FEDERAL COURT OF AUSTRALIA

Ceric v Prosegur Australia Pty Limited [2016] FCA 1068

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal in Ceric v Prosegur Australia Pty Ltd in file number 2013/2063 of 14 August 2015 be set aside.

3.    The applicant’s review application be redetermined according to law by the Tribunal differently constituted.

4.    The respondent pay the applicant’s costs of the proceedings in this Court.

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

REASONS FOR JUDGMENT

PERRAM J:

1.    Introduction

1    Mr Ceric was employed by the respondent (‘Prosegur’) as a security guard. Principally his work involved attending to the safe transport and handling of cash in armoured vehicles. At 6am on Thursday, 24 May 2012, Mr Ceric began his shift. The final delivery of the day was to a convenience store in Carlton in Sydney’s south. The armoured truck contained some metal stairs, which could be accessed via a ‘man trap’ inside the truck. Whilst descending these stairs, Mr Ceric slipped on a wet step and landed on his feet on the footpath. This caused him to feel pain in his back and neck. There are further aspects of this incident which are relevant but they are, to an extent, controversial and I will return to them later when the picture is more complete. In any event, Mr Ceric returned to the depot and reported the incident. On or around 14 June 2012, Mr Ceric then made a claim on his employer, Prosegur, for workers compensation on the basis that he was incapacitated for work. Prosegur had insured its liability with an insurer, QBE. It was accepted by QBE’s Case Manager that Mr Ceric was incapacitated for work but only until 4 August 2012. The Case Manager refused, therefore, his claim for compensation for incapacity to work after 4 August 2012. She also rejected his claim for the payment of his out of pocket medical expenses after that date. Mr Ceric sought an internal review of this decision by a Reconsiderations Officer but the initial decision was affirmed. He then applied for a review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’) but it too affirmed the decision. It is from the Tribunal’s decision that he now appeals to this Court. For the reasons which follow, the appeal will be allowed.

2.    Background matters

2    Prosegur is a licensed corporation for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), and it is the provisions of that statute that regulate Mr Ceric’s claim. Following various factual inquiries and medical examinations of Mr Ceric, QBE’s Case Manager made a decision on Mr Ceric’s claim on 27 September 2012. The relevant portion of this determination was as follows:

I refer to your claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of “neck and lower back” sustained on 24/05/2012.

Your claim has been considered in accordance with the provisions of the SRC Act and taking into account all available evidence (medical and other) presently before me, I have determined that Chubb Security Services Ltd. is liable to pay you compensation in respect of “musculo-ligamentous back strain” up to and including 3/08/2012.

In addition based on the evidence you have ceased to suffer from the effects of the compensable injury on 4/08/2012.

3    I interpolate that Chubb Security Services Ltd is the former name of Prosegur. The determination was accompanied by a detailed set of reasons. It will be seen that the decision consisted principally of two elements. One was an acceptance that Mr Ceric had suffered a musculo-ligamentous back strain on 24 May 2012 and was entitled to compensation in respect of that injury. The other was that Mr Ceric had ceased to suffer from the effects of that injury from 4 August 2012.

4    These conclusions reflected the statutory architecture under which Mr Ceric had made his claim. Prior to its amendment in 1992, the SRC Act was entitled the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). It provided a workers compensation scheme for Commonwealth public servants. Amendments made in 1992 by the Commonwealth Employees’ Rehabilitation and Compensation Amendment Act 1992 (Cth) had the effect of extending the SRC Act’s potential coverage not only to privatised former government businesses but also, significantly for present purposes, to private sector corporations operating in the same industry as such a business, so long as the private sector corporation was a corporation within the meaning of s 51(xx) of the Constitution. The coverage thus provided by the SRC Act is extended to private corporations by means of a licensing scheme under which corporations meeting the relevant criteria are permitted to be covered. As the High Court explained in Attorney-General (Vic) v Andrews (2007) 230 CLR 369 at [37] such licensed corporations do not pay premiums to Comcare (a statutory body with roles as insurer, regulator and scheme manager under the SRC Act):

…The funds derived by Comcare from premiums and which are applied by Comcare to meet its obligations are not provided by licensees; they become "self‑insurers" and the capacity of eligible corporations to act as such is taken into account in issuing their licences under Pt VIII. Of course, a particular licensee may wish nevertheless to carry insurance under arrangements it concludes with third parties.

5    In the Andrews litigation, Optus as a competitor of a privatised former Commonwealth entity, Telstra, was an eligible corporation. The effect of the scheme was to permit it to become a self-insurer under the Commonwealth scheme and avoid having to pay compulsory premiums under the Victorian scheme. In effect, the private scheme provided by the SRC Act allows most businesses who are in the same market as a Commonwealth entity or former entity to use its provisions either as a self-insurer or, as here, as a self-insurer which has put in place its own private insurance arrangements. Subject to some presently irrelevant exceptions, s 44 of the SRC Act prevents a claim being pursued against a licensed corporation other than under the SRC Act. As the High Court observed in Andrews at [50], State compulsory workers compensation regimes detract from this immunity and are, in relation to licensed corporations, invalid by reason of s 109 of the Constitution. The scheme under the SRC Act for licensed corporations therefore provides a route for an employer to avoid having to deal with different workers compensation regulations in each State and Territory.

6    Returning to the terms of the SRC Act, s 4(10A) deems references in the balance of the SRC Act to ‘Comcare’ to include references to an employer where a licensed corporation is involved. In these reasons, when quoting from the SRC Act I will replace, where appropriate, references to Comcare with references to ‘the employer’ to reflect in practical terms the operation of s 4(10A).

7    Turning then to the compensation structure, the right to compensation for an employee under the SRC Act is conferred by s 14(1) which provides that Comcare or, as here, the employer is:

… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8    ‘Injury’ is defined in s 5A(1) to mean, so far as this case is concerned, ‘…an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment’. Prosegur’s insurer, QBE, accepted in its initial decision of 24 May 2012 that as a matter of formality Mr Ceric had suffered an injury in this statutory sense. That injury was the musculo-ligamentous back strain to which reference has already been made.

9    Consequently, the effect of s 14(1) was to require Prosegur to pay Mr Ceric compensation. Section 14(1) does not, however, specify the amount of compensation that Prosegur was required to pay. The calculation of the quantum of compensation due to an employee is dealt with in several other provisions but, relevantly for this case, principally in ss 16 and 19.

10    Section 16 deals with out of pocket medical expenses such as doctors’ bills and provides for an employee to be reimbursed for them, subject to certain constraints. Section 16(1) provides:

Where an employee suffers an injury, [the employer] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as [the employer] determines is appropriate to that medical treatment.

11    It is to be noted that the right to this head of compensation is limited to the costs of medical treatment which it was reasonable for the employee to obtain.

12    This right of reimbursement for out of pocket medical expenses stands in contrast with the right to be compensated for lost income arising from incapacity to work. This latter right is conferred by s 19. Section 19(1) provides:

19 Compensation for injuries resulting in incapacity

(1)     This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

13    Subsection (1) is then followed by elaborate machinery which provides a number of formulas for determining the relevant amount of compensation. I will not set those provisions out because they are long and a grasp of their operation is unnecessary for the purposes of these reasons. But it is to be observed that, at their base, what they involve is an assessment of the periods of time during which an employee is incapacitated from work (and hence is not being paid). It is a corollary of that observation that the right to compensation is coterminous with the existence of the incapacity.

14    These two provisions – ss 16 and 19 – therefore throw into relief two distinct but related inquiries. They are related in that both involve the imposition of a threshold beyond which neither compensatory right will continue. But they are distinct in that the threshold beyond which medical expenses will not be paid is marked out, insofar as it relates to time, by the time at which the expenses cease to be reasonably incurred, whereas the necessity to pay wage compensation is delimited by the time at which the incapacity to work comes to an end. There is no reason to think that these points in time should necessarily in every case be the same. An injured worker might, for example, be able to return to work at one time for the purposes of s 19 but require physiotherapy until much later for the purposes of s 16.

15    In this case, the Case Manager’s initial decision (set out above) was that Mr Ceric had ceased to suffer from the effects of his compensable injury on 4 August 2012. In the formal reasons, this was said to have the consequence that ‘at the present date, the claimant has no entitlement to compensation for medication treatment or incapacity pursuant to Section 16 and 19 of the SRC Act’. The logic of this, of course, was that if Mr Ceric no longer suffered after 4 August 2012 any effect from the injury he could not, in terms of s 16, reasonably require medical treatment for that injury or, in terms of s 19, be incapacitated for work by it. Of course, the effect of the decision was that the Case Manager did accept that Mr Ceric had been incapacitated by his slip onto the footpath, but only for the limited period between 24 May 2012 and 4 August 2012. In theory, compensation became due under both ss 16 and 19 for that short closed period. The theory was partially reflected in the facts. A letter from QBE to Mr Ceric of 31 October 2012 assessed his compensation for incapacity under s 19 at $1,495.87 per week for the closed period using the machinery of s 19 to which reference has already been made. So far as I can see there does not appear ever to have been carried out an assessment under s 16 in relation to medical expenses. Nothing, however, turns on this.

16    The foregoing will suffice to indicate that the Case Manager concluded in the initial decision and the subsequent compensation assessment either expressly or by necessary implication that:

(a)    Mr Ceric had suffered an injury on 24 May 2012 consisting of a musculo-ligamentous back strain;

(b)    he ceased to suffer any further effects from that injury after 4 August 2012;

(c)    he was incapacitated for work between 25 May 2012 and 4 August 2012 and was entitled to compensation of $1,495.87 per week in respect of that period; and

(d)    he was entitled to his out of pocket medical expenses for the same period since these would have been reasonably incurred by him while the injury caused him to be incapacitated and he was unable to work. No amount for medical expenses was, however, assessed.

17    Mr Ceric then sought an internal review of this decision. This was carried out by a Reconsiderations Officer who on 7 March 2013 resolved to affirm the earlier decision. Formal reasons for this decision were also given. The Reconsiderations Officer, as with the Case Manager, accepted that Mr Ceric had suffered an injury on 24 May 2012 but concluded that its effects did not persist past 4 August 2012. She then affirmed the Case Manager’s decisions under ss 16 and 19.

3.    Proceedings in the Tribunal

18    Following this, Mr Ceric sought review of that decision before the Tribunal. The case was heard on 20 March 2015 with submissions concluding on 20 April 2015. The Tribunal delivered its decision on 14 August 2015. The Tribunal accepted that Mr Ceric had suffered an injury on 24 May 2012. However, it found that Mr Ceric was an unreliable witness in at least two regards. It thought he had lied about the precise circumstances in which the injury had been suffered – specifically, that he had exaggerated its seriousness to an extent which the Tribunal found to be ‘demonstrably false’. It also located testimonial unreliability in what were said to be inconsistencies in the history of back pain Mr Ceric had given to two doctors who gave evidence in the proceeding.

19    Once the Tribunal had concluded that Mr Ceric was sufficiently an unreliable witness that his evidence about his current condition should be rejected this would have entailed, subject to some points of detail relating to other medical evidence which can be put to one side for now, that the Tribunal did not accept that he continued to be in any way incapacitated after 4 August 2012. Unfortunately, this the Tribunal did not expressly do. Its treatment of the formal elements of what was before it was very condensed. At [4] in its reasons it said only this:

…The issue in dispute is whether the incident on 24 May 2012 was of such severity that the applicant continues to suffer symptoms emanating from that event and hence is entitled to incapacity payments and medical expenses pursuant to sections 16 and 19 of the SRC Act.

20    It returned to this topic at [37] just after the paragraphs in which it concluded that Mr Ceric was unreliable, and simply said this:

37.    I find that the respondent has no present liability to pay compensation under sections 16 and 19 of the SRC Act.

DECISION

38.    The Tribunal affirms the decision under review.

21    As an explanation of the Tribunal’s reasoning process, it has to be said that this does not give much away.

4.    The Issues for Resolution

22    In this Court, the issues were:

(a)    The adequacy of the Tribunal’s reasons (Ground 1). Mr Ceric submitted that it was not possible to discern from the Tribunal’s reasons why it had denied him compensation under ss 16 and 19. He also submitted that its reasons appeared erroneously to assess his right to compensation at the date of judgment;

(b)    The causation issue (Grounds 2 and 3). Mr Ceric submitted that the Tribunal had erred in its approach to the issue of causation;

(c)    The no-evidence issue (Grounds 4 and 5). Mr Ceric submitted that there was no evidence to support the Tribunal’s conclusion that he had no entitlement under ss 16 or 19 of the SRC Act because he was not totally incapacitated for work after 4 August 2012;

(d)    The credit issues (Grounds 8, 9 and 10). The Tribunal had utilized in its reasons some CCTV footage taken at the time of the incident. Mr Ceric submitted that the Tribunal’s approach to the CCTV footage rested on a misapprehension of what the evidence before it was; and

(e)    The Fox v Percy issue. Mr Ceric submitted he was entitled to apply the factual error principles established in Fox v Percy (2003) 214 CLR 118 to proceedings in the Tribunal.

23    Grounds 6 and 7, which related to alleged failures to take into account relevant considerations, were not pursued. It is useful then to deal with these issues in the above order.

5.    Adequacy of reasons (Ground 1)

24    In this Court, the Tribunal’s reasoning at [37] gave rise to two related complaints by Mr Ceric. The first was that the reasons given by the Tribunal were inadequate as a matter of administrative law. The second, pursued orally, was that the expression ‘no present liability to pay compensation’ where it appears in [37] was apt to suggest that the Tribunal had asked itself the wrong question. The correct question, it was submitted, was not whether Prosegur had a liability to pay compensation at the time that the Tribunal delivered its decision in August 2015, but rather whether Mr Ceric had ceased to be incapacitated (and, if so, when) within the meaning of s 19 and when was it that it ceased to be reasonable for Mr Ceric to incur medical expenses within the meaning of s 16.

25    These two arguments may, I think, largely be disposed of in the same way. Some degree of latitude is afforded to the form in which reasons of administrative decision makers such as the Tribunal are expressed. In a well-known passage the Full Court of this Court observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 that a reviewing court ought not to be ‘concerned with looseness in the language … nor with unhappy phrasing’ when examining the reasons of administrative decision-makers and further that ‘the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’. These statements were expressly approved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272.

26    In the present case, it may be accepted that the Tribunal’s reasons are highly elliptical. However, its abbreviated reasoning should be assessed, I think, against the way that the case was conducted before it: see Sagigi v Comcare [2009] FCA 385 at [17] per Edmonds J. In large part, the hearing was centrally concerned with the evidence of an orthopaedic surgeon, Professor Ehrlich, who gave evidence for Prosegur. He prepared three reports and was cross-examined upon them. It is evident in all three of his reports that Professor Ehrlich was, to a degree, sceptical about Mr Ceric’s claims. In his first report, in response to the question of whether Mr Ceric’s current condition was attributable to the incident, he opined:

If one accepts his account of events as being truthful then his present back pain should be attributed to the straining incident of May 2012.

27    This evidence, if itself accepted, required the person finding the facts to determine whether Mr Ceric was telling the truth before it yielded Professor Ehrlich’s opinion. Professor Ehrlich’s reports were not, of course, the only medical evidence on the issue, but the other evidence relating to it (that of Dr Gaing, Dr Searle and Dr Sheehan) depended for its utility on the accuracy of Mr Ceric’s reporting of his history and symptoms. Thus it would have been natural, once apprised of the issues in the case, to frame the debate as really being about whether Mr Ceric was a reliable witness. If the Tribunal accepted Mr Ceric’s account of his symptoms as true, then the medical evidence was unanimous in its support for the proposition that his injury was attributable to the incident. Consistent with this view, it may be observed that during Mr Ceric’s opening to the Tribunal there was discussion about Professor Ehrlich during which the Presiding Member observed:

Senior Member:     Well, he says just in that point at 3 in relation to the CCTV he says:    

If one accepts his account of events as being truthful then his present back pain should be attributed to the straining incident of May 2012.

So it’s for me to decide if I think the applicant’s being truthful about everything he has to say.

28    I draw attention to these matters because it is legitimate to take into account, in construing the reasons of the Tribunal, the nature of the matter before it and the course the proceedings themselves to that point had taken. In that regard, it is reasonably clear that the Tribunal was aware that it was conducting a rehearing of an earlier decision about ss 16 and 19. Although its reasons on this could, no doubt, have been expressed somewhat more extensively, it is reasonably clear that the Tribunal addressed itself to the correct statutory question. Further, viewed in the context of the whole hearing, it is clear that its reason for rejecting Mr Ceric’s case was because it did not believe him.

29    On the other hand, but for the way that the hearing was actually run before the Tribunal, its reasoning, which leaps effortlessly from not accepting Mr Ceric as a reliable witness immediately to a finding that he was not entitled to compensation under ss 16 and 19, might appear opaque. But when the context is brought to account, it becomes clear that the Tribunal was simply applying the logic which flowed from Professor Ehrlich’s observations. Again, no doubt, the reasons might have benefitted from a little explanation of how the Tribunal moved from not believing Mr Ceric to finding that the claims under ss 16 and 19 failed. Perhaps some brief hint or distant allusion to what those provisions were about would have given the reader more of a chance. But reading the reasons with the appropriate degree of latitude and in light of the transcript of the hearing it is, I think, clear what that reasoning was.

30    I reject therefore the arguments based upon the alleged inadequacy of the Tribunal’s reasons and the related argument that [37] asked the wrong question by the use of the words ‘no present liability’.

6.    Causation (Grounds 2 and 3)

31    The Tribunal’s conclusion was that Mr Ceric was not suffering from any incapacity after 4 August 2012. Although it is not necessarily as clear as it could be, the material before the Tribunal did suggest that Mr Ceric was suffering from some pre-existing back and neck conditions prior to the incident. These consisted of injuries to his back suffered in an accident in 2006 and a car accident in 2008. The Tribunal appeared to accept that in the weeks before the incident on 24 May 2012 he had consulted his general practitioner about back pain.

32    I have experienced some difficulty in grasping just precisely what Mr Ceric’s causation argument was. On its face, it seems clear that the Tribunal concluded that Mr Ceric was not suffering any incapacitating injury after 4 August 2012. That conclusion does not involve any issue of causation. The Tribunal did not, for example, say that it was satisfied that Mr Ceric was incapacitated but that it did not accept that his incapacity had been caused by the incident on 24 May 2012. Had that been its conclusion, I would have been able to understand what the causation argument was.

33    However, the Tribunal made no such finding. Indeed, although it did refer to Mr Ceric’s pre-existing injuries, it did so without making any explicit finding about them and did so rather as an integer of a broader argument (based on what Mr Ceric had told his treating doctor) that his account was unreliable. That use provides no good reason for thinking that the Tribunal thought him incapacitated by those pre-existing injuries rather than the sequelae of the incident of 24 May 2012.

34    Another variant of the argument urged both in writing and at the hearing placed reliance on what Menzies J said in Watts v Rake (1960) 108 CLR 158 at 163:

Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of the defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling – e.g., the loss of an only eye – does not mean that damages are not to be assessed according to the circumstances of the particular case.

35    Other passages in the reasons for judgment of Dixon J at 159-160 were also relied upon to similar effect.

36    If the Tribunal had accepted that Mr Ceric was in bad health on and after 4 August 2012 this might have had some relevance. However, it did not. In that circumstance, Watts v Rake is irrelevant.

7.    No evidence (Grounds 4 and 5)

37    Several points were collected together under this heading. First, it was said that there was no evidence that Mr Ceric was not incapacitated on and after 4 August 2012 and, in particular, that Professor Ehrlich had not opined to the contrary. This argument should not be accepted. Professor Ehrlich’s evidence was that if one accepted Mr Ceric’s account of events as truthful, then the pain from which Mr Ceric said he was suffering could be attributed to the incident on 24 May 2012. As a matter of formality, it is correct to say that Professor Ehrlich made no positive suggestion that Mr Ceric was not incapacitated on and from 4 August 2012. But the formality of this statement and its corresponding aridness in the field of persuasion should be acknowledged. Professor Ehrlich’s opinion was expressed as a conditional statement the hypothesis of which rested upon the reader’s belief in Mr Ceric’s veracity. When there is brought to account, as there must be, the fact that the Tribunal, as the relevant reader, did not believe Mr Ceric’s version was wholly truthful, then Professor Ehrlich’s evidence had the content of a conditional statement the hypothesis for which had not been satisfied. This meant that the conclusion (that the pain he was suffering from was a result of the 24 May 2012 incident) was not established.

38    Mr Ceric is right to point out that a failure to satisfy the hypothesis does not result in proof of the opposite of the conclusion. For example, it may well be the case that if the sky is blue it is not raining, but it does not follow that just because the sky is not blue that it is raining. Nevertheless, in my opinion, this matter goes nowhere. The questions before the Tribunal were those arising from ss 16 and 19 of the SRC Act, that is to say, whether Mr Ceric remained incapacitated after 4 August 2012 and whether any medical expenses incurred by him after that date could be seen as having been reasonably incurred.

39    Although in various contexts the concept of the onus or burden of proof is sometimes imposed on particular kinds of proceedings, in the Tribunal that is not so (at least in the present case; cf. Taxation Administration Act 1953 (Cth), s 14ZZK(b)). Part VI of the SRC Act deals with review by the Tribunal of decisions made by Comcare or, as here, a licensed employer. Although Part VI makes some modification to the general procedures of the Tribunal, such minor changes as are wrought do not include amongst their number the erection of a burden of proof. Hence, what Brennan J said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 remains apposite: the Tribunal is an administrative decision maker ‘under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. … The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.’ See also the helpful discussion by Jagot J of the issue in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [31]-[34].

40    What the Tribunal was required to be satisfied of was the factual prerequisites which would enliven ss 16 and 19. By the time that the Tribunal arrived at this issue, it had rejected Mr Ceric as an unreliable witness. Because of that conclusion, it was able to put aside the favourable medical reports upon which he relied because they were based on the history of symptoms that he had related to the doctors who had written those reports. It is true that Professor Ehrlich’s evidence did not, at that point, provide affirmative evidence that Mr Ceric was not incapacitated from 4 August 2012, but the point at which the Tribunal had by then arrived was that it had nothing before it (as a result of its own conclusions) that would have allowed it to conclude that Mr Ceric was incapacitated after that date.

41    Because there is no burden of proof in proceedings such as the present kind this did not, as a matter of procedure, immediately require the Tribunal to conclude that Mr Ceric’s claims under ss 16 and 19 failed. As Brennan J noted in Bushell itself, the Tribunal could have made further inquiries or compelled the production of further material. It is, after all, empowered by s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) to inform itself ‘on any matter in such manner at it thinks appropriate’, and its powers include both those designed to assist in the elucidation of testimony on oath (s 40) and the compulsory eliciting of such testimony and documents (s 40A).

42    In this case, the Tribunal took no such step. It decided on what was before it that Mr Ceric did not have an entitlement under ss 16 or 19. At this point, it becomes clear that its conclusion was not that Mr Ceric was not incapacitated after 4 August 2012, but rather that it was not satisfied that he was incapacitated. These two statements, immersed as they are in a soup of double negatives (cf. paragraph [37] above), may appear similar but, in point of principle, they are not. The latter involves a positive assertion about a factual state of affairs; the former does not. Once that is appreciated, it will be seen that Mr Ceric’s no evidence argument about Professor Ehrlich’s evidence involves a false step. There was, indeed, no evidence that Mr Ceric was not incapacitated after 4 August 2012 but there was also, on the conclusions that the Tribunal had reached, no evidence that he was. Since the question for the Tribunal was whether it was satisfied that he was incapacitated after that date this evidentiary vacuum strongly, perhaps inevitably, pointed to the conclusion that ss 16 and 19 had not been enlivened. In that circumstance, the Tribunal was neither required to find that Mr Ceric was not incapacitated after 4 August 2012 nor did it in fact do so. Mr Ceric’s submission that there was no evidence that he was not incapacitated after that date is unsound, not because there was any such evidence, but because the Tribunal did not make a finding that he was not incapacitated after that date. Put another way, there was no evidence but there was also no finding.

43    A related submission of Mr Ceric’s relied upon Professor Ehrlich’s statement that Mr Ceric should be gradually returned to work. This was said to show that his evidence was that Mr Ceric was, indeed, still incapacitated. However, this submission involves a misstatement of Professor Ehrlich’s evidence, which was premised upon the reader of his report accepting that Mr Ceric was telling the truth about his injury.

8.    Credit issues (Grounds 8, 9 and 10)

44    This part of the case turns on some CCTV footage of the incident. For present purposes its contents are not important. What is important are some aspects of the Tribunal’s reasoning relating to it. The critical paragraphs are [13] and [34]. They are as follows:

13.    The applicant was played CCTV footage showing him, very soon after the incident, emerging from the security van. The applicant did not appear to show obvious signs of discomfort or distress, and he went about his duties which involved carrying money bags weighing, he said, 10-15 kgs, quite freely. Neither did it show him being assisted by his work colleagues as he had claimed.

…

34.    His evidence was clear: the incident of 24 May 2012 was of such severity that his appearance soon thereafter was such that it prompted a work colleague to ask if he required an ambulance. Nonetheless the CCTV footage, in my view, clearly showed him going about his duties without any apparent difficulties. In the applicant's submissions, the point was made that it is “trite medico legal jurisprudence to submit that symptoms do not reach their full extent immediately after the traumatic event” and the respondent conceded that this observation is generally correct. As such, the applicant submitted, little weight should be attached to the CCTV evidence. However, here, the applicant unequivocally asserted that his condition after the incident was so bad as to potentially warrant the calling of an ambulance. I accept the respondent’s submission that what is depicted on the CCTV footage readily shows that claim to be demonstrably false.

45    Mr Ceric criticises the following three statements contained in these two paragraphs:

(a)    that the money bags weighted 10-15 kgs;

(b)    that he had claimed to have been assisted by his work colleagues; and

(c)    that he had given evidence that his appearance was such that after the incident it had prompted a colleague to ask if he needed an ambulance.

8.1    The weight of the money bags

46    The evidence in relation to (a) arose only from the cross-examination of Mr Ceric at T 21:

Money, okay. It looks like there were two parcels? --- Yes.

Okay, how much would they weigh each? --- I don’t know.

Ten kilos? --- Possibly.

Seventeen? --- I wouldn’t go that far.

All right, 10 to 15 kilos each? --- Depends how much money is in there.

47    It will be apparent that the reference to 10-15 kgs was the cross-examiner’s and not Mr Ceric’s. Mr Ceric’s response was not that the cross-examiner’s statement was correct, but that it rather depended on how much money was in the bag. Mr Hanks QC, for Prosegur, submitted that this was nevertheless evidence that the bags weighted 10-15 kgs. I am not sure it is very good evidence for that proposition, but I do accept that it is some evidence for it and that the Tribunal could permissibly infer from it that the weight of the bags was in that range.

8.2    Assistance by work colleagues

48    As to the suggestion that he had said that he had to be assisted by his work colleagues, Mr Ceric gave no such evidence in either of his statements. He was cross-examined, however, about the CCTV footage. On the day in question there were three men working on the truck, two guards and a driver. The CCTV footage does not show the incident itself but it does show Mr Ceric carrying the bags containing the cassettes holding the money into the convenience store and then carrying them back out again (presumably empty).

49    The cross-examiner pursued a line of questioning with Mr Ceric that if he had been in the kind of pain he was claiming then it would have been expected that the other guard (a Mr Murphy) could have carried the bags or at least that Mr Ceric could have asked him to do so.

50    So, for example, this exchange occurred at T 21:

Why? But you’ve told us you’d suffered this fairly debilitating back pain, bad enough for someone to suggest that an ambulance should be called? --- Well, I took a time, stopped, had a – to relax a little bit and just wanted to get a – get away from there because the nature of our job is to be on a site as a – as less as possible, for the safety issues, and at that point my only – only thing was that the job gets finished, that we getting to the safety of truck, and that’s it, yes.

All right. But if your pain was as bad as you say it is it could have been Mr Murphy who carried these things in, couldn’t it? --- Well, could have. Yes, yes, he could have.

Never asked him? --- To be honest, no, I haven’t even thought about it.

Haven’t even thought about it? --- Yes, sir.

51    It was not possible to see from the CCTV footage what was happening inside the store where the ATM was being loaded. The cross-examiner nevertheless suggested to Mr Ceric that what had happened in the store was that Mr Ceric had switched the cassettes himself. At this point Mr Ceric volunteered something which did not appear in either of his statements. He said that whilst he could not actually recall, Mr Murphy would have been the one who swapped the cassettes. This exchange occurred at T22:

What were you doing at this time? --- Well, probably would be finish the front of the machine – I mean, sorry, I have to recall which type of machine we were servicing, just ---

Well, whatever machine it may have been, can I suggest to you that you were doing – you’re taking out of the cassettes, to take away, containing money, and putting the fresh cassettes in? --- I would – I – unfortunately I can’t remember because it was a long time ago, but I would say that – that Mr Damien Murphy would have swapped them for me and I would just finalise the packaging cassette.

You would say that Mr Murphy would have done it? --- I would say so. I would say so that he swapped – swapped them for me.

52    There was then a somewhat inconclusive exchange as to whether Mr Ceric had asked Mr Murphy to carry the cassettes back out to the truck at T22:

Well, in view of the back pain that you were suffering did you ask Mr Murphy to carry out the ---? --- I ask him to swap the cassettes for me, because you have to go on the ground and you have to bend, and you have to get into the machine, yes.

I see. None of this is in your statement, is it? --- Well, it should be. Whatever happened between all three of us all were there, there was – should be already written. I don’t know.

None of this is recorded in any of your statements, is it? --- (No audible reply)

Do you agree with that or not? --- Yes, I agree with that, yes.

53    The cross-examiner did not succeed in getting Mr Ceric to say that he had asked Mr Murphy to carry out the bags. This turned out to be fortunate for Mr Ceric as the cross-examiner then showed him further CCTV footage which featured Mr Ceric himself carrying the bags back out to the truck. The cross-examination then reached its denoument on this topic which was a suggestion that if Mr Ceric had truly been hurt as he had claimed then he would have sought help from Mr Murphy and would not have been carrying the bags. This exchange occurred at T23:

Your evidence in all of this material is that after the incident in the truck you were suffering debilitating severe back pain, isn’t that so? --- Well, back pain, Yes.

Bad back pain? --- Could be bad, yes, bad pain.

How can you explain then when you’ve got two other work colleagues there that it’s you who’s been inside, I suggest to you, did all of the changeover at the ATM, and then is seen carrying out these boxes? --- Your question?

Can you explain that? --- I can’t.

You can’t? --- No.

54    The only evidence, therefore, that Mr Ceric sought assistance from colleagues was his evidence that inside the store he had asked Mr Murphy to swap the cassettes. Because the ATM machine was inside the store and out of sight of the CCTV camera, this was not evidence which could be contradicted by that footage.

55    Accordingly, I accept the submission of Mr Ceric that the sentence in [13] ‘Neither did it show him being assisted by his work colleagues as he had claimed’ is, as to the italicised portion, a materially incomplete statement of the evidence, and as to its critical component unsupported by any evidence. Mr Ceric made no claim to have been assisted by anyone apart from Mr Murphy. The only evidence bearing on this topic was, as I have said, that Mr Murphy swapped the cassettes out of sight of the CCTV camera. Mr Ceric gave no evidence that he had been assisted by anyone in the area which was being monitored by CCTV. The Tribunal’s next deductive step – that the CCTV footage contradicted Mr Ceric’s claim to have been assisted by colleagues – rests on no evidence, for Mr Ceric gave no evidence of any such claim which the CCTV footage could contradict. This point is made good.

8.3    The ambulance evidence

56    I turn then to the Tribunal’s conclusion at [34] that ‘His evidence was clear: the incident of 24 May 2012 was of such severity that his appearance soon thereafter was such that it prompted a work colleague to ask if he required an ambulance’. The use to which this evidence was put was to contrast his claimed state of distress with what the CCTV footage was said to show: Mr Ceric walking comfortably with the bags or, as the Tribunal put it at [34], ‘[n]onetheless the CCTV footage, in my view, clearly showed him going about his duties without any apparent difficulties’.

57    I am not sure Mr Ceric’s evidence about this was as ‘clear’ as the Tribunal’s reasons suggest. In his statement of 28 June 2012 Mr Ceric said this:

22.    The driver was in the truck and the escort was standing next to the ATM. The escort person was Damien Murphy. He was standing about a metre and half in front of me. He asked me if I was ok. I said that I had just slipped over the stair and had a pain in my back.

23    Damien then asked me again if I was ok and whether I wanted him to call an ambulance. I thought it would cause a lot of problems to call an ambulance as I had prohibited items on me. I said we should just finish the job and go home.

24.    I had some panadol which I got from Pedro.

58    In another statement of 4 November 2013 Mr Ceric gave this essentially identical account:

26.    One of my colleagues asked me if I was okay and if I needed an ambulance. I declined an ambulance as it would cause difficulties with the weapon and bullet proof vest I had on me as part of my duties.

27.    I received ‘Panadol’ from my other colleague, before we completed the job and returning to the depot.

59    Mr Ceric was cross-examined about this. He was first taken to paragraphs 22 and 23 of his first statement (above). The following exchange then took place:

Okay. Can we conclude from those paragraphs that the pain that you suffered was very severe? Within a moment, yes.

Okay, within a moment, and it continued to be?--- I – I could say yes.

Okay. So severe that your appearance was such that Damien Murphy asked if you wanted an ambulance called? --- Well, maybe the way I – I looked or.

Well, were you bent over, were you sitting down, were you leaning against something? --- I was actually holding the – behind my back on a bullet proof vest, yes.

Okay, so how soon after the incident was that? --- Soon I walked out.

As soon as the incident occurred? --- Yes, that’s right.

I see, all right. All right. And you say you declined that offer? --- Yes, I did.

60    It will be seen that the link between Mr Ceric’s appearance and Mr Murphy’s calling of the ambulance was, once again, drawn not by Mr Ceric but by the cross-examiner. I was, it should be noted, not taken to any other part of the evidence on this topic. I would hesitate to say that Mr Ceric’s response ‘Well, maybe the way I – I looked or’ is an unequivocal ‘yes’. Nevertheless, in assessing what this exchange actually means it is important to keep in mind that transcript is a very poor substitute for being there. It is possible that the way Mr Ceric said these words, or indeed the body language which accompanied them, indicated to those in the hearing room that Mr Ceric was signifying his assent to the cross-examiner’s proposition. In that regard, it may be possible to see Mr Ceric’s fragmentary answer as the stub of a never-completed affirmative response. That view is arguably consistent with the next answer that Mr Ceric gave which, although itself not totally clear, seems to suggest that he reactively adopted some sort of posture – perhaps hands behind back (the locus of pain) on his bullet proof vest.

61    The transcript is therefore somewhat equivocal. However, it is consistent with readings which could well have given the Tribunal the impression that Mr Ceric did say that his appearance caused Mr Murphy to ask whether he needed an ambulance. In that circumstance, I am not willing to say that there was no material before the Tribunal which could justify the conclusion that Mr Ceric’s evidence had been to the suggested effect.

8.4    Conclusions on the no evidence argument

62    I accept therefore that Mr Ceric has succeeded in demonstrating that the Tribunal’s conclusion at [13] that the CCTV footage contradicted his evidence that he had been assisted by work colleagues is without any support in the evidence, for he gave no such evidence which the CCTV footage could contradict. On the other hand, I do not accept that the Tribunal’s reference to the bags weighing 10-15 kgs lacks an evidentiary basis. I also do not accept that there was no evidence to support the finding at [34] that he had said that his injury was of sufficient severity that it had prompted a colleague to call an ambulance.

63    What follows from this? A finding of fact for which there is no evidence involves an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, 365 and 387. Whether there was no evidence to support a finding of fact is therefore a question of law within the meaning of s 44(1) of the AAT Act. In my view, paragraph [13] of the Tribunal’s reasons contains such an error. Arguably, however, the reasoning at paragraph [13] may not necessarily be dispositive. The critical finding is at paragraph [34] where the Tribunal assessed whether the CCTV footage contradicted Mr Ceric’s evidence that a work colleague had been prompted to inquire whether he needed an ambulance. It said at the end of paragraph [34] ‘I accept the respondent’s submission that what is depicted on the CCTV footage readily shows that claim to be demonstrably false’.

64    So the apparently material finding is that Mr Ceric had given demonstrably false evidence about a work colleague being prompted to ask whether he needed an ambulance (i.e. paragraph [34]) not whether he needed assistance (i.e. paragraph [13]). The Tribunal went on to give two further reasons why it thought him unreliable. The first at paragraph [35] was to observe that he had said that he had not suffered back or neck difficulties in the period immediately preceding the accident, but was then shown to have attended his general practitioner a few weeks before the accident on three occasions complaining of back pain and, indeed, also to have been referred to a specialist in pain management. The Tribunal detected another similar inconsistency in the history given to Dr Searle (who gave evidence) wherein Mr Ceric failed to report any symptoms in the lead up to the accident.

65    It is clear therefore that the Tribunal could have arrived at the same conclusion as it did without recourse to the finding at paragraph [13]. However, I cannot be clear to the requisite standard that if the finding at paragraph [13] had not been made, the finding at paragraph [34] would still have been made. In particular, I am unable to exclude the possibility that the Tribunal’s approach to the ‘ambulance’ evidence at paragraph [34] may have been coloured by its earlier approach to the ‘assistance’ evidence at paragraph [13]. In that circumstance, I am not prepared to say that the error of law disclosed in paragraph [13] lacks materiality.

66    For completeness, I note that no argument was raised before me that the no evidence ground was only available in Tribunal proceedings in relation to a jurisdictional fact: cf. Bell v Commissioner of Taxation [2012] FCA 1042 at [84] per Gordon J. To my mind, this appears to be a contestable proposition in any event. The authority cited in Bell for the proposition was VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [19] per Heerey J. However, that case concerned a judicial review action in relation to a decision of the Refugee Review Tribunal, where the only grounds available of any kind were jurisdictional. The grant of appellate jurisdiction to this Court under s 44 of the AAT Act is not in any way limited to jurisdictional issues and it may be difficult, with respect, to see that the reasoning in VWBF is apposite in that context. The point not having been raised, however, there is no need for me to express a concluded view on the matter.

8.5    Fairness of dealing with Mr Ceric’s credit when the incident was not disputed

67    The decision of the Reconsiderations Officer did not directly conclude that Mr Ceric’s account was unreliable (although it may be that as a matter of logic it must have done so implicitly). In any event, Mr Ceric submitted in this Court that it was ‘improper’ for the Tribunal to decide the matter on a credit basis where his credit had not previously been in issue. A related submission was that it was not fair to challenge Mr Ceric’s credit where the fact of his incident was accepted. Both of these points have the flavour of a procedural fairness argument which was not encompassed in the notice of appeal. An intention to add a procedural fairness ground to the notice of appeal was flagged in writing but not pursued at the hearing. I do not think that there is, therefore, any argument requiring resolution. I will proceed on the basis, however, that there is an issue.

68    It may readily be accepted that there is a curious tension between the Tribunal’s conclusion that Mr Ceric was making it up when it came to how long his injury lasted, but its acceptance of his evidence that the incident had actually occurred. More is this so when the conclusion that he was not reliable was reached on the basis of CCTV footage taken at the time of the incident. Why find that there was an incident at all? The answer, I think, is that this was the position Prosegur adopted at the hearing. It is an odd outcome. However, I do not see that the strangeness of what the Tribunal has done at the behest of Prosegur is procedurally unfair or improper.

9.    Fox v Percy

69    The applicant also advanced his arguments relating to grounds 8, 9 and 10 by reference to authorities such as Fox v Percy (2003) 214 CLR 118. It was said, for example, that this Court should examine the whole course and substance of the hearing in assessing whether the Tribunal’s factual conclusions were correct. This submission should be rejected. This Court’s jurisdiction in appeals under s 44 of the AAT Act is limited to questions of law. The standard of factual review involved in Fox v Percy arose in relation to the New South Wales Court of Appeal which was obliged by s 75A of the Supreme Court Act 1970 (NSW) to conduct a rehearing and was authorised by subs (6) to make findings of fact in the course of conducting that rehearing. By contrast, an appeal to this Court under s 44 is not by way of rehearing. The principles in Fox v Percy have, therefore, no application to such an appeal.

10.    Disposition of the Appeal

70    It is not necessarily self-evident that the appeal should be allowed. A substantial case can be made for the proposition that the error that I have concluded was made was immaterial. In favour of that view are the following factors:

(a)    the credit findings at paragraphs [35] and [36] involve orthodox reasoning. It appears that Mr Ceric was caught out seeking to conceal back pain he had been suffering in the period just before the incident;

(b)    the CCTV footage does not appear to show obvious signs of distress;

(c)    no error was involved in reaching the conclusion that Mr Ceric was not telling the truth on the basis of the evidence concerning the calling of the ambulance (at paragraph [34]); and

(d)    the erroneous finding at paragraph [13] does not get mentioned again at paragraph [34] and may not have been crucial to the Tribunal’s reasoning process.

71    On the other hand, there are some factors which tend in the opposite direction:

(a)    it is impossible, as I have said, to be sure that the adverse finding at paragraph [13] did not have some impact on the Tribunal’s approach to the issues at paragraphs [34]-[36], even if it is not mentioned;

(b)    the CCTV footage shows Mr Ceric clutching his back at the convenience store in a manner apparently similar to that described by him at [59] above. In that regard, it is significant that at the time that he gave that evidence he had not been shown the CCTV footage; and

(c)    although I have concluded that the reasons of the Tribunal are adequate in a legal sense, the brevity of their expression, their failure to refer to basic matters such as what the issues before the Tribunal were and the related omission to make properly formulated findings of fact by reference to the evidence, do not leave me with a great sense of confidence that this decision, which is after all of some moment to Mr Ceric, was perhaps made with the care which it warranted.

72    One has then the situation that a material error of law is shown, there are plausible reasons to think that the Tribunal may well have arrived at the right conclusion and yet one has an uneasy sense that the matter has not really been looked at thoroughly. Not without some hesitation, I propose to allow the appeal with costs. The matter will be determined afresh before a differently constituted Tribunal.

Associate:

Dated:    7 September 2016