Raymond John Deighton v Telstra Corporation Ltd [1997] FCA 58 (13 February 1997)

C A T C H W O R D S

ADMINISTRATIVE LAW - Administrative Appeals Tribunal - application for an extension of time in which to lodge an application for review of decision rejecting employee's compensation claim - previous application for review of that decision had been dismissed by consent - fresh application for review over four years out-of-time - discretion to refuse extension of time - Tribunal assessed medical evidence as indicating that Tribunal could not reasonably be satisfied that applicant's claim maintainable - whether Tribunal erred in law in failing to form its own opinion - whether Tribunal, although expressing correct test concerning causation, actually applied stricter test - whether denial of natural justice.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) s.65(4)

Administrative Appeals Tribunal Act 1975 (Cth) s.29(7)

Hunter Valley Developments Pty Ltd v. Cohen [1984] FCA 176; (1984) 3 FCR 344

Wu Shan Liang v. Minister for Immigration & Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367

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

Adelaide Stevedoring Co Ltd v. Forst [1940] HCA 45; (1940) 64 CLR 538

Maric v. Comcare [1993] FCA 31; (1993) 40 FCR 244

RAYMOND JOHN DEIGHTON v. TELSTRA CORPORATION LIMITED

No. WAG 79 of 1996

CARR J

PERTH

13 FEBRUARY 1997

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 79 of 1996

GENERAL DIVISION )

On appeal from the General Administrative Division of the

Administrative Appeals Tribunal constituted by Associate

Professor S.D.Hotop, Senior Member

B E T W E E N : RAYMOND JOHN DEIGHTON

Applicant

and

TELSTRA CORPORATION

LIMITED

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 13 FEBRUARY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 79 of 1996

GENERAL DIVISION )

On appeal from the General Administrative Division of the

Administrative Appeals Tribunal constituted by Associate

Professor S.D.Hotop, Senior Member

B E T W E E N : RAYMOND JOHN DEIGHTON

Applicant

and

TELSTRA CORPORATION

LIMITED

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 13 FEBRUARY 1997

REASONS FOR JUDGMENT

Introduction

In this application Mr Raymond John Deighton appeals from a decision, made by the Administrative Appeals Tribunal on 23 May 1996, to refuse an extension of time for lodging an application for review of a decision made by a delegate of the Australian Telecommunications Corporation, the predecessor of Telstra Corporation Ltd, the respondent. In these reasons I shall refer to each of those companies as "the respondent". The delegate's decision, made on 10 December 1990 ("the Review Decision") was to affirm a determination made on 11 September 1990 that the respondent was not liable under s.14 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 ("the Compensation Act 1975 ") to pay compensation to Mr Deighton. In essence, the question to be decided is whether the Tribunal erred in law when it exercised its discretion not to extend time.

Factual Background

The following narration of the factual background to this matter is taken largely from the Tribunal's reasons for decision. The applicant is 65 years of age. He commenced employment with the respondent in 1952, initially as a linesman but later as a lines supervisor grade 2. He retired on the grounds of invalidity on 7 October 1987. On 5 February 1990 the applicant lodged with the respondent a claim for compensation in respect of various ailments or conditions described as "hypertension, vision, nose, throat, lungs, liver, stomach, skin, bowels" which he claimed had been caused by "exposure to Dieldrin and Creosote ... while laying cables and treating telephone poles ... from 1972 to 1986".

On 10 January 1991 the applicant lodged with the Tribunal an application for review of the Review Decision. Shortly before that application came on for hearing, the applicant and the respondent reached a settlement. On 17 December 1992 the applicant and a delegate of the respondent executed a deed of settlement ("the Deed"). In the Deed the respondent bound itself to pay to the applicant the sum of $28,000 "in full and final satisfaction of all and any compensation to which the applicant is entitled in respect to" a series of some eleven claims. Those claims were listed in annexure "A" to the Deed and had been made by the applicant during the period between 30 September 1964 and 1 October 1992. They included the claim made on 5 February 1990. In the Deed the applicant covenanted that he had "had the benefit of competent legal and medical advice" and that "in the full knowledge of that advice he had nonetheless chosen to settle" all of the abovementioned claims upon the terms contained in the Deed. On 17 December 1992 the Tribunal, with the consent of the parties, dismissed the application for review under s.42A(1) of the Administrative Appeals Tribunal Act (Cth) ("the AAT Act 1988 "). The respondent duly paid the sum of $28,000 to the applicant as required by the terms of the Deed.

On 12 September 1995 the applicant lodged with the Tribunal an application for review which was given the number W95/349. In that application, the applicant did not identify precisely the decision to be reviewed, but stated that he had cancer and that he was appealing against the respondent's use of "banned chemicals". He further explained that he did not have cancer when he signed the Deed and claimed that his solicitor had made him sign the Deed against his will. By letter dated 22 September 1995 to the Tribunal, the applicant requested an extension of time for lodging the application. When the matter came before the Tribunal for directions on 21 December 1995 it appeared that the decision in respect of which the applicant sought review was the Review Decision. The applicant's representative told the Tribunal that he proposed to submit that the applicant's consent, on 17 December 1992, to the Tribunal's dismissal of his application to review that decision and his execution of the Deed were legally ineffective. The representative stated that he proposed to obtain, in support of the application for review and the application for an extension of time for lodging that application, medical and scientific evidence to establish a causal link between the applicant's exposure to Dieldrin and Creosote during his employment with the respondent and his present condition of cancer. The applicant's representative requested a further period of four months in which to obtain that evidence. The Tribunal made directions relating to the filing of medical evidence and submissions with a view to holding a further hearing on 9 May 1996 at which these matters would be considered. In the meantime, on 15 April 1996, an amended application for review of the Review Decision, together with a formal application for an extension of time for lodging that amended application (to 12 April 1996) were lodged with the Tribunal on behalf of the applicant. The Tribunal gave those two applications the number WG96/108 and treated them as having amended the first application. The applications were heard together on 9 May 1996. As I have already mentioned, the Tribunal refused the applicant's application for the extension of time.

The Tribunal's Decision and Reasoning

The Tribunal noted that, by virtue of s.29(2) of the AAT Act and s.65(4) of the Compensation Act, the prescribed period (28 days) for the lodging of an application for review of the Review Decision expired on approximately 10 February 1991. It will be recalled that the application for an extension of time was lodged on 15 April 1996. The Tribunal referred to s.29(7) of the AAT Act as conferring a discretionary power to extend the time for lodgment of an application for review. It turned to the well-known judgment of Wilcox J in Hunter Valley Developments Pty Ltd v. Cohen [1984] FCA 176; (1984) 3 FCR 344 at pp.348-349 as setting out non-exhaustive guidelines for the exercise of that discretion. The Tribunal said (see paragraph 19) that the question whether there were good grounds for lodging the second application at least four years and seven months after the expiration of the prescribed period was closely connected with the question of the merits of that application. The Tribunal then proceeded to examine the medical evidence filed by the applicant both before the hearing and at the hearing. The Tribunal made a meticulous examination of those reports. It also referred to a medical report tendered by the respondent. The Tribunal expressed the following conclusions:

"27. The Tribunal's assessment of this medical evidence in (sic) that it falls well short of establishing the applicant's case. It is true that Dr Dingle's report is generally supportive of the applicant's claim, but Dr Dingle is not a medical practitioner and his report essentially consists of a survey of various studies that have been conducted by researchers over the years and the published results of those studies, rather than a specific examination and assessment of the applicant's individual case. On the other hand, the reports of Drs Cherry and Galton-Fenzi - specialist medical practitioners who have examined the applicant and have consulted the relevant literature - do not support the applicant's case. As regards the other reports tendered, Dr Collison's report endorses the views of Drs Cherry and Galton-Fenzi, Dr McNamara's report is not directly relevant, and Ms Coxon's report, which merely speculates as to a possible link between the applicant's "cognitive difficulties" and "his exposure to toxic chemicals in his work place" is also not directly relevant. On the basis of this evidence the Tribunal could not reasonably be satisfied that the applicant's exposure to Dieldrin and Creosote in the course of his employment with the respondent contributed in a material degree to the development of his prostate cancer condition so as to render the respondent liable under s.14 of the Safety Rehabilitation and Compensation Act to pay compensation to the applicant in respect of that condition."

The Tribunal's conclusions continued as follows:

"28. In addition to the weakness of the applicant's case for review on the merits, the Tribunal notes that the respondent will suffer substantial prejudice if the applicant is granted the necessary extension of time for lodging his application for review. There is, of course, the general prejudice that the respondent would suffer in being called upon to appear as a party in a Tribunal review proceeding which it had good reason to believe would not take place by virtue of the Tribunal's consent dismissal, on 17 December 1992 pursuant to s.42A(1) of the AAT Act, of the application for review in relation to the same claim (matter No. W91/14). Furthermore, the respondent has, pursuant to the Deed of Settlement between the applicant and it dated 17 December 1992, paid the sum of $28,000.00 to the applicant's then legal representative, who received it on behalf of the applicant, in the expectation that this claim, or any application for review in respect thereof, would not be pursued by the applicant in the future. In these circumstances, the respondent would, in the Tribunal's opinion, suffer significant prejudice if an extension of time were granted to the applicant to enable him to proceed with a fresh application for review of the reviewable decision, notwithstanding the correspondence that has passed between the applicant and the respondent since 17 December 1992.

29. Accordingly, having regard to all the relevant circumstances of this case - in particular, the weakness of the applicant's case on the merits and the prejudice that would be occasioned to the respondent - the Tribunal is not satisfied that it would be fair and equitable to grant to the applicant the necessary extension of time for lodging a fresh application for review of the reviewable decision dated 10 December 1990."

The Grounds of Appeal

At the hearing of the appeal, the applicant's grounds of appeal underwent a very major reformulation. The applicant sought leave to amend his notice of appeal by substituting what were initially described as three "further grounds". This was at the conclusion of the applicant's oral argument. The applicant's notice of appeal at that stage contained four grounds of appeal. Counsel for the applicant had already confirmed that the first ground was no longer pressed. Counsel indicated that if leave were granted to amend in the manner sought, then the remaining original three grounds of appeal were either not pressed or were to be regarded as having been subsumed into the three reformulated grounds of appeal. On that basis, counsel for the respondent did not oppose the application to amend, and leave was granted. The appeal was thus conducted on the basis that the applicant contended that there were three questions of law to be decided. I propose to deal with two of them simultaneously and then proceed to the third. The first two questions of law raised by the applicant are in the following terms:

"1. Was the Tribunal obliged to consider the formation of its own opinion about the contribution of the applicant's employment to his condition and, in doing so in the absence of conclusive expert opinion, apply its own common sense?

2. In assessing the applicant's chances of success, the Tribunal failed to apply the test of material contribution and instead applied a more strict test."

Mr P J Marsh, who appeared for the applicant, acknowledged that the merits of the applicant's claim to compensation (which he referred to as "the substantive application") are a relevant matter for consideration by the Tribunal when considering an application for extension of time. Mr Marsh submitted that the test for the connection between the applicant's exposure to Dieldrin and Creosote and the cancer from which he is now suffering was "quite different to the traditionally perceived tests of causation" being the "but for" or "proximate cause" tests. The Tribunal in its reasons, so it was put, had not expressly stated what weight was given to the word "material" or what it understood the expression "material contribution" to mean. The submission went further. It was contended on behalf of the applicant that although the Tribunal in its reasons used the words "contributed in a material degree", it had in fact applied a "but for" or "proximate cause" test, each of which Mr Marsh described as a stricter test.

Mr Marsh submitted that the Tribunal could only have reached the view (expressed in paragraph 27 of its reasons, set out above) of the reports from Dr Cherry and Dr Galton-Fenzi if it had applied such a stricter test. In support of that contention Mr Marsh referred to various passages in those reports which, in his submission applied the stricter test. Mr M. de Kerloy, counsel for the respondent, took me to other passages in the same reports some of which he described as capable of being "compelling evidence" to the Tribunal when making its assessment of the merits of the applicant's case.

It must be remembered that an appeal from the Tribunal's decision to this Court only lies on a question of law - see s.44(1) of the AAT Act.

It is true that the Tribunal's reasons do not expressly state what weight it gave to the word "material". But in my view, it was not obliged to do so. Such alleged "failure" does not constitute an error of law. It is clear from paragraph 27 of the Tribunal's reasons that it was applying the language of s.14 of the Compensation Act. It was not necessary, in my opinion, to expand on the question of what weight it gave to the word "material". Its task was to apply the section and in my view that is what it did.

As the Full Court of this Court, in a different context, said in Wu Shan Liang v. Minister for Immigration & Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367 at p.378:

"The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."

On appeal in that case, Minister for Immigration & Ethnic Affairs v. Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at p.491, the High Court emphasised:

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

Mr Marsh contended that the Tribunal erred in law by simply considering the medical reports and the conclusions stated in those reports and failing to consider whether it could be satisfied that there was a sufficient causal connection by applying what he described as "the common sense layman's approach". The scientific opinion was, so he submitted, "inconclusive". Where this was so, it was open to apply a layman's common sense approach to the determination of the issue. For this proposition Mr Marsh relied upon the following passage from the judgment of Rich ACJ in Adelaide Stevedoring Co Ltd v. Forst [1940] HCA 45; (1940) 64 CLR 538 at pp.563-564:

"I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is a strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences."

In my view there are several answers to this submission. First, as Mr Marsh acknowledged, the abovementioned case was a very different one to the present matter. Secondly the Tribunal is not a Court, but an administrative decision-making body. The AAT Act specifically provides that it may inform itself on any matter in such manner as it thinks appropriate - see s.33(1)(c). In my view, while it was open to the Tribunal to form its own opinion about the contribution of the applicant's employment to his present medical condition, it was certainly not obliged to apply "its own common-sense" rather than rely on the medical reports.

I have examined the Tribunal's assessment of the expert's reports. I do not think that the criticism that the Tribunal applied a "but for" or "proximate cause" test is justified. It clearly identified the test by reference to s.14 of the Compensation Act as requiring only a contribution in a material degree. In my opinion the Tribunal did not make the error of applying any stricter test.

In the applicant's outline of submissions his complaints were expressed in the following terms:

"6. The expert reports neither expressly confirm or deny that the exposure to Dieldrin and Creosote contributed to the development of prostate cancer.

7. Where scientific opinion is inconclusive it is open to apply a layman's common sense to the determination of the issue."

I do not think it is a correct assessment of the expert's reports to say that they "neither expressly confirm or deny that the exposure to Dieldrin and Creosote contributed to the development of prostate cancer" in the applicant. Nor do I consider that it is fair to say that the scientific opinion on the matter was inconclusive. The Tribunal, in its reasons, referred to portions of a report, dated 18 July 1994, from Dr D Cherry which read:

"It is evident that Mr Deighton has factors other than exposure to carcinogenic chemicals which may well have been influential in the genesis of his prostate cancer.

It is also evident from his occupational history that he was exposed to chemicals (cadmium, creosote and dieldrin). However (a) the evidence of their association with prostate cancer in a variety of industries is rather weak and open to dispute, and (b) the evidence of their having a direct causative effect on prostate cancer is very limited - and what evidence is available is rather tenuous and lacking the rigour of complimentary in-vitro animal and human studies which define clearly the links in that causative chain.

In summary then, Mr Deighton has been associated with chemicals in the work place which at best can be described as having a weak association with prostate cancer, and with which a direct causation of prostate cancer has not been proved...".

The Tribunal also referred to extracts from a report from Dr B Galton-Fenzi, a medical practitioner specialising in occupational health. That extract reads as follows: "In summary it appears that the evidence linking dieldrin and creosote to your numerous medical problems is tenuous and this link will prove extremely resistant (sic) to any scrutiny.

... it appears that the overwhelming weight of evidence does not support your case regarding your past exposure to these chemicals. A main feature is that most of your medical problems are found frequently in the normal population, many of course not being exposed to these same chemicals that cause you some concern."

In essence, this ground challenges the respective weight which the Tribunal gave to the various medical opinions. As part of the exercise of its discretion, the Tribunal was entitled to form an assessment of the merits of the case. It did so after very careful scrutiny of the various medical reports. It decided to assess the matter on the basis of what was contained in some of those reports. In my view, in so doing its discretion did not miscarry in the manner claimed. The question was basically a technical, medical matter. The Tribunal was entitled to accept the expert opinions. The applicant's complaint that in doing so the Tribunal delegated its decision-making role to the scientists and thus erred in law is not, in my opinion, made out.

Ground 3 of the applicant's amended notice of appeal reads:

"3. The Tribunal's reliance upon the Deed of Settlement was a denial of natural justice because it had no submissions nor evidence in relation to its legal effectiveness."

The short answer to that contention is, in my opinion, that the Tribunal did not rely upon the legal effectiveness of the Deed. It can be seen from paragraph 28 of the Tribunal's reasons that it turned to the matter of the Deed when considering the question of prejudice to the respondent if an extension of time were to be granted to the applicant. First it referred to the general prejudice that the respondent would suffer by being called upon to appear as a party in a Tribunal review proceeding which it had good reason to believe would not take place by virtue of the Tribunal's consent dismissal on 17 December 1992 pursuant to s.42A(1) of the AAT Act. Mr Marsh acknowledged that there was authority to justify the Tribunal in forming this opinion, even in the absence of any evidence of prejudice. The authority is Maric v. Comcare [1993] FCA 31; (1993) 40 FCR 244 at p.250, a decision of O'Loughlin J. I respectfully agree with his Honour's analysis in that case and I would apply it, to the extent that it is necessary to apply it, to the present matter. It may not be necessary to apply that reasoning because in the present matter the prejudice was not dependent upon the legal effectiveness of the Deed. It was dependent upon the effect of the consent dismissal order. That is evident from the express terms of paragraph 28 of the Tribunal's reasons. Next the Tribunal referred to payment of the sum of $28,000 as having been made in the expectation that this claim would not be pursued by the applicant in the future. Again the Tribunal cannot be seen to have been basing its reasoning in reliance upon the legal effectiveness of the Deed, but simply the payment and an expectation. The use of the word "expectation" is not the usual manner in which a right arising out of a legally effective contract is described. In my opinion the essential foundation for this submission of a denial of natural justice has not been made out. The legal effectiveness of the Deed was not a question which the Tribunal was called upon to decide, and it did not do so. The Tribunal's reasons disclose that it fully appreciated that its function was to decide whether as a matter of discretion, in all the circumstances, it was "fair and equitable" (see paragraph 29 of its reasons) to grant the extension of time sought.

Conclusions

For the above reasons I do not consider that any error of law on the Tribunal's part has been demonstrated. The application will be dismissed with costs.

I certify that this and the preceding twelve

(12) pages are a true copy of the Reasons for

Judgment of Justice Carr.

Associate:

Date: 13 February 1997

Counsel for the Applicant: Mr P J Marsh

Solicitors for the Applicant: McMullin Coate & Co

Counsel for the Respondent: Mr M Mony de Kerloy

Solicitors for the Respondent: Mony de Kerloy

Date of Hearing: 4 February 1997

Date of Judgment: 13 February 1997