FEDERAL COURT OF AUSTRALIA

Smith v Comcare [2014] FCA 811

THE COURT ORDERS THAT:

1.    The application be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an appeal, limited to a question of law, from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 22 January 2014 (Re Lawrence Smith and Comcare [2014] AATA 28) (the 2014 decision) affirming the decision under review.

2    That decision followed an earlier decision by the Tribunal, also affirming the decision under review, given on 28 September 2011 (Re Lawrence Smith and Comcare [2011] AATA 662) (the 2011 decision).

3    The 2011 decision of the Tribunal was the subject of orders by a Full Court of this Court on 28 June 2013 following an appeal from orders of a single judge of the Court made on 18 May 2012 (Smith v Comcare [2012] FCA 502) dismissing, with costs, the application (appeal) from the Tribunal’s earlier decision.

4    The orders of the Full Court (Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335) made on 28 June 2013, as varied on 5 July 2013 to add order 3, were in the following terms:

1.    The appeal is allowed with costs.

2.    The matter is remitted to the Administrative Appeals Tribunal for further consideration and determination according to law.

3.    The respondent pay the appellant’s costs of the proceedings below.

5    I note that, at least in terms, the 2011 decision of the Tribunal was not set aside.

The legislation

6    Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) provided at the relevant time:

14     Compensation for injuries

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

…

Relevant definitions in s 4(1) were:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

…

disease means:

(a)    any ailment suffered by an employee; or

(b)    the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

…

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

…

The 2011 decision of the Tribunal

7    As will later appear, I do not accept the submission on the part of the applicant that the facts found by the Tribunal in its 2011 decision have ceased to be relevant to, or available for the purposes of, the 2014 decision. I therefore next set out the facts found by the Tribunal in its 2011 decision.

8    The Tribunal found at [3] that the only matter before it was whether Comcare was liable to pay compensation for aggravation of Mr Smith’s hip osteoarthritis under s 14 of the SRC Act. At [8], the Tribunal stated the issue under s 14 as whether Comcare was liable to provide rehabilitation and to pay compensation to the applicant for aggravation of the disease which has resulted in the incapacity for work or in impairment.

9    At [10], the Tribunal said the case for the applicant was that the aggravation of his hip osteoarthritis was contributed to by the nature of the duties he performed as a meat inspector, in particular the need, over many years, for him to move and lift parts of animal carcasses while bending forward to do so and the repetitive nature of turning frequently to sterilise and sharpen his knives. The case for Comcare was that the medical opinion was that such activity as carried out by the applicant would only contribute to osteoarthritis if it involved heavy lifting and that this was not the case with the applicant’s meat inspection functions.

10    The Tribunal set out in some detail the work that Mr Smith did at the abattoirs chiefly at Forbes, Blayney and Wagga Wagga. The Tribunal described the separate stations for the various parts of the various animals. It referred to the different work involved for cattle, sheep and pigs at Forbes and Blayney and for beef and mutton until 1993 at Wagga Wagga. (In light of the subsequent limitation of the claim to 1983–1993 I do not refer to the findings of the Tribunal for the period after 1993.)

11    The description of Mr Smith’s work by the Tribunal referred to what physical activities were necessary for him to perform his meat inspection duties. For example, at [19] the Tribunal referred to mutton inspection being more difficult at Wagga Wagga because of the higher speed and increased level of bending and twisting involved. There was either a lower chain or higher work platform such that bending was to a greater degree.

12    The Tribunal referred to the evidence of Mr Kevin Evans, the New South Wales Meat Resource Manager. He agreed that before 2010 meat inspectors had to reach out for some of the viscera material. Although it is not clear what period Mr Evans was referring to, the Tribunal at [36] set out his evidence that the viscera positions required the inspectors to bend over a moving table to inspect the various organs and to incise glands. He agreed that viscera had to be turned over but that, in relation to livers, these were not lifted completely from the table but merely rolled over.

13    The Tribunal referred to the evidence of Mr Robert Hair in relation to a DVD. Mr Hair said that the inspectors shown in the DVD were required to carry out their functions as they would have done in the period when Mr Smith was working at the Wagga Wagga abattoir. Mr Evans’ evidence was to the same effect. In this respect, the Tribunal said:

69.    The viscera table moved slowly from the left to right, as it was faced by the inspectors. Two inspectors were depicted on three or four separate inspections each. They completed their tasks with some bending forward to bring items closer. However this bending was to a minor degree. The only lifting of product was in relation to the livers but this was more in the sense of a sidewards movement to roll the liver over. With the inspector standing erect, this was done quickly and in an apparently effortless manner, assisted by the slipperiness of the table surface, with the inspected item barely leaving the surface of the table. After each inspection, the inspector retreated from the table for a metre or so, turned and rinsed his knife in a sink. This action did not require any bending by the inspector.

70.    Inspection of heads and tongues was conducted in conjunction with each other. These were suspended, alternatively, from hooks which moved slowly from left to right. One inspector was depicted performing his duties on several sets of heads and tongues. The procedure displayed no lifting and only a minor degree of forward bending.

71.    The final segment showed carcasses which had been cut in half along their spines. These half carcasses moved from left to right suspended by hooks on a conveyor. The DVD depicted an inspector working, in turn, on seven of these half-carcasses. He stood on the rise/fall platform, which he activated to move upwards to access higher parts of the carcass, and reached forward by bending to a minor degree. There was no lifting. The inspector rotated the carcass to inspect the more distant components and this was achieved with no apparent effort.

14    The Tribunal referred to the medical evidence.

15    Mr Smith commenced seeing his general practitioner, Dr Renshaw, in 1997 about hip pain.

16    Dr Paul Miniter, orthopaedic surgeon, completed a report on 15 September 1997. He felt that Mr Smith had osteoarthritis of the right hip.

17    Dr Warwick Huntsdale, orthopaedic surgeon, completed eight reports between November 2008 and April 2010. Dr Huntsdale conducted hip replacement surgery on Mr Smith on 9 December 2008 at Wagga Wagga. In his report of April 2010, the Tribunal said at [42], Dr Huntsdale confirmed his opinion that, in the absence of heavy work, Mr Smith’s job would not contribute to Mr Smith’s hip condition.

18    Professor Neil Sambrook, rheumatologist, completed three reports in 2010. Professor Sambrook took a history from Mr Smith including that relating to his abattoir work. This noted references to Mr Smith undertaking considerable lifting and twisting while inspecting the heads of the animals as well as considerable lifting, reaching for and twisting various organs at the viscera table and that this included livers weighing 6 to 10 kgs. Professor Sambrook also referred to studies in which the risk of hip osteoarthritis was related to occupations which entailed regular heavy lifting, such as the daily moving of weights greater than 25 kg by hand with prolonged standing and walking over rough ground. Professor Sambrook considered that the nature of Mr Smith’s work was such that it would have contributed to his hip osteoarthritis. In his second report, Professor Sambrook referred to a further study which implicated heavy manual work in hip osteoarthritis, where heavy manual work was defined in terms of standing and lifting light objects. A third study Professor Sambrook identified found an increased risk of hip osteoarthritis from moderate tasks such as lifting weights of more than 4.5 kg as well as bending, twisting and reaching activities. Professor Sambrook likened these descriptions to the work activities of Mr Smith. Professor Sambrook was unable to give oral evidence or provide a further report for health reasons.

19    The Tribunal then considered, over eight paragraphs, the evidence of Dr Christopher Browne, rheumatologist. Dr Browne completed a report on 19 July 2011 after seeing Mr Smith on 7 July 2011. He had read Mr Smith’s statement as to the nature of his abattoir duties. Dr Browne considered that the onset of osteoarthritis was probably in the late 1990s.

20    Dr Browne considered that even rolling over the viscera in a flexed position was sufficient to aggravate a hip condition. He considered that the mutton chain was the most significant factor in relation to impacting the hip.

21    Dr Browne was aware that, in his early years, Mr Smith had been required to inspect viscera in a wheelbarrow and that this required a greater degree of lifting of the viscera material which he understood could weigh from 6 to 10 kgs, and bending. Dr Browne’s understanding from Mr Smith was that the mutton inspection had been an arduous process because of the greater speed involved but that Mr Smith had not been required to inspect sheep carcasses after 1993.

22    Dr Browne’s opinion was that Mr Smith’s work as a meat inspector did not cause his hip osteoarthritis but that it was responsible for aggravating the condition. His opinion was that the material consideration in Mr Smith’s work was that he was required to lift weights while bending forward such that his hips were in a flexed position at that time. It was this factor, he said, which increased the level of stress to his hip joint because it was in a disadvantaged position.

23    Dr Browne considered that the onset of osteoarthritis in Mr Smith’s case was likely to be in 1997 rather than earlier and related to the duties from 1993 to 1997. At [63], the Tribunal said that Dr Browne’s opinion was that the aggravation relevant to Mr Smith’s claim was in 1997.

24    The Tribunal set out over six paragraphs the evidence of Dr Neil McGill, rheumatologist, who had completed three reports in the period September 2010 to May 2011.

25    Dr McGill first saw Mr Smith in September 2010 and recorded a history of Mr Smith’s abattoir duties. He recorded Mr Smith as advising that he was required to bend forward and reach for items in order to inspect them but that there was no heavy lifting in his work. He also recorded that Mr Smith had not experienced any specific injury to his hip.

26    Dr McGill referred to several studies in relation to hip osteoarthritis. After reviewing that material, Dr McGill gave his opinion that the studies showed that hard physical work involving heavy lifting was needed over a prolonged period in order to be associated with increased prevalence of hip osteoarthritis. Dr McGill concluded that mere repetitive work was not so associated. Dr McGill’s opinion was that the nature of the abattoir work by Mr Smith was not of a type that would increase the likelihood of developing osteoarthritis of the hip.

27    Dr McGill said there was no study that confirmed the opinion of Dr Browne that heavy lifting was not a requirement for the development of osteoarthritis in the hip. He also disagreed with Dr Browne’s reference to the greater impact on the hip joint if weight was carried while the hip was in the flexed position. Dr McGill said that, when flexed, there would be no greater impact on the hip joint because the surrounding muscles would compensate by taking the additional strain.

28    In a different context, that of s 53 of the SRC Act, the Tribunal found that Mr Smith did not become aware of the potential relationship between his hip osteoarthritis and his employment until after he underwent hip surgery by Dr Huntsdale in December 2008.

29    At [73] onwards the Tribunal evaluated the medical evidence, that of Professor Sambrook and Dr Browne which supported a relationship between Mr Smith’s hip osteoarthritis and his employment and that of Dr Huntsdale and Dr McGill who reported an absence of such relationship.

30    The Tribunal said at [75] that Dr Browne considered that Mr Smith’s meat inspection duties contributed to his hip osteoarthritis either on the basis that he lifted substantial objects or on the basis that he lifted or carried heavy objects with the hip in an uncomfortable position.

31    Dr McGill accepted that physically demanding work continued over many years was associated with increased prevalence of hip osteoarthritis but was of the opinion that the nature of Mr Smith’s abattoir work was not of that type. Dr McGill rejected Dr Browne’s opinion that there was greater impact on the hip joint if weight was carried while the hip was in the flexed position.

32    The Tribunal then summarised at [78] the third party reports referred to in the reports of the doctors.

33    The reasoning of the Tribunal was, put shortly, that an association could only be sustained where there was heavy lifting in employment, unless there was much lifting of light objects. The Tribunal found at [79] that Mr Smith’s meat inspection duties at Wagga Wagga did not involve him in heavy lifting and the turning of items at the viscera table was a motion which was more one of quickly flipping the item over rather than of lifting.

34    The Tribunal distinguished and did not accept the opinion of Dr Browne because there was no heavy lifting and indeed no substantial lifting at all.

Appeal to the Federal Court

35    The questions of law in the appeal heard by a single judge of the Federal Court (Smith v Comcare [2012] FCA 502) and which were there pursued were as follows:

1.    In determining whether an employee’s ailment is a disease and thereby an injury, for the purpose of the definitions of “disease” and “injury” in s 4 of [the Act]:

(a)    is it necessary for the Tribunal to determine whether the ailment or aggravation of that ailment suffered by the employee was contributed to in a material degree by the employee’s employment?

(b)     and, if so, is it necessary to make that finding prior to considering when the employee first sustained the injury?

36    A question whether the Tribunal made findings that were not supported by any evidence was abandoned. The primary judge dismissed the appeal on the basis that any error of law was immaterial.

The Full Court

37    The reasoning of the majority of the Full Court (Buchanan J, with whom Greenwood J agreed) was relevantly as follows:

[4]    In this matter an error of law was, in my respectful opinion, made by the AAT. That does not mean necessarily that the AAT reached the wrong result on the facts or the merits of the case, but in my view that possibility cannot be excluded with sufficient confidence to reach a conclusion that the matter should not be remitted to the AAT for further attention. …

    …

[5]    The error of law made by the AAT was that it stated conclusions, unnecessarily and ultimately contrary to its own findings on liability, about the issue of when a “disease” within the meaning of s 4 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (as it stood at the time relevant to this litigation: see Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), sch 1, s 5) (“SRC Act”) should be taken to have been sustained within the meaning of s 7(4) of the SRC Act, for the purpose of the present case.

…

[24]     In its discussion about the significance of the medical evidence for the claim that the appellant’s work had materially contributed to the aggravation of his osteoarthritis, the AAT concluded that it would need to be shown that the appellant had been involved in “heavy lifting”. The AAT then assessed whether the appellant’s duties “at Wagga” involved him in heavy lifting and (at [79]) found they did not:

79     … I am satisfied that Mr Smith’s meat inspection duties at Wagga did not involve him in heavy lifting and that the only lifting of any moment was in relation to the turning of items at the viscera table. Even in that regard, the motion was more one of quickly flipping the item over rather than of lifting. I am satisfied that Mr Smith’s inspection duties at Wagga did not make a material contribution to the aggravation of his hip osteoarthritis.

[25]     Other references made by the AAT (at [80] and [82]) to the appellant’s duties also concerned the period he was at Wagga. The appellant had been employed at the Forbes abattoir in the New South Wales public service from 1981, and by the Commonwealth at Forbes from 1983, before he went to Wagga in 1987. The AAT’s conclusions make no reference to this earlier period of employment by the Commonwealth which was a part of the appellant’s case.

…

[35]    … The error was making a finding about a matter which arose under s 7(4) of the Act without any foundation upon which to do so, whether by way of prior finding for the purpose of s 14 or by way of assumption.

…

[38]     In my respectful view, it is not sufficiently clear that the AAT did, in fact, assess the whole period from 1977 to 2008 (more precisely, 1983 to 2008). Perhaps it was deflected from doing so by a view of the medical evidence that the aggravation of the appellant’s hip osteoarthritis was likely to be found in events no more than a few years prior to 1997, rather than potentially in the whole period from at least 1983. If so, that is hard to reconcile with reference to the various studies suggesting a relationship between a history of heavy lifting over many years, followed by a later onset of osteoarthritis. That evidence suggests that consideration would need to be given to the whole of the relevant period of employment, and that it may not be the case that symptoms would emerge within a few years of the relevant activity beginning.

[39]     I cannot exclude from my own mind the reasonable possibility, for which the appellant contended, that the AAT’s premature and unnecessary attention to the question in s 7(4) might have sent it on the wrong line of enquiry about the issues arising under s 14. The conclusions by the AAT stated in [81] of its decision (set out earlier) give sufficient (even if not decisive) support for that thesis.

Justice Greenwood said, at [1], that he agreed with Buchanan J’s observation that the possibility of error on the merits before the Tribunal could not reasonably be excluded having regard to the identified error of law.

38    I have set out at [4] above the orders made by the Full Court.

The 2014 decision of the Tribunal

39    In October 2013 the Tribunal decided, after a directions hearing by telephone on 30 October 2013, that the matter was to proceed in a hearing on the papers without the admission of further evidence. There was no appeal from, or application for judicial review of, the Tribunal’s October 2013 decision.

40    Thereafter, in his written submissions, the applicant submitted that the relevant period of employment for the applicant’s claim was from 1983 until 1993, rather than, as submitted at the initial Tribunal hearing, the whole of his Commonwealth employment from 1983 to 2008. In particular, this was because of his duties, in those years, as they related to the inspection of mutton at Forbes and, until 1993, at Wagga Wagga. The applicant submitted that, in his statement, he had described his duties in relation to mutton inspections at Forbes or Wagga Wagga but had not been cross-examined on these at the 2011 hearing. He submitted that there was medical evidence that the mutton inspection chain was the most significant factor in the aggravation of the applicant’s hip ailment. He referred to the various studies which were taken into evidence at the initial Tribunal hearing and submitted that these had no relevance to the applicant’s case because they were concerned with causes of osteoarthritis of the hip rather than the cause of an aggravation of that condition.

41    The respondent, Comcare, submitted that the Tribunal had, in its 2011 decision, given consideration to the whole period of the applicant’s employment with the Commonwealth. Comcare referred to the evidence summarised in the Tribunal’s first reasons in relation to the applicant’s duties at both Forbes and Wagga Wagga. Because such consideration was given, it was sufficient, Comcare submitted, for the Tribunal to confirm this and to affirm the decision under review. In the event that it did not in its first decision give consideration to the whole period of the applicant’s employment with the Commonwealth, Comcare submitted that there was no evidence of material contribution to the applicant’s ailment from 1983 to 1993 so that, in that case, the decision under review ought to be affirmed.

42    The Tribunal then referred to its 2011 decision in respect of the applicant’s work at Forbes and at Wagga Wagga in relation to his inspection of mutton carcasses and other duties.

43    The Tribunal then considered what the applicant had said in his statement about his work at Forbes and at Wagga Wagga.

44    The Tribunal said that its finding in the 2011 decision was that the evidence attributed the applicant’s hip condition to heavy lifting rather than the types of movement described by the applicant in respect of his inspection duties.

45    The Tribunal then noted the submission on behalf of the applicant that the studies which were in evidence for the 2011 hearing were not relevant because they were concerned with causes of osteoarthritis of the hip rather than the cause of an aggravation of that condition. The Tribunal noted that no objection had been made and no such submission had been made by the applicant in relation to the evidence at the 2011 hearing. The Tribunal did not accept the submission that the studies had no relevance to the applicant’s claim. The Tribunal then repeated its summary of those reports from its 2011 decision and repeated its conclusions at [79] from its 2011 decision.

46    The Tribunal concluded by saying that in the initial hearing it had before it the evidence of the applicant’s duties from 1983 to 1993 at Forbes and Wagga Wagga. On that evidence and on that relating to his subsequent duties, the Tribunal said it was satisfied that there was no material contribution from that employment to the aggravation of the applicant’s osteoarthritis of the hip and that, accordingly, that ailment was not a disease or injury as those terms were defined in s 4 of the SRC Act. It followed that there was no liability under s 14 of the SRC Act for Comcare to pay compensation to the applicant for that ailment.

The present appeal

47    The questions of law as set out in the present notice of appeal are as follows:

Questions of law

1.    Whether the Tribunal failed to address itself to, consider and determine the issue for determination before the Tribunal, namely whether the aggravation of the applicant’s hip osteoarthritis (“the applicant’s condition”) was contributed to in a material degree by the applicant’s employment by the Commonwealth.

2.    Whether there was evidence to support the Tribunal’s finding that the applicant’s condition was not a disease or injury under the Safety Rehabilitation and Compensation Act 1988 (“the Act”) and that there was no material contribution from the applicant’s Commonwealth employment to the applicant’s condition.

3.    Whether the Tribunal failed to take into account relevant evidence.

4.    Whether the Tribunal failed to comply with its duty to give reasons.

48    The grounds were set out as follows:

Question 1

1.    The Tribunal was found by the Court to have made an error of law in the decision of the Tribunal of 28 September 2011 (“the first decision”) which affirmed the decision of Comcare that it was not liable to pay compensation to the applicant in respect of the applicant’s condition.

2.    On 28 June 2013 the applicant’s claim was remitted to the Tribunal for further consideration and determination according to law.

3.    The Tribunal was obliged to address itself to, consider and determine whether the aggravation of the applicant’s hip osteoarthritis was contributed to in a material degree by the applicant’s employment by the Commonwealth.

4.    The Tribunal did not consider and determine the applicant’s claim according to law in that the Tribunal confined its consideration to the condition which it had found in the first decision, pursuant to s 7(4) of the Act, to have first happened in 1997.

5.    The Tribunal failed to address itself to, consider and determine whether the aggravation of the applicant’s hip osteoarthritis was contributed to in a material degree by the applicant’s employment by the Commonwealth but rather addressed itself to and considered the cause of the applicant’s hip osteoarthritis.

Question 2

6.    There was no evidence to support the Tribunal’s finding that that [sic] the applicant’s condition was not a disease or injury under the Act and that there was no material contribution from the applicant’s Commonwealth employment.

Question 3

7.    The Tribunal failed to take into account the evidence of Dr Browne which specifically addressed the issue before the Tribunal, that the aggravation of the applicant’s hip osteoarthritis was caused by the applicant’s Commonwealth employment.

Question 4

8.    The Tribunal made a finding that evidence concerned with the causes of osteoarthritis of the hip was relevant but failed to refer to any evidence upon which that finding was based.

9.    The Tribunal failed to refer to or explain its rejection of the evidence of Dr Browne.

The parties’ submissions

Question 1

49    The applicant submitted, in relation to question 1, that the basis of the Tribunal’s conclusion in its 2014 decision at [11] was not reflected in the preceding reasons in which the matter before the Tribunal was not further considered as required by the order of the Full Court. The applicant submitted that the Tribunal had misstated its original finding at [79] and said: “[t]he point is that the Tribunal was required to further consider the matter which it did not do.”

50    The applicant then raised a separate point which was that the Tribunal proceeded as if the matter before it was whether the applicant’s Commonwealth employment materially contributed to his hip osteoarthritis where the true question concerned the aggravation of the applicant’s underlying condition of hip osteoarthritis. The applicant submitted that the various studies referred to by the Tribunal were not concerned with aggravation of hip osteoarthritis but with causes of hip osteoarthritis in an occupational setting. It was only Dr Browne who squarely addressed the issue of the contribution of Commonwealth employment to the aggravation of the applicant’s hip osteoarthritis. It was submitted that the Tribunal did not refer to, address or consider the evidence of Dr Browne as would be required if further considering the matter as ordered by the Full Court. Rather, in its 2014 decision, the Tribunal was concerned to explain that it took into account the whole of the applicant’s employment in the making of the first decision. It was submitted that the Tribunal did not refer to [12], [15] or [16] of its 2011 decision.

51    The applicant submitted that the Tribunal’s consideration and conclusion in the 2014 decision were informed by its own flawed 2011 decision. The Tribunal did not “further consider” the evidence.

52    The respondent submitted, in relation to question 1, that the issue of whether the aggravation of the applicant’s hip osteoarthritis was contributed to, to a significant degree, was not the subject of the remittal. The Tribunal in its 2011 reasons considered in precise detail material contribution, and the relationship between the applicant’s employment at [72]–[82]. The respondent submitted that the applicant appeared to be submitting that the remittal reasons of the Tribunal must be read in isolation and not with the original reasons of the Tribunal. This was inconsistent, the respondent submitted, with the identified error and the direction of the Full Court that the matter be remitted back for further consideration.

53    As to the applicant’s submission distinguishing between contribution to hip osteoarthritis and aggravation of the applicant’s condition of hip osteoarthritis, the respondent submitted that it was factually incorrect to say that the Tribunal proceeded as if the matter before it was contribution to hip osteoarthritis rather than aggravation: at [81] of the 2011 reasons and at [1] and [11] of the 2014 reasons, the Tribunal referred to aggravation of the applicant’s osteoarthritis. The respondent submitted that the applicant’s submissions traversing the medical evidence were not relevant to the further consideration directed by the Full Court as to whether the Tribunal assessed the whole of the period. It was submitted that the applicant was raising factual issues and attempting to have the Court conduct merits review behind why the Tribunal found that there was no material contribution to the aggravation of the applicant’s hip osteoarthritis. In any event, the respondent submitted, the medical evidence of Dr Browne did not support material contribution prior to 1993. In this respect the respondent noted the applicant had restricted the period of alleged contribution in his written submissions to the Tribunal to duties as a meat inspector from 1983 to 1993.

54    In reply, the applicant repeated his submission that the Tribunal did not consider whether the applicant’s Commonwealth employment materially contributed to the aggravation of his hip osteoarthritis. The applicant submitted that the Tribunal was not entitled simply to refer to and adopt [72]–[82] of its 2011 decision as that consideration was tainted or at least possibly tainted by the Tribunal’s error as identified by the Full Court.

55    The applicant submitted that, even if the Tribunal had referred to and adopted the entire reasons for its 2011 decision and limited its reasons in the 2014 decision to whether it had considered the applicant’s entire period of employment, the Tribunal would have failed to further consider the matter as required by the order of the Full Court. The applicant submitted that a tribunal does not further consider by referring to and adopting a prior consideration. The applicant relied strongly on Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 (Wang). The applicant submitted that the 2011 reasons were based on a misapprehension of the applicable legal principles and this was likely to have skewed, and did skew, the factual enquiry that was required.

Question 2

56    The applicant submitted, in relation to question 2, that there was no probative evidence to support the Tribunal’s finding that there was no material contribution to the aggravation of the applicant’s hip osteoarthritis from his Commonwealth employment. The applicant submitted the only evidence which squarely addressed the issue for decision was the evidence of Dr Browne, which was not referred to by the Tribunal and which was contrary to the Tribunal’s finding. The applicant submitted the Tribunal may have assumed that factors contributing to hip osteoarthritis in an occupational setting were the same factors as contribute to an aggravation of that ailment. If the Tribunal did so assume, it did not say so and there was no evidence to support that assumption.

57    The respondent submitted that this question was not relevant to the remittal decision which was limited to the further consideration of whether the Tribunal assessed the whole of the period. In any event, there was evidence from Dr McGill and other expert witnesses that there was no material contribution. The respondent noted that the Tribunal, in its 2011 reasons, dedicated eight paragraphs to Dr Browne’s evidence and this was after considering the applicant’s duties from 1977 to 2008, which were also set out in some detail at [11]–[25]. Further, Dr Browne’s opinion was that the onset of the applicant’s hip osteoarthritis was likely to be in 1997 and related to duties from 1993 to 1997 and, as such, did not support material contribution prior to 1993.

58    In reply, the applicant submitted that the only probative medical evidence that addressed the issue of aggravation was that of Dr Browne.

Question 3

59    The applicant submitted, in relation to question 3, that the Tribunal referred to evidence but did not consider or take it into account and failed even to refer to relevant evidence. In the former category, the applicant submitted that in [6]–[10] of the 2014 decision the Tribunal referred to some of the evidence relating to the applicant’s duties and symptoms but there was no consideration or analysis as to how those duties or symptoms bore upon (or did not bear upon) the aggravation of the applicant’s hip osteoarthritis. In the latter category, the applicant submitted the Tribunal did not refer to: the evidence of the applicant’s symptoms in the 1970s or the applicant’s “crook hip” or niggling problems in the right hip and groin area while working at Forbes; or the applicant’s niggling pain in the right hip which would happen every day (which is referred to in [7] of the Tribunal’s 2014 decision) as the “increasing” niggling pain, which was in fact described by the applicant; or to the evidence of Dr Browne, which was the only evidence that squarely addressed the issue before the Tribunal. The applicant submitted that it may be taken the relevant and potentially significant evidence was ignored by the Tribunal.

60    The respondent submitted that the reasons of the Tribunal had to be read as a whole, that is, the reasons for decision presently under appeal had to be read with the 2011 reasons. The respondent also submitted that because the applicant now only relied on his duties as a meat inspector from 1983 to 1993, events occurring in the 1970s had no relevance. Further, Dr Browne’s evidence excluded any relationship between the applicant’s osteoarthritis and duties prior to 1993. This meant that, on the basis of Dr Browne’s opinion and the applicant’s present case limited to his duties from 1983 to 1993, the only year of relevance with regard to material contribution was 1993.

61    In reply, the applicant submitted that the respondent’s submission to the effect that events occurring in the 1970s had no relevance disclosed the Tribunal’s failure to distinguish between the cause of hip osteoarthritis and its aggravation and to consider the true question unencumbered by error of law. The applicant submitted that while duties from 1983 were relevant to the aggravation issue, as the applicant’s Commonwealth employment commenced in 1983, the applicant’s whole history, including employment prior to 1983, was relevant to the applicant’s condition.

Question 4

62    In relation to question 4, the applicant referred to ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and submitted that the applicant’s claim required that the Tribunal make findings upon: (a) the duties performed by the applicant during his Commonwealth employment; (b) the factors that contribute to an aggravation of hip osteoarthritis in an occupational setting; and (c) whether and the extent to which the duties performed by the applicant as a Commonwealth employee were such as to materially contribute to the aggravation of the applicant’s hip osteoarthritis. The applicant submitted that the reasons given by the Tribunal did not satisfy the requirements of ss 43(2) or 43(2B) in that while the Tribunal referred to “aspects” of the evidence it did not make findings on material questions of fact or refer to the evidence on which any such finding was based. It was not possible to discern the actual reasoning process. The failure to provide reasons that were required was a substantial omission and constituted an error of law.

63    The respondent submitted that the reasons given by the Tribunal in its 2014 decision adopted and included the reasons in the 2011 decision. The respondent also submitted that, given the opinion of Dr Browne that the applicant’s osteoarthritis related to duties from 1993 to 1997, the Tribunal was only required to provide reasons in relation to material contribution to the aggravation of the applicant’s hip osteoarthritis from the applicant’s employment as a meat inspector in 1993. The respondent submitted that the Tribunal had complied with its duty to provide reasons.

64    In reply, the applicant submitted that purporting to refer to or adopt reasons tainted by error of law in a prior decision did not satisfy the requirements of ss 43(2) and 43(2B) of the AAT Act.

Consideration

65    Fundamental to the disposition of this appeal is the effect of the orders of the Full Court which I have set out at [4] above. In construing orders it is generally permissible to have regard to context and, in particular, the reasons for judgment when determining the meaning and effect of a court order: see Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 at [60]–[65] per Basten JA and at [248] per Barrett JA, Beazley P agreeing, citing Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58. The applicant accepted, before me, that it was permissible to have regard to the reasons for judgment of the Full Court for this purpose. In my opinion, this case is one of the rare cases, referred to in Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [18], in which a limitation in the remittal is to be inferred from the reasons for judgment given by the remitting court.

66    In my opinion, the orders made by the Full Court did not require the Tribunal to rehear the application, in the sense that the Tribunal was not required to reconsider the entirety of the material before it. What had been identified was an error of law in deciding the s 7(4) question, the time of sustaining the injury, before deciding the s 14 question, the existence of the injury. The Full Court was not persuaded that the error was immaterial because the error may have had the consequence that the Tribunal had not given attention to the applicant’s case about his working conditions over the whole of the period from 1983: it was not sufficiently clear that the Tribunal had in fact assessed the whole period from 1983 onwards. This was evident particularly in [81] of the 2011 reasons and the reference in that paragraph to 1997.

67    In so concluding, the Full Court was not persuaded by the submission put on behalf of the present applicant that the Tribunal had made it clear that it did not take into account the period of the applicant’s Commonwealth employment other than the years immediately preceding 1997 in assessing the contribution of Commonwealth employment to aggravation of the applicant’s ailment. Nor was the Full Court persuaded that, for the purposes of making its assessment, the Tribunal did not take into account the more onerous mutton duties or other duties performed by the applicant prior to 1993 in Wagga Wagga.

68    In my opinion, the orders of the Full Court required the Tribunal first to consider whether or not it had, in its 2011 decision, considered the whole of the period of the applicant’s employment. Only if the Tribunal had not there considered the whole of the period was it required to go further. As will have been seen, the Tribunal in its 2014 decision said that it had considered the whole of the period of the applicant’s employment in its 2011 decision.

69    Neither, in my opinion, whether as a consequence of the orders of the Full Court or otherwise, is it appropriate to read the Tribunal’s reasons for its 2014 decision without regard to the Tribunal’s 2011 decision. In part, this follows from what I have earlier said, namely that the Full Court orders did not require the Tribunal to rehear the application, in the sense that it was not required to reconsider the entirety of the material before it. Consistently with that approach, the Tribunal did refer extensively to its 2011 reasons.

70    As I have noted, the applicant strongly relied on Wang. I do not accept the submission on behalf the applicant that the orders made by the Full Court in the present case had the same effect as the orders made by the Full Court, as considered by the High Court, in Wang. The effect of the orders in Wang was that the Tribunal was to carry out its task afresh, see for example at [67] per Gummow and Hayne JJ, but it was accepted that, although not bound by its earlier findings, the second Tribunal could adopt findings from the first review (at least where unaffected by the error or errors of law identified by the reviewing court): see at [68] and [74] per Gummow and Hayne JJ.

71    In the present case, the Full Court did not find that the findings of the Tribunal in its 2011 decision were affected by the error of law identified by the Full Court: it found only that in its 2011 findings the Tribunal may not have assessed the whole period. The effect of the orders of the Full Court was, in part, that if the Tribunal had considered the whole period in its 2011 reasons then the Tribunal should make clear that it had done so. To that extent, the orders may be characterised as of the same nature as an order that the Tribunal give fuller reasons.

72    I therefore reject the submission on behalf of the applicant that Wang at [67] required the Tribunal to start afresh in the sense that it was not legally permissible for the Tribunal in making its 2014 decision to adopt findings it made in its 2011 decision.

73    The applicant also referred to SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 (SZGUW). The Federal Court (Jacobson J) had set aside the decision of the second Tribunal because it failed to consider the whole of the appellant’s claims in their full context, in particular, his claims that he was unable to obtain state protection because of collusion between the state authorities to defeat his protests and his appeals for compensation for the illegal confiscation of his land. The question before the second Federal Court (Reeves J) was whether the third Tribunal had taken heed of those failures and then taken them into account in its reconsideration of the matter according to law. At [28], Reeves J concluded that the third Tribunal had not clearly dealt with the unconsidered claims identified by the Federal Court (Jacobson J) in their full context.

74    In my opinion, the distinction between SZGUW and the present case lies in the reasoning of Jacobson J on the one hand and the present Full Court on the other, being the basis on which the matter was remitted to the Tribunal. In the present case the matter was remitted because it was not sufficiently clear whether or not the Tribunal had considered the whole of the relevant period of employment: see Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335 at [38] per Buchanan J, with whom Greenwood J agreed at [1].

75    It follows that I do not accept the submission that the 2011 findings of the Tribunal had no legal status in the sense that, although the Tribunal was not obliged in law to adopt its earlier findings, it was open to it to do so where those findings were unaffected by legal error. Neither, in my opinion, is it correct to say that the 2011 reasons were, in whole or in part, tainted by error of law. This is not a general proposition but one which depends on the reasons for decision of the reviewing court, identifying the error of law, and on the reasons for decision of the tribunal in question. In my opinion, in the present case, those reasons did not cease to exist in fact and the Full Court’s order did not have that effect. It may be accepted that the Tribunal was not bound by its previous findings but I see nothing in the Tribunal’s reasons to suggest that it considered it was so bound.

76    For these reasons, I reject the applicant’s submission that the Tribunal was bound to start afresh or revisit all of the material which was before it by reason of the possibility referred to by the Full Court.

Question 1

77    In my opinion, the applicant’s submissions on this question come down to two propositions.

78    The first proposition centres on the “legal status” of the 2011 reasons. As I have said, in my opinion there was nothing which disentitled the Tribunal in its 2014 decision from taking into account its 2011 decision and findings: indeed such a course was inherent in the orders of the Full Court. I therefore see no basis for concluding that the Tribunal did not consider the relevant period of the applicant’s employment by the Commonwealth. Whether or not one would ordinarily assume that the Tribunal would take into account its earlier findings, insofar as they were not affected by the legal error identified by the Court, in the present case the Tribunal expressly did so. I also do not accept the submission on behalf of the applicant that the conclusion of the Tribunal in [79] of its 2011 reasons “was made in the setting of the error of law found by the Full Court” if that expression is intended to mean that it was an error of law for the Tribunal to take into account its conclusions in that paragraph of its 2011 decision. I reject the submission that “the second decision was nevertheless informed by its own flawed first decision” if that is intended to mean that taking into account the 2011 reasons vitiates the 2014 decision. It is to be recalled that the Full Court remitted the matter to the Tribunal because the Court could not be sufficiently certain that in its 2011 decision the Tribunal had taken account of the whole of the period of the applicant’s employment. I do not accept the submission that the 2011 decision, particularly at [79] and [81], was tainted by the error of law found by the Full Court.

79    Once this is accepted, in putting submissions in the present appeal that the 2011 decision evidenced one or more errors of law, the applicant faced the difficulty that either he was putting to me errors that he had not put to the Full Court or he was putting to me errors that had been put to the Full Court but which the Full Court did not accept. If the Full Court had accepted that those errors had been established it would not have reasoned as it did at [38]–[39].

80    The second proposition involved in the applicant’s submissions on question 1 is that the medical studies to which the Tribunal had regard were not concerned with aggravation of hip osteoarthritis but were all concerned with causes of hip osteoarthritis in an occupational setting. Even if this were so, it does not mean that the Tribunal failed to address itself to, consider and determine whether the aggravation was contributed to in a material degree by the applicant’s employment by the Commonwealth. It was the medical witnesses who referred to these medical studies. Dr Browne referred to some of those studies. The applicant sought to make much of Dr Browne’s evidence but the Tribunal dealt with that evidence on its merits. I reject the submission that the Tribunal did not refer to, address or consider the evidence of Dr Browne and I reject the further submission that “[i]t may be taken that the evidence of Dr Browne was ignored by the Tribunal”.

81    It is necessary to go back to the grounds relied on by the applicant. Grounds 1, 2 and 3 are not in truth grounds at all but merely recite the history of the matter and state the Tribunal’s obligation. Ground 4 I reject because, in my view, the Tribunal did not confine its consideration to the condition which it found in its 2011 decision to have first happened in 1997 but considered the entirety of the employment on which the applicant relied for the second hearing, that is the period 1983–1993. Ground 5 sets out the proposition that the Tribunal did not consider contribution to the aggravation of the applicant’s hip osteoarthritis in a material degree by the applicant’s employment by the Commonwealth but instead considered the cause of the applicant’s hip osteoarthritis. I reject this ground because, in my opinion, there is not a clear separation between the two issues in the medical evidence. As I have said, it was the doctors who introduced the studies on which the Tribunal relied and Dr Browne, on whom the applicant specifically relied, reached his conclusions by reference to some of these studies. Certainly the Tribunal considered that it was addressing aggravation as it said so in terms throughout its 2011 decision and in its 2014 decision at [1], [4], [10] (by reference to its 2011 decision) and [11].

Question 2

82    In my opinion, this question, including this ground, is misconceived. As the use of the word “probative” in the applicant’s submissions suggests, on analysis the question involves an impermissible attack on the merits of the decision. Once the Tribunal’s reasons for its 2014 decision are read with its 2011 decision then, as it seems to me, the question is the same as the question abandoned in the earlier Federal Court application as I have noted above at [36].

83    In substance, in my opinion, this is not a “no evidence” case. First, I do not accept that Dr Browne was the only doctor who addressed the question of aggravation. In my opinion, at least Dr McGill did so as well in stating in his reports that the applicant’s work duties were not likely to have influenced the development or progression of the applicant’s hip osteoarthritis. Dr McGill stated this conclusion in his reports of 29 September 2010 and 3 February 2011. Second, even if the applicant is right to say that Dr Browne was the only medical witness to address aggravation in terms, his evidence was not accepted by the Tribunal on the basis of the Tribunal’s findings of fact. Third, in circumstances where the Tribunal expressly stated on a number of occasions that it was considering the question of aggravation, on the state of the evidence I would not infer that the Tribunal had addressed the wrong question.

Question 3

84    Most of the submissions put on behalf of the applicant under this question travelled outside the ground relied on in the notice of appeal, which is limited to the Tribunal failing to take into account the evidence of Dr Browne.

85    Once the 2011 reasons are read with the 2014 reasons of the Tribunal, as they should be, it is clear that the Tribunal did take into account the evidence of Dr Browne and gave its reasons for not accepting that evidence. I refer in particular to the Tribunal’s 2011 decision at [75] and [79]. The Tribunal there rejected the bases for Dr Browne’s conclusions, both as to the history of heavy lifting and as to flexing associated with lifting or carrying heavy objects. In its 2014 decision the Tribunal expressly incorporated, at [10], some of its earlier findings.

86    In my opinion, there is no substance in this question or this ground. To the extent that the applicant now complains under this question about the 2011 decision, it was a ground that could have been taken but was not taken in the earlier Federal Court proceedings.

Question 4

87    Once it is concluded, as I have concluded, that the Tribunal’s reasons for its 2014 decision should not be read without regard to the Tribunal’s 2011 decision, there is no substance in this question or grounds.

88    Indeed there is a disconformity between the grounds and the submissions as nothing is said in the submissions about the Tribunal’s failure to refer to or explain its rejection of the evidence of Dr Browne as stated in ground 9. In any event, as I have said, the Tribunal explained its reasons for not accepting the evidence of Dr Browne, especially at [75] and [79] of the 2011 decision. As I have also said, in its 2014 decision the Tribunal expressly incorporated, at [10], some of its earlier findings in relation to Dr Browne’s evidence.

89    Again, once the 2011 reasons are read with the reasons for the 2014 decision, the Tribunal included its findings on material questions of fact and referred to the evidence or other material on which those findings were based. I reject the submission that it is not possible to discern from the reasons the Tribunal’s actual reasoning process. To the extent that the applicant now complains under this question about the 2011 decision, it was a ground that could have been taken but was not taken in the earlier Federal Court proceedings.

90    I have set out above at [7]–[34] and [40]–[46] the Tribunal’s findings, references to the evidence and its reasoning process. Put shortly, the applicant’s case depended on certain facts as to lifting and moving in the course of the applicant’s inspection duties and the Tribunal found that those facts did not support the medical evidence called on the applicant’s behalf. Of course it is the Tribunal’s actual reasons which need to be given rather than the reasons which a party thinks the reasons should have been: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [1], [34], [68] and [217]; see also the reference to the actual path of reasoning in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 303 ALR 64 at [55]. That the reasons may show an error is not a criticism of the reasons themselves.

Discretion to grant relief

91    For completeness, I note the respondent submitted that if an error of law was found, there would be no useful result in remitting the matter back to the Tribunal again. In light of my conclusions above, it is unnecessary for me to consider this submission.

Conclusion and orders

92    The application should be dismissed, with costs.

Associate:

Dated:    5 August 2014