FEDERAL COURT OF AUSTRALIA

Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642

ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal - procedural fairness – whether applicant on notice that Tribunal might rely on findings of fact in other proceedings before the Tribunal – whether applicant given opportunity to challenge or put in issue those facts in the context of the respondent’s application – where no evidence tendered to prove those facts in relation to the respondent’s application.

ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal – no evidence – whether some evidence to support the Tribunal’s finding regarding the respondent’s understanding of the Army’s obligation.

ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal – whether Tribunal made an error of law by applying the wrong test –whether Tribunal ignored requirement of casual link between Army’s failure and respondent’s conduct for the purposes of determining whether the respondent had “reasonable cause” for late notification of his claim.

ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal – whether Tribunal’s finding that a military instruction was in force at the relevant time when it had actually been revoked is an error of law – where procedures provided for in the military instruction but not followed relied upon by the respondent as giving him “reasonable cause” for late notice of his claim.

Commonwealth Employees Compensation Act 1930 (Cth) s 16

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)

Telstra Corporation Limited v Roycroft (1997) 77 FCR 358 referred to

Commonwealth of Australia v Connors (1989) 86 ALR 247 referred to

Re Loft and Comcare (1996) 52 ALD 606 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 322 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259 applied

Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583

discussed

SECRETARY OF THE DEPARTMENT OF VETERANS’ AFFAIRS V DONALD STUDDERT

N 857 OF 2001

MOORE J

22 NOVEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an “appeal” by the Secretary of the Department of Veterans' Affairs ("the applicant") under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") against a decision of the Administrative Appeals Tribunal ("Tribunal") of 26 April 2001.  The Tribunal decided to set aside a decision of Comcare disallowing a claim of Mr Donald Studdert ("the respondent") for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Compensation Act").  The Tribunal also decided to remit the matter to Comcare with a direction that the respondent's claim for compensation for heart and respiratory conditions met the requirements of s 16 of the Commonwealth Employees Compensation Act 1930 (Cth) ("the 1930 Compensation Act").

Background

2                     The following emerges from the Tribunal’s reasons and the relevant documents related to the respondent’s claims and from the general background.  The respondent enlisted into the Australian Army on 6 January 1955. On 6 April 1955, during the first three months of his training, he was involved in an incident in which he was exposed to a noxious gas. Along with other recruits he was placed in a sealed room and a gas was released which he was instructed to inhale.  After inhaling the gas, the respondent experienced tightness in his chest and coughing. When the door to the room was opened, he fell to the ground coughing and wheezing and continued to experience tightness in his chest. These symptoms persisted overnight and he presented himself the following morning to the Army’s medical centre and reported the discomfort he was then experiencing.  He was told, in effect, to return to training. The respondent complained that he was sick as a result of being gassed the previous day but he was still told to return to training and forget about it.  He had not expected the response he received. He had expected that if he became sick or had an accident during training that he would receive assistance from the sick bay.

3                     The symptoms persisted for a further one to two months and from that time onwards the respondent was left with a sense of breathlessness.  During the fortnight following the gassing incident, he complained at least six times to non-commissioned officers about his lingering problems. His complaints were directed towards obtaining treatment rather than monetary compensation. He was told to focus on his training. He did not put any of his complaints to the army in writing. He was never advised to make a claim for compensation during the course of his national service.  He received no advice from the Army in respect of his rights and obligations in relation to injuries incurred during training.

4                     The respondent saw a number of doctors after his discharge from the army in 1960 but was never given any treatment for his condition.  In 1997 he joined the National Serviceman’s Association and was encouraged to lodge a claim for compensation.  He did so on 7 July 1998 in respect of heart and respiratory conditions allegedly caused by the gassing incident.

5                     On 23 June 1999, his claim was disallowed by Comcare on the basis of the opinion of a consultant physician, Dr Braude, that on the balance of probabilities the “exposure to tear gas has not resulted in a long term respiratory condition.”

6                     The respondent wrote to a delegate of Comcare on 5 July 1999 requesting a reconsideration and an extension of time in which to provide further medical evidence. The respondent then submitted for consideration a report from a different physician, Dr Gibson, from whom further information was subsequently requested and provided. During the period that Comcare was reconsidering the original decision, Comcare wrote to the respondent requesting reasons as to why he had not lodged a claim for compensation within six months of the injury or onset of the condition, as required by s 16 of the 1930 Compensation Act.  The respondent responded by saying he was unaware of his rights prior to or during the course of his National Service Training in relation to injuries and accidents.  He also said the reason why he had not reported his injury earlier was that the doctors he consulted had no knowledge or experience of tear gas exposure.

7                     On 6 January 2000, the decision disallowing the respondent’s claim for compensation was affirmed on reconsideration. The decision was based on the reports of both physicians which were said to support the conclusion that it was unlikely the respondent’s respiratory condition was due to tear gas exposure in 1955. The respondent then lodged an application for review with the Tribunal.

8                     On 15 December 2000, an officer from the Military Compensation and Rehabilitation Service gave a statement to the Tribunal in which it was claimed that Comcare had been prejudiced by the respondent’s delay in lodging the claim for compensation. The letter stated that Comcare had not been given the opportunity to examine the respondent at critical times and that the it would face difficulty gathering evidence from witnesses who were present at the onset of the disease. Furthermore, it was said that, since the respondent undertook other employment after the onset of the condition, it would be difficult for Comcare to gauge the effects of this other employment on his condition. The proceedings before the Tribunal thereafter focussed on whether Comcare could consider the respondent’s claim notwithstanding that it was made outside of the time limit specified in s 16 of the 1930 Compensation Act. That, in turn, required the Tribunal to consider whether the delay in making the claim was occasioned by mistake, absence from Australia or other reasonable cause.

Legislative framework

9                     Central to these proceedings is s 16 of the 1930 Compensation Act which provides:

“(1)     The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –

(a)       within six months from the occurrence of the accident; or

(b)       in the case of death – within six months after advice of the death has been received by the claimant:

Provided always that –

            (i)         the want of or any defence or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

            (ii)        the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

(2)       …

(3)       …

(4)       In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease –

(a)       notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner –

            (i)         in the case of a claim arising out of death of the employee caused by the disease – as soon as practicable after his death; or

            (ii)        in any other case – as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;

(b)       a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made –

            (i)         in the case of a claim arising out of the death of the employee caused by the disease – within six months after advice of the death was received by the claimant, or

            (ii)        in any other case – within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;

(c)        ….

(d)       ….”

10                  It is also desirable to set out s 33(1) of the AAT Act which provides:

“(1)     In a proceeding before the Tribunal:

(a)       the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)       the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)        the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

The Tribunal's decision

11                  It was common ground before the Tribunal that the respondent failed to make his claim for compensation as soon as practicable or within the time specified under s 16 of the 1930 Compensation Act. The Tribunal found that Comcare would be prejudiced by the lengthy period of delay, calculated at 42 years (or 38 years if the respondent is regarded as having contracted a disease and is therefore the beneficiary of amendments made by the Commonwealth Employees’ Compensation Act No.98 of 1959).  As a result, the principal issue was whether the delay was occasioned by mistake or other reasonable cause so as to bring the claim within the proviso to s 16(1).

12                  The Tribunal found that there had been no mistake by the respondent of the type contemplated by the proviso in s 16. The Tribunal relied on the decision on North J in Telstra Corporation Limited v Roycroft (1997) 77 FCR 358 where his Honour distinguished between mistake and mere ignorance of one’s rights in the following terms:

“If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.”

The Tribunal found that the respondent’s contention that he was mistaken in his belief that the Army had no obligation to offer him treatment and that he had no rights was, effectively, raising his ignorance as the explanation.

13                  On the question of whether the respondent’s failure to notify his claim within the prescribed period was occasioned by “other reasonable cause” for the purposes of the proviso in s 16(1), the Tribunal summarised the respondent’s submissions as follows:

“37.     The Applicant might argue also that he had ‘other reasonable cause’ for failure to notify and to claim within the appropriate time.  In Re Vickery and Commonwealth of Australia (1985) 8 ALD 93 at page 103 the Tribunal suggested that ignorance in appropriate circumstances might amount to ‘other reasonable cause’.  The Tribunal said:

            ‘It is a question for the Tribunal whether New South Wales Workers’ Compensation Commission decision-making, and earlier decisions of other courts and tribunals under workers’ compensation applying in the various States, should bind this Tribunal in its special role of providing administrative review of decision-making under the 1971 Act …  The Tribunal considers that it should not.  Those charged with the administration of the 1930 Act, and the respondent, as an employer under that Act, had failed in their responsibility to acquaint the applicant at the relevant time with his rights under beneficial legislation, and had failed to assist him in securing those rights.  It would be strange indeed if the Tribunal were to endorse the notion that their successors, namely the Commissioner under the 1971 Act, and the respondent, should be able to rely upon their failings, and deny the applicant’s right to have his claim determined on its merits.

38.       Mr Fitzgerald sought to apply the principle embodied in this quotation to Mr Studdert’s case.

39.       Mr Fitzgerald referred also to Re Loft and Comcare (AAT 10819, 14 November 1995) where the Tribunal wrote:

            ‘13.      Mr Thompson, in making that submission, relied on Military board instruction (“MBI”) 34/1950 dated 3 March 1950 (exhibit A24) and on the provisions of the Report of an injury form (“AAF D11”) prepared for use by the Australian Military Forces.  Part V is headed “Injuries to Members”.  It provides:  [the provisions of Part V of the form were set out].

            14.       A blank copy of the form “AAF D11 Report of an Injury” referred to in the MBI was received in evidence (A11).  Section 7 is required to be completed by the Commanding Officer of the injured person.  It confirms that the Commanding Officer has the responsibility of considering whether or not a claim for compensation should be made.  It provides: [section 7 of the form was set out].

            15.       …

            16.       I find on the evidence of Major Craig, having regard to the provisions of the MBI and the form of the AAF D11, that in the Army the obligation to ensure that notice of an accident or a report of injury was served, and that the making of a claim for compensation was considered, rested with the medical officers and Commanding Officers concerned, and not with the soldier.  I consider that it was reasonable for Mr Loft to rely on the medical officers and on his Commanding Officer to take any steps necessary as a result of his injury and to fulfil their obligations under the MBI.  I find that the particular circumstances of Army service provide reasonable cause for Mr Loft to have failed to lodge notice of the accident within six months from its occurrence, and also for his failure to make a claim for compensation within six months of his injury.  I am satisfied that s.16 of the 1930 act did not prevent Mr Loft’s claim being admissible under that Act and thus s.124(1) of the Act does not prevent Mr Loft being entitled to compensation.’

40.       According to Mr Fitzgerald, the Army regulations imposed an obligation on commanding and medical officers to ensure that notice of an accident or injury was served and that the making of a claim for compensation was considered.  It was not an obligation imposed on a soldier.  If anything, the obligation owed a conscript such as Mr Studdert was stronger.”

14                  The Tribunal then set out the findings of Northrop and Ryan JJ in Commonwealth of Australia v Connors (1989) 86 ALR 247 which were relied on by the applicant as establishing that ignorance, in the sense of failure to avert to the existence of a right, does not constitute ‘reasonable cause’ for the purposes of s 16(1). The Tribunal, however, distinguished the decision in Connors and concluded that the failure of the Army to adhere to the mandated standards in respect of injured personnel constituted an “other reasonable cause” for the respondent’s late lodgement of his claim. It found:

“70.     While these comments (from Northrop and Ryan JJ in Commonwealth of Australia v Connors) appear perhaps inconsistent with the principle applied by the Tribunal in the Loft case (supra), they are not, in the Tribunal’s view.  Connors (supra) was not a case about an alleged duty to inform and assist, as was Loft (supra).  Connors (supra) was about an average public servant in the civil service.  The Tribunal notes that the instructions issued to the military in 1950 predated Mr Studdert’s injury.  As reproduced in the Loft case (supra) at paragraph 39, above, they demonstrate a serious attention to detail by the military in ensuring that military officers are treated as well as possible by the military when an accident or injury occurred.  The system described included failsafe measures to ensure the recording and treatment of an injury occurring while on duty.  The Tribunal refers to Mr Studdert’s evidence in paragraph 29, above.  He understood that the Army had the sorts of responsibilities for his welfare as are described in the Loft case (supra).  It appears from the sworn evidence given by Mr Studdert in Exhibit A2 and orally at the hearing, evidence not contradicted by the Respondent, that the standards established in those documents were not adhered to when Mr Studdert was injured.”(Emphasis added)

15                  The Tribunal concluded that the decision to refuse the respondent’s claim for compensation should be set aside and the matter should be remitted to Comcare with the direction that the respondent’s claim for compensation for heart and respiratory conditions meets the requirements of s 16 of the 1930 Compensation Act.

Issues and resolution of application

16                  I will consider the issues in the order in which they were raised by the applicant during the hearing.

(i)                 Denial of procedural fairness

17                  It can be seen from par 70 of the Tribunal's reasons that the military instructions issued in 1950 were viewed by the Tribunal as important.  The applicant submitted that he was denied procedural fairness because of the way the Tribunal used and relied on the military instructions.  In order to understand this submission it is necessary to refer to the course the proceedings took during the hearing before the Tribunal.  Both the applicant and the respondent were represented by counsel.  Counsel for the respondent tendered a medical report and an affidavit of the respondent dated 9 August 2000.  Counsel for the applicant tendered a statement of a Departmental officer.  Counsel for the respondent then outlined the respondent's case.  However the outline was a perfunctory one and, in particular, no reference was made to military instructions.  The respondent was then called to give evidence.  He was examined in chief.  After several questions counsel for the applicant objected to this course on the basis that an affidavit had been provided and he understood the applicant was being called for the purposes of cross examination.  During submissions on the objection, counsel for the respondent effectively volunteered that if the applicant was potentially prejudiced by any material emerging from the respondent's oral evidence, steps could be taken to avoid actual prejudice.  It is relatively clear that counsel for the respondent was implying that the applicant would be entitled to an adjournment.

18                  The Tribunal appeared to accept the approach put by counsel for the respondent and the matter proceeded with the respondent giving oral evidence in chief.  He was asked whether he had been given any instructions about his rights and responsibilities as a soldier and instructions on the subject of what would happen in the event of an accident or injury.  As to that latter matter, the respondent indicated he had not.  (The remainder of the respondent’s further evidence in chief is discussed later in the context of considering another issue.)  The respondent was then cross-examined and re-examined. His counsel then made his submissions.

19                  Counsel for the respondent commenced his submissions by referring to the respondent's belief about whether the Army would offer compensation or treatment in relation to his ill health.  The gravaman of the submission was that the respondent, having regard to the attitude the Army had adopted to his complaints of ill health since the gassing incident, believed the Army would offer nothing by way of compensation or treatment.  Counsel for the respondent then turned to address the position of the Army.  The transcript records:

“[Counsel for the respondent] So, the focus shifts from the applicant’s state of mind to the Army’s response.  There have been some cases on this and I draw attention to just two; Vickery’s case and Loft’s case.  Vickery’s case this is a reported decision from quite some time ago when Senior Member Hayes was on the Tribunal.  I only wish to draw attention to one passage in Vickery’s case which otherwise traverses a lot of authorities but has, with respect and I say this quite sincerely with respect to the Senior Member, that it’s been superseded by the authorities in Roycroft and Connor’s case.

At page 103 of the reasons for the decision the Tribunal made this observation because it was a case, once again, where there was a claim of inhospitability, shall we say, from the employing agency.  The Tribunal said:

            Those charged with the administration of the 1930 Act and the respondent … (reads) … of the 1971 Act, as quoted above.

In Loft’s case, this was a decision of Senior Member Dwyer in Melbourne and there was some evidence there led about the military regulations which were in force at the time, this was in the early 1950s.  The discussion of this evidence is from paragraph 13 through to 16 of the decision, once again, it’s unreported.  The learned Senior Member’s conclusion after looking at this evidence, she quotes chapter and verse of the Army regulations and there was also apparently some oral evidence from an officer of the Australian Army who was a staff officer dealing with records.

            ‘I find on the evidence of Major Craig having regard to the provisions of the NBI and the form of the AAF D11, that’s the military instructions and forms and things, that in the army the obligation to ensure that notice of an accident or a report of an injury was served and that the making of a claim for compensation was considered rested with the medical officers and the commanding officers concerned and not with the soldiers.  So that was a view that was reached in that particular decision about the evidence as to military regulations and obligations at the time.’

Now the applicant’s evidence of course is that he was told when he presented his complaints to get lost, he was never given a form.  Furthermore, his evidence is that when he went into the army at no time afterwards was he ever given any instruction about his rights and responsibilities.

So our point would be that the explanation for the non lodgment of a claim as required at the time of service as is required under section 16 rests upon the failure of the army to discharge its responsibilities under the military regulations to instruct him to give him the opportunity notify.  I must say in this respect just as an aside more it is unusual that we didn’t have that discharge medical, that might have nailed this case well and truly down if it existed.”

20                  It can be seen from the last paragraph of the transcript that counsel for the respondent apparently relied on the military regulations or instructions that had been tendered in Re Loft and Comcare (1996) 52 ALD 606 and on which the Tribunal had based its ultimate conclusion in that matter.

21                  The response of counsel for the applicant in his submissions on this question was as follows:

“Equally, there has been no case made in this particular case of tendering manuals or anything that asserted that there was some positive obligation on the Commonwealth to give such notice, that was not part of the way the applicant ran this case, so the case is somewhat distinguishable from Loft in that regard as well.  We would also add that Loft really does not properly come to terms with that passage from Connors as well, because on one reading of Loft it seems to suggest that reasonable cause can be made out by the obligation being on the employer to tell the employee about their rights.

The factual basis for that submission hasn’t been made in this particular case, number one, that we would submit that it is contrary to what is said by the full Federal Court in Connors in any event.  It is also contrary to the way the section has been approached by Deputy President McMahon in Muras and Gallagher, which are referred to on our list of authorities, to the extent that if there is conflicting authority to the Tribunal, we would submit you should follow the authority of a Deputy President rather than that of another Senior Member, and I don’t mean that disrespectfully, it’s a well established internal proposition.”(Emphasis added)

22                  It can be seen that counsel for the applicant responded to the submission that had been made about Re Loft (supra) by pointing out that, effectively, no documents had been tendered which would establish that the Commonwealth was under an obligation at any relevant time to take steps in relation to any compensable injury or disease that the respondent may have suffered.

23                  In submissions in reply, counsel for the respondent said on this question:

“Finally Loft’s case, Loft’s case is – I would put two comments to you on Loft’s case.  The learned Senior Member looked at certain documents that were put and drew certain conclusions about them.  We don’t have those documents in evidence, nor do we have the evidence of anyone such as the army officer in that case.  However, the terms of the military instruction are, I think, very plain and we would commend the observations of the Senior Member to you, and that is the sole purpose for the citation.”

24                  Two observations can be made about this submission.  The first is that counsel for the respondent conceded that no documents of the type considered in Re Loft (supra) had been tendered in the proceedings.  Had nothing further been said this would probably have involved a concession that the point made by counsel for the applicant about the absence of evidence was correct.  That is, in considering the respondent's application there was no evidentiary material before the Tribunal that would enable it to find that the Commonwealth had, at any relevant time, been under a positive duty to act in relation to any compensable injury or disease that the respondent might have suffered.  However what counsel for the respondent went on to say was inconsistent with such a concession having been made.  He then referred to the terms of the military instruction considered in Re Loft (supra) and submitted they were "very plain" and commended the observations of the member of the Tribunal in that matter for consideration in the respondent's application.

25                  In my opinion, the further reference to the instruction and their description as "very plain" should have alerted counsel for the applicant to the possibility that if the Tribunal accepted that the approachin Re Loft (supra) had relevance to the respondent's application, it might act, as it was entitled to, on the basis that the facts found by the Tribunal in Re Loft (supra) concerning the existence of the instruction and the report form and the obligation of the Army (having regard to the evidence of Major Craig) to ensure a notice of an accident or a report of an injury was served and that the making of a claim for compensation was considered, would be treated as proven facts in the respondent's application.

26                  I say that the Tribunal was entitled to act on the earlier findings of fact because of s 33 of the AAT Act.  The Tribunal deals routinely with a range of matters in which common issues of fact of general application will arise.  Members of the Tribunal will build up a body of knowledge about facts of general application in a class of matter that it can draw on in deciding a particular application in that class.  Those facts may be known to a particular member of the Tribunal because that member has decided cases that are the same or similar and in which findings about those facts have been made.  Equally those facts may be known to a particular member through decisions (containing findings of fact) of other members of the Tribunal.  Plainly if a member of the Tribunal decides a matter by reference to facts known to the member in either of these ways, it should do so only if the parties have had an opportunity to comment on the facts as they might impact on the particular matter before the Tribunal.  If there is a controversy about the facts in the sense that they are contentious, the Tribunal should also give the parties an opportunity to call or tender evidence about the contentious facts.

27                  However in the present case, counsel for the applicant did not say to the Tribunal that he took issue with the findings made by the Tribunal in Re Loft (supra).  Rather he took the position that the instruction had not been proved by its tender.  Given that counsel for the respondent had earlier relied on the decision in Re Loft (supra), and was necessarily relying on the salient facts which underpinned that decision, and continued to rely on the decision and the instruction on which it was substantially based in reply, the approach of counsel for the applicant involved a risk that the Tribunal might act in the way it ultimately did.  That is, it involved a risk that the Tribunal would act on the facts found by the Tribunal in Re Loft (supra) as it was effectively being invited to by counsel for the respondent.  It follows, in my opinion, that counsel for the applicant had the opportunity to raise any factual issue concerning the existence of the instruction and the other matters on which the decision in Re Loft (supra) was based or had the opportunity to seek an adjournment (either for a short period or longer) to get instructions about whether the facts found in Re Loft (supra) would be challenged or put in issue in the respondent's application.  It also follows, in my opinion, that counsel for the applicant had the opportunity to make submissions about how the instruction and the other facts found in Re Loft (supra) might apply to the circumstances of the respondent.  Up to a point, he did so.  In my opinion, there was no denial of procedural fairness.

(ii)               Errors attending the finding about the respondent's understanding of the Army's responsibilities

28                  In its reasons quoted at [14] above, the Tribunal made a finding that the respondent understood that the Army had the sorts of responsibilities for his welfare that were described in Re Loft (supra).  It was submitted on behalf of the applicant that there was no evidence to support this finding.  This constituted an error of law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 322 at 355-356. In that case, Mason CJ observed, at 355 to 356 that:

“(I)n the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law:  Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483.

But it is said that "(t)here is no error of law simply in making a wrong finding of fact":  Waterford v. The Commonwealth (1987) 163 CLR 54, per Brennan J at p 77.  Similarly, Menzies J observed in Reg. v The District Court; Ex parte White (1966) 116 CLR 644, at p 654:

‘Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.  To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.’

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference - in other words, the particular inference is reasonably open -even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

29                  In deciding whether the Tribunal had before it evidence to support its finding, the role of this Court is not to evaluate the evidence or what inferences should be drawn from it, but rather to ascertain whether there was some evidence before the Tribunal upon which its finding of fact could be based. Counsel for the respondent referred to several pieces of evidence said to support the contentious finding.  It is sufficient to refer the following passage from the transcript during the evidence in chief of the respondent:

“[Counsel for the respondent]:Now, you said that there was a sick bay at the camp.  What did you think was the purpose of the sick bay?  The purpose of the sick bay?

Yes?  To report sick when you were – when you had an accident in training, you’re to report sick.  They told us there was a sick bay there and that was it.

Okay, so was it your understanding that you had an obligation to report to the sick bay?  Most definitely as far as I was concerned because I was sick.

Now what did you think the army would do when you reported sick to the sick bay?  Treat me and help me.

Now did the army’s response on the day you presented yourself to the sick bay, did that accord with your expectation of what the army would do when you presented yourself to the sick bay?  No, it didn’t.  I thought they’d help me and they wouldn’t help me.

Now after the army did this, on that occasion, did you have any thoughts about that response by the army?

[Counsel for the applicant]:  Well, I object to that question.  I don’t know where that goes or what it means.  It’s just far too general to be of assistance.

[The Tribunal]:  Can you rephrase the question, Mr Fitzgerald?

[Counsel for the respondent]:  Certainly, Senior Member.

Now, you’ve given evidence that you presented yourself to the sick bay, the sick bay attendant or the army personnel told you to go away.  What thoughts did you have when you were told to go away?

[Counsel for the applicant]:  I object to the question.  That was not the words in fact used as far as I was aware.

[Counsel for the respondent]:  Senior Member, with respect, I think I should be allowed to conduct examination and my friend, if he wishes to tidy up any …

[Counsel for the applicant]:  No, well, it’s not what was put.

[Counsel for the respondent]:  I was asked to rephrase it.

[The Tribunal]:  Yes, he told him to go back to training.  That’s my note at any rate.

[Counsel for the respondent]:  I’m afraid I didn’t - That’s what he was told.  That is the evidence that he was told, but the question – I was asked to rephrase the question and the subject of the question was not what the army did or didn’t do, he has already given evidence on that.  It’s what his thoughts were on that response.

[The Tribunal]:  That’s right.

[Counsel for the respondent]:  I’m putting the question to him.

[The Tribunal]:  Yes, so the question is what were your thoughts when you were told by the man at the sick bay to go back to training?  Well, I thought it was completely wrong for them to do what they did to me.  I thought they would look after me.”

30                  Before considering whether this evidence might support the impugned finding, it is necessary to describe what the finding was.  The Tribunal’s finding about the respondent's understanding is the highlighted sentence in the extract of the reasons quoted at [14] above.  However what that understanding was, was expressed in fairly general terms.  Inthe passage from Re Loft (supra) quoted by the Tribunal earlier in its reasons, the Tribunal had said that in the Army the obligation to ensure that notice of an accident or a report of injury was served and that the making of a claim for compensation was considered, rested with the medical officers and commanding officers concerned and not with the soldier.  In the final answer in the extract from the examination in chief quoted above, the respondent said that he thought "they would look after (him)".  Counsel for the applicant submitted that this was only a reference to being looked after at the sick bay at the time he presented for treatment and was sent away or, more generally, to the respondent’s belief about being treated in the future.  The evidence may have meant this.  However it may also, in my opinion, have been a more general statement of the respondent's beliefs and expectations as to how the Army should have been treating him then and in the future and, what it should have done to protect his interests. 

31                  It is recalled that immediately preceding the objection by counsel for the applicant in the quoted extract, counsel for the respondent had asked his client whether he had any thoughts about the response of the Army after he had been sent to the sick bay but found the personnel would not help him.  This question could well have been understood by the respondent as not directed to the respondent's thoughts about the specific incident but rather the responsibilities of the Army more generally.  If the question had been so understood by the respondent then one cannot discount the possibility that his answer at the end of the quoted extract was similarly directed to the responsibilities of the Army more generally.  If understood in this way then it would evidence the respondent's beliefs and expectations about the role of the Army generally in relation to any injury he may have suffered in the gassing incident.  It would, on this basis, have provided evidence supportive of the generally expressed finding impugned by the applicant.  I am not satisfied the Tribunal erred in law in making the finding it did. 

(iii)             Error of law-application of wrong test

32                  Paragraph (ii) of the proviso to s 16(1) of the 1930 Compensation Act (and as it might apply to circumstances comprehended by sub (4)) operates when the failure of a person to make a claim within the specified period was occasioned by other reasonable cause.  That is, there must be a direct relationship between the failure of the individual to make a claim and the reasonable cause.  In the present matter the ultimate conclusion of the Tribunal was expressed in the following way:

“71.     For these reasons the Tribunal finds that this failure to adhere to the mandated standards is an ‘other reasonable cause’ for the purposes of the proviso in s 16(1) of the 1930 Act.”

33                  The applicants submitted that this passage reveals error because what the Tribunal did not do was consider, as the legislation requires, whether the respondent's failure to make a claim within the prescribed time was for a reasonable cause.  It may be accepted that in the preceding passage, the "failure" being spoken of is the failure of the Army.  However it is inappropriate to view, in isolation, this passage.  To do so would be to engage in scrutiny of the Tribunal's reasons of a type eschewed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  As Brennan CJ, Toohey, McHugh and Gauldron JJ said at 272:

“These propositions [that the reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error] are well settled. They recognise the reality that the reasons for decisions of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

and Kirby J said at 291:

“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

34                  Earlier in its reasons, the Tribunal summarised the respondent's arguments.  They included (at [37]) that the respondent might argue that he had "other reasonable cause" for his failure to claim within the appropriate time and reference was made to Re Vickery & Commonwealth of Australia (1985) 8 ALD 93 and a passage from that case was quoted which refers to the failure of an employer to advise an injured employee of rights under beneficial workers compensation legislation.  This was fairly clearly a reference, in the context of the application before the Tribunal, to the cause of the respondent's failure to make a claim within the specified time.  The Tribunal had earlier noted (at [33]) that it was not until July 1998 that the applicant had become aware that he could seek compensation in respect of the gassing.  The Tribunal also summarised the applicant's argument on this question, namely that the respondent had been given no advice from the Army (whether good or bad) and had made no inquiries of it, he was simply ignorant of his rights.  It is tolerably clear, in my opinion, that the Tribunal was alive to the issue of whether the cause of the respondent's failure to make a claim within the prescribed time was linked to the failure of the Army to take up the matter on the respondent's behalf and make him aware of the opportunity to seek benefits under applicable rehabilitation and compensation legislation.  It is unlikely, in these circumstances, that in resolving that issue, as the Tribunal did in [71], it was ignoring or overlooking the causal link between the respondent's conduct and the "reasonable cause" raised for consideration by par (ii) the proviso.

(iv) Error of law -mistake concerning legal effect of military instruction

35                  Counsel for the applicant read in these proceedings an affidavit annexing not only the 1950 military instruction which was central to the Tribunal's decision in Re Loft (supra), but also a later instrument (promulgated in 1953) cancelling the 1950 instrument.  The respondent submitted that, in these circumstances, the Tribunal's approach manifests an error of law, even accepting for present purposes, that the Tribunal found, as matter of fact, that the 1950 instruction operated at the time of the gassing incident involving the respondent in 1955.  I have some difficulty in understanding this submission.  The only authority referred to was Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583.  In that matter the majority of the Full Court concluded the Tribunal erred in law by not adverting to a Ministerial direction current at the time its decision was made and by having regard to a Ministerial policy statement which was not current at the relevant time.  The ministerial direction described a process of decision-making and operated in a statutory context where the decision maker was expressly obliged to perform functions and exercise powers under the legislation in accordance with such directions.  While the policy statement had the same effect as the Ministerial direction, the majority of the Full Court was not prepared to assume that the outcome resulting from one process of decision-making would be the same as the outcome resulting from the other process of decision-making.

36                  However the circumstances in Rokobatini v The Minister for Immigration & Multicultural Affairs (supra) are far removed from the circumstances of the present case.  The conclusion of the Tribunal in this matter may well have been based on an erroneous finding of fact, namely that the 1951 instruction had application in 1955 when the respondent was exposed to the gas.  But this error did not lead the Tribunal to ignore or misapply either a relevant procedural requirement or the substantive law.  It may be accepted that had the finding of fact of the Tribunal been that the instruction had been cancelled before 1955, it may have reached some other conclusion about "reasonable cause".  However I am not aware of any principle of administrative law that would justify a finding that the Tribunal erred in law in reaching the conclusion it did simply because it was based on what may have been (indeed probably was) an erroneous finding of fact.

(v) Error of law -direction of Tribunal as it related to heart condition

37                  The decision of the Tribunal included a direction to Comcare that the "Applicant's claim for compensation for heart and respiratory conditions meets the requirements of s 16" of the 1930 Compensation Act concerning late notice and the making of a claim.  The respondent submitted that the Tribunal erred in including, in this direction, reference to a heart condition when there was no evidence nor any finding about the relationship between the employment and heart disease, about the reason for the respondent failing to notify any claim concerning the heart condition before 1998, nor about how that failure might have been occasioned by other reasonable cause.  The original claim by the respondent lodged in July 1998 made reference to both respiratory and heart conditions (but the subsequent administrative decisions preceding the decision of the Tribunal, referred expressly only to respiratory illness) as injuries or illnesses linked to the gassing (through the answer to the question "when did your injury happen or when did you first noticed the disease or illness?").  There was nothing drawn to my attention to suggest that there was ever an issue before the Tribunal, which would require some separate consideration of the heart condition, as opposed to the respiratory condition, to which the claim related.  I fail to see how in those circumstances, the approach of the Tribunal discloses error.  While it had to be affirmatively satisfied about "reasonable cause", its approach to this question would have led it to conclude that there was "reasonable cause" in relation to any injury or disease which had been the subject of a claim of the respondent.  There was no need for the separate consideration of the respondent's complaint concerning a heart condition.

38                  I dismiss the application and order the applicant to pay the respondent's costs.

Associate:

Dated:              22 November 2001