made to install phones etc - asked to do too much ..."

On 5 January 1995 it was recorded in the clinical notes:

"Didn't go to work yesterday - overslept and woke at 5.30 pm! due to writing long report on 4/1/95 and frustration about lack of attention (regards referral for Rehab.), am hurting from driving."

According to the clinical notes for 30 March 1995 Mr Warren had seen a doctor from Telstra. Physical examination by Dr Nachiappan on that day revealed a full range of movement in neck, shoulders, spine, knees and feet. Reflexes and power in all limbs were recorded as 5/5.

In a report provided by Dr Nachiappan on 4 April 1995 he concluded that Mr Warren continued to experience discomfort on the right side of his neck exacerbated by stress, physical exertion and driving for protracted periods of time. He felt Mr Warren may benefit from reducing his hours and having a specially fitted motor vehicle and undertaking less physical exertion.

Mr Warren was seen by Dr Bracken, a surgeon, in May 1995. He considered that Mr Warren was fit to continue work as a telephone technician but that he should not be involved in heavy lifting with the right arm or continuous use of the right arm, without adequate rest periods of approximately ten minutes each hour.

Mr Warren was seen by Dr Alan Innes-Brown on 9 May 1995. He identified very early degenerative changes at the C5/6 level on X-ray of the cervical spine. In the absence of any abnormality detected on examination he concluded that there was no satisfying evidence of any significant on-going musculoskeletal disability. He concluded that to the extent that Mr Warren's claimed ongoing symptoms were significant they were due to cervical spondylosis. The Tribunal noted that there was no record that the examination by Dr Innes-Brown included an examination specifically of the right trapezius muscle which Dr McEwin found on 14 June 1995 to be acutely tender.

Mr Warren was examined by Dr Awerbuch, physician and rheumatologist on 9 February and 21 December 1994. On both occasions Dr Awerbuch considered that the physical examination was normal. Again, however, the Tribunal noted there was no specific reference to examination in the right trapezius muscle.

The Issues

The AAT saw the issue as being whether Mr Warren continued to suffer the effects of the injury resulting in disability to his neck and right shoulder beyond 9 February 1994 when liability was denied.

Findings of the AAT

The AAT found on the issue of permanent impairment that although the medical evidence was in conflict, the evidence of Dr McEwin, which the AAT accepted, was that he expected the condition to resolve in time. The AAT therefore found that Mr Warren did not suffer a permanent impairment in his neck and shoulder. The Tribunal found on the evidence of Dr Nachiappan, supported by the opinion of Dr McEwin, that the prescription of Sinequan, was at least in part, to address Mr Warren's pain. Even at times when there was no physiotherapy treatment administered, Mr Warren was being referred for investigation of his neck and shoulder pain.

Other important findings by the AAT are that:

1. In the light of the preponderance of the medical evidence before it, Mr Warren had an on-going musculoligamentous injury causing pain in his neck and right shoulder and because of this he is unfit for his pre-injury work.

2. When he was required to return to that work his condition was exacerbated.

3. He suffered from a depressive reaction, the origin of which was complex. However, there was evidence that Mr Warren's reaction to his chronic pain was a contributing factor to his depression and that the Sinequan, with which he was treated by Dr Howarth and Dr Nachiappan was used in part as an antidepressive and in part as pain relief. Because the injury contributed to both his depressive reaction and directly to his pain, any effect of the Sinequan on his work performance therefore arose from the injury.

4. The AAT did not accept that the Sinequan led to a worsening of his lateness and attendance at work.

5. Mr Warren's refusal to drive the vehicle in circumstances where he anticipated the driving would exacerbate his neck and shoulder pain was reasonable. In reaching this view the AAT pointed out that it did not see its jurisdiction to be one of reviewing the decision of the Disciplinary Appeal Board.

6. The evidence of Dr McEwin should be accepted and that from 9 February 1994, when Telstra ceased paying compensation to Mr Warren, he continued to suffer from his work-related injury and that also from that date he had been unfit for his pre-injury work. He had been and continued to be fit for light work.

7. On and from 9 February 1994, Telstra continued to be liable to pay compensation and medical treatment costs in respect of Mr Warren's injury causing pain in his neck and right shoulder.

Statutory Provisions

Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides:

"Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death incapacity for work, or impairment.

......"

Section 16(1) provides:

16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury ..., compensation of such amount as Comcare determines is appropriate to that medical treatment."

"Injury" is defined in s4 of the Act to mean:

"(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, ... arising out of, or in the course of, the employee's employment, or

(c) an aggravation of a physical or mental injury (other than a disease), suffered by an employee ... being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of a reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment; ...."

Under s5(1) the Act defines an employee to include:

"(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship".

Part VIIIA of the Act provides for the licensing of Commonwealth authorities so to transfer to those authorities from Comcare the liability to pay compensation and/or the function of determining claims for compensation. Under s107F there are three classes of licence that may be granted by the Safety, Rehabilitation and Compensation Commission on application by a Commonwealth authority.

Telstra is a Commonwealth authority for the purposes of the Act and has been granted a Class 3 Licence. Under s107M(2) Telstra, as a Class 3 Licence holder, is liable to pay compensation, or make any other payments, under the Act in respect of injury, loss or damage suffered by, or in respect of the death of, a relevant employee. In relation to the bringing of proceedings s107M(12) provides:

"Any proceedings ... that may be brought in relation to a determination by the authority in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee, whether the injury, loss, damage or death occurred before or after the licence comes into force, are to be brought against the authority..."

This means that Telstra is the appropriate body against whom proceedings are to be brought in relation to a determination under the Act.

I now turn to the matters raised on the hearing before me.

Error of Law

The error of law alleged relates to a period of one week in February/March 1995 when Mr Warren did not work because of stress and depression said to have arisen from receipt of the disciplinary charges referred to earlier.

This claim would be non-compensable if the injury was suffered as a result of reasonable disciplinary action taken against Mr Warren. See s4 of the Act quoted above.

The challenged finding in par61 of the AAT decision is that:

"61. To the extent to which it relates to this application, and on the evidence of Dr. McEwin, we find the Applicant's refusal to drive the vehicle which he anticipated would exacerbate his neck and shoulder pain to be reasonable. We note also that eventually a vehicle was provided for the Applicant to use which had power steering, and that the provision of such a vehicle was a recommendation of the rehabilitation specialist. In making this finding we do not see the jurisdiction of this Tribunal to be one of reviewing the decision of the Disciplinary Appeal Board."

The disciplinary charges related to the lateness in starting work. There were also allegations of taking unauthorised leave and of wilful disregard of directions given by a superior officer. The facts giving rise to the charges were not disputed.

Dr McEwin, whose evidence was accepted by the AAT, examined Mr Warren on 24 November 1994 and 14 June 1995.

Dr McEwin noted anxiety and depression, but was uncertain whether this arose from the accident as a post traumatic stress disorder or whether it was a consequence of continuing pain. There was evidence that an underlying cause of the continuing chronic pain was the accident. There was evidence that the pain contributed to the depression and to his refusal to drive the vehicle so that it could not be said that the injury resulted solely from the disciplinary charges. It appears to have resulted from the combined effect of the charges and the underlying injury caused by the accident. In my view, it cannot therefore be said that the injury "resulted" from the charges because it also resulted from the operative effect of the underlying injury and therefore the exclusion in s4 of the Act does not apply.

In any event, the challenged finding was in my view reasonably open to the AAT on the evidence. The continuing pain could be seen to justify a refusal to drive a vehicle which did not have power steering because it could reasonably be seen to give rise to a danger of stress and pain. On making its finding on this matter the AAT made it clear that it was not "reviewing" the decision of the Disciplinary Appeals Board. It was simply deciding whether the refusal relied on, could bring the claim within the exclusion provided for in s4, having regard to the medical and other evidence placed before it. It was suggested that the AAT did not find that the "stress and depression" resulted from the condition of the neck and right shoulder. I do not accept this because it is clear the AAT considered that his refusal, which led to issuance of the charges, with the consequent depression, resulted to a significant extent from the accident.

Decision not authorised by an enactment

The submission is that the decision of the AAT was not authorised by the Act because the decision awarded compensation which included three periods during which Mr Warren could not have any entitlement.

Before turning to the particular periods in question, it is appropriate to set out the relevant portion of the decision, in order to ascertain the meaning and effect of the finding. At the conclusion of its reasons, the AAT said:

"63. The decision under review is therefore set aside and the matter remitted to the Respondent for reconsideration in accordance with the Tribunal's direction that on and from 9 February 1994 the Respondent continued to be liable to pay compensation and medical treatment in respect of the Applicant's condition of musculoligamentous injury causing pain in his neck and right shoulder, and that he is fit only for light work."

The crux of the decision is that:

"on and from 9 February 1994 the Respondent continued to be liable to pay compensation". (Emphasis added)

That decision determines that there was a continuing liability but does not purport to determine the quantum of compensation. The matter was remitted by the AAT to Telstra for reconsideration in accordance with its reasons. Telstra, upon remittal, must determine the quantum of compensation which it ought to pay. If, for some reason, there is no liability, for example, because there has been payment in that period or the Act otherwise provides, then the decision of the AAT does not fix a specific figure but requires reconsideration.

The effect of the decision would be that if, for example, Mr Warren took long service leave from 3 September 1995 until 4 October 1995, Telstra must decide, on reconsideration, whether he is entitled to payment over that period. This does not mean the AAT's decision is unauthorised or unlawful, but only that the facts and entitlements regarding long service leave remain to be ascertained.

Likewise, with respect to the period from 9 October 1995 onwards. It was submitted that Mr Warren either resigned from service or remained on paid leave. This again is a quantum question for Telstra on remittal, and cannot invalidate the decision on liability. The intent and effect of the decision is that, absent other considerations, Telstra continued to be liable to pay compensation.

Under this head of challenge there is one further matter which should be mentioned. This is the submission that Mr Warren was not entitled to compensation for the period from 27 March 1995 until 5 June 1995 because during this period he had been stood down without pay for failing to provide Telstra with a medical report as directed by his superior. Again, this is a matter to be determined by Telstra on remittal.

Accordingly, for the above reasons, the decision is not invalid on the ground that it was not a decision under an enactment.

Improper Exercise of Power

The contention is that the AAT decision took into account three irrelevant considerations. The considerations are framed this way:

"
* the lack of comment by Drs Innes-Brown and Awerbuch in respect of investigation of the Respondent's right trapezius muscle (see Reasons for Decision paras 49 and 50). It is the Applicant's submission that those doctors did make mention of that area in their examination but even if the Court is satisfied that no mention was made it is submitted that the absence of such a comment in a general medical examination is an irrelevance. Medical specialists when preparing reports comment on what they find on examination. If nothing is commented upon the proper inference us that the doctor found nothing remarkable on examination not, as the Tribunal seems to be suggesting, that they did not examine the area in question (indeed, if the Tribunal was of the view that the evidence of Drs Innes-Brown and Awerbuch needed to be taken into relation to this supposed omission then by failing to notify the Applicant of this at the hearing they may also have denied the Applicant natural justice).

* the Respondent's work environment and relationship with management; and

* the [late] introduction of the Respondent to a rehabilitation program."

Matters (ii) and (iii) were not strongly pressed. No doubt this was because they do not have any substance. While it is correct to point out that "passing" reference was made to these matters, the reasons for decision indicate that they played no significant part in the ultimate decision. The references to these matters are found in paragraphs 56 to 58 of the decision in relation to their effect on the state of mind of Mr Warren. I am not satisfied that they can be said to be irrelevant when read in context.

The lack of comment by Drs Innes-Brown and Awerbuch in respect of the right trapezius muscle could also have been reasonably considered by the AAT to be relevant. That muscle was the source of the pain arising form the accident. As a statement of fact it is accurate. No specific comment was made by either doctor. The weight to be assigned to this lack of comment is a matter for the AAT. On this aspect of the case it is important to note that the AAT panel included a qualified medical practitioner. The AAT, as so constituted, is to be regarded as a body with some expertise in medical matters. It is a well settled principle that the Court, on judicial review, will be slow to find error in matters where the decision is made by a body with special experience or knowledge and the opinion, considered in the light of other evidence, is not manifestly unreasonable. See Australian Postal Commission v Wallace (1996) 41 ALD 455 per Tamberlin J.

In Spurling v Development Underwriting (Vic) Pty Limited [1973] VR 1 at 11, Stephen J, as he then was, said in relation to a determination of the Town Planning Appeals Tribunal:

"In approaching the decision of an expert Tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

This does not mean that it is not open for me to form such a view but it at least dictates caution in my approach to the evidence." (Emphasis added)

His Honour went on to say:

".... the essence of an expert tribunal is that it is expected to some extent to bring to bear its own expertise; ... It may involve a determination of the precise extent to which in any particular instance such a Tribunal can properly prefer its own expert knowledge to the evidence adduced before it by the parties or one of them and of what notice must be given to the parties so that they have knowledge of the collective mind of the Tribunal and seek to combat and alter by argument the proposed application by the Tribunal of some particular aspect of its expertise or experience to the case before it." (Emphasis added).

Those principles were cited and applied in Roads Corporation v Dacakis [1995] 2 VR 508 at 529-530 per Batt J. See also Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 per Beaumont J; and McIntosh v Minister for Health (1987) 17 FCR 463 per Davies J. The relationship between the use of expert members in the AAT and the requirements of procedural fairness is discussed by Hayley Katzen in an article "Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal (1995) 2 AJAL 169. There is also a consideration of the question in "Natural Justice" by G A Flick, 1979 at 77-84.

To borrow the words of Holmes J in Chicago, Burlington and Quincy Railway Co v Babcock (1907) 204 US 585 at 598, a decision of an expert panel of the Administrative Appeals Tribunal might in some respects be described as an expression of "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions". The extent to which expert knowledge is brought to bear in the evaluation of evidence presented to such a body can rarely be analysed or formulated with precision. This consideration is an important reason why judges ought to tread with caution before finding that such a body has failed to properly perform its administrative function. The judgment of Lucas J, in the Queensland case of Re Anderson and the Ulster Hotel [1969] Qd R 525 at 529 where he approaches the decision of an expert body as a review of a discretion, is also of assistance in this area.

It is a well settled principle that even in judicial review of decisions by non-expert bodies, the Court will not scrutinise the decision with a fine toothcomb eager to detect error. See the remarks of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271- 272, and also the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032 per Lockhart J. A practical balanced approach is called for.

No doubt Dr Thorpe, who sat on the AAT, was well qualified by reason of his training and experience to assess the weight and importance of the medical evidence. There is nothing in the material placed before this Court which indicates that the importance or effect of that medical evidence escaped attention or was the subject of misapprehension.

On its face it not unreasonable to prefer an opinion expressed in terms of a specific reference to a particular muscle condition as against an opinion which makes only an indirect and more generalised inferential reference.

Procedural fairness

It was further submitted for Telstra, that because the AAT appears to have favoured the views of Dr McEwin over the other medical advisers on the ground of lack of specific comment by them on the condition of the right trapezius muscle, there was a lack of procedural fairness. This is said to arise because the importance assigned to this matter by the AAT was not at any stage raised with Telstra so that it could make submissions as to why this view should not be taken.

This submission, in my view, adopts too broad a view of the requirement of procedural fairness. The decision under review must be looked at in its totality and the question asked whether the parties had a reasonable opportunity at the hearing to anticipate or address on this matter. In my view they did.

As a general principle procedural fairness does not require that a line of reasoning proposed to be taken when deciding adversarial proceedings must be disclosed to the parties so that they can advance further submissions. See Luu v Renevier (1989) 91 ALR 39 at 44-46; Powerlift (Nissan) Pty Limited v Minister of State for Small Business Construction and Customs (1993) 113 ALR 339 at 361.

There is no requirement in adversarial proceedings that the parties must be notified of tentative conclusions or offered an opportunity to make further submissions. Such a procedure would often prove disruptive and impracticable on the grounds of expense and delay. Of course a decision-maker should not generally speaking be permitted to decide questions on new independent issues not raised by submissions or pleadings or at the hearing: Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. However, there is no duty to disclose tentative conclusions or reasons to the parties where the issues have been identified and the evidence relied on has been made known to the parties: Telstra Corporation Ltd v Kendall (1995) 55 FCR 221. There is a helpful discussion of relevant principle in Judicial Review of Administrative Action 1st edn (1996) Aronson and Dwyer, at 541 ff; see also Dobbie v Department of Social Security (1995) 85 SSR 1244b.

There will, of course, be cases where the conclusion was not obviously open or might not have reasonably been anticipated where procedural fairness requires an opportunity to provide further evidentiary material or make further submissions. Cf Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 715; Mahon v Air New Zealand Ltd [1984] 1 AC 809 at 821 and 835-6.

It is important to bear in mind that this submission is made in relation to one link in a chain of reasoning concerned with the reasons why the evidence of one witness was preferred over that of another. This is a matter which is, to a significant extent, one of impression and which can involve a wide range of considerations. It arises in an area where considerable weight must be given to the AAT's views.

In substance, Telstra's submission is that the AAT, when considering the evidence and submissions after the close of the hearing, has an obligation to inform the parties as the proposed reasoning processes of the members, so that specific submissions can be made. In the instant case, this submission would require the AAT to disclose to the parties that it saw some importance in the fact that no specific statement was made in two of the medical reports to the condition of the trapezius muscle. If accepted, such an obligation could render the administrative appellate process unworkable and could encourage endless challenges to decisions. Apart from this practical consideration, and more importantly, there is no procedural unfairness in the present case where it was open to the parties to address on all questions including the issue as to which medical opinion should be preferred. There has been no denial of, or constraint upon, the opportunity of either party to deal with this issue. The question as to whose views should be preferred was plainly a central and obvious issue in the hearing.

There is an important distinction between structured adversarial proceedings such as the present, and a broader open-ended inquiry into a generalised area with indeterminate wide ranging issues. In the latter case it may, in some circumstances, be appropriate to give the parties a draft of the proposed findings and invite submissions. I understand this procedure has been followed by the New South Wales Ombudsman. It was not an appropriate course in the present case.

In deciding which expert evidence to prefer the AAT had the advantage of the oral testimony and the cross-examination of Dr McEwin.

Of course, in some cases, a wholly new or unanticipated critical point may occur to, or be perceived by, the Tribunal after the hearing has concluded. In such cases it could be unfair to decide the matter on a basis not argued. But that is not this case. Here, full submissions were made and the AAT has preferred one expert view over the others. The preference as to evidence raised a question of fact and degree within the expertise of the AAT.

In addition it is worth observing that the AAT simply "noted" the lack of direct specific comment by the doctors and the specific examination by Dr McEwin. It did not state that the "omission" was the only or a major reason for the preference given to Dr McEwin's evidence.

The AAT was also entitled to give appropriate weight as it thought fit to the dates and content of the medical reports, to the impression made by Dr McEwin in the witness box, and to the complaints and oral testimony of Mr Warren in the light of the totality of the evidence when reaching its conclusion as to whose evidence was to be preferred.

For the above reasons, the submissions on this contention must fail. There has been no procedural unfairness.

Failure to consider relevant matters

A further error of law alleged is that the AAT failed to take account of various considerations, namely:

"
* the opinion of the Respondent's treating orthopaedic surgeon Dr Ellis in his report of 13 December, 1993 that despite a subjective complaint of pain by the Respondent on examination Dr Ellis found: "cervical spinal range of movement normal. No tenderness of his cervical spine, his thoracic spine, his lumbar spine or of the right and left paravertebral regions." (see Reasons for Decisions par 17); and

* the opinion of the Respondent's expert medical witness Dr McEwin that Sinequan prescribed in the manner in which it was for the Respondent was for the purpose of treating his depression (see Reasons for decision paras 38 and 59) not for any therapeutic or analgesic pain relief."

As to the first matter the AAT expressly noted (in par17) the report of Dr Ellis. There is nothing to suggest that it was not considered or given any weight. It was certainly not ignored, misunderstood, or overlooked.

As to the second matter, par38 of the Reasons specifically refers to Sinequan and its use as a pain killer as well as an antidepressive. In that paragraph there is no finding that the Sinequan was not used for pain relief. The AAT also refers in that paragraph, in the context of the use of Sinequan, to the "chronicity of the Applicant's symptoms" and the agreement of Dr McEwin that chronic pain syndrome could be involved. In par59 the AAT makes a specific finding that Sinequan was used in part as an antidepressive and in part as pain relief.

Accordingly, I reject this final contention.

Conclusion.

My conclusion is that Telstra has not made out any ground for relief.

The application should be dismissed with costs.

I certify that this and

the preceding thirty (30)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 26 February 1997

Counsel for Applicant: Mr S Diamond

Solicitor for Applicant: Sparke Helmore

Counsel for Respondent: Mr L Grey

Solicitor for Respondent: Doyle Kingston & Swift

Date of Hearing: 19 December 1996

Date Judgment Delivered: 26 February 1997