Brackenreg v Comcare Australia [1995] FCA 118

CATCHWORDS

ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - appeal on question of law only - Tribunal obliged to give reasons for its decision and to refer to the evidence upon which its material findings of fact were based - failure by Tribunal to comply with either obligation - whether failure constituted an error of law.

Administrative Appeals Tribunal Act 1975, s.43

Safety Rehabilitation and Compensation Act 1988, ss.60, 61, 62, 63, 64, 131

DEBORAH BRACKENREG v COMCARE AUSTRALIA

No. DG13 of 1993

CORAM: SHEPPARD J

PLACE: SYDNEY

DATE: 15 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA)

DARWIN DISTRICT REGISTRY ) No. DG13 of 1993

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: DEBORAH BRACKENREG

Applicant

AND: COMCARE AUSTRALIA

Respondent

MINUTES OF ORDER

CORAM: SHEPPARD J

PLACE: SYDNEY

DATE: 15 MARCH 1995

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The respondent pay to the applicant her costs of the appeal.

3. The decision of the Administrative Appeals Tribunal dated 23 November 1993 be set aside.

4. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined again.

NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

DARWIN DISTRICT REGISTRY ) No. DG13 of 1993

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: DEBORAH BRACKENREG

Applicant

AND: COMCARE AUSTRALIA

Respondent

CORAM: SHEPPARD J

PLACE: SYDNEY

DATE: 15 MARCH 1995

REASONS FOR JUDGMENT

HIS HONOUR: This is an appeal on questions of law brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975 ("the Act"). The decision appealed from is dated 23 November 1993. The decision was given in a matter in which the applicant had unsuccessfully challenged the correctness of a decision of Mr T. Fay, the Manager, Legal Services, Comcare, dated 17 February 1993 which had affirmed the decision of a delegate dated 5 November 1992. The effect of that decision was that the applicant was not entitled to weekly compensation in accordance with s.131 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 (now the Safety Rehabilitation and Compensation Act 1988 ("the Compensation Act")). The delegate found that, on the evidence before him, the applicant was not incapacitated for work as the result of an injury sustained on 7 March 1984, that any symptoms "now" suffered by the applicant were not the result of any incident which occurred on 7 March 1984, and that the applicant was capable of undertaking employment which was reasonably available to her and was able to earn not less than her normal weekly earnings at the date of injury.

The decision to affirm the determination was contained in a letter written to the applicant's solicitor on 17 February 1993. In part the letter said:

"I am unable to accept that your client is precluded from working in an office. Your client has undertaken a number of physical activities, some of which would be quite demanding for a person in your client's contended situation, for example scuba diving and horseriding. In addition to these physical activities your client has also undertaken tertiary studies, graduated with a Bachelor of Arts degree and continued with legal studies in 1992. I find that your client is not incapacitated for her former employment as a computer operator.

While it is not necessary for me to consider the point, I am of the view that an offer of reasonable employment was made to your client. In a letter dated 19 October 1992, Mr Marshall of TIO [the Territory Insurance Office] advised your client that the NT Treasury would be in a position to offer employment to your client in the next few days and that if she wanted to commence employment she should contact Ms Denise Paech. I am satisfied that this was sufficient to constitute an offer of employment and I so find.

Your client chose to relocate to Groote Eylandt to live with her husband and not for reasons arising out of her 1984 accident. I am unable to accept that your client's personal situation is sufficient to render the offer of employment unreasonable. I find that the employment offered by the NT Treasury in Darwin was reasonable.

Accordingly, it is my decision to affirm the determination dated 5 November 1992."

The statutory provisions which are relevant in relation to these determinations are to be found in Part X and in ss.60-64 of the Compensation Act. Although the original accident occurred before that Act came into force, it was common ground that, by reason of the transitional provisions contained in Part X of the Compensation Act, the matter to be determined was governed by the provisions of that Act and not by the provisions of the Compensation (Commonwealth Government Employees) Act 1971. Section 131 mentioned in the decision made on 5 November 1992 is in Part X of the Compensation Act. Part VI of that Act is entitled "Reconsideration and Review of Determinations". Section 60, which is the commencing section of that Part, contains a number of definitions. "Decision" has the same meaning as it does in the Compensation Act. "Determination" means a determination, decision or requirement made under a number of sections including those sections which are comprised in Division 3 of Part X of the Act. These include s.131. "Reviewable Decision" means a decision made under subsec. 38(4) or s.62 of the Act. Subsection 38(4) is not relevant to the present case. Section 61 requires determinations to be notified in writing. The notification is to include a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsec. 62(2). Subsection 62(2) provides for the reconsideration of determinations. These may be made by a determining authority either on its own motion (subsec. 62(1)) or pursuant to a request to it by, inter alia, a claimant (subsec. 62(2)). Subsection 62(4) provides that, on receipt of a request, the determining authority shall reconsider the determination. Section 63 provides for notification of the decision to the parties affected. The notification must include a statement to the effect that application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates. Section 64 provides for applications to the Tribunal. It was pursuant to these provisions that this matter came before the Tribunal.

The appeal to the Tribunal was heard by a Senior Member thereof in November 1993. The Tribunal said that the evidence revealed that on 7 March 1984 the applicant was involved in a motor vehicle collision on her way to work. She suffered a whiplash injury to her neck. It was her claim that from then to the present she had suffered pain in her neck and shoulders and headaches all of which had been so debilitating that she had been unable to work at her former occupation as a clerk.

The applicant was paid workers compensation and received other benefits and services until late in 1992. As the result of a scan carried out in mid-1990, it was discovered that the applicant had a small syrinx in the cervical region at level C5/6. A syrinx may be described as a fistula which is an abnormal congenital or acquired communication between two surfaces or between a viscus or other hollow structure and the exterior. In some of the material before the Tribunal, the syrinx is described as a fissure in the applicant's cervical spine.

The Tribunal said that medical evidence was to the effect that the syrinx could be a naturally occurring phenomenon or it could be caused by trauma. The Tribunal also said that the medical evidence suggested that, if it were caused by trauma, it could have been caused by the motor vehicle accident on 7 March 1984. The Tribunal continued:

"There is some doubt as to whether that would be so in light of the fact that for a trauma to be severe enough to cause a syrinx there should also be some degree of damage to the spinal cord. Any such damage would, from the medical evidence, be likely to show up immediately after the damage. In Ms. Brackenreg's case it seems from the medical evidence that there is no evidence of any spinal cord damage and there was no evidence at the time of the accident that she suffered any spinal cord damage."

The Tribunal added:

"5. Those medical witnesses who suggested that the motor vehicle incident created the syrinx and that the syrinx caused the applicant's disabilities do so largely on the basis that the applicant has claimed that she had no problems before 7 March 1984 and that she has been severely disabled ever since. Medical evidence of this nature relies very heavily for its acceptance on the credibility of the applicant. She is the only one who knows the full extent of her pain and disability."

The Tribunal said that the applicant had been observed, both in the Tribunal hearing room and in giving her evidence over two days. The Tribunal was "most unimpressed with her". It continued:

"I do not believe that she has been candid with her medical witnesses. Her sick leave records and other evidence elicited in cross-examination show that she had many medical problems including migraines, headaches and physical traumas well before 7 March 1984. She had about seven separate days off work between early October 1981 and late January 1984 with problems described as migraine or headache. She was off work from 29 June 1981 to 3 July 1981 due it seems to a fall off a horse. In 1982 she went over the top of a horse and hurt her back and fractured her foot. Also, at some time prior to the motor vehicle incident of 7 March 1984 she was thrown by a post-hole digger, seriously enough to be hospitalised. She also received a broken collarbone in a domestic argument. During her childhood she had many falls from horses. Some were quite serious falls including one at the age of 10 in which she broke her arm and her collarbone.

7. It is clear to me that the applicant was certainly not symptom-free before 7 March 1984. She had also suffered many serious physical traumas before that date."

There followed para 8 of the Tribunal's reasons in which it said:

"8. Since mid 1984 the applicant has done the following:

(a) She has completed a Bachelor of Arts Degree.

(b) She has done regular horseriding. In fact she bought a young horse in 1986.

(d) She has been president of the student's union at the university for 18 months.

(e) She has done aerobics and circuit work at a gym.

(f) She has tutored matriculation students part-time for twelve months.

(g) She has gone scuba diving.

(h) She has started a law degree.

She has done all of those things during a time in which she has claimed, and still claims, that she could not do a simple clerical job because of her pain."

The last four paragraphs of the Tribunal's decision were as follows:

"9. I believe, as does the psychiatrist, Dr. Rice, that she has exaggerated her problems. In my view she has used her compensation as a means of assisting her financially through her university course.

10. I agree with the submission of Mr. Eriksen, that the syrinx is a red herring. No one really knows what caused it and no one knows if it is having any effect. In my view she should never have received compensation beyond the end of 1986 when it should have been perfectly clear that she was not incapacitated for work. In my view she did not want to go back to work in her previous position and did not really try to.

11. Whether or not the applicant is currently incapacitated for work I am not able to say. I note that in 1991, while claiming she could not work, the applicant was thrown from her horse and she suffered a fractured skull. I note also that in March 1992 she was involved in a motor vehicle collision when she ran into the back of another car. She apparently jerked her neck, damaged her neck muscles and suffered intense pain which she said took two or three months to get over. Whether these events have had any ongoing effect I am unable to say. The applicant says not. But, then these incidents do not give rise to any compensation situation.

12. In any event I affirm the decision not to pay compensation from 5 November 1992."

The submissions made on behalf of the applicant were as follows:

1. The respondent, having suspended payments on the basis that the appellant had ceased to be totally incapacitated as at 5 November 1992, bore the onus of establishing that that incapacity for work no longer existed. For this finding to be made, it was necessary that there should be a finding that there was presently a capacity for work in the labour market in which the employee was working or might reasonably be expected to work. Evidence as to the work the applicant might reasonably be expected to do consisted only of an offer of work in Darwin. She lives on Groote Eylandt and thus could not reasonably be expected to accept such an offer.

2. The Tribunal did not make any finding that at the date of suspension of payments of compensation or since that time the applicant ceased to be incapacitated for work. In support of this submission reference was made to the words, "Whether or not the applicant is currently incapacitated for work I am not able to say." in the paragraph above set out.

3. The Tribunal did not give reasons for its decision or, at least, did not sufficiently disclose its reasoning process.

4. The findings in paragraph 8 of the decision were "not linked in logic" with any capacity to do a job of work. In any event there was no evidence to establish a number of the matters listed in para 8 of the reasons for decision. Alternatively, to the extent that there was, the particular circumstances in which these activities were undertaken were not mentioned, let alone dealt with, in the Tribunal's reasons. This latter submission was an aspect of the more general submission referred to in para 3.

The reference to Groote Eylandt in the first of these submissions is explained by the fact that the applicant was married in 1992. Her husband is stationed on Groote Eylandt and the applicant has lived there since her marriage. Previously she lived in Darwin. The applicant's husband's surname is Angus and she gave evidence under that name. No application was made to amend the title of the proceedings either in the Tribunal or in this Court.

There is a question whether the last two submissions raise questions of fact or questions of law. In the submission of counsel for the respondent, the two submissions raise no question of law but constitute an attempt to overturn the Tribunal's decision on facts as distinct from law.

It is convenient to deal with the last two submissions first of all. They can be dealt with together. If they succeed, it will mean that the matter must return to the Tribunal to be heard and determined again. If they fail, they will have a bearing on the outcome of some of the remaining submissions. In order to deal with them, it is necessary to refer to some of the applicant's evidence.

Before that is done, I need to refer to the relevant provisions of s.43 of the Act. They are as follows:

"43.(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(i) making a decision in substitution for the decision so set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A)Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to furnish to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, furnish to that party such a statement.

(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

Sections 35 and 36D mentioned in subsec 43(2) are not relevant to the outcome of this appeal.

It may be observed that the provisions of subsecs 43(2) and (2B) impose on the Tribunal three distinct obligations which are interrelated. They are to give reasons for its decision, to include in its reasons its findings on material questions of fact, and to include in its reasons a reference to the evidence or other material on which those findings are based.

The applicant said that, before the injury, her principal areas of interest apart from work were reading, gardening, horse riding and sailing. She described horses as her "passion". She said that in the first year or so after the accident the pain was less important than getting back to something she loved so she bought a horse. The applicant's evidence continued:

"And what did you do with Oscar [the horse]?---I bought him as a year and a half - I mean as a young horse, and I took him down to where he is at the moment, and he got broken, and then because I hadn't had a young horse, we started learning together. You know, I started back with lessons, and all that sort of thing, so that we were kind of moving through a process together.

And so you rode him on occasions, obviously?---I couldn't ride him usually during the semester so much, but in the holidays I'd maybe - one week I might ride three times, and that would be all I could do, and another week it might be once, or even up to four times, depending on how bad the pain got.

And on the occasions when you did ride him, how long would you ride him for?---Usually half an hour to an hour, because I could not do any more than that.

And what sort of paces could you - would you put him through?---We never got much past a trot, actually.

Now what consequences would you suffer, if any, as a result of - - - ?---Well, I would always ride in the morning, and I would hose him off after we had a bath, and put him back in his paddock, and then I would go home and have to go to bed for the rest of the day.

And why was that?---Because the pain was just very - excruciating. I would go to bed with pain killers and a hot water bottle.

And where was the pain?---In my neck, mainly. The neck and head were the worst.

Right?---And arms to a lesser extent.

And how long would it take you to recover from an average sessions with Oscar?---Oh, a couple of days, if I didn't do it again, probably a week, if I persisted.

And what problems would you have had during that recovery period?---Oh, well, I wouldn't have been able to do anything much else, because I was - devoting myself to Oscar, and so you - like, you don't go out or rage around when you are trying to just do one thing at a time.

But what problems did you have in that recovery period. I mean was it just pain to your neck or - - - ?---Oh, you mean like the throwing up and that?

Well, I - you tell us what problems you had?---Well, when the pain gets really bad, you throw up. So the doctor would have to come and give you an injection, and then when that wore off in four to six hours, he would have to come and give you another one, if you are still really bad, and possibly pethidine or morphine injection, and my friends had to come and look after - and feed the dogs and that for me, if I was really bad.

And how often would you, after a session with Oscar be reduced to that - to that sort of problem - to that sort of course of conduct?---Probably only about once every couple of weeks, because they started prescribing stronger pain killers, so that helped.

Well, did they prescribe that you leave Oscar alone?---Oh, yes, everyone said that to - don't ride him.

And why did not you take that to heart?---Because I would never give the horse up. It doesn't matter. It is something where you are not - there is nothing wrong with you then, when you - you know, you're riding."

Later the applicant said that she had bought Oscar in 1986 and that she still had him. She said that she would never give the horse up. She added, "Even if my health doesn't permit, I'll never... stop riding that horse."

The applicant was cross-examined about catching the horse and putting a saddle on it. She said the horse always came to her so that she did not have any problem catching it. She agreed that she saddled it on about half the occasions that she rode it. On the other occasions it was saddled by someone to whom she referred as a trainer.

The applicant said that she had an interest in other animals and mentioned dogs and cats. So far as dogs were concerned, she mentioned Great Danes and an Irish Wolfhound. She has a Great Dane and an Irish Wolfhound on Groote Eylandt. The applicant said that she had kept Great Danes for about fifteen years. She said she maintained her interest in dogs following the accident in 1984 and had carried that interest through until the present time. She said that she walked the dogs every night but on some occasions because of her problems someone would have to walk them for her.

The applicant was asked about scuba diving. Her evidence was as follows:

"Well, everyone was telling me for a long time that there was nothing wrong with me and it was all psychological, so I used to think that, oh, well, the pain must be psychological so if I do different things, I won't think about it, and that's why I - one of the reasons I took up scuba diving. I thought I'd - because I'm not really a - I hate aerobics and stuff like that. I thought I'd get fit or something. So I did a scuba diving course.

And did you reach a level of proficiency in scuba?---Yes. Yes. I could dive off the boat really easily, you know, because - but doing beach things where you cart the tanks around and everything was like a really big drama. They'd have to carry my tanks for me and that sort of stuff.

And how long did you keep up with scuba?---For about - on and off, maybe, about two years until it just got where I was just getting too sick all the time and I didn't enjoy it that much to keep on sticking with it.

And during that two years, how often would you dive?---Oh, about probably once in three months. If I was on a course, you'd do the course over about a month and then that was it. I'm - I never went on many pleasure dives. I was just doing them to - I did the two course to get my tickets.

And did you successfully complete the - - -?---I completed the first one and I didn't complete the next one because I started throwing up and everything when I was under water and I didn't want to go back in and finish the course then, because I choked. I just got a bit concerned."

In relation to employment, the applicant said that she had undertaken about three or four different jobs part-time. She added:

"The community employment program, they made me a finance sort of clerk person and I'd said to them that I'm really quite bad with figures and, in fact, I can't add up figures at all and that was immaterial. They said, 'Oh, we're just going to stick you here, anyway, because there's a position available.' So I stuck that for a while and was running backwards and forwards to the doctor all the time because I was getting really stressed out because - there is a stigma attached to someone that is back in the work-force after having been on compensation and I was on valium and you name it and I was ---

Well, I mean, you name it?---Oh, sorry. They would - the doctors at that time were trying all different sorts of drugs on me to see which were probably the most helpful and I was really stressed out and I was crying all the time and that sort of stuff and ---

And why were you crying all the time?---Probably, I couldn't - I couldn't cope with the job and I couldn't cope with home as well. I couldn't - I just couldn't do any of it.

Why could not you cope?---Because I couldn't understand why I was in so much pain if everyone said there was nothing wrong with me.

So it was - the pain persisted when you were at work?---Yes.

And did it increase or change in its quality?---I think it got worse because I was so depressed. I mean that's possibly a reason, and because I was working. I was trying to put in an eight-hour - eight-hour day and I couldn't cope."

The applicant said that the employment was arranged for her by her former employer. She carried out the work in Darwin. She started work in 1985. She was studying at this time. She said that she "lasted" about a month at full-time work. At another place, she lasted only half a day. She locked herself in the toilet because, according to her evidence, she "couldn't handle it". She was doing figures again and "I just wanted to throw up and didn't want to say anything because I was a bit embarrassed and so I just sat in the toilet and cried". She said that she was experiencing pain at this time. She gave further evidence to the same effect.

The applicant gave extensive evidence about pain which she suffered in 1990 and 1991 and of treatment that she had in hospital in respect of it. This apparently included low doses of valium every three hours and some traction after the syrinx was discovered.

The essence of the criticism levelled at the Tribunal's statement of reasons is that the Tribunal made express findings that the applicant was able to undertake a variety of energetic activities, horse riding, training and running with two large dogs, and scuba diving, without dealing with the evidence which the applicant gave of the difficulties she had in undertaking them. It also made a finding that she had not been incapacitated for her former work since 1986. Nowhere in the reasons is there to be found any discussion of the detail of the applicant's evidence about these matters. There is no analysis of it and no statement that the Tribunal accepted the fact that the applicant could undertake these activities but rejected her evidence that she did so with difficulty. No more appears than that the applicant had ridden horses, trained dogs and gone scuba diving.

The question is whether this state of affairs should lead the Court to conclude that there is disclosed a failure, on the part of the Tribunal, to give reasons pursuant to its obligation in that behalf provided for in subsec. 43(2) of the Act. There is also the related question whether the Tribunal has referred in its reasons to the evidence upon which its findings of fact were based.

Plainly enough it was open to the Tribunal to find that the applicant had engaged in the various activities (there is no question but that she did) and to reject her evidence of her having encountered any or any substantial difficulty in doing so. To the extent that the fourth submission claims that there was no evidence to justify these findings, I reject it. The course I have suggested would have been open to the Tribunal, particularly in the light of Dr Rice's evidence to which the Tribunal referred and in the light of its own reaction to her evidence. The Tribunal thought the applicant's evidence unimpressive and that she had exaggerated her problems.

Before referring further to the decision, I should refer to some authorities. There is a question on the face of them whether a failure to give reasons amounts to an error of law. I refer to the dissenting judgment of Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422. Brennan J said (at 445-6):

"Keely and Fitzgerald JJ. perceived a further ground for setting aside the A.A.T.'s decision to affirm the Commission's refusal to grant the respondent's claim, though their Honours would have remitted the matter to the Tribunal if this had been the only error of law that they had perceived. Their Honours thought that the A.A.T. had failed 'to expose a satisfactory process of reasoning which led to the rejection of [Mr. O'Brien's] claim' and that the court 'should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected'. It is not clear to me that the A.A.T. did fail to expose its reasons for rejecting Mr. O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: see Denver Chemical Manufacturing Co. v Commissioner of Taxation (NSW) (1949) 79 C.L.R. 296, at p. 313; Sullivan v. Department of Transport (1978) 20 A.L.R. 323, at pp. 348, 349, 352. An obligation to give oral or written reasons for a decision is cast on the A.A.T. by s.43(2) of the A.A.T. Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so. An A.A.T. decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. In my opinion the reasons given by the A.A.T. in this case do not warrant an inference that it failed to review the Commission's decisions according to law."

Brennan J was the only judge to address this question. His dictum is obiter, but it is of highly persuasive authority, not only because he is a judge of the High Court of Australia but also because of his close familiarity with the Act and his presidency of the Administrative Appeals Tribunal during its early years.

Nevertheless, there is authority which suggests that in some cases a failure to give reasons, at least for a judicial decision, reflects an error of law. There have been numerous cases in the New south Wales Court of Appeal which have arisen because of appeals brought against decisions of the District Court of New South Wales or of workers compensation tribunals, from which appeals lay only on questions of law, in which the problem has been discussed. The Court's decision in Pettitt v Dunkley [1971] 1 NSWLR 376 is well known. There the trial judge had said that, in view of the plaintiff's condition of health, it would not help to give reasons. He added, "I simply enter my verdict. I return a verdict for the defendant".

It was held that the failure of the trial judge to give reasons for his decision constituted an error of law because such failure made it impossible for the appellate court to determine whether or not the verdict was based on an error of law and so to give effect to the plaintiff's statutory right of appeal. Reference was made to Carlson v King (1947) 64 WN (NSW) 65 at 66 and Grimshaw v Dunbar [1953] 1 QB 408. In Carlson v King, Jordan CJ said (at 66):

"It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter (1945) 46 S.R. 1 at 4-5; 63 W.N. 34 at 36, and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch (1943) 43 S.R. 207 at 212; 60 W.N. 148 at 150. In the case of District Courts, it is expressly provided by s.144 of the District Courts Act, 1912, that at the hearing of an action 'the judge, at the request of a party, shall make a note of any question of law raised at such trial or hearing, and of the facts in evidence in relation thereto, and of his decision thereon, and of his final decision in the action.' More than 50 years ago, in the case of Saxton v. Stuart (1896) 13 W.N. 40; 11 Austn Digest 201, it was pointed out that this provision means exactly what it says, and that it is not right that Judges on appeal should be compelled to waste their time in fishing through the notes and endeavouring to spell out what point of law has been decided; and the hope was expressed that in future the Judges of the District Courts and all counsel and solicitors appearing before them would endeavour to comply with the requirements of the Act."

It is to be observed that nowhere in what Jordan CJ said does there appear any statement saying that it is an error of law not to give reasons. But the appeal, which lay only on a question of law, was allowed. To the same effect as the decision in Carlson was the decision of Cussen ACJ in Brittingham v Williams [1932] VLR 237; see at 239.

The principal judgment delivered in Pettitt v Dunkley was delivered by Moffitt JA (as he then was). He said (at 390):

"It is against this background that the judicial duty to give reasons must be examined in order to determine when error arises in giving no reasons. It is neither possible nor desirable precisely to define the area of that duty. However, at least, if a case involves mixed questions of fact and law and is such that once the facts are determined in a particular way or ways its resolution will involve some considerations of law, it is the duty of the judge, unless there are exceptional circumstances, to give some indication of the basis of his decision. The purpose of so doing, of course, is directed to indicating his decision on the law either directly or by inference from the facts he has found. To some extent, because the requirement to give reasons depends on the nature and circumstances of the case, it is properly within the decision and discretion of the trial judge to determine whether reasons ought to be given. However, as in other cases of judicial discretion, it may be possible for an appellate court to conclude from the mere circumstances of the case or any reason assigned that the decision to give no reasons proceeded on some error in principle as to the duty involved (House v. The King (1936) 55 C.L.R 499, at pp. 504-505; Lovell v. Lovell (1950) 81 C.L.R. 513, at pp. 533-534; and see also Dorrington v. Griff Fender (Swansea) Ltd [1953] 1 W.L.R. 691."

There is, however, no statement by Moffitt JA that every failure to give reasons, notwithstanding that there is a statutory obligation to give them, will constitute an error of law.

I do not find it necessary to review the entirety of the authorities on this question. I propose to refer, however, to the decision of the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The passage I am about to quote from the judgment of McHugh JA deals substantially with the facts of the matter which his Honour had to consider, but it is the way that he treated the facts which throws light on the question here to be decided. His Honour said (at 281-2):

"An appeal from a decision of the Compensation Court is limited to questions of law. In my opinion the finding in the present case that the appellant was 'fit for all work' after 17 January 1984 was a pure question of fact. The application of a legal standard was not involved. The learned judge found as a question of fact, and not as a question of mixed fact and law, that the applicant was fit for all work. I have not overlooked that immediately before making that finding his Honour said that 'the applicant was totally incapacitated from 21 December 1982 to 17 January 1984'. But I think that it is clear from the context that his Honour was using the term 'incapacitated' in the sense of physically unfit. In any event the appeal is concerned with his Honour's finding concerning fitness after 17 January 1984.

Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because, as Asprey JA pointed out in Pettitt v. Dunkley (at 382), the learned judge "has not properly fulfilled the function which the law calls upon a judicial person to exercise'. However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding.

Here the learned judge has obviously acted on the strength of the CAT scan report. His reasons for judgment necessarily involve the total acceptance of the opinions of the applicant's doctors until 17 January 1984 and the total rejection of their opinions after that date. His Honour gave no reasons for doing this. Since, ex hypothesi, the opinions of the applicant's doctors concerning her fitness after 17 January 1984 are necessarily wrong, it is difficult to see how on the facts of this case they could be right for the period immediately before that date. Alternatively, if they were right before that date, it is difficult to see how they could be wrong immediately after that date. Moreover, as counsel for the applicant pointed out, a CAT scan is simply a diagnostic aid. It would be quite erroneous to find as a fact that the applicant was fit for work from the date of the CAT scan simply because the CAT scan failed to reveal any evidence of unfitness. However, the question is not whether his Honour's finding that the applicant was 'fit for all work' after 17 January 1984 was correct. it is whether his Honour gave reasons, however erroneous, for that finding. While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law."

The emphasis is added.

Earlier in his judgment McHugh JA had discussed a number of the authorities and had said (at 281):

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."

Again the emphasis is mine.

There is a lengthy treatment of the whole problem in the judgment of Mahoney JA. His Honour said (at 270-271):

"In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons. Thus, in England, it has been said that reasons need not be given in certain procedural applications: see Capital and Suburban Properties Ltd v Swycher [1976] Ch 319 at 325, 326. In such cases, and in cases of, e.g, applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23 September 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15 March 1977, unreported). The Privy Council has said that, in criminal matters, it is not necessary for a judge to refer in his judgment to every possible defence: he may, for example, consider a defence 'too plain for argument' and put it aside: see Mohamed Kunjo s/o Ramalan v Public Prosecutor [1979] AC 135 at 142. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 587, 588; [1983] 1 All ER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

Later his Honour said (at 271):

"In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."

The decisions of the New South Wales Court of Appeal to which I have referred and decisions of other courts referred to in the references and quotations in the judgments in those cases, are all cases dealing with appeals from courts, not appeals from administrative tribunals. That distinction may not have a great deal of significance in a case such as the present because it involves an appeal from a formal tribunal which has many of the trappings of a court. But it ought to be pointed out that Brennan J's solution to the problem, expressed in the passage cited from his judgment in O'Brien, was the making of a mandatory order requiring the Tribunal to give the reasons which it should have given. That would not be a course open to a court dealing with an appeal from the judgment of another court unless the legislation which applied clearly provided for it. In this regard reference may be made to subsec. 43(2A) of the Act which provides that, where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may request the Tribunal to furnish a statement in writing of its reasons therefor. The Tribunal is bound to furnish such a statement to the party requesting it. It would seem to follow that, where a statement purporting to be a statement of reasons, is provided by the Tribunal, a party complaining that the statement is not an adequate statement of reasons would be entitled to a further statement indicating the reasons for the decision.

The obligation of the Tribunal to give reasons has been the subject of decision and comments in a number of cases in this Court. There are also decisions on the approach which the Court should adopt in reviewing decisions of the Tribunal. I instance the judgment of Fisher J in Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131 at 145. I refer also to Times Consultants Pty Ltd v Collector of Customs (Queensland) (1987) 76 ALR 313 at 328 and Opitz v Repatriation Commission (1991) 29 FCR 50. See also Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 151-2 and 157.

The essential provisions of s.43 of the Act are not in substance different from those of s.13 of the Administrative Decisions (Judicial Review) Act 1977. In cases where reasons need to be provided pursuant to that Act, the reasons must contain the findings of fact which have been made and a reference to the evidence upon which those findings were based. There have been decisions of this Court dealing with the extent of the duty to give reasons under s.13 of the Judicial Review Act. A well-known authority in this area is the decision of Woodward J in Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500. His Honour said (at 507):

"The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206-207; 1 ALD 183 at 193-194,serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: 'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.'

This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only."

His Honour also said (at 507-508) that the general policy of the Judicial Review Act was that persons aggrieved by administrative decisions which adversely affected them should have full opportunity to show, if they could, that such decisions had been improperly reached. He added that they could only do this if they knew how the decisions were in fact arrived at.

The decision in Wraith has been the subject of consideration and comment in a number of cases. I instance the decision of Burchett J in ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 203-205. I refer also to my own remarks in Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88.

In the present case the findings of fact upon which the Tribunal relied appear clearly. That is in accordance with the obligation cast on the Tribunal by subsec. 43(2B) of the Act. But what it fails to do is to refer to the evidence upon which those findings were based. Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. Furthermore, there is a real purpose in requiring a tribunal to refer to the evidence upon which its findings of fact are based. This enables a court dealing with an appeal on a question of law from the Tribunal to determine, more confidently than might otherwise be the case, whether or not the findings of fact made by the Tribunal were based upon evidence before it and were thus findings which were open to it to make. If they were not, an error of law would be disclosed.

Plainly the obligation to refer to the evidence upon which a number of the findings in para 8 of its decision has not been discharged by the Tribunal in this case even in a colourable way. There was no reference to the evidence given by the applicant concerning horse riding, training dogs, or scuba diving. Indeed there is little reference to any of the evidence about any of the material matters in issue before the Tribunal. On the other hand, the approach adopted by the Tribunal may well have been the following. It had the applicant's evidence together with a great deal of medical evidence. Some of this was conflicting. It had the evidence concerning the syrinx. It put that aside, justifiably in my opinion, because it made no difference to the outcome. Whether the syrinx was caused by the accident or not, the applicant either had the disability and incapacity which she claimed or she did not. That was the question to be decided. The Tribunal formed an unfavourable view of the applicant as a witness. It made it perfectly clear that it was quite unimpressed with her. That was its province as the tribunal of fact. There is no appeal on such a question. It referred to the various activities which the applicant had undertaken in support of its conclusion that she was not incapacitated for her former employment. The inference is that it accepted the fact that she had engaged in these activities since the accident without the difficulties which she complained of. That part of her evidence was presumably rejected. The Tribunal would have been entitled to take this course particularly in the light of medical evidence which it had before it. Nevertheless, what the Tribunal has failed to do is to deal comprehensively with the evidence particularly about horse riding, training dogs and scuba diving. It did not make clear to the applicant or to anyone else including this Court that it did reject so much of that evidence as suggested that the activities could only be undertaken with great difficulty. It follows that a critical part of the Tribunal's reasoning process was not disclosed. Coupled with that matter is the fact that it failed entirely to state the evidence upon which a number of material findings of fact were based.

In reaching my conclusions, I have taken into account the fact that the provisions of s.43 are directory rather than mandatory but, nevertheless, require substantial compliance; cf Bisley (supra at 157). I have also had regard to the various dicta of judges of this Court concerning the way in which the reasons of members of the Tribunal should be read; see Blackwood Hodge (supra at 145). And I have taken into account statements such as were made by Mahoney JA in Soulemezis that the law does not require a judge (I would add a formal tribunal such as the Tribunal here) to make an express finding in respect of every fact leading to, or relevant to, his ultimate conclusion. Nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. Having performed this exercise, I have reached the conclusion that it cannot reasonably be said that the Tribunal has substantially complied with its obligations under s.43 of the Act. It is no light matter for any tribunal of fact to reject evidence given by a claimant for compensation on the basis that it is over stated or even false. It is true that a tribunal may properly say that it does not accept the evidence of a witness and no more. A tribunal's conclusion in a matter of this kind may be largely intuitive. It may be based on an overall impression of the witness. It may be a matter about which it may be very difficult to give reasons. But the decision here goes further. The effect of the Tribunal's findings is that it has rejected as false testimony evidence given by the applicant about her various difficulties.

Many experienced judges distrust demeanour as a conclusive guide to the veracity and reliability of a witness's evidence. They take it into account but also consider any contemporary documents, a matter not relevant here, facts or events either agreed upon or established by uncontradicted evidence, or evidence which they do accept, and the inherent probabilities of the case they are considering. That is why I think specific reference was made to the activities undertaken by the applicant. They would tend to establish that it was unlikely that the applicant could be suffering from the disabilities of which she complained if she were able to undertake them without difficulty. But what does not appear in any chain or process of reasoning is any statement which shows how the evidence given by the applicant of her difficulties was treated. For all a reader of the decision would know, the applicant had engaged in them without difficulty. The reader would not know that the applicant had claimed that she could only do them with the greatest difficulty and that there was thus a real issue about her evidence in this regard.

The findings made in respect of these activities obviously played an important part in the reasoning process of the Tribunal. In my opinion the Tribunal was obliged to indicate quite clearly how it was that it made those findings notwithstanding the evidence given by the applicant about her difficulties, the substance of which I have earlier set out. An informed reader might be forgiven for thinking that the Tribunal had overlooked the detail of the evidence and in this way misapplied it or misunderstood it. There then needs to be brought into account the other obligation, that is the obligation to refer to the evidence upon which material findings of fact were based. These were material findings of fact. There is no doubt about that. There is no reference to the evidence about them at all. The obligation in this regard has not been discharged. It appears to have been ignored. It follows that the Tribunal's failure to comply with s.43 was one of substance. It was in substantial breach of the section.

Then comes the further question. Did the failure of the Tribunal in the context of this case to give adequate reasons and to refer to the evidence upon which some of its material findings of fact were based constitute an error of law? Notwithstanding the applicant's first two submissions with which I have yet to deal, this case did not, in my opinion, require the Tribunal to determine any question of law. It decided a question of fact, namely, whether the applicant
remained incapacitated for her former employment as a consequence of the accident in March 1984.

In these circumstances it becomes necessary to consider closely the dicta in the judgments of Brennan J in O'Brien (155 CLR at 446) and McHugh JA in Soulemezis (10 NSWLR at 281-282) which I have earlier quoted. For present purposes, the important part of what Brennan J said is found in the statement that, if a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case it is set aside because of a failure to make a decision according to law. Here I think it may fairly be said that the Tribunal has failed, at least as far as its reasons disclose, to consider material facts, namely the applicant's evidence of her difficulties to which I have referred. The Tribunal itself selected those facts as material because of its unqualified statements concerning the applicant's ability to engage in the various activities to which I have referred. It follows, in my opinion, that nothing that Brennan J said should lead me to conclude that there is no error of law in the present case.

One needs to read what McHugh JA said in Soulemezis as a whole. That case, like this one, called for the determination of a pure question of fact. The finding in question was that the applicant in that case was fit for all work. McHugh JA said that, if no right of appeal is given against findings of fact, a failure to state the basis of a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. He instanced a case where the question was whether the plaintiff sustained injury by falling over and said that a simple finding that he fell or sustained injury would be enough if the decision turned simply on the plaintiff's credibility. He added that, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough. In my opinion other matters, although they came from the applicant's evidence, were relied on in this case. These were the various statements made in the applicant's evidence concerning her difficulties in carrying out the tasks which, inferentially, the Tribunal said she could do without any problem. That evidence was not mentioned or dealt with. In those circumstances, I think it correct to say that this is a case where justice cannot be seen to have been done. The applicant's evidence went to the heart of the matter. If it had been fully considered, it may be that it would have been accepted or at least have had the effect of cutting down the absolute proposition that the applicant had, apparently
without difficulty, engaged in the various activities she described.

It follows that neither what was said by Brennan J in O'Brien nor what was said by McHugh JA in Soulemezis should persuade me that this is a case where there is no error of law. In my opinion there was for the reasons I have given. Accordingly, the substantial thrust of the third and fourth submissions made on behalf of the applicant should be upheld.

This makes it unnecessary to say anything about the first and second submissions although I will, in a moment, say something of them. The question is what should the Court's order be. It was submitted by counsel for the respondent that I should do as Brennan J said should be done in O'Brien and make a mandatory order requiring the Tribunal to give the reasons it should have given. I have concluded that I should not take that course. I think it would be quite wrong to send a matter back to a tribunal such as the Tribunal here after a lengthy criticism of the way in which its decision has been arrived at and ask it to give additional reasons for its conclusions. I am not suggesting for a moment that the Tribunal did not or would not act in good faith. But, in the administration of justice, appearances are as important as actualities. It would be very difficult to persuade a reasonable person observing what had happened that justice had necessarily been done if it turned out that the decision remained as it is. In my opinion, the matter should be remitted to the Tribunal for rehearing before a different member.

Before concluding, I propose to deal briefly with the first and second submissions. The first submission raised a question concerning the onus of proof. It claimed that the respondent bore the onus of establishing that incapacity for work no longer existed. Several authorities were referred to. I do not express any view on this matter because this case was not decided on the onus of proof. The Tribunal heard the evidence and reached its conclusions without the need to resort to any question of onus. It found the applicant no longer incapacitated as a consequence of the injury she suffered on 7 March 1984. It did so upon the basis of the totality of the evidence before it. As in the great majority of cases, no question of the onus of proof borne by either party came into the matter. Once that was decided, the circumstance that the applicant lived on Groote Eylandt was not material. The important conclusion was that the applicant was no longer suffering any incapacitating effects from the original injury.

The second submission should be rejected because the Tribunal did find the applicant no longer incapacitated as a consequence of the original injury. The statement in the submission (taken from the reasons for decision), "Whether or not the applicant is currently incapacitated for work I am not able to say." is taken out of context. The Tribunal thought that it was possible that the applicant was suffering some incapacity as a consequence of other accidents which had befallen her. It did not need to decide this question. What it was quite clear about was the fact that the applicant was no longer incapacitated as a consequence of the original injury.

Although the respondent is entitled to succeed on the first two submissions, it must fail on the third and fourth submissions. In the result the appeal is allowed with costs. The Tribunal's decision is set aside and the matter is remitted to the Tribunal to be heard and determined again.

I certify that this and the 36 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.

Associate

Dated

APPEARANCES

Counsel for the Applicant: Mr J. Waters

Solicitors for the Applicant: Messrs. Elston & Gilchrist

Counsel for the Respondent: Mr C. McDonald

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 12 & 13 May 1994

Place of Hearing: Darwin

Date of Judgment: 15 March 1995

Top