FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Edwards [2014] FCA 1348

THE COURT ORDERS THAT:

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

1    At material times Ms Vicky Edwards, the respondent in the matter before me, was employed by the current applicant Australian Postal Corporation (“APC”). Ms Edwards suffered a workplace injury for which APC initially accepted liability. On 3 December 2012 APC made a determination pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) that it was not liable to pay her compensation pursuant to s 16 and s 19 of the Act. The decision was affirmed by a delegate of APC on 13 February 2013.

2    Ms Edwards sought a review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). On 9 December 2013 the Tribunal found in favour of Ms Edwards and ordered that the delegate’s decision be set aside and substituted with a decision that APC be liable to pay Ms Edwards compensation under s 16 and s 19 of the Act.

3    APC has appealed from the Tribunal’s decision to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and further has sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth). Either way, I note that the matter before the Court falls within the original jurisdiction of the Court and to that extent is not an “appeal” although I will continue for convenience to refer to it as such.

4    Linked with the amended notice of appeal dated 11 February 2014 was a notice of objection to competency filed by Ms Edwards on 30 January 2014. One issue in contention was whether APC’s amended notice of appeal was filed out of time. At the hearing however Mr Black for Ms Edwards informed the Court that the required extension of time was not opposed (transcript p 5 ll 15-16) and I ordered that time be extended for the lodgement of the amended notice of appeal pursuant to s 44(2A) of the AAT Act. Accordingly, the respondent did not press the objection to competency (transcript p 47 ll 24-30).

5    I turn now to the substantive issues raised in this matter.

Background

6    The background facts are set out in the decision of the Tribunal. It is convenient to repeat the key facts which are not in dispute.

7    Ms Edwards has been employed by APC since October 2006. On 10 February 2012 Ms Edwards was on duty pushing a heavy wheeled bin (known as a “ULD”) down a slight slope. According to Ms Edwards, she pushed the ULD off with both her feet and upon doing so felt what she described as “an immediate burning sensation” in her “right Achilles area”. She stated that the ULD went off quite suddenly and she had to pull the handle of a pallet jack to stop it. She then claimed to have felt “an aching type pain” in her “left Achilles that came and went”. Ms Edwards took her break and reported the incident to her manager. After this she was taken to a first aid room and ice was applied to her ankles.

8    On 11 February 2012 Ms Edwards consulted a doctor and was certified as being unfit for work on that day and the following day. On 13 February 2012 she returned to work and was advised by her manager to sit down and do manual sorting for the day. On 14 February 2012 the facility doctor placed her on restricted seating duties. The Tribunal member found that while she performed those duties on 14 and 15 February 2012 she still had severe pain.

9    On 16 February Ms Edwards went to see another doctor and was given a medical certificate for two days off work due to an ear infection. On 21 February 2012 she saw a doctor who gave her a medical certificate recommending she rest from 21 February 2012 to 27 February 2012. On 2 April 2012 Ms Edwards returned to work, performing duties that did not require lifting anything heavier than 5kg.

10    In March 2012 Ms Edwards consulted Dr Aneel Nihal, an orthopaedic surgeon, who referred Ms Edwards to physiotherapy and anti-inflammatory medication. Ms Edwards’ condition did not improve and in August 2012 Dr Nihal recommended that Ms Edwards undergo surgery.

11    On 8 January 2013 APC ceased paying compensation for Ms Edwards’ “bilateral Achilles conditions”.

Medical evidence before the Tribunal

12    The evidence before the Tribunal regarding Ms Edwards’ medical condition consisted of the reports of three orthopaedic surgeons, namely Dr Malcolm Wallace, Dr Terence Saxby and Dr Aneel Nihal.

13    It is useful to highlight the key findings of each of the surgeons.

14    In his report dated 22 June 2013, Dr Wallace stated that:

    Ms Edwards suffers from bilateral Achilles Tendonitis;

    Ms Edwards has been appropriately investigated and treated conservatively;

    surgical treatment would likely make Ms Edwards’ condition worse if undertaken;

    ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel raise and the avoidance of aggravating activities;

    Ms Edwards had reached “maximum medical improvement”;

    Ms Edwards would not be able to return to the type of work which she was doing before or which involves any type of pushing or pulling; and

    Ms Edwards would be able to do other lighter manual, supervisory or sedentary work.

15    In his report dated 23 August 2013, Dr Wallace stated that:

    Ms Edwards’ condition is as a result of a workplace injury; and

    Ms Edwards’ incapacity for work has resulted from the conditions described in his earlier report as it will involve pulling, pushing and physical work.

16    In his report dated 10 May 2012, Dr Saxby stated:

    Ms Edwards’ condition was right Achilles tendinopathy, right much greater than left;

    he believed Ms Edwards’ condition to be a pre-existing (constitutional) condition;

    Ms Edwards’ work environment including pushing trolleys could be an aggravating factor;

    Ms Edwards had been treated appropriately for this and it appeared that her aggravation had settled;

    Ms Edwards should be able to gradually increase her hours and return to normal duties; and

    Ms Edwards has an underlying problem in her Achilles tendon and this may cause ongoing troubles in the future, but at that stage her aggravation had been dealt with appropriately.

17    Dr Saxby was asked by APC to provide a further report, and was briefed with the two reports of Dr Wallace. In his subsequent report dated 10 September 2013, Dr Saxby stated that:

    his opinion remained unchanged after examining the reports of Dr Wallace;

    Ms Edwards had been treated appropriately for the particular aggravation and it would be expected that that aggravation would settle;

    he believed that any ongoing problems at that stage would be related to the underlying degenerative condition rather than any work-related activity; and

    any permanent impairment is a result of the underlying condition rather than any work-related component.

18    In his report dated 12 September 2012, Dr Nihal stated that:

    he agreed with Dr Saxby’s comments that Ms Edwards’ “Achilles nodular degeneration” was pre-existing and constitutional;

    heavy work involvement and pushing of trolleys could be considered an aggravating factor;

    aggravation of Achilles tendonitis, when treated non-surgically, usually takes about 6-8 months to settle; and

    he agreed with Dr Saxby that Ms Edwards has underlying degenerative problems in both Achilles tendons and this would give her ongoing pain, discomfort and trouble in the future if she continued to be involved in heavy work.

19    In his report dated 26 March 2013, Dr Nihal stated that:

    clinical examination of Ms Edwards showed that she was extremely tender over both Achilles tendons, had nodules on both tendons which were tender to touch, had tightness of Achilles tendon and was tender over the insertion of Achilles tendon with the calcaneum.

Tribunal’s findings

20    The Tribunal member found that Ms Edwards has a condition of bilateral Achilles tendonitis which is worse on Ms Edwards’ right side. He also found that Ms Edwards has an Achilles nodular degeneration. As to whether Ms Edwards’ condition could be considered “constitutional” the Tribunal member noted that:

    Dr Nihal described the Achilles nodular degeneration as pre-existing and constitutional.

    Dr Wallace, under cross-examination, did not consider Ms Edwards to have what can be referred to as a constitutional condition in the sense of being “inborn” or “predetermined from within”.

    Dr Wallace was strongly of the opinion that the condition is either inflammatory or traumatic and did not consider that the condition would occur in any case.

    Dr Wallace was not prepared to agree with Dr Saxby who considered that non-insertional tendinopathy is constitutional in nature. Dr Wallace stated that tendinopathy was not a well understood condition.

    Ms Edwards’ legal representative, in final submissions, accepted that prior to 10 February 2012, Ms Edwards had a constitutional Achilles tendinopathy condition.

    Ms Edwards had given evidence that the condition was generally asymptomatic apart from when she felt some discomfort in October 2011, mainly in her right ankle when pushing and pulling ULDs.

    The matter involves a conflict of specialist evidence. Dr Saxby was of the view that any ongoing problems at that stage were due to the underlying degenerative condition rather than any work-related activity. Dr Wallace was of a contrary opinion as he was strongly of the opinion that Ms Edwards’ condition was a result of workplace injury and was not shaken from this view in cross-examination.

21    The Tribunal member preferred the evidence of Dr Wallace. The Tribunal member went on to note that despite being briefed with Dr Wallace’s reports, Dr Saxby did not point to any reasons why the reports of Dr Wallace should not be relied upon. The Tribunal member concluded that Ms Edwards’ condition was related to her workplace injury.

Notice of appeal

22    In its amended notice of appeal dated 11 February 2014, APC seeks the following orders:

1.    Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth):

a.    The appeal be allowed.

b.    The Tribunal’s decision be set aside and the applicant’s decision dated 13 February 2013 be affirmed.

c.    Alternatively, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law.

d.    Costs.

2.    In the alternative, under section 39B of the Judiciary Act 1903 (Cth):

a.    An order for a writ in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Tribunal.

b.    An order for a writ in the nature of prohibition or, alternatively, an injunction preventing the respondent or any of her officers, servants or agents from acting on or taking any further steps in reliance on the decision.

c.    An order for a writ in the nature of mandamus remitting Tribunal application number 1625/2013 to the Tribunal to be determined according to law.

  d.    …

  e.    Costs.

3.    If necessary, an extension of time for these proceedings to be filed, up until the date the first originating process was filed.

23    The questions of law raised by the amended notice of appeal were as follows:

1.    Whether the Tribunal failed to provide reasons or lawful reasons for its decision.

2.    Whether the Tribunal failed to consider the evidence before it or whether it failed to give proper, genuine or realistic consideration to the said evidence.

3.    Whether the Tribunal failed to exercise or complete the exercise of its statutory power when making the decision.

4.    Whether the Tribunal failed to take into account a relevant consideration that it was required to take into account.

5.    Whether the decision is affected by legal unreasonableness.

24    In seeking these orders, APC relies on the following grounds:

1.    The Tribunal failed to give reasons or lawful reasons for its decision in relation to determining that the respondent was suffering from bilateral Achilles tendonitis and in determining to accept the evidence of Dr Wallace over the overwhelming evidence of Dr Saxby and Dr Nihal.

2.    In failing to address the evidence or in failing to afford the evidence proper, genuine or realistic consideration in respect of the respondent’s treating doctor, Dr Nihal, the Tribunal failed to comply with its statutory obligations under the Administrative Appeals Tribunal Act 1975 (AATA).

3.    Having identified that the dispute between the specialists was whether the respondent’s condition was constitutional, and having noted Dr Nihal’s opinion that it was, the Tribunal failed to take into account a relevant consideration when it considered that Dr Wallace’s opinion should be preferred to Dr Saxby’s without affording any lawful or proper regard to Dr Nihal’s opinion.

4.    The Tribunal failed to take into account a relevant consideration that it had to take into account in failing to find that Dr Nihal was a treating doctor of the respondent and that his reports before the Tribunal should have been afforded some additional weight.

5.    By failing to express any reasons or findings with respect to Dr Nihal’s opinion on the constitutionality of the condition, the Tribunal failed to exercise its statutory power in determining whether the respondent presently suffered from a compensable injury which gave rise to incapacity for work (s 19 of the Act) or a need for medical treatment (s 16 of the Act).

6.    The decision is afflicted by legal unreasonableness in that:

a.    the member failed to give adequate weight to relevant factors of great importance;

b.    the member gave excessive weight to irrelevant factors of no importance;

c.    the member reasoned illogically or irrationally;

d.    the decision lacks evident and intelligible justification.

25    APC also asks the Court to make a finding of fact, namely:

1.    That the evidence of Dr Saxby, orthopaedic surgeon and Dr Nihal, orthopaedic surgeon be relied upon and preferred to other medical evidence in the proceedings.

Submissions of the parties

26    Both parties in this case were legally represented. In summary, APC submits:

    the weight of evidence and the opinions of more relevantly qualified experts favours APC;

    in upholding Ms Edwards’ application and setting aside the reviewable decision the Tribunal fell into legal error in that it:

           ₒ    failed to provide lawful reasons for that decision;

           ₒ    failed to take into account relevant considerations;

           ₒ    failed to give any proper, genuine and realistic consideration to the evidence, or indeed reasonably assess the evidence at all;

    there is no explanation for why the Tribunal failed to accept the evidence of Dr Nihal, who was Ms Edwards’ treating doctor and had seen her over a greater period and more regularly than any other doctor;

    there was no explanation for why the Tribunal failed to accept the evidence of Dr Saxby, who was superior in expertise and had provided reasons for his opinion which were undisturbed;

    no reason was given by the Tribunal for accepting Dr Wallace’s evidence exclusively over that of Dr Saxby and Dr Nihal. The Tribunal provided no analysis of the competing evidence and gave no real explanation for rejecting it;

    the Tribunal is required to give proper, realistic and genuine consideration to the merits of the case.

27    In opposing the notice of appeal Ms Edwards submits as follows:

    APC’s amended notice of appeal pleads five separate questions of law but the complaints fall into three broad categories:

(1)    A complaint that the Tribunal failed to give lawful reasons for its decision, in particular preferring Dr Wallace’s evidence to that of the other experts.

(2)    A complaint that the Tribunal failed to give “proper, genuine or realistic” consideration to Dr Nihal’s report.

(3)    A complaint that the Tribunal’s decision was unreasonable.

    In relation to the first category:

           ₒ    failure by the Tribunal to give reasons for preferring some medical evidence to other medical evidence does not constitute an error of law;

           ₒ    in any event the Tribunal did explain why it preferred the evidence of Dr Wallace to that of Dr Saxby;

           ₒ    the rejection of Dr Saxby’s evidence sufficed to deal with Dr Nihal’s concurring report;

           ₒ    APC’s description of evidence of Dr Saxby and Dr Nihal as “overwhelming” cannot be supported.

    In relation to the second category, the real issue for the Tribunal was the relationship between Ms Edwards’ condition or symptoms and her accepted “injury”, in particular the causal link. Dr Nihal’s report was not a “mandatory relevant matter” to take into consideration. In any event, the Tribunal’s decision shows that it was well aware of Dr Nihal’s reports and the opinion he expressed.

    In relation to the third category the Tribunal was engaged in a fact finding exercise, and was not called upon to exercise a statutory discretion. It is clear that a wrong finding of fact is not an error of law, or the attainment of a factual finding by a faulty process. The Tribunal’s factual conclusions had a foundation in the evidence and were open having regard to Dr Wallace’s evidence.

Consideration

28    Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. As has been made clear by the High Court, s 44(1) intends that the merits of a case are dealt with not by the Court but by the Tribunal, this distribution of function being critical to the correct operation of the administrative review process: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. This point was recently reiterated by the Full Court of this Court in Nelson v Commissioner of Taxation [2014] FCAFC 163 at [11] where their Honours explained:

The right of appeal to the Federal Court from a decision of the Tribunal conferred pursuant to s 44 of the AAT Act is of a limited nature only. Pursuant to s 44 of the AAT Act, an appellant can only appeal on a question of law from the Tribunal and an appeal is not competent unless a question is identified that is properly characterised as a question of law. The notice of appeal must disclose that the Court’s jurisdiction is enlivened pursuant to s 44 of the AAT Act and if the questions, properly analysed, are not questions of law, the appeal is not competent. The form of their expression does not turn them into questions of law.

29    Question of law (3) as articulated in the amended notice of appeal is somewhat unclear. A bald claim that the Tribunal has failed to exercise or complete the exercise of its statutory power when making the decision is, in in the absence of specific clarification, too vague to constitute a question of law. I am prepared however to read this question of law with the second and fifth grounds of appeal which provide context.

30    I am satisfied that the other questions posed by APC for consideration are, in fact, questions of law. I also note that there is obvious and unsurprising cross-referencing between the questions of law raised and the grounds of appeal upon which APC relies.

31    APC has specifically requested the Court to make a finding of fact, namely that the evidence of Dr Saxby and Dr Nihal be preferred to other medical evidence in the proceedings. In my view the Court has no jurisdiction to make such a finding of fact in the context of an appeal pursuant to s 44(1) of the AAT Act, for the reasons given in Repatriation Commission v Owens and Nelson v Commissioner of Taxation. Further, I am not satisfied that s 39B of the Judiciary Act confers jurisdiction on this Court to make findings of fact contrary to findings of the Tribunal below.

32    It is appropriate to turn to the grounds of appeal raised by APC in this matter.

Ground 1: Provision of reasons

33    Section 43(2), (2A) and (2B) of the AAT Act provide:

Tribunal must give reasons for its decision

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

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

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

34    In considering the obligation of the Tribunal under these sections, it is important for the Court to keep in mind the fact that the Tribunal’s reasons should be measured in a reasonable and realistic way, rather than with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121 at [44].

35    APC submits that the Tribunal failed to give reasons why it preferred the evidence of Dr Wallace over the “overwhelming evidence of Dr Saxby and Dr Nihal”. In considering APC’s case concerning the lack of reasons given by the Tribunal, I make the following observations.

36    First, review of the decision of the Tribunal shows that the Tribunal gave careful consideration to the opinions of the respective surgeons, and further gave reasons for preferring the evidence of Dr Wallace to that of Dr Saxby (and, by implication, Dr Nihal). That this is so is apparent from the reasons of the Tribunal, in particular paragraph 17 where the Tribunal explains:

This is a matter in which there is a conflict of specialist evidence. Dr Saxby considers that “any ongoing problems at this stage are related to the underlying degenerative condition rather than any work-related activity”. Dr Wallace is of a contrary opinion, he is strongly of the opinion that her condition is a result of the workplace injury as outlined: he was not shaken from that opinion during his extensive cross-examination, despite quite properly acknowledging the expertise of Dr Saxby. This is one reason why I prefer to rely upon the opinion of Dr Wallace. I also comment that Dr Saxby was briefed with both reports of Dr Wallace and while in his most recent report Dr Saxby still maintains his opinion he has not outlined any reasons why the reports of Dr Wallace should not be accepted. I accordingly find in reliance of the reports of Dr Wallace that the present condition of the applicant is related to her workplace injury.

37    This paragraph should be read with earlier paragraphs in the Reasons for Decision. It is apparent that the Tribunal preferred the evidence of Dr Wallace to the evidence of Dr Saxby and Dr Nihal for reasons including:

    the Tribunal’s assessment of Dr Wallace as a witness;

    the Tribunal’s analysis of Dr Saxby’s evidence in light of Dr Wallace’s report;

    the uncontroverted opinion of Dr Wallace that tendinopathy was not a well understood condition;

    the view apparently taken by the Tribunal that APC placed primary reliance on the reports of Dr Saxby rather than those of Dr Nihal.

38    Second, APC’s submission that such evidence was “overwhelming” appears referable to the fact that there were two surgeons whose views supported APC’s case, the “superiority in expertise” of Dr Saxby over Dr Wallace as an orthopaedic surgeon, and the fact that Dr Nihal was Ms Edwards’ treating orthopaedic surgeon. However, determination of the question whether the evidence of Dr Saxby and Dr Nihal was “overwhelming” involves a value judgment on the facts of this case. Even if I were to accept that this issue raised a question of law, I note the submissions on behalf of the respondent that the evidence was not “overwhelming” because, in summary:

    Dr Saxby conceded that the incident with the ULD may have caused the symptoms that he thought were related to a pre-existing condition to come on sooner than they might otherwise have done.

    The only explanation Dr Saxby advanced as to why he considered the symptoms experienced by Ms Edwards were related to a pre-existing condition rather than the workplace injury was that her work aggravation would have been expected to settle.

    Dr Nihal’s written report of 12 September 2012 essentially agreed with Dr Saxby’s views.

39    In my view the respondent’s submissions have merit. However even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law. As Hill J observed in Hamidi v Minister of Immigration and Ethnic Affairs (unreported, Hill J, 26 July 1996) at [11] an arguably wrong finding of fact does not bring into existence a question of law. A similar point was made by the Full Court in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744 at [34].

40    Third, that the Tribunal viewed the evidence of Dr Saxby as the lead medical evidence for APC is apparent from the manner in which the Tribunal referred to Dr Nihal’s reports (for example, at [12] and [13] where the Tribunal noted that Dr Nihal’s reports were “in evidence”) compared with the observation of the Tribunal at [9] that APC had obtained two reports from Dr Saxby. The references of the Tribunal were made in light of the fact that Dr Nihal’s reports were not prepared for the purposes of the Tribunal proceedings, and he – unlike Dr Saxby – did not have the opportunity to comment on Dr Wallace’s reports. Certainly the manner in which APC’s case was conducted in the Tribunal supports this inference. Dr Nihal was not called to give evidence at the hearing. Further, in the Tribunal the cross-examination by Counsel for APC of Dr Wallace concentrated primarily on the differences between the evidence of Dr Wallace and Dr Saxby, with only relatively few questions to Dr Wallace concerning Dr Nihal’s evidence (transcript 21 November 2013 p 27 l 39 – p 29 l 10).

41    I accept the submission of Mr Black for Ms Edwards that it followed that if the Tribunal preferred the evidence of Dr Wallace to that of Dr Saxby, it would similarly prefer Dr Wallace’s evidence to that of Dr Nihal and, indeed, that is what happened.

42    Fourth, the issues raised by APC are suggestive of an application for review of the reasons of the Tribunal on its merits. APC submits, for example, that the Tribunal has not given lawful reasons for finding against APC where:

    Dr Saxby was superior in expertise to Dr Wallace;

    Dr Saxby was “not shaken” in his evidence;

    Dr Nihal was Ms Edwards’ treating orthopaedic surgeon; and

    the opinions of its two orthopaedic surgeons who gave evidence on behalf of APC should be preferred to the opinion of Ms Edwards’ one orthopaedic surgeon.

43    These are all issues which go to the merits of the case. Certainly it is well-settled that the weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang at 272. To adopt comments of Jagot J (Nicholas J agreeing) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26 at [119]:

The Tribunal was entitled to weight the evidence as it saw fit provided that in so doing it did not lose sight of the decision it had to make … and reached conclusions that were reasonably open on the evidence.

44    Ground 1 is not substantiated.

Grounds 2, 3, 4 and 5: Having regard to the evidence

45    Grounds 2, 3, 4 and 5 all raise questions relating to whether the Tribunal has taken into account relevant considerations. Grounds 2 and 3 invite a finding that the Tribunal has failed to give “proper” consideration to evidence of Dr Nihal, whereas grounds 4 and 5 refer to the failure of the Tribunal to take into account that Dr Nihal was Ms Edwards’ treating doctor whose opinion (including with respect to the constitutionality of Ms Edwards’ condition) should have been given additional weight.

46    It is well-settled that in exercising its function the Tribunal must take into account relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24. That the Tribunal has an obligation to give evidence before it proper, genuine or realistic consideration is clear from such cases as Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 and more recently Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. A helpful articulation of this obligation was that of Gummow J in Khan at [33] where his Honour warned against:

consideration so limited as to be indicative of a perfunctory and cursory consideration rather than a proper genuine and realistic consideration of what was a substantial element in the merits of the particular cases …

47    Turning to the specific issues raised in these grounds of appeal, it is clear from the reasons of the Tribunal that the Tribunal did consider Dr Nihal’s evidence. Indeed the Tribunal quoted extensively from Dr Nihal’s medical reports. That the Tribunal did not later specifically refer to Dr Nihal’s evidence when concluding that it preferred Dr Wallace’s evidence does not, in my view, mean that it failed to take Dr Nihal’s evidence into account at that stage of the decision. As I noted earlier, it is apparent that the medical opinions of Dr Saxby and Dr Nihal coincided as to the medical condition of Ms Edwards. Insofar as APC claims a failure of the Tribunal to perform its obligations under s 43(2B) of the AAT Act in failing to specifically discuss Dr Nihal’s reports in further details, it is relevant to note the observation of the Full Court in Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65 where Pincus J (Spender and French JJ agreeing) said:

A breach of that provision is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned. Where there are (as is usual in the Tribunal) no pleadings or other documents formally defining the questions which the parties desire to have decided, subs (2B) does not necessarily and always require discussion of every point which might have been raised before the Tribunal, whether or not it has been argued.

48    Second, and notwithstanding ground (4), the Tribunal recognised that Dr Nihal was Ms Edwards’ treating orthopaedic surgeon at [4] of the Reasons for Decision. In my view APC’s actual concern expressed in that ground of appeal related to the weight given by the Tribunal to Dr Nihal’s evidence. This is not a case where there was no medical evidence to support the decision of the Tribunal. The conclusions of the Tribunal were open on the evidence, and the Tribunal in so concluding explained that it preferred the evidence of Dr Wallace. I am satisfied that the Tribunal engaged with the question for decision and the evidence before it as part of an active intellectual process and that these obligations were not the subject of perfunctory and cursory attention. The approach APC invites the Court to take in finding that the Tribunal should have given different – presumably determinative – weight to the evidence of Dr Saxby and Dr Nihal, would entail this Court improperly reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions (cf comments of the High Court in Minister for Immigration and Citizenship v SZJSS at [36]).

49    Third, as I have already noted, Dr Nihal was not called to give evidence in the proceeding before the Tribunal, Dr Nihal was not provided with Dr Wallace’s report for comment, and it is apparent that APC relied primarily on the evidence of its expert Dr Saxby (with whom Dr Nihal agreed). In these circumstances I am not satisfied that the Tribunal erred in failing to make findings in relation to Dr Nihal’s opinion concerning the constitutionality of Ms Edwards’ condition. As the Full Court observed in Reece v Webber [2011] FCAFC 33 at [65]:

… a failure to expressly mention particular material is not conclusive that it has not been taken into account. A decision-maker is not normally required in its reasons for decision to refer to “every item of evidence that was before it” and an “omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked …

50    In my view these grounds are not substantiated.

Ground 6: Unreasonableness

51    In ground (6) APC claims that the decision of the Tribunal was afflicted by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in that the Tribunal failed to give adequate weight to relevant factors of great importance, gave excessive weight to irrelevant factors, reasoned illogically or irrationally and delivered a decision without evidence and intelligible justification.

52    In my view none of these criticisms have merit. Placing to one side the principle that questions of weight are always issues of fact for the decision-maker, I am unable to see that:

    the Tribunal gave weight to matters of “no importance” and gave no weight to matters of “great” importance. A plain reading of the Reasons for Decision of the Tribunal indicates that the Tribunal assessed all of the evidence before it and reached a conclusion based on that evidence.

    the Tribunal acted illogically or irrationally, or delivered a decision without evidence and intelligible justification. There was evidence before the Tribunal supporting its decision, namely the evidence of Dr Wallace. The Tribunal gave reasons for its decision in accepting the evidence of Dr Wallace. While perhaps the reasons of the Tribunal could have been more detailed, there is adequate material in the Reasons for Decision to indicate why the Tribunal preferred the evidence of Dr Wallace. As was observed in Wu Shan Liang at 272 the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

53    The High Court in Li explained the relevance of unreasonableness in the context of an exercise of a statutory discretion. The statutory discretion exercised by the Tribunal was in respect of finding relevant facts. However a faulty process of reasoning in determining facts does not, of itself, constitute an error of law: Rawson Finances Pty Ltd v Commissioner of Taxation. In any event in this case it is not apparent that the process of reasoning of the Tribunal in determining the facts was faulty. The Tribunal formed a view, open on the material before it. It is not for the Court to second-guess that decision.

54    It is clear that APC disagrees with the decision of the Tribunal. As the High Court observed in a different context in Minister for Immigration and Citizenship v SZJSS at [34]:

It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it.

55    I am not persuaded that the decision of the Tribunal in this case, including in its treatment of Dr Nihal’s evidence, can be described as illogical or unreasonable. In my view ground (6) is not substantiated.

Conclusion

56    As I noted earlier in this judgment it is not appropriate for the Court to determine the question of fact APC sought the Court to answer. Further, the questions of law raised by APC were valid, although in my view they should be determined in Ms Edwards’ favour. The appropriate order in this case is to dismiss the application dated 11 February 2014 containing the amended notice of appeal, with costs.

Associate:

Dated:    9 December 2014