Comcare v Moon [2003] FCA 569 (6 June 2003)

Last Updated: 11 June 2003

FEDERAL COURT OF AUSTRALIA

Comcare v Moon [2003] FCA 569

Administrative Appeals Tribunal Act 1975 (Cth) s 25, 29, 33, 37, 39, 42, 43

Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 14, 24, 27, 28, 64, 67

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to

Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 referred to

Lees v Comcare [1999] FCA 753 followed

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 referred to

Willcocks v Comcare [2001] FCA 1315 referred to

Comcare v Amorebieta (1996) 66 FCR 83 explained

Comcare v Fiedler [2001] FCA 1810 referred to

Whittaker v Comcare (1998) 28 AAR 55 referred to

Fletcher v Commissioner of Taxation (1988) 19 FCR 442

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 referred to

Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 followed

Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 referred to

Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; [2001] FCA 73

Community and Public Sector Union v Telstra Corporation Ltd (No.2) (2000) 101 FCR 45; [2000] FCA 872 applied

Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 applied

Ridge v Baldwin [1963] UKHL 2; (1964) AC 40 applied

Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 applied

X v Minister for Immigration & Multicultural Affairs [2002] FCA 56; (2001) 116 FCR 319 referred to

Re Rebeiro and Comcar (1996) 44 ALD 632 followed

John v Rees [1970] Ch 345 cited

Comcare v Forbutt [2000] FCA 837 cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 cited

COMCARE v JASON CHARLES MOON

D 11 of 2002

MANSFIELD J

6 JUNE 2003

ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 11 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	JASON CHARLES MOON RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 JUNE 2003
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 11 OF 2002

BETWEEN:	COMCARE APPLICANT
AND:	JASON CHARLES MOON RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 JUNE 2003
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

1 This is an application by way of appeal on a matter of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Administrative Appeals Tribunal (the Tribunal) on 23 April 2002 set aside a decision of a delegate of the applicant (Comcare) made on 3 January 2001 rejecting the application of the respondent (Mr Moon) for a payment for permanent impairment in respect of a work caused injury made under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (the SRC Act). Comcare's delegate had affirmed an earlier decision made on 17 July 2000. The Tribunal determined that Mr Moon has a service-related permanent impairment of 10 per cent pursuant to the "Guide to the Assessment of the Degree of Permanent Impairment" (the Guide) published by Comcare in accordance with s 28 of the SRC Act. It directed Comcare to pay Mr Moon's costs.

THE FACTS

2 The primary facts are not contentious. Mr Moon was born on 4 August 1973. He joined the Australian Defence Force in 1989. In 1992, as the Tribunal found, he began to develop pain in his lower legs after marching and after other activities in which he was required to run or walk long distances at reasonable speed. By 1995, the pain in his lower legs had become worse on marching, walking and running, and it further deteriorated. In 1996 he was diagnosed as having chronic anterior compartment syndrome in both legs. He had operations on both legs to relieve the pressure, but each was unsuccessful. He developed an infection in one leg at a later stage, and was again hospitalised. The infection resolved but during the further period of hospitalisation during 1997 he had yet a further operation on one of his legs.

3 Following that treatment, Mr Moon continued to have trouble with heavy lifting. It caused pain and swelling in his legs. He had trouble going up and down stairs. He developed pains in his legs. He had problems with the usual things that people in the army have to do, like marching long distances. He developed pain after such activities, which sometimes took a day or so to go away.

4 He made a claim for compensation in respect of the condition from which he was suffering. On 12 April 1999, a delegate of Comcare determined that he had suffered or contracted a disease to which his military service had contributed in a material way, namely bilateral anterior compartment syndrome (the condition). The delegate further determined that, for the purposes of the SRC Act, the date of the injury was 21 June 1993, that being the date upon which Mr Moon first sought medical treatment for the condition.

5 On 29 April 1999, Mr Moon first claimed a lump sum for permanent impairment resulting from the condition. The claim was initially declined as it was considered the condition was not then stabilised. Mr Moon revived that claim for a permanent impairment payment on 17 April 2000.

6 It was the claim of 17 April 2000 which led to the decisions of 17 June 2000, and then 3 January 2001, the latter of which was the subject of review by the Tribunal.

THE LEGISLATION

7 Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. `Impairment' is defined in s 4 of the SRC Act to mean the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

8 Section 24 of the SRC Act provides for compensation for injuries resulting in permanent impairment. Section 24(1) renders Comcare liable to pay compensation to an employee where an injury results in a permanent impairment. Section 24(7) however provides that no amount of compensation is payable under s 24 if the degree of permanent impairment is less than 10 per cent. Section 24(5) obliges Comcare to determine the degree of permanent impairment of an employee resulting from an injury under the provisions of `the approved guide'. That is a reference to the Guide prepared by Comcare in accordance with s 28 of the SRC Act.

9 It is common ground that it is Table 9.5 of the Guide dealing with "Limb Function - Lower Limb" which is relevant. It relevantly provides the degree of impairment as a percentage to be determined as follows:

`10% Can rise to standing position and walk BUT has difficulty with grades and steps.

20% Can rise to standing position and walk but has difficulty with grades, steps and distances.'

10 I note also that compensation for non-economic loss may be payable under s 27 of the SRC Act in the event that an injury to an employee has resulted in a permanent impairment, and compensation is payable in respect of the injury under s 24.

THE COURSE OF THE DECISIONS

11 When Mr Moon revived his claim for a permanent impairment payment on 17 April 2000, he was examined by a Dr Homolka at the Larrakeyah Barracks in Darwin. The doctor identified his impairment as `acute lower leg pain - pain'. On 21 June 2000 Dr Homolka provided a report to Comcare. It confirmed that he suffered from the condition from 1993, and stated the condition had by then stabilised. Further surgery was said not to be likely to produce further improvement, and was not recommended. It raised the prospect of discharge on medical grounds. In fact, Mr Moon ceased his employment with the army in June 2001.

12 In answer to specific questions Dr Homolka said that Mr Moon suffered a permanent impairment as a result of the condition, which would almost certainly continue indefinitely, and probably for the remainder of his life. He then said:

`In my opinion, Cpl Moon's impairment is stable and permanent. However, utilising guide table 9.5, it must be assessed at 0% since no provision is being made for restriction of activities due to precipitation of severe pain.'

She noted that at that time Mr Moon did not complain of difficulties with grades, steps and distances, but rather of precipitation of severe pain following such activities.

13 It was in the light of that medical report that, on 17 July 2000, a delegate of Comcare determined that no permanent impairment payment should be made because the impairment was less than 10 per cent, and s 24(7) dictated that no impairment payment should be made if the permanent impairment were less than 10 per cent.

14 On 11 August 2000, solicitors for Mr Moon requested reconsideration of that decision. It is the reconsideration of the decision on 3 January 2001 which gave rise to the matter before the Tribunal. The reasons for the decision given on 3 January 2001, after noting that liability for the condition had been accepted on 12 April 1999, referred to the report of Dr Homolka and then continued:

`You will note that the terms of Table 9.5 refer to difficulty with grades and steps (10% criterion) or difficulty with grades, steps and distances (20% criterion). On the current evidence I cannot find that your client has difficulty with grades and steps such as to warrant a finding under Table 9.5. It is true that he may suffer from pain and/or soreness after engaging in physical activities, but as your client's condition is not contemporaneous with walking, it is my opinion that he currently does not fit the criteria required to establish a 10% finding under Table 9.5. It is, however, accepted that your client's condition may deteriorate in the future such as to justify a finding under Table 9.5, but based on current medical evidence, I believe that any such finding is premature. In the event that the condition does deteriorate, your client can request a reassessment.'

15 It is important to note that the decision of 3 January 2001 (and the decision of 17 July 2000) did not revisit the decision of Comcare of 12 April 1999 that Mr Moon had suffered a compensatable injury, in effect from 21 June 1993.

16 On 9 April 2002, shortly before the hearing before the Tribunal which took place on 23 April 2002, the Director, Military Compensation and Rehabilitation Service, Mr Paul Ontong, made a further decision. His decision refers to a letter from solicitors for Mr Moon requesting reconsideration of the decision of 3 January 2001. He then said:

`It is my decision to revoke the determination dated 3 January 2001 and determine that your client does suffer a 10% WPI under Table 9.5 and is entitled to a lump sum payment pursuant to Sections 24 and 27 of the Safety Rehabilitation Compensation Act 1988.'

Reference at that time was made to the report of Dr Homolka, to reports of Mr Lugg orthopaedic surgeon, of 29 December 2000 and 7 June 2001, and to reports of Mr Mander orthopaedic surgeon of 16 October 2001 and 22 March 2002. After referring to that medical evidence, and his reasons for accepting certain of that medical evidence, he then said:

`On the information before me, I am therefore satisfied that your client suffers from 10% WPI under table 9.5 of the Guide and thus, in accordance with section 24(7), is eligible for a compensation payment for permanent impairment due to his Condition. Comcare is also liable to pay additional compensation in accordance with section 27(1) to your client for any non-economic loss suffered by your client as a result of his Condition.'

He drew attention to the right of Mr Moon to seek review of the decision by the Tribunal. It is necessary, in the light of that decision, to identify what was argued before the Tribunal.

17 In its written outline of submissions, despite the decision of 9 April 2002, Comcare argued first that Mr Moon's condition had not been caused by or aggravated by his military service, but simply that there was an underlying condition aggravated by activity. That is surprising in the light of the decision of 12 April 1999. Even more surprising is that the instruction to put that contention was given (as I was told by senior counsel for Comcare) by Mr Ontong, the very person who had made the decision of 9 April 2002 only two weeks before that Mr Moon had a 10 per cent impairment as a result of a work-caused injury. Counsel for Mr Moon protested before the Tribunal that the issue as to whether he had sustained a compensatable injury was not before the Tribunal for review. He sought a determination by the Tribunal that he had a 20 per cent permanent impairment, so he did not simply accept the decision of 9 April 2002. One issue on this application is whether the Tribunal did consider whether Mr Moon had suffered a compensatable injury, and if it did whether it should have done so.

18 Comcare further argued before the Tribunal that Mr Moon did not have any degree of permanent impairment from any work injury, and alternatively that any permanent impairment was not of the order of 10 per cent. As noted, Mr Moon claimed to be entitled to a permanent impairment payment under s 24 of the SRC Act based on a 20 per cent permanent impairment

19 After referring to the basic facts and the respondent's evidence, the Tribunal referred to the evidence of Dr Lugg, the only specialist medical practitioner who gave evidence before the Tribunal. It continued:

`The Tribunal heard evidence from Dr Lugg that anterior compartment syndrome is caused by the muscle which is contained in thin tissue, being at a high pressure. Upon exercise the pressure increases, cuts off the blood supply, causes more swelling, causes pain and the person with the syndrome experiences a cyclical pattern of increasing pain. Dr Lugg said that the problem arises because people with the syndrome have a standing pressure which is high in the first place.

However, the initial problem is made worse by the development of musculature because the muscle swells and increases the pressure in the sheath. Dr Lugg said that you do not see this syndrome in non-muscular people. You do not see it in people who lead sedentary lives. He sees a lot of it in Army personnel, professional footballers and people who are active.

It is the Tribunal's view that although Mr Moon may have developed the syndrome somehow or other if he had not been in the Army, depending on what he did with his life, it is by no means inevitable that he would have developed the syndrome. The fact of the matter is he developed it in the Army because, no doubt, of the pressure put on his legs and the developing of the musculature in his legs. The syndrome that he developed was caused by his work in the Army.

The syndrome that he developed as a direct result of his Army service, is permanent. It will not get any better, unless perhaps in his old age he becomes more spindly. He has had two operations on one leg and one on the other. He has been offered another round of operations but involving a more extensive and more invasive procedure, in which some of the muscle would be removed. He does not like the sound of that operation and in the Tribunal's view, it is quite reasonable for him to not have another operation. He has undertaken all reasonable rehabilitative treatment for the impairment. To ask him to do anything more is unreasonable.

The question is what the degree of permanent impairment is in relation to his whole person. The appropriate table is nine point five [9.5]. There is no doubt that he has difficulty with grades and steps. If he walks on grades and steps for any period of time he gets pain which prevents him from continuing for any reasonable length of time. He has a level of impairment of at least 10 per cent.

The question then is whether he is permanently impaired to the extent of 20 per cent. He does walk distances pig shooting. He can walk around the shopping centre. In 1998 he had a 15 kilometre route march, albeit with great pain. He can walk fairly reasonable distances provided he takes it easy. He certainly cannot march at a fast clip for long distances but he can manage distances. He is not permanently impaired to the extent of 20 per cent.

The Tribunal sets the decision under review aside and finds that the applicant has a work related permanent impairment of 10 per cent.'

I observe that no attack upon the credibility of Mr Moon was mounted, and the Tribunal appears to have accepted him as reliable in reporting his symptoms and their consequences.

THE GROUNDS OF APPEAL

20 The grounds of appeal can be dealt with in five general groups. Comcare contended that there was no evidence to support the findings of the Tribunal that:

* the condition of bilateral interior compartment syndrome suffered by Mr Moon was caused by the developing of musculature in his legs while he was serving in the army, and was therefore caused by his army service (this contention was in the written submissions, but to the extent of saying he suffered no work related injury was not firmly pressed orally by senior counsel on its behalf),

* Mr Moon had difficulty with grades and steps as he gets pain which prevents him from continuing such activities for any length of time,

so that the Tribunal erred in law in making those findings.

21 It was next contended that the Tribunal erred in law by finding Mr Moon had a 10 per cent permanent impairment because:

* the pain he experienced with grades and steps was not relevant to the assessment of permanent impairment,

* there was no objective indication of difficulty with grades and steps necessary before an assessment of a 10 per cent impairment can be made, and

* the subjective experiencing of pain whilst performing apparently in a normal manner the physical manoeuvres involved in negotiating grades and steps is not relevant to the assessment of impairment with grades and steps.

22 The third general attack on the conclusions of the Tribunal was that its finding that Mr Moon has a 10 per cent permanent impairment is so unreasonable that no reasonable Tribunal could have made it. In effect, it was contended, the evidence went no further than that the condition produced no more than temporary periods of symptoms, and Mr Moon now is no more impaired than if he were not suffering the condition.

23 There was a discrete attack upon the order for costs made by the Tribunal on the ground that it made an order for costs without inviting submissions on the issue.

24 Finally, Comcare contended that the Tribunal failed to provide reasons for its decision as required by s 43(2) of the AAT Act, because it failed to consider (or to indicate why it did not accept) the contention of Comcare about the objective nature of the criteria specified in Table 9.5 of the Guide and about the asserted irrelevance of pain to the question of the level of his permanent impairment.

CONSIDERATION

25 The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356. So too is there an error of law in the drawing of an inference in the absence of evidence which could support the inference: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 at 481. The first class of the applicant's contentions will therefore, if made out, entitle the Court to set aside the Tribunal's decision under s 44 of the AAT Act.

26 It is necessary to deal first with the matter raised by the grounds of appeal of Comcare. It is the first of the findings said by Comcare not to be supported by evidence, namely that Mr Moon sustained a work related injury. The issue is also the subject of the cross-contention of Mr Moon.

27 In my view, the Tribunal did not purport to revisit the decision of 12 April 1999 that the respondent suffered the condition, namely bilateral anterior compartment syndrome, on 21 June 1993 to which his military service had contributed in a material way. The Tribunal needed to address in some detail the nature and extent of the compensatable injury to address the contentions of Comcare that Mr Moon had no permanent disability as a result of the condition, even though activity may have led to him experiencing pain. It was part of Comcare's case that pain of itself, unless it led to some physical restriction during the activity, could not be a matter relevant to the existence of impairment under the SRC Act. The Tribunal's analysis of Dr Lugg's evidence to understand the aetiology of the condition and its relationship to Mr Moon's army service must be understood as being in that context.

28 If the Tribunal did address whether Mr Moon had in fact suffered a work related injury by reason of the condition, in my view it was in error in doing so. If I am wrong about why the Tribunal addressed the nature and extent of the injury, so that it did entertain the first argument of Comcare referred to in [21], I do not consider it was empowered to do so. It is entitled to review certain decisions under s 25 of the AAT Act and s 64 of the SRC Act. Both the decision of 12 April 1999 and the decision of 3 January 2001 were reviewable decisions. No application for review of the decision of 12 April 1999 was made by Mr Moon in accordance with s 29 of the AAT Act.

29 The application for review before the Tribunal was in respect of the decision of 3 January 2001. As noted earlier, the decision of 3 January 2001 was in respect of the renewed application for compensation for permanent impairment was made on 17 April 2000. In that part of the form completed by Mr Moon, it described the `Accepted Condition' as the condition. The medical officer responded affirmatively to the question whether the condition then suffered by Mr Moon was related to the `Accepted Condition'. Dr Homolka was asked by Comcare to assess the degree of permanent impairment as a result of the condition Mr Moon suffered at work on Monday, 21 January 1993". The documents lodged by Comcare pursuant to s 37 of the AAT Act were those relating to the decision of 3 January 2001. The statement dated 2 March 2001 pursuant to s 37 of the AAT Act described the reviewable decision as the decision of 3 January 2001 affirming that Comcare is not liable to pay to Mr Moon lump sum compensation for permanent impairment in respect of the condition. It recited as part of the `background' the decision of 12 April 1999 accepting Mr Moon suffered injury arising out of or in the course of his military service, namely the condition, which for the purposes of the SRC Act was suffered on 21 June 1993. It did not suggest the decision of 12 April 1999 was under review. It identified the letter of 3 January 2001 as containing the reasons for the reviewable decision.

30 The s 37 statement of 2 March 2001 was under the name of Mr Ontong. That, together with his decision of 9 April 2002, makes it even more surprising that he should have instructed counsel to argue before the Tribunal that the issue whether Mr Moon had suffered a compensatable injury was one it had to address.

31 Under s 43 of the Act, the Tribunal's review powers were in the circumstances plainly confined to reviewing the decision of 3 January 2001. The decision of 3 January 2001 did not decide whether Mr Moon had suffered the condition in circumstances making it compensatable under the SRC Act. It decided Mr Moon was not entitled to a lump sum payment for permanent impairment in respect of that compensatable injury under s 24 of the SRC Act. Indeed, the reasons of the decision maker invited Mr Moon to request a reassessment of his entitlement to a payment under s 24 if the condition deteriorated. The decision by the Full Court (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare [1999] FCA 753 at [57] and [46]-[50] in my view indicates why, in the circumstances I have outlined, the Tribunal was not empowered to review the decision of 12 April 1999 that Mr Moon had suffered the condition, and that it was compensable.

32 Consequently, in my view, it was wrong to have put to the Tribunal (as Comcare did) that the decision under review included the question whether Mr Moon's condition was caused by or contributed to by his employment. If the Tribunal purported to re-decide that issue, it was wrong in doing so. In that event, I would uphold the notice of contention of Mr Moon. But, as I have indicated above, I do not think the Tribunal fell into that error even though invited to do so by Comcare.

33 In any event, in my judgment, the finding of the Tribunal as to the nature and extent of the injury constituted by the condition was one available to it on the evidence. Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257; Willcocks v Comcare [2001] FCA 1315 at [6]. If there is any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the Court. It is not the function of the Court on an application such as the present to review the Tribunal's findings of fact and to substitute its view of the facts for those of the Tribunal.

34 The material before the Tribunal included Mr Moon's history of the onset of his symptoms. They were related in their time of onset to his employment activities. Contemporaneous medical records confirmed his complaints of symptoms, and that they arose from employment activities. Mr Ross Kennedy, orthopaedic surgeon, on 27 April 1994 reported that it `is likely that [Mr Moon] has chronic exercise induced anterior compartment syndrome' (my emphasis). He carried out the operation on Mr Moon's left leg in 1997. Mr Peter Lugg, orthopaedic surgeon, reported on 29 December 2001 that the condition had three causes: a predisposition, plus the undertaking of sufficient physical activity to raise the pressure in the compartments, and a cycle of increasing compartmental pressure. He said Mr Moon would have developed the condition if he had gone on long runs as a civilian, but the activities he performed in the defence force contributed to him developing symptoms. His oral evidence was consistent with the description by the Tribunal in its reasons about the causes of the condition, although for the purpose of considering the third of Comcare's contentions it will be necessary to refer to it in more detail.

35 The material referred to, however, demonstrates that there was evidence upon which the Tribunal could find that Mr Moon suffered (as the Tribunal found) the development of the condition because of his work in the Army. Indeed, I think the Tribunal's understanding of the condition, and its relationship to Mr Moon's symptoms is unexceptionable. The vulnerability to symptoms from the condition pre-existed Mr Moon's army service. Symptoms occurred whilst performing strenuous activities in army service. The symptoms, on the medical evidence, indicate a pathological change: increased muscle pressure impeding blood supply and producing swelling. The symptoms were so persistent as to lead to the need for treatment. As a matter of common sense, one available hypothesis for the recurrence of symptoms is that the pressure increases on an indefinite basis because musculature or swelling (or both) has developed as a result of strenuous activity in army service, so vulnerability to symptoms on activity also increases. That is what the Tribunal understood to be the condition and its relationship to army service. It is a conclusion consistent with Dr Lugg describing army personnel as having an increased incidence of developing chronic compartment syndrome. Dr Lugg said the army service `contributed' to Mr Moon developing the symptoms of which he complains. Mr Moon underwent unsuccessful decompressive surgery because of those symptoms. Dr Lugg said it is the level of activity which raises the compartmental pressure in a person with a predisposition, and which `brings on' the symptoms. Even if he did not expressly refer to increased muscle bulk through exercise as an explanation for the increased pressure, in my view that understanding of the cause of Mr Moon's symptoms was open to the Tribunal.

36 The contentions of Comcare about the second of the two findings of the Tribunal referred to in [21] above challenges the Tribunal's finding that Mr Moon has difficulty with grades and steps, as such activity for any period of time causes pain which prevents him from continuing for any reasonable length of time. The argument had several components: the finding was not based on the evidence of Mr Moon; Dr Lugg said pain would not prevent such activities; and the finding is "perverse" as Mr Moon in 1998 and in 2000 had passed a fitness test and said he could still run several kilometres if he were otherwise fit.

37 I do not consider the Tribunal erred in law by making those findings when there was no evidence to support them. Mr Moon's statement of 9 June 2001, which he adopted as part of his evidence to the Tribunal, was that since 1997 (after the second operation) he has been unable to undertake any of the types of exercise usually associated with army life. He is a qualified fitter and turner. He found that his work in the army workshop often led to his legs becoming very painful, and that pain was experienced even without heavy exercise. At the end of a working day, his pain was so great as to severely impair sleep. He elected to leave the army rather than face being downgraded in his health assessment. He now works as the service manager of a mechanical workshop. His statement concludes:

`As a result of my lower leg and knee problems I find that a lot of activities of daily living are now beyond me or are difficult and unpleasant. For example, I can no longer walk my dogs much or for any great distance because of pain I experience in my lower legs and knees. It is also painful to squat down, say to pick up my son. My knees also tend to grind and click a lot and sometimes they start to lock up. I also find climbing stairs very difficult. My knees tend to grind and click and semi lock up. The experience is painful. In addition, my lower legs in the shin and ankle area become very painful if I am climbing more than one or two steps. I also find that around the house my ability to play with my young son, mow the lawn and do other such things is much more limited that it used to be. I can do these activities but I experience pain. I cannot play football any longer and this includes touch football. I used to play rugby league when I was in the army and before that, when I was at school at Nowra. I cannot not [sic] play rugby league or even touch football now because my knees aren't up to the impact and my lower legs cause too much pain.'

(The knee condition to which he refers is not related to the condition.)

38 He said that in his present employment he still experiences the symptoms after a busy day, when he has been on his feet longer than normal. Normally, he is on his feet only about 30 per cent of the time. He feels pain also if he has to walk a distance. He therefore avoids walking lengthy distances, or being on his feet for lengthy periods. He described the onset of pain after a brisk walk of about 300 metres and that he would stop walking due to the pain after about 1400 metres. The pain then lasts for many hours. If he engaged in such activity again the following day, the pain comes on almost immediately. Going upstairs at work several times a day (as he sometimes does) also causes the onset of pain and is `pretty painful' by the end of the day.

39 He said in cross-examination that he could still run 5 km, but the pain would be intense. He had done so when passing a fitness assessment in the army in April 2000. He could do so, but the pain would deter him. The pain after certain activity `is that extreme then [sic] no one wants to put themselves through pain when they don't have to'. So, he said, activities such as walking up stairs and slopes he would do at work, because he had to despite the pain. Walking is possible, if he puts up with the pain, `for a certain limit'. The medical evidence indicated his complaints were consistent with the condition.

40 It is correct, as senior counsel for Comcare contended, that Mr Moon's complaints of pain in the early stages of the condition were after, rather than during, activities. When asked to assume Mr Moon had pain only after, and not during, strenuous activity, Dr Lugg expressed surprise that Mr Moon should report pain only after activity. In fact, Mr Moon's evidence was that for some years he had suffered pain during and for a prolonged period after strenuous activity, and that whilst working in the army he had curtailed his activities because of the pain they caused.

41 In my judgment, there was ample evidence for the Tribunal to conclude that, as a result of the condition, Mr Moon now gets pain during and for a prolonged period after strenuous activity, and to find that he has difficulty with grades and steps. He said as much. Dr Lugg accepted he could not walk for distances or on stairs or slopes without pain. There are, as Mr Moon said, occasions when he walks on stairs at work even though he knows he will suffer pain as a result. There are also, as he said, occasions when he avoids doing strenuous activities or much walking on stairs or slopes to avoid the onset of pain. Dr Lugg said pushing through the pain threshold can, in some instances, lead to irreversible muscle damage. The Tribunal's finding is consistent with the overall tenor of the evidence, and I think was available to it.

42 Comcare's contentions set out at [22] raised the significance of pain as a factor relevant to impairment, as assessed under Table 9.5. Reliance was placed upon certain observations of Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83. That case concerned a compensable back injury. The claimant at medical examination had an almost full range of back movement, but said he normally restricted the range and frequency of his back movements to avoid pain. The Tribunal regarded the voluntary restriction as indicating the level of impairment. His Honour said at 99:

`One might suppose pain to be an obvious example of a neurological consequence. But pain is within the defined meaning of "non-economic loss" and therefore the subject of assessment in accordance with the provisions of s 27. There was reference to Table 9.5 in evidence, but no explicit reference to that Table in the Tribunal's reasons for decision. However that may be, voluntary abstention from physical activity to prevent the onset of pain, and voluntary abstention from physical activity to alleviate pain, are not in my opinion to be taken into account, except in the circumstances to which reference is made above at p 97E, in determining the level of permanent impairment by reference to Table 9.6 or Table 9.5.'

43 It is unclear precisely what passage at 97E is referred to. I think it must be the following passage at 97:

`The evidence of the respondent to which the Tribunal had regard was not a voluntary restriction of movement evoked by the onset of pain. He was speaking of prophylactic restriction of movement, and limitation of the frequency and the repetition of movement, in order to prevent the onset of pain.'

44 If that be correct, his Honour was drawing a distinction between a voluntary restriction of movement evoked by the onset of pain, and a voluntary restriction of movement evoked by the desire to avoid the onset of pain.

45 The contention of Comcare is that pain which does not prevent or restrict a physical activity at the time of the activity is irrelevant to an assessment of impairment under Table 9.5. That is, it must objectively be seen that the activity is ceased or restricted during its performance to amount to an impairment.

46 I do not accept that contention. In the first place, I do not consider Jenkinson J in Amorebieta intended to say that pain experienced during activity is not relevant to the assessment of level of impairment under s 24 of the Guide or under the measure of `difficulty' in Table 9.5. He recognised there may be a relevant `voluntary restriction of movement evoked by the onset of pain' which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which may nevertheless entitle a claimant to compensation under s 27 of the SRC Act. The definitions of relevant terms in the Guide are consistent with those used in s 4 of the SRC Act. `Impairment' is defined to mean `the loss, loss of the use, or the damage or malfunction, of any part of the body, or of any bodily system or function or part of such system or function'. The question it posits is whether, objectively, a claimant's `personal efficiency' in the activities of daily living is adversely affected. The expression `the activities of daily living' is used by way of contrast with `lifestyle effects'.

47 In this matter, the Tribunal accepted Mr Moon has some pathological change to his lower legs (to which his employment contributed, as found by the decision of 12 April 1999). It accepted the condition restricts him in his daily living, consistent with his evidence. The restriction occurs because he suffers pain during and after certain activities. He gave evidence to that effect, which the Tribunal accepted. Hence he avoids those activities when he can. Sometimes he cannot, and suffers the consequences. But his evidence, and the medical evidence, was consistent with the Tribunal's finding that he `has difficulty' with grades and steps. I do not think the fact that Mr Moon on occasions does climb stairs or ascend slopes means he does not have difficulty with grades and steps. Once the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less. In my view, it is a question of fact in each case as to whether pain experienced in activity presents a `difficulty' with that activity, or whether it is simply a consideration going to `lifestyle effects'. The Tribunal in this matter decided the pain experienced by Mr Moon, in the light of the findings it made about the condition, amounted to a `difficulty' with grades and steps. In my judgment, that finding was amply available to it. The term `difficulty' in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.

48 A commonplace example remote from the present circumstances will serve to illustrate the point. Let it be supposed a manual labourer has a lower back disc injury. Upon activity such as bending or lifting, the labourer suffers pain but is able to persevere for a while. Eventually, the activity must cease, and the pain becomes disabling for some days after the activity. The cause of the pain is extrusion from the disk impinging on a nerve root. In my view, it would not be intended by the SRC Act or the applicable Table of the Guide in that circumstance to exclude the labourer from any `impairment' entitlement. It would be a nonsense to suggest otherwise. If the labourer thereafter avoided such activity as much as possible, trying to balance the desirability of undertaking the activity against the consequences of undertaking it, there is no less an impairment. Pain may be, and as I understand it generally is, a consequence of some pathological change, albeit sometimes of a microscopic nature. It may evidence the pathological change, even though the pathological change may not be objectively observable or readily so.

49 Indeed, as senior counsel for Comcare acknowledged, if the contention is correct, there would be no `difficulty' in Mr Moon's case even if he were to undertake strenuous activity which caused him at the time a great deal of pain and which produced an extended period of incapacity following the activity (and, it might be added in the light of Dr Lugg's evidence, exposed him to significant further serious physical consequences). To state the proposition in its extreme form is to indicate that it is unlikely s 24 and the Guide were intended to be interpreted in that way. As I have said, the issue is really one of fact for the circumstances of each case.

50 The third general attack of Comcare upon the Tribunal's findings is one which, in my judgment, must also fail. The fact that Mr Moon may be seen walking, or climbing stairs or slopes, without apparent difficulty does not mean he has no impairment. The Tribunal found, on the basis of evidence which was capable of supporting its findings, that Mr Moon's condition renders him vulnerable to pain when engaging in strenuous activity or walking up stairs or slopes over a period of time because such activities increase the compartmental pressure in his lower legs. If accepted the pain may be of sufficient severity to cause the activity to be curtailed or to stop. Hence, that Mr Moon completed fitness assessments whilst in the army, albeit with `intense pain', does not demonstrate the Tribunal's finding about him having difficulty with grades and steps so as to have a 10 per cent level of impairment under Table 9.5.

51 The finding was one of fact made by the Tribunal and which, in my judgment, was reasonably available to it. Apart from Mr Moon's evidence about what happens to him upon undertaking strenuous activity or prolonged walking or prolonged climbing of stairs, the Tribunal had the assessment of Dr Mander of 16 October 2001 that Mr Moon has a 10 per cent impairment by reason of the condition in his view related to difficulty with stairs and grades, and Mr Lugg on 29 December 2000 described the disability under Table 9.5 as `an intermittent impairment of 20% as he cannot walk for distances or up and down steps and grades for prolonged periods'.

52 The decision of the Tribunal was given at the completion of the hearing on 23 April 2002. The Tribunal at the conclusion of its reasons directed Comcare to pay the costs of the proceedings. It did not stop to invite submissions on the issue, or to indicate that it was considering the exercise of its discretion to do so under s 67(8) of the SRC Act.

53 Section 67(8) of the SRC Act gives the Tribunal a discretion to order costs incurred by `the claimant' against Comcare when it sets aside a decision under review and substitutes a more favourable decision.

54 At the time the decision was announced, counsel for Comcare did not immediately seek to be heard on the issue. I accept that counsel expected to be given an opportunity to address the question whether an order under s 67(8) might be made before the order was made: see Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 454 - 456; Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488 and s 39 of the AAT Act.

55 In each of those cases, the decision was based at least in part upon an issue with which the parties could not reasonably have been expected to deal. That is not the case concerning costs of the Tribunal's hearing. The possible application of s 67(8) adversely to Comcare was one which it could reasonably have been expected to address, depending on the outcome of Mr Moon's application for review. The issue then is whether, at the time, Comcare had no real opportunity to address the issue of costs. Unlike the circumstances in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523, where the decision of the Tribunal including as to costs was published through its registry, Comcare could have raised the issue immediately after the decision, including the decision on costs, was given. Counsel, having heard at the time the Tribunal's reasons and its ruling as to costs, could then have asked the Tribunal not to perfect its ruling as to costs and to be heard on the issue. There is no reason to think the Tribunal would not have done so. Hence, the critical issue is whether, as Comcare argued, the Tribunal was functus officio upon the completion of delivering its ex tempore reasons for decision, including as to costs.

56 Whether, in the circumstances, the Tribunal was functus officio upon the delivery of its ex tempore reasons for decision is a matter of interpretation of the SRC Act, as it together with the AAT Act confers the power to hear and determine the review application: Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 per Gummow J; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18; [2001] FCA 73 at 25 [20] per Merkel J. In Community and Public Sector Union v Telstra Corporation Ltd (No.2) (2000) 101 FCR 45; [2000] FCA 872, Finkelstein J said at 46 [3]:

`It is settled law that until a judgment is passed and entered it is under the control of the judge who may recall it or alter it. Until the order is entered it is only provisionally effective. A judge has inherent jurisdiction to recall an order and, in cases in the Federal Court, the judge may also rely upon the power found in O 35, r 7(1) of the Federal Court Rules 1979 (Cth).'

57 That approach was adopted by the Full Court (Beaumont and Carr JJ, Lehane J dissenting) in Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 in respect of the Migration Review Tribunal under the Migration Act 1958 (Cth). Their Honours had regard to subs 353(1) and (2) of the Migration Act as well as s 33 of the Acts Interpretation Act 1901 (Cth) and the common law. At [38] they quote with approval the following remark of Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 79:

`I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid. An example is De Verteuil's case.'

58 In Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 both Spender J at 536 [11] and Madgwick J at 546 [101] expressed agreement with the proposition of Finn J at first instance:

`... the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.'

59 In my judgment, the delivery by the Tribunal of its oral ruling as to costs in the circumstances was an overt act of such a character as precluding Comcare by counsel from requesting the Tribunal to revisit that ruling at the time, and precluding the Tribunal from revisiting the ruling.

60 There are no provisions in Part VI of the SRC Act (which include the provisions by which the decision of 3 January 2001 was eligible to be reviewed by the Tribunal) informing that issue. It is necessary to refer to the AAT Act (subject to any relevant modifications effected by s 65 of the SRC Act).

61 Section 33(1)(a) leaves the procedure of the Tribunal to its discretion. Section 33(1)(b) and (c) are in terms similar to s 353 of the Migration Act remarked upon in Bhardwaj. The Tribunal is directed to proceed with as little formality and technicality as the requirements of the AAT Act or other relevant enactments permit, and is not bound by the rules of evidence. It is required to give every party the opportunity to make submissions in relation to the evidence and to present that party's case: s 39. Section 43(2) obliges the Tribunal to give reasons for its decision, either orally or in writing.

62 In this matter the Tribunal gave oral reasons for its decision. It concluded:

`... I set the decision under review aside and make that finding [as to the 10 per cent permanent impairment] accordingly, and direct that the respondent pay the costs of these proceedings as per the general practice direction.'

63 The General Practice Direction, effective from 1 July 1998, deals with the detail of a costs order. It does not provide any explanation why the costs order under s 67 of the SRC Act was made. No reasons for the costs order were given. It would seem that either party might, within 28 days, have sought reasons for the costs order: s 43(2A).

64 In my judgment, it is significant that s 43(5A) of the AAT Act provides that, subject to subs (5B), the decision of the Tribunal comes into operation upon the giving of the decision. Section 43(5B) does not apply to the present circumstances. It is also significant, in my judgment, that s 42A empowers the Tribunal to reinstate proceedings which it has dismissed, but only in limited circumstances. They do not apply in this matter. I note s 42A(9) provides:

`If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.'

But that subsection serves s 42A(8) also dealing with the dismissal of an application.

65 The AAT Act, therefore, perfects the Tribunal's orders upon their being pronounced. There is power to correct obvious errors in the text of a decision or the reasons under s 43AA, but not to reverse or vary the decision. It could not be said that the Tribunal, having formally said it set aside the decision under review could then revisit the decision. Matters of expression, or inconsistency or error in calculation, could be corrected under s 43AA, but not the decision itself. If that be so, I do not see how the costs order element of the Tribunal's reasons and orders does not have a similar status. Without more, it took effect when made and could be enforced. The Tribunal had given its decision orally, and thereafter its role at least to the extent its decision addressed and resolved matters specifically in issue was spent: see X v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 319; [2001] FCA 56 at 326 [23] per Gray J.

66 That is a somewhat curious outcome to have reached, having regard to the common law principles referred to above. It appears to offend somewhat against commonsense. But, in my opinion, as the oral reasons had effect from the time they were pronounced, it is difficult to see what power the Tribunal had to reverse or vary its decision in any respect, except to the extent authorised by s 43AA of the AAT Act. It is a somewhat legalistic outcome, and hence perhaps an undesirable one. I adopt with respect what Carr J said in Barrow at 540:

`I would like to stress that nothing which I have written here should be taken as criticism of what I understand to be the normal method whereby the Tribunal publishes its decisions including decisions involving costs orders. The interests of administrative efficiency and natural justice are doubtless both well served by such a procedure in the vast majority of cases. However, occasionally a case will arise where the question of costs may fairly be a matter of contention upon which the parties would wish to be heard and are entitled to be heard.'

67 Nevertheless, for the reasons given, I think that is the proper operation of the AAT Act.

68 Senior counsel for Mr Moon contended that, as Comcare has not indicated what it might have put to the Tribunal on the costs issue, there is no reason to think the Tribunal would have reached any different outcome so the appeal on the point should not be successful in any event.

69 Comcare's supplementary submissions of 29 January 2003 say it would have pointed to the fact that Mr Moon `had chosen not to accept the open offer of 10% impairment (which is what the AAT eventually found)'. As that has been identified as the basis of the proposed contention of Comcare, I think it is appropriate to see whether it has any merit. It is only if there is `absolutely no real possibility' of the Tribunal making any other order for costs than the one which was made that the matter should not be remitted to the Tribunal to reconsider the issue: per Carr J in Barrow at 539.

70 In my judgment, there is no real possibility that the matter raised by Comcare as relevant to the Tribunal's decision as to costs would have made a difference to the costs order it made. At one level, the point is simply that the proposition requires it to be accepted that the Tribunal overlooked the `offer' made by Comcare by the decision of 9 April 2002. It is most unlikely that it did so. On 22 April 2002, counsel for Mr Moon raised at some length with the Tribunal the concern that the review hearing on 23 April 2002 had been extended beyond a dispute about whether the impairment was 10 per cent (as indicated by the 9 April 2002 decision) or 20 per cent as Mr Moon claimed. The Tribunal at the start of the hearing on 23 April 2002 expressly referred to the opportunity Mr Moon had of taking a 10 per cent impairment payment following the decision of 9 April 2002. It is not conceivable the Tribunal overlooked the decision of 9 April 2002 `offering' a 10 per cent impairment payment in the light of those discussions. Secondly, Comcare at the time of the Tribunal's hearing did not have an `open offer of 10% impairment' to Mr Moon. On 22 April 2002, counsel for Comcare made it plain that the `offer' constituted by the decision of 9 April 2002 would be overtaken by whatever decision the Tribunal made about the degree of impairment. On 23 April 2002, she said that Mr Moon could no longer accept the `offer' made by the decision of 9 April 2002 as the offer was open only `until [Comcare served] the amended statement of facts and contentions' on 19 April 2002. How an amended outline of contentions could affect the status of a decision of a delegate of the respondent is not clear to me. But, from Comcare's point of view, it cannot be said it maintained an open offer of a 10 per cent impairment payment up to and during the Tribunal hearing.

71 I note further that Comcare, through Mr Ontong has now instructed senior counsel to contend on this application that his decision of 9 April 2002 was not a validly made decision because it was made under the shadow of the review by the Tribunal of the decision of 3 January 2001: see Re Rebeiro and Comcare (1996) 44 ALD 632 at 695-646 [44]-[53]. Consequently, on its own contention, there was no valid `offer' of a 10 per cent impairment payment at any time. It was not suggested any such offer was made at any time other than by the decision of 9 April 2002.

72 Consequently, bearing in mind what Carr J said in Barrow at 540, including his Honour's reference to the observations of Megarry J in John v Rees [1970] Ch 345 at 402, I am nevertheless of the view that this is one case in which the application by way of appeal against the costs order should not succeed.

73 Finally, it is necessary to address the complaint that the Tribunal failed to give reasons for its decision as required by s 43(2) of the AAT Act. The contention is that the Tribunal did not, in its reasons for decision, engage with the contention that `pain is irrelevant for the purpose of Table 9.5'.

74 In my judgment, the Tribunal's reasons adequately explain its reasoning process. They recite the history of the claim by Mr Moon, including what he experienced whilst in the army, and Dr Lugg's evidence. They record the Tribunal's findings about the nature of the condition and that it was caused by his army service. They include the finding that the condition is permanent, and why it is not unreasonable for Mr Moon to decline further treatment. They include the finding that he has difficulty with grades and steps, and explain briefly why that finding is made: if he walks on grades and steps for any period of time he gets pain which prevents him from continuing for any reasonable length of time. They explain why the impairment does not fall within the 20 per cent range in accordance with Table 9.5.

75 It was not necessary to further address the contention of Comcare that pain is irrelevant for the purpose of Table 9.5. because the Tribunal found as a fact that Mr Moon had difficulty with grades and steps whilst walking on grades and steps as he developed pain which then caused him to stop the activity. It was not found to be a case where the pain does not stop the activity, but is experienced only after the activity. The pain experienced during the activity, the Tribunal found, reflected increased pressure in the anterior compartment syndrome so that the blood supply was cut off, swelling was caused, and a cyclical pattern of increasing pain followed. In other words, its findings indicate what it considered to be the objective and measurable (albeit perhaps microscopic or fine) pathological changes which lead to the pain. It did not therefore accept Comcare's hypothesis that there was no objective pathological change giving rise to the difficulty which it accepted. It was not necessary specifically to address a submission based upon factual premises which it did not accept: cf Comcare v Forbutt [2000] FCA 837 at [58].

76 In my judgment, the reasons of the Tribunal satisfy the requirements of s 43(2) of the AAT Act. Its reasoning process is clear and it has made findings of fact on the matters required of it: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30.

Conclusion

77 For the reasons given, in my judgment the application should be dismissed.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

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Associate:

Dated: 6 June 2003

Counsel for the Applicant:	Mr P Hanks QC with Ms E Ford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr C McDonald QC
Solicitor for the Respondent:	Ward Keller Lawyers
Date of Hearing:	2 December 2002
Date of Judgment:	6 June 2003