FEDERAL COURT OF AUSTRALIA
Munswamy v Australian Postal Corporation [2016] FCA 116
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for extension of time to file a notice of appeal is dismissed.
2. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MARKOVIC J:
BACKGROUND
1 This is an application pursuant to Rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) for an extension of time within which to file a notice of appeal from a judgment of a Judge of this Court delivered on 7 July 2015: Munswamy v Australia Postal Corporation [2015] FCA 678 (Munswamy). The proceeding before the primary judge was an appeal pursuant to section 44(1) of the Administrative Appeals Tribunal Act (1975) (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal). The primary judge made orders dismissing the applicant's appeal and ordering the applicant to pay the respondent's costs as agreed or taxed.
2 The last date for filing a notice of appeal pursuant to rule 36.03(a)(i) of the Rules was 28 July 2015. The application for an extension of time within which to file a notice of appeal was lodged with the Court on 17 August 2015. In support of her application, the applicant relies on her affidavit sworn 3 December 2015 and two affidavits of David Chen, her solicitor, sworn 14 August 2015 and 4 December 2015 respectively.
3 The respondent opposes the application for an extension of time in which to file a notice of appeal.
PRINCIPLES GOVERNING EXTENSION OF TIME
4 The decision to grant an extension of time to appeal is a discretionary one: SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 (SZSQL) at [15]. The principles which guide the exercise of the Court's discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349 and adopted by a Full Court of the Federal Court in Parker v R [2002] FCAFC 133 at [6] as follows:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also SZSQL at [15] where Gleeson J set out a similar list.
DELAY
5 The reason for the delay in the filing of the notice of appeal is explained in the affidavits relied on by the applicant. The following facts emerge from those affidavits:
(1) judgment was pronounced on 7 July 2015. On 8 July 2015 Mr Chen, a solicitor in the employ of the applicant's lawyers, Capital Lawyers, who has the carriage of the matter, sought instructions from the applicant;
(2) on 14 July 2015 the applicant contacted her solicitors to enquire about the prospects of an appeal, the risks involved and the anticipated costs. A telephone conference was arranged and at the end of the conference the applicant gave instructions to appeal;
(3) the applicant's solicitors lodged a request for transcript with Auscript on 15 July 2015. On the same day the applicant was asked to pay $1,811.28 into her solicitor's trust account to cover the cost of the transcript. However, she was unable to pay immediately and did not have the necessary funds until 3 August 2015;
(4) on 3 August 2015, the applicant's solicitors wrote to the respondent's solicitors notifying them of their client's decision to appeal;
(5) on 4 August 2015, the transcript was received by the applicant's solicitors;
(6) in the meantime Mr Chen had arranged for the applicant's counsel to start preparing the notice of appeal and, upon receipt of the transcript on 4 August 2015, he had a copy forwarded to the applicant's counsel;
(7) the applicant's counsel provided a draft notice of appeal to his instructing solicitors on 4 August 2015. Upon receipt of an executed fee waiver application, Mr Chen arranged for the notice of appeal to be lodged by eLodgement;
(8) Mr Chen heard nothing further from the Court following the eLodgement of the notice of appeal and on 14 August 2015 he contacted the Court to enquire about it. At that time, Mr Chen was advised that the filing had been rejected as the appeal was lodged out of time. The lodgement details printed out by Mr Chen on 14 August 2015 at 1.51 pm include a registry message in the following terms:
It does not comply with Court Rules. The Appeal is out of time. Please file an Application for Extension of Time. Thank you. Joshua.
(9) Mr Chen says that a mistake was made about the date by which a notice of appeal had to be filed and that it was thought to be 28 days from the date of the judgment;
(10) on 14 August 2015 Mr Chen sent an email to the respondent's solicitors notifying them that the applicant is required to apply for an extension of time to enable her appeal to be filed;
(11) the application for extension of time to file a notice of appeal was lodged with the Court via eLodgement on 17 August 2015 and a sealed copy of that application and an affidavit in support served on the respondent's solicitors on 18 August 2015.
6 There are two explanations given for the delay. Firstly, the applicant's solicitors had to wait until they were in funds to pay for the transcript. Secondly, a mistake was made as to the date by which an appeal had to be filed in that it was mistakenly thought that the applicant had 28 days from the date of the judgment to file her notice of appeal. If that were the case, then the 28 day period would have expired on 4 August 2015, the date upon which the applicant's solicitors attempted to file the notice of appeal.
7 While it is not clear why it took 10 days for the applicant's solicitor to realise that the eLodgement of the notice of appeal on 4 August 2015 had been unsuccessful, I do not think it is the case that the reason for the delay is left largely unexplained. It seems to me that the primary reason for the delay was the solicitor's belief that the period in which to file the notice of appeal was 28 days rather than the 21 days required by rule 36.03 of the Rules. There was some delay in obtaining the transcript due to a need for the applicant to raise the necessary funds. However, even taking into account the time it took for the applicant to provide those funds, the transcript was obtained and the notice of appeal finalised and lodged with the Court within the 28 period that the applicant's solicitors believed was available to the applicant to bring her appeal.
8 True it is, as the respondent contends, that there is no reference to the transcript in the applicant's submissions nor has it been put in evidence on this application. In those circumstances, the respondent submits that obtaining it was unnecessary and presumably does not then explain the delay. However, I do not think that any criticism can be levelled at the applicant for obtaining the transcript.
9 The application for an extension of time to file a notice of appeal was eventually lodged with the Court on 17 August 2015, 20 days after the expiration of the prescribed appeal period. The cause for the delay was in my view largely, if not entirely, attributable to the mistaken belief about the appeal period. The failure to file on time does not lie at the feet of the applicant but rather her solicitors and the applicant ought not be shut out by reason of their misunderstanding. I am satisfied that an acceptable explanation has been provided for the delay.
PREJUDICE
10 Other than the inherent prejudice caused by a failure to progress a matter in time, the respondent does not suggest that there will be any prejudice to it if an extension of time were to be granted by the Court.
MERITS OF THE PROPOSED APPEAL
11 That then leaves a consideration of the merits of the proposed grounds of appeal. The respondent submits that it is the lack of merit in the proposed appeal that ought to lead the Court to refuse the application for an extension of time to file her notice of appeal.
The draft notice of appeal
12 The draft notice of appeal sets out the following grounds:
1. The Court erred in law by failing to hold that:
(a) the Tribunal wrongly refused to consider the merits of Appellant's claim for an injury that occurred on 14 August 2012 arising out of repetitious nature of her work on that day, rather than from a discrete injury on that day (a 'nature and conditions' claim), by reason of a finding by the Tribunal that such a claim was not before it;
(b) The Tribunal wrongly adopted a position that some principle of law in the nature of an issue estoppel arose from a consent order of the Tribunal on April 2011 relating to the accepted injury of 30 January 2008, and wrongly applied that principle in the present case to preclude any consideration of whether the effects of the accepted injury of 30 January 2008 had a role to play in the symptomatic state of the later injuries of 28 October 2011 and 14 August 2012 that were under consideration by the Tribunal;
(c) The Tribunal's adverse findings of credit in relation to the Appellant on the evidence before it were unreasonable and/or irrational.
2. The Court erred in law in:
(a) failing to refer to and to otherwise consider the principal arguments advanced by the Appellant before the Court in support of the error referred to at l(a) above;
(b) failing to refer to and to otherwise consider the principal argument advanced by the Appellant before the Court in support of the error referred to at I (b) above.
Proceedings before the primary judge
13 The proceeding before the primary judge was an appeal pursuant to section 44(1) of the AAT Act. The Tribunal had affirmed two decisions of the respondent which the primary judge extracted from the Tribunal's reasons (Munswamy v Australia Postal Commission [2014] AATA 757) at [10] of her judgment as follows:
5. Matter 2012/3270 concerns an application Ms Munswamy made with regard to an injury arising from an incident on 28 October 2011. The decision under review accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for aggravation of constitutional degenerative changes in the lumbar spine, but found that as of 11 November 2011 the effects of the injury had ceased such that Ms Munswamy was no longer entitled to compensation for medical expenses and incapacity pursuant to sections 16 and 19 of the Act.
…
7. Matter 2012/5629 concerns an application Ms Munswamy made with regard to an incident she says occurred on 14 August 2012. Liability for aggravation of constitutional degenerative changes in the lumbar spine was denied pursuant to section 14 of the Act.
14 At the primary judge's request, as a consequence of the way in which the notice of appeal and submissions before her were framed, full oral submissions were made at the hearing in support of each alleged error of law in the Tribunal's decision. The primary judge treated the oral submissions as the applicant's case.
Ground 1 (a)
15 By this ground the applicant contends that the primary judge erred in law by failing to hold that the Tribunal wrongly refused to consider the merits of the applicant's claim for an injury that occurred on 14 August 2012 which she contends was a "nature and conditions" claim, rather than from a "discrete injury on that day", by reason of a finding by the Tribunal that such a claim was not before it.
16 This ground relates to [80] of the Tribunal's reasons which is in the following terms:
In coming to a decision regarding the claim for an aggravation on 14 August 2012, we noted that Ms Munswamy was unable to attribute the injury/aggravation to the lifting or moving of a particular parcel, and said that there were typically a lot of bags and parcels. What she wrote in her claim form, which was, frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading it in my van my back got aggravated, indicated to us that it was more by way of a nature and conditions claim, which is not before us. Accordingly her claim for compensation for an injury or aggravation which occurred on 14 August 2012 cannot succeed.
17 Before the primary judge, the applicant submitted that the Tribunal's approach was irrational in that if, as the Tribunal said at [80], the applicant's claim concerned frequent bending and lifting, which seemed to be like a nature and conditions claim, then it was not reasonably open to the Tribunal to treat her claim as if a nature and conditions claim had not been made. The applicant submitted that the Tribunal's approach to the claim was narrow and pedantic which was contrary to principle.
18 The primary judge was not persuaded that the Tribunal erred in its approach. The primary judge approached the argument before her having regard to the authorities noting the findings in Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [18] and in Kennedy v Comcare [2014] FCA 82 where Katzmann J said:
[44] In Szabo v Comcare (2012) 58 AAR 152 ; [2012] FCAFC 129 (Szabo), upon which Comcare also relied, the tribunal decided that it had no jurisdiction to consider a claim that the employee’s back injury was due to the nature and conditions of his employment. The primary judge held that the tribunal did not err in law in making this decision and the Full Court dismissed the appeal, Emmett and Greenwood JJ holding (at [41]) that it was not possible to find in the documents submitted by Mr Szabo to Comcare a claim in respect of some injury or disease arising out of the nature and conditions of his employment. Their Honours held (at [42]) that “until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal”.
[45] In a case of psychiatric injury, however, it is not always easy to discern the nature of a claim. Neither the original decision-maker nor the review officer referred to a claim for compensation for injury in 2009. But the tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, “the tribunal must assess for itself the true scope of the claim” and conduct the review on that basis: Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 ; [2011] AATA 802 (Durham) (Jagot J, sitting as a presidential member of the tribunal) at [51]. The question of whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant’s claim for compensation: Durham at [53].
…
[53] The contention could certainly have been put with greater precision in the request for reconsideration, but “a broad, generous and practical interpretation” is called for: Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 at [18]; Szabo at [50]. Construed broadly, generously and practically Ms Kennedy was asking Comcare to reconsider several aspects of her case. One of them was her claim that bullying and harassment at the workplace from June/July 2009 caused her injury.
19 The primary judge’s finding at [23] and [24] of Munswamy were as follows:
….The applicant filled out a claim form in which she stated she had aggravation of the lower back which happened, or which she first noticed, on 14 August 2012. She completed another form saying the incident occurred or symptoms were first noticed on 14 August 2012 and the incident happened at the Ingleburn Hub of the respondent. She said she suffered lower back aggravation in circumstances where before her normal duties “there [were] no back symptoms” but her back was aggravated by frequent bending and lifting to place parcels from the floor into her van. Her supervisor completed a report in which he recorded that the applicant said the incident had happened during the 17.00 final clearance but she did not identify any particular heavy parcel that had caused the incident, only the repetitive lifting which she had done.
24 A “broad, generous and practical interpretation” of this claim yields a result consistent with the approach the Tribunal took. The applicant was saying that before she carried out her duties on 14 August 2012 she did not have symptoms of a back injury. During the clearance of postal articles at 1700 hours on 14 August 2012 she experienced symptoms which she believed had been caused by the bending and lifting she carried out during that clearance. Not only was it reasonably open to the Tribunal to conclude that the applicant’s claim was for an injury which occurred on 14 August 2012, the Tribunal was correct to so characterise the claim. There was no claim before the Tribunal that the aggravation resulted from the nature and conditions of the applicant’s work, although the Tribunal accepted that it might be that the applicant could make such a claim. This is all the Tribunal is saying at [80] and [103]. No error is disclosed in the Tribunal’s approach.
20 The applicant submits that the primary judge erred in the same way as the Tribunal because:
(1) the claim made, reconsidered and appealed expressly referred to the injury arising from the repetitious nature of the work on the day;
(2) this is what is commonly known as a nature and conditions claim. The applicant did not use the words "nature and condition" in her claim form but described the activities that caused the pain;
(3) even if the traditional nomenclature is ignored it is still necessary for the Tribunal to address the claim made arising from repetitious activity on 14 August 2012;
(4) that claim is not addressed by refusing to consider it based on the kind of semantic grounds that the Tribunal adopted and the primary judge affirmed as being unexceptionable;
(5) the claim is not addressed merely by a finding of an underlying degenerative back. The issue is whether the repetitious lifting and carrying on that day aggravated the degenerative spine;
(6) the claim is not addressed by a finding that the applicant was pain free before 14 August 2012. There is no dispute that she became more symptomatic on that day. The issue is whether the increase in pain on that day is in part caused by the repetitious work she was undertaking, an issue that has never been addressed.
21 In oral submissions, counsel for the applicant contended that there was an error of law in the Tribunal's approach in that it acted contrary to s 43 of the AAT Act and the primary judge failed to identify and correct that error. While the submission did not specify which subsection of s 43 the applicant alleged the Tribunal failed to comply with, I assume, given the context of the submission, it is s 43(1).
22 Counsel for the applicant also referred to [72] of the Tribunal’s decision in which the Tribunal refers to Professor McGill’s report dated 27 August 2012 and says he “considered that she had a work related increase in symptoms due to the underlying degenerative changes with no change in the structure of her back”. Counsel for the applicant submitted that this “finding of fact” by the Tribunal was sufficient for it to consider and determine the applicant’s application rather than “eschewing the confusion that [the Tribunal] introduced by” finding that the applicant’s claim was a nature and conditions claim. Counsel for the applicant also referred to [73] of the Tribunal’s decision where the Tribunal refers to a further report of Professor McGill dated 11 May 2013 and submitted that it was inconsistent with his earlier report dated 27 August 2012 and that inconsistency was not resolved by the Tribunal or the primary judge.
23 The primary judge's findings at [23] and [24] of her judgment were based on her analysis of the evidence which was before the Tribunal and which was before her. The primary judge considered the claim form completed by the applicant, another form completed by the applicant and a report completed by the applicant's supervisor. I too have had the benefit of a review of that evidence. In that regard there is:
(1) a form titled "Claim for Rehabilitation and Compensation" dated 16 August 2012, which was exhibit A1 before the Tribunal and which was before the primary judge, which was completed and signed by the applicant in relation to the injury sustained on 14 August 2012. In that form:
(a) in answer to the question: "Did the injury/illness result from one specific incident?" the applicant answered "yes";
(b) in attachment 1 "Incident Investigation SAP#90024734" under the heading "Process" the following is included:
…
• Ishwari reported at approximately 19:35 that she had aggravated her lower back from repetitive heavy lifting at Leumeah LPO.
• …
• Ishwari did not specify which time the incident/injury occurred on the incident report, but confirmed when asked it happened during the 17:00 clearance of Leumeah LPO.
• Ishwari did not advise of any specific item or incident on her return to the Hub at approximately 17:30.
• …
• When Ishwari reported the injury at 19:35 (Approx) she did not specify any particular parcel, mail item which caused injury and only identified the process of heavy repetitive lifting at Leumeah LPO;
(c) Under the heading "Incident Details" in answer to a question asking the applicant to provide a detailed description of what happened she wrote:
Frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading in my van my back got aggravated. Prior to my normal duties there was not back symptom;
(2) a form titled "Incident Form", which was T7 before the Tribunal and which was before the primary judge, which at page 2 records, in answer to a request to provide a detailed description of what happened, the response: "Frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading in my van my back got aggravated. Prior to my normal duties there were no back symptoms".
24 The Tribunal considered the claim before it as being for an incident that occurred on 14 August 2012 and not a claim resulting from past activity. The Tribunal expressly rejected the submission put to it by counsel for the applicant that the statement by her that "prior to my normal duties there was not [sic] back symptom" referred to 2008, the time of her first injury. The Tribunal interpreted that statement to mean prior to the applicant undertaking her duties on 14 August 2012. The primary judge, based on the evidence which had been before the Tribunal and to which I was taken, found that "a broad, generous and practical interpretation" of the claim produced a result that was consistent with the approach the Tribunal took. The primary judge did not place any significance on the fact that the applicant did not use the label "nature and conditions" in her claim form. Rather the primary judge found that the Tribunal considered the facts before it and resolved the question on that basis, in her view, correctly.
25 It is not the case that the Tribunal failed to comply with s 43(1) of the AAT Act and that the primary judge failed to identify and correct that error. Section 43(1) of the AAT Act provides:
….
Tribunal’s decision on review
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
….
26 The Tribunal considered the claim before it, as a claim for an injury that had occurred on 14 August 2012, and made findings in relation to that claim. In accordance with the requirements of s 43(1) of the AAT Act, the Tribunal did one of the things required: it affirmed the decision under review. The Tribunal observed that the 2012 incident may relate to a "nature and conditions claim" but noted that such a claim was not before it. It leaves open the possibility for the applicant to make such a claim in the future. Its observations in that regard amount to nothing more. The primary judge reaches that very conclusion at [24] of her judgment.
27 The submissions made by the applicant in relation to [72] and [73] of the Tribunal’s decision do not assist the applicant. At those paragraphs of its decision the Tribunal sets out aspects of Dr McGill’s reports. There is no finding of fact, as contended by the applicant, at [72] of the Tribunal’s decision. The Tribunal does no more than extract Professor McGill’s opinion. At [73] of its decision, the Tribunal sets out a later report of Professor McGill. I do not think there was an inconsistency that the Tribunal or the primary judge needed to resolve. The Tribunal considered those reports, as well as other relevant evidence, in the context of its overall finding that it came to on this issue.
28 In my view, there is no error disclosed in the approach of the primary judge and this ground has no merit.
Ground 1(b)
29 By this ground the applicant contends that the primary judge erred in law by failing to hold that the Tribunal wrongly considered itself barred by issue estoppel with respect to a consent order of the Tribunal made in April 2011 relating to the injury of 30 January 2008. It is said by the applicant that the Tribunal wrongly applied that principle to preclude any consideration of whether the effects of the 30 January 2008 injury had a role to play in the symptomatic state of the later injuries of 28 October 2011 and 14 August 2012.
30 The primary judge addressed this claim at [13] to [18] of her judgment. In doing so she considered the applicant's submission that the Tribunal considered itself effectively estopped from dealing with the applicant's thesis that the injuries she suffered in 2011 and 2012 were related to, in that they were an aggravation of, the injuries she suffered in 2008 because of the consent orders the applicant entered into in relation to the 2008 injury. By those consent orders, entered into in April 2011, the applicant agreed that she was no longer entitled to compensation for the 2008 injury after 19 May 2010. The primary judge rejected the applicant's argument. The primary judge said at [18] of Munswamy:
It is clear from the Tribunal’s reasons that the applicant’s case was rejected on the facts. The Tribunal simply was not satisfied that there were ongoing effects of the 2008 injury which were related to the claimed injuries in 2011 and 2012. Instead, the Tribunal was persuaded that the applicant suffered from a degenerative spinal condition, unconnected to her work, which would flare up from time to time. The Tribunal did not treat the consent orders into which the applicant and respondent had entered in 2009 as some form of estoppel and did not consider itself in any way hampered from determining whether, on the facts, the 2008 injury was causally relevant to the claims for injury in 2011 and 2012….
31 In oral argument, counsel for the applicant submitted that the applicant's case before the Tribunal in relation to the injury arising from the incident on 28 October 2011 was that, notwithstanding the consent orders, she had never recovered from the 2008 injury and that the 2011 injury was an aggravation of the 2008 injury. However, the Tribunal found that because the applicant entered into a consent order in April 2011 in relation to the 2008 injury there can be no continuing liability from the 2008 injury and no factual finding that the pain in the back from 2008 was extant. In her written submissions, the applicant submits that a reasonable reading of [41] of the Tribunal's decision does not produce the outcome propounded by the primary judge at [17] to [18] of her judgment and that the primary judge has not acknowledged that the Tribunal has not addressed that:
(1) liability was accepted for the 2008 injury and it is what caused the degenerative back to become symptomatic or caused the disc injury;
(2) the degenerative back that flares up from time to time is the back as aggravated by the "accepted" 2008 injury; or
(3) the argument at paragraph 42 of the applicant's written outline of submissions that if, in making its findings at [41] of its reasons, the Tribunal was focussing on the evidence of several doctors that the effects of the January 2008 injury should have resolved within weeks or months, then "the lack of compensability would have arisen around mid-2008 and not 19 May 2010". However, the applicant contends that the Tribunal focusses on 19 May 2010 as the "date of cease effect in the consent order" and that on any "reasonable reading" of the finding at [41] the Tribunal is saying that it is "the effects of the consent order that caused no further entitlement after the date set out in the consent order".
32 It is common ground between the parties that issue estoppel does not arise in relation to factual findings of the Tribunal. The Tribunal does not use that term in its decision nor does it appear from the terms of the decision that the Tribunal considered itself bound by the terms of the consent order of April 2011 and precluded from making some contrary finding to that set out in the consent order. At [40] to [42] of its decision the Tribunal said:
40. We are satisfied from the evidence of the MRI scans, Dr Shnier, and that of Professor McGill and Dr Maxwell who examined Ms Munswamy, that the 2008 incident did not cause structural damage to her spine, but was an aggravation of her multilevel degenerative spine. Professor McGill concluded that Ms Munswamy had not incurred a significant disc injury. He noted that Ms Munswamy suffers episodes of non-specific low back pain, which he opined occur in a large number of people, and resolve spontaneously. He also noted that the Applicant has constitutional degenerative changes at multiple levels of her spine. He opined that following the 2008 incident, she did not have signs or symptoms of radiculopathy.
41. We accept from the medical evidence that whether or not structural change occurs is not the deciding factor in whether a person suffers back pain. We understand that Ms Munswamy’s reports of her leg pain did not conform to a physiological pattern, and that may have been the reason why the doctors were focused on commenting on radiculopathy. However, we also accept that radiculopathy is not necessarily the deciding factor in whether a worker who experiences back and leg pain should be compensated. Liability for Ms Munswamy’s 2008 injury was accepted, and she had rehabilitation programs to get her back to work. A consent decision of the Tribunal with terms signed on behalf of Ms Munswamy and Australia Post held that she did not have present entitlement to compensation from 19 May 2010. We are satisfied from the evidence that the effects of the 2008 injury which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable following the settlement of Ms Munswamy’s claim at the Tribunal in April 2011. We noted the decision that she had no present entitlement to compensation for her 2008 injury after 19 May 2010.
42. We moved then to consider Ms Munswamy’s injury occurred on 28 October 2011 as a separate injury.
33 In those paragraphs, the Tribunal refers to parts of the medical evidence before concluding at [41] that it was satisfied "from the evidence that the effects of the 2008 injury which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable following the settlement of Ms Munswamy's claim at the Tribunal in April 2011" (emphasis added). A proper reading of the Tribunal's reasons does not lead one to conclude that the Tribunal felt itself constrained by the terms of the consent orders. Rather as the primary judge found at [18], the applicant's case "was rejected on the facts". I can discern no error in the approach or findings of the primary judge. She reviewed the Tribunal's decision and concluded on her own analysis that the Tribunal had reached its conclusions on the basis of the facts before it. There is no merit in this ground of appeal.
Ground 1(c)
34 By this ground the applicant asserts that the primary judge erred in law by failing to hold that the Tribunal's credit findings were unreasonable and/or irrational.
35 The primary judge addressed this aspect of the applicant's claims at [26] to [36] of her judgment. The applicant submitted before the primary judge that the Tribunal's adverse credit findings against her were based on flimsy or incorrect factual foundations analogous to the circumstances in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 (SZSNW). Those parts of SZNSW relied on by the applicant were extracted by the primary judge at [26] and [27] as follows:
26 The first aspect concerns the Tribunal’s adverse credit finding against the applicant. It was submitted that the Tribunal’s conclusions were based on flimsy or incorrect factual foundations, analogous to the circumstances in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 (SZSNW) …
27 The observations by Mansfield J in SZSNW, submitted the applicant, are also applicable. Mansfield J said:
[15] It is clear from Li [Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332] that the principle or standard of reasonableness generally applies to decisions made under the Act, and is not confined to discretionary decisions. The reasons for judgment of French CJ addressing “Reasonableness” would appear to be directed to the exercise of a statutory discretion: see at [23], but his Honour’s observations at [26]–[30] are of more general application. His Honour refers to “the rules of reason” as an essential element of lawfulness in decision-making, and to “the framework of rationality”, as a descriptor of a range of what might be seen as subsets of, or illustrations of, that general principle. Some illustrations referred to do not relate to discretionary judgments. The plurality judgment at [72] made the same point, as did Gageler J at [91]–[92]. Gageler J in [91] also made the point through a reference to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 300 that the implied condition of reasonableness covers both why a decision is made and how it is made.
[16] Like French CJ in Li at [30], I do not find it necessary to explore whether the boundaries of rationality and reasonableness differ in principle. That is because, in this matter, notwithstanding the detailed reasons of the IMR for rejecting the claim of the first respondent, the decision of the IMR is unreasonable in the sense discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J, and as explained by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234. It is not a matter where the IMR’s decision is within the area of “decisional freedom” (as explained by French CJ in Li at [28]) because it wrongly attributes to the first respondent a failure to complain of a particular matter in circumstances where, plainly, that complaint was made and it significantly builds on that wrongful attribution to reject the claims generally made by the first respondent.
36 The primary judge found that this case was not like SZSNW and that the Tribunal's credit finding "was not based on a material error of fact. It was based on the Tribunal's overall assessment of the applicant in the giving of her evidence, both in chief and under questions from the respondent's counsel": Munswamy at [28]. The primary judge extracted those parts of the Tribunal's reasons where it commented on its overall impression of the applicant's credit commencing at [28] of her judgment:
… The overall impression the Tribunal formed was as described at [10] of its reasons, namely, that:
We did not consider Ms Munswamy to be a convincing witness. She gave vague replies at the Tribunal, and answers to questions often either retreated into can’t recall, or answering to best advantage.
[29] The Tribunal reiterated its adverse view of the applicant’s credit as follows:
59. We were not satisfied that Ms Munswamy was entirely candid in reporting her levels of pain and its duration. Her evidence was sometimes quite vague…
…
101. As discussed above, we consider that there are issues of credit involving Ms Munswamy in this matter.
37 The primary judge did not accept that the matters set out at [11] of the Tribunal's reasons were reasons for the Tribunal's conclusion about the applicant's credit. Rather at [30] the primary judge found that they were examples of "specific instances that the Tribunal considered supported the impression it had formed based on the applicant's evidence". The primary judge addressed each of the examples included at [11] of the Tribunal's decision concluding that none of the evidentiary findings was irrational or illogical: Munswamy at [31] to [35].
38 The applicant submits that the Tribunal's finding that the applicant was an unreliable witness was based on the incidents it set out at [11] of its reasons. She says that the Tribunal's adverse credit findings were highly prejudicial to the fair assessment of the applicant's case and were either irrelevant or based on erroneous assumptions of fact that should have been known to the Tribunal at the time.
39 In order to address this ground it is necessary to consider [11] of the Tribunal's decision which is as follows:
11. Amongst others, we noted the following:
• Notwithstanding that 2006 and 2004 consultations with doctors about her back and leg pain had already been the subject of evidence at the Tribunal in 2009, Ms Munswamy gave evidence before us that she was unable to recall 2006 and 2004 injuries. She was reluctant to admit that she had suffered any back pain prior to 2008.
• We noted that the history Professor McGill elicited from Ms Munswamy was that she had no incidents prior to that of 30 January 2008. However, he noted from the medical records that her doctor had recorded as follows:
• 5 December 2006 -muscle pain in her back. Hurts moving arm and back. No injury or strain. Voltaren prescribed
• 28 October 2007 - [one week] gradual onset of pain at left lower anterior chest wall aggravated by movement. Disturbed sleep. Woke up with same pain. Tender +++. Denied any trauma. Brufen continued.
• 5 March 2008 - injured her back last [month] after picking up an oversize unlabel [sic] parcel ...
• 5 May 2009 - Dr B Darwish, a neurosurgeon and spinal surgeon, recorded: she continues to complain of lower back pain not radiating anywhere and not associated with any sensory or motor symptoms. Her examination was unremarkable. Advised continue analgesics.
• Ms Munswamy's evidence regarding a consultation with Dr Lee on 18 November 2004 where she allowed her brother-in-law to use her Medicare card, and at which it seems from the doctor's notes that she was not present. Dr Lee's medical notes of 18 November 2004 indicate as follows:
only partner present
request voltaren for leg pain
suggest to come in for examination
due for her pap smear
• Ms Munswamy denied she agreed to sign consent orders at the Tribunal in April 2011, stating that she was coerced to sign. We reject that evidence on the basis that she was legally represented throughout the proceedings.
40 I agree with the primary judge's characterisation that the findings in [11] were examples of instances that supported the Tribunal’s overall view of the applicant's credit. Were then any of the findings illogical or irrational?
41 In relation to the first finding, concerning the applicant's failure to recall injuries sustained in 2004 and 2006, I note that the applicant was cross examined by the respondent's counsel in relation to this issue. She gave evidence that she could not recall those injuries despite the fact that she was asked about them in proceedings in 2009 before the Tribunal. As the primary judge noted, whether or not the applicant had suffered back pain prior to 2008 was not the point. Rather, in circumstances where the applicant had been confronted relatively recently about events in 2004 and 2006, it was open to the Tribunal to infer that she was likely to recall those matters yet, she could not recall them. There was nothing irrational or illogical about this finding.
42 In relation to the second finding the Tribunal was not, as the primary judge observed, saying that Professor McGill's notes of events after 2008 were relevant to the applicant's reluctance to recall pain prior to 2008.
43 The third point concerns the applicant's evidence that she allowed her brother-in-law to use her Medicare card for a consultation with Dr Lee. There is nothing irrational, unreasonable or illogical about the Tribunal taking this evidence into account in relation to its overall finding about the applicant's credit. As identified by the primary judge, the relevance of the evidence was not in relation to the clinical notes there recorded and who was reporting the leg pain but rather the fact that the applicant permitted another person to use her Medicare card.
44 The last point concerns the applicant's evidence that she was coerced into signing the consent orders in April 2011. The Tribunal rejected that evidence on the basis that she was legally represented. In oral submissions the applicant's counsel put that there was no evidence on which that conclusion could be based and that it was irrational. It was contended that because the solicitor acted on a "no win, no pay" basis he would find himself in a position of conflict, preferring his own interests to that of his client. When asked whether there was evidence of the basis of the solicitor's retainer before the Tribunal, counsel for the applicant informed me that there was no such evidence.
45 Counsel for the applicant referred me to the cross examination of the applicant before the Tribunal on this issue. In that evidence the applicant acknowledges that she settled the proceedings, says that she signed the statement because her solicitor said "you've got to sign this document", that she did not read it, she did not understand it and that he, which I understand to be a reference to her solicitor, made her sign it.
46 There is no evidence or suggestion that any allegation of the kind now referred to by the applicant against the applicant's solicitor was made in the Tribunal. Nor was there any evidence to support such an allegation before the Tribunal. In my view, there was evidence before the Tribunal on which it could make the finding that it did, it was not bound to accept the applicant's evidence and it was entitled to make a finding about her evidence as it did. As the primary judge found, the Tribunal's finding was not irrational.
47 As the primary judge noted at [35] of her judgment it was a matter for the Tribunal to make credit findings as it saw fit. She continued:
… To suggest that, in so doing, the Tribunal acted unreasonably or irrationally is an illegitimate invitation to this Court, on fragments of the evidence that was before the Tribunal, to interfere with a matter that was squarely within the remit of the Tribunal, involving matters of fact and degree, as well as of evaluation and impression. The illegitimate invitation for this kind of review is a very long way from the kind of appeal s 44 permits and thus must be rejected.
48 In Kelly v Australian Postal Corporation [2015] FCA 1064 (Kelly) at [55] to [60], Griffiths J relevantly said:
55 As the Full Court observed in Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) 317 ALR 328 at [100(g)] (duplicate citations omitted):
…the weighing and evaluation of various pieces of evidence is a matter for the AAT and is generally not susceptible to review in either judicial review proceedings for jurisdictional error (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [33] (SZJSS) per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), or in an ‘appeal’ under s 44 of the AAT Act (see Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J and Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513; [2008] FCAFC 188 at [152] per Flick J). As the Full Court (Fox, Deane and Morling JJ) observed in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410-411 in the context of an appeal under s 44 of the AAT Act and in response to a claim that a Tribunal decision was against the evidence or the weight of the evidence (emphasis added):
A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they did not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence, subject to their obligation to observe the requirements of natural justice, can inform itself as it chooses (see, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975.) An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based…
56 Nor do I accept that the AAT’s reasoning is illogical (ground 3) or its decision to prefer Dr Smith’s evidence to that of Dr Parsonage to be unreasonable in the legal sense of that term (ground 4). As Crennan and Bell JJ held in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [131]:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
57 Although these observations were directed to the head of the judicial review relating to illogicality, they are also relevant where an error of law based on illogical reasoning is raised in a s 44 AAT Act appeal, as here. …
58 Similar considerations apply in rejecting the applicant’s complaint of unreasonableness. Li is the leading current High Court authority on that ground of review, at least in a judicial review context. For the applicant to establish that the AAT’s decision to prefer the medical opinion of Dr Smith over that of Dr Parsonage is unreasonable in the legal sense of that term, it is insufficient to demonstrate that another decision-maker may have come to a different conclusion. Rather, in the circumstances here, the applicant needed to demonstrate that the AAT’s preference was arbitrary, capricious or devoid of common sense (Li at [28] per French CJ) or that it lacked “an evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ). The AAT’s preference for the views of Dr Smith (and Dr Shaw) over that of Dr Parsonage may be one upon which reasonable minds could differ but it is not irrational or unreasonable to prefer one opinion over another (see SZMDS at [78] per Heydon J and at [121]-[131] per Crennan and Bell JJ). As French CJ observed in Li at [30] (citations omitted):
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.”
59 Different considerations arise where an administrative decision-maker has given reasons for a decision and there is a claim of unreasonableness. As the Full Court observed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (Singh) at [47]:
This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power – at least, when a discretionary power is involved. That is because it is the decision-maker in whom parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
60 Decisions such as Li, SZMDS and Singh all emphasise the need for judicial self-restraint in applying heads of judicial review concerning illogicality and unreasonableness. Such restraint is related to the legitimacy of judicial review and the need to ensure that it is confined to its proper province. Similar constraints arise in the context of a s 44 AAT Act appeal where an applicant raises errors of law based on illogicality or unreasonableness. …
49 I can discern no error in the approach of the primary judge in considering the Tribunal's credit findings in relation to the applicant. As the primary judge found the Tribunal made its findings on the basis of the evidence before it. There is no irrationality or illogicality in those findings in the sense described by the authorities which are summarised by Griffiths J in Kelly. There is no merit to this ground.
A further ground of appeal relating to credit
50 Although not included in the draft notice of appeal, in her written outline of submissions, the applicant includes a submission concerning the Tribunal's adoption of the evidence of Professor McGill and, to a lesser extent Dr Maxwell, in circumstances where the applicant alleges that their assumed facts were erroneous on the evidence to the point of being "unreasonable at law".
51 The applicant submits that there was internal inconsistency in the doctors' evidence, that the doctors failed to be aware of the evidence of other doctors who treated the applicant at the same time and that these doctors misinterpreted the answers given by the applicant to their questions.
52 In oral submissions, counsel for the applicant contended that this argument was part of or an extension of ground 1(c). The applicant submits that the Tribunal's credit finding made in relation to the applicant infects the way in which the Tribunal assessed the medical evidence, preferring the evidence of Professor McGill over that of the applicant and the other treating doctors. The applicant's counsel submitted that the Tribunal failed to come up with an "evident intelligible justification" for preferring the evidence of Professor McGill.
53 The primary judge dealt with this claim at [38] to [42] of her judgment. She rejected the applicant’s argument and found that the Tribunal engaged with the substance of the case put by the applicant and rejected it. In doing so the Tribunal was not bound to refer to every piece of evidence or other material before it. Rather the Tribunal was bound, in giving its reasons, conformably with s 43(2B) of the AAT Act, "to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based": Munswamy at [38]. The primary judge found at [40] that the Tribunal explained exactly why it preferred Professor McGill's evidence:
… It did not consider the applicant to be a reliable witness. It considered that the medical evidence did not support her claim of continuous pain after January 2008. It preferred Professor McGill’s view that the applicant has a degenerative back condition which will cause pain from time to time. It did not consider the radiological results to be indicative of an injury which occurred in January 2008 (which was consistent with Dr Shnier’s evidence that such changes as seen in the applicant’s back were not the explanation for her claimed pain). There was evidence from the applicant herself that she was asymptomatic at times, including before the claimed incident on 14 August 2012. All of these matters pointed in the direction of Professor McGill’s conclusions. Such a conclusion was thus explained by the Tribunal and had an ample “evident and intelligible justification”. The applicant’s submissions to the contrary involve a reading of the Tribunal’s reasons which is not open.
54 The observations of Griffiths J in Kelly extracted above are equally applicable to this argument. As noted in the extract from Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 included at [55] of Kelly the "weighing and evaluation of various pieces of evidence is a matter for the AAT". Again as extracted at [56] of Kelly, from Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [131]:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
55 It is not the case here that the Tribunal's preference for one medical opinion over another or over the evidence of the applicant was illogical or irrational. After hearing the evidence, the Tribunal preferred one opinion over the other or others. That was a factual matter for the Tribunal and, as the primary judge found, the Tribunal explained its rationale for its findings on the relevant evidence. There is no error on the part of the primary judge in her approach to this claim and in my view the claim is without merit.
Grounds 2(a) and 2(b)
56 By these grounds, the applicant asserts that the primary judge erred in law by failing to refer to and to otherwise consider the principal arguments advanced by the applicant in support of the errors referred to in grounds 1(a) and 1(b) of the draft notice of appeal.
57 In support of ground 2(a) the applicant submits that the primary judge failed to address the arguments set out at paragraph 57(c) to (f) of her written outline of submissions which are reproduced at [20] above.
58 In support of ground 2(b), the applicant submits that the primary judge failed to address the arguments set out at paragraph 46 of her written outline of submissions which are reproduced at [31] above.
59 The applicant has not filed the transcript of the hearing before the primary judge. She submits that it is not necessary to do so as "the transcript will not show what does not exist". I disagree. A transcript would show what was argued before the primary judge. In the absence of it I am unable to consider whether the arguments which the primary judge is said not to have addressed were in fact put to the primary judge. This is more so the case in circumstances where, having informed the applicant at the commencement of the hearing that she "found the notice of appeal and written submissions unhelpful", the primary judge required full oral submissions to be made "in support of each alleged error of law on the basis that [she] would treat the oral submissions as the applicant's case": Munswamy at [9].
60 In oral argument, counsel for the applicant submitted that the applicant relies on the record. That is, the judgment of the primary judge. However, it is not possible to discern from the judgment whether an argument was made that was not addressed. Upon being questioned counsel for the applicant also conceded that there was considerable overlap in grounds 2(a) and (b) and grounds 1(a) and (b) respectively. That is, the applicant seems to be suggesting that in coming to the conclusions that she did, the primary did not consider arguments that were put. The fact that the primary judge did not accept an argument does not mean that she did not consider and address it.
61 In my view grounds 2(a) and 2(b) in the draft notice of appeal are without merit.
CONCLUSION
62 While the applicant has provided an adequate explanation of the reason for the delay in filing a notice of appeal and there cannot be said to be any prejudice flowing to the respondent, in my view the grounds of appeal she proposes to rely on are without merit. In the circumstances, the applicant's application for an extension of time within which to file a notice of appeal should be dismissed with an order that the applicant pay the respondent's costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. |
