FEDERAL COURT OF AUSTRALIA
Freeman v Military Rehabilitation and Compensation Commission [2018] FCA 394
ORDERS
Applicant | ||
AND: | MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave be granted to amend the Amended Notice of Appeal From a Tribunal to add proposed ground 3(c).
2. The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.
3. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KENNY J:
1 This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal affirmed the decision of the Military Rehabilitation and Compensation Commission (MRCC) to refuse a claim made by the applicant, Ms Penelope Freeman, for compensation for malignant melanoma under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal found that Ms Freeman’s melanoma, first treated in July 1999, was not an “injury” for the purposes of the SRC Act because the Tribunal was not satisfied that the melanoma was contributed to in a material degree by Ms Freeman’s service in the Australian Army Reserve (Army Reserve). The Tribunal’s decision has the citation Freeman and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 741.
2 For the reasons that follow, the appeal should be dismissed.
background
3 The background facts are set out in the Tribunal’s reasons for decision: see [2016] AATA 741 at [3]-[7]. They were stated to be as follows.
4 Ms Freeman, who was born in 1970, moved from Melbourne to Townsville in 1976.
5 Between January 1988 and September 1993, she worked as a bank teller in Townsville. In her work as a bank teller, she wore at different times shorts, long trousers, short and long skirts, and short-sleeved and long-sleeved shirts.
6 Ms Freeman enlisted in the Army Reserve in July 1991 as a unit pay clerk/soldier. She served until September 1993 when she went to live in London. In 1995 she returned to Townsville. She re-enlisted in the Army Reserve in January 1996. She served in the Army Reserve until 3 November 1999 when she enlisted in the Regular Army.
7 During her service in the Army Reserve, Ms Freeman was posted to Townsville and exposed to its tropical climate.
8 Ms Freeman’s service in the Army Reserve required her to perform approximately 100 days per year in indoor and outdoor work. At different times, she wore a hat, short-sleeved, or long-sleeved shirt with the sleeves rolled up, and shorts or long trousers. She was not supplied with sunscreen during her service in the Army Reserve.
9 In about September 1999 Ms Freeman had a wide excision of a level 2 melanoma from her anterior left upper thigh. She had first received treatment for that condition in July 1999. In 2010 she was diagnosed with left groin recurrent node positive melanoma, with one of 14 nodes positive, and she underwent a left radical groin dissection in September 2010. Since then Ms Freeman has had further recurrences of metastatic disease in her brain, left lung and right shoulder, and she has had further surgical and other treatment.
10 The MRCC, which is the respondent in this appeal, also drew attention to the Tribunal’s references to Ms Freeman’s own statements, in a Solar Skin Damage Questionnaire (SSD Questionnaire), that prior to service her interests included indoor and outdoor basketball, sailing, bike riding, swimming, walking and hiking. The MRCC also referred to the Tribunal’s reference to Ms Freeman’s statement that she had holidayed for periods on Magnetic Island when she was growing up, as well as references to the fact that Ms Freeman apparently had a light skinned complexion, as noted in a report by Professor Richard Fox.
11 As indicated, included in the documents before the Tribunal were various medical reports.
procedural history
12 Ms Freeman lodged a claim on 11 March 2014 for compensation for malignant melanoma on her left thigh as a result of her exposure to sun during her service in the Army Reserve. On 12 September 2014 a delegate of the MRCC denied the claim on the basis that Ms Freeman’s service had not materially contributed to the contraction of the malignant melanoma. The MRCC subsequently reconsidered and affirmed that determination on 12 February 2015.
13 The Tribunal affirmed the MRCC’s decision on 23 September 2016. There was no substantive oral hearing before the Tribunal and witnesses were not subject to any cross-examination. Rather, with the parties’ consent, the hearing of the matter proceeded before the Tribunal “on the papers”. The circumstances in which this occurred and some related matters are the subject of an affidavit sworn by Ms Freeman’s solicitor, Mr Michael Jorgensen, on 6 June 2017.
14 Ms Freeman filed a notice of appeal to this Court under s 44 of the AAT Act in October 2016. At the hearing in June 2017, she relied on an amended notice of appeal. As discussed at the hearing, she now seeks leave to file a further amended notice of appeal.
15 There were numerous sets of written submissions filed by the parties in this Court, the last being the applicant’s “Outline of submissions in reply concerning question of law (3)(c)” dated 7 August 2017.
16 It is convenient to note at this point that, prior to the hearing, a notice to admit under r 22.01 of the Federal Court Rules 2011 (Cth) was filed on Ms Freeman’s behalf. The notice related to the Chambers 21st Century Dictionary (1999, reprinted 2004, Chambers) (the Chambers Dictionary) and Blakiston’s Gould Medical Dictionary (4th edition, 1979, McGraw Hill) (the Blakiston’s Dictionary) to which the Tribunal referred in its reasons at [79] and [80], and required the MRCC to admit the truth of the following:
1. The extracts were not placed before the Administrative Appeals Tribunal by the parties.
2. In arriving at its decision, the Administrative Appeals Tribunal took into account the extracts:
(a) without informing the parties;
(b) without giving the parties an opportunity to inspect the extracts;
(c) without giving the parties an opportunity to make submissions in relation to the extracts.
The MRCC accepted that neither party placed the relevant extracts from these two dictionaries before the Tribunal and that the Tribunal did not inform the parties that it was proposing to have regard to these extracts.
relevant legislation
17 The MRCC has responsibility for determining defence-related claims under the SRC Act: see s 142(1)(a). Ms Freeman’s claim was a “defence-related claim” because it was made in respect of an injury to which the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA) does not apply, and it relates to defence service that occurred before 1 July 2004 (being the MRCA commencement date): see s 141.
18 It is not disputed that Ms Freeman’s injury or disease was suffered before 12 April 2007. This fact is relevant to the applicable legislation. Although the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) amended the definitions of injury and disease, the amended definitions applied only to an injury or disease suffered after 12 April 2007: see Schedule 1, Part 2, items 41 and 42. As a result, the form in which the SRC Act stood before 13 April 2007 is applicable in this case.
19 Section 14(1) relevantly provided that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
20 Section 4(1) defined the term “injury” to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
21 Section 4(1) defined the term “disease” as follows:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
The term “ailment” was also defined in s 4(1) as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
22 It was accepted that Ms Freeman was an “employee” within the meaning of these provisions.
23 Section 7(1) was also considered in the Tribunal’s decision. At the relevant time, it was in the following terms:
Where:
(a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b) the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and
(c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.
24 Section 7(4) stated:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
25 It was not disputed that a relevant Notice was published in the Government Gazette dated 30 November 1988 and numbered S365 (1988 SD Notice), in which the Minister specified kinds of diseases and kinds of employment including the following at Item 25:
DECLARATION UNDER s 7(1) | |
Specified diseases and specified employments | |
Occupational Diseases | Employment involving exposure to risk |
… | … |
25. Skin diseases caused by physical, chemical or biological agents not included under other items. | Employment involving exposure to the risk concerned.” |
… | … |
the tribunal’s decision
26 At the outset of her reasons (at [1]), the Tribunal stated that it had decided that:
[M]elanoma is a disease and not an injury (other than a disease) for the purposes of the legislation. Even if Ms Freeman’s melanoma is a disease of a kind specified by the Minister as a disease related to a kind that she undertook in the Reserves under s 7(1), I have decided that the presumption that would be raised by that provision does not arise. It does not arise because I am satisfied that Ms Freeman’s employment in the Reserves did not contribute in a material degree to her contracting melanoma.
27 In this proceeding, Ms Freeman did not challenge the Tribunal’s interpretation and application of s 7 of the SRC Act, although significant parts of the Tribunal’s reasons for decision were focussed on that provision.
28 The Tribunal discussed the medical evidence, including the reports of Dr Felix Sedal of 22 January 2014 and 14 May 2014 and the reports of Professor Richard Fox of 10 September 2014 and 17 December 2015: see further below. It also referred to the SSD Questionnaire completed by Ms Freeman. The Tribunal found that the 10 September 2014 report of Professor Fox supported the conclusion that Ms Freeman had had only one skin melanoma and that her subsequent diseases are the recurrence and metastatic diseases from the original primary lesion.
29 In making the challenged decision, the Tribunal considered Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 (MRCC v May). It also discussed or referred to other authorities, including Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; 200 CLR 286 (Kennedy Cleaning Services) and Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; 187 CLR 310 (Zickar). Relevantly for the questions arising in this proceeding, under the heading “Distinguishing between an injury (physical or mental) and a disease”, the Tribunal (at [69]) observed that “[i]n order to determine whether a person has suffered an injury or a disease, close regard must be had to the evidence”. The Tribunal then set out paragraphs [39]-[40] of the joint reasons for judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services, in which their Honours said:
All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment …. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met. …
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.
30 Under the subsequent heading “Is malignant melanoma a disease or an injury (other than a disease)?”, the Tribunal continued ([2016] AATA 741 at [70]-[80]) as follows:
70. Whether an employee relies on the definition of a “disease” or the presumption in s 7(1) on which to base a claim for compensation, the condition in relation to which compensation is sought must be properly characterised. Putting aside causal or temporal issues related to the employee’s employment, is that condition a disease or an injury? On behalf of Ms Freeman, Ms Spencer of counsel submitted in the first instance that malignant melanoma is a disease as that term is defined in s 4(1) of the SRC Act. It is an ailment that was contributed to in a material degree by her employment with the Army or with the Reserves. Mr Wallace of counsel took the same position of behalf of the MRCC. Alternatively, she submitted that it was an injury.
71. Following the High Court’s handing down its judgment in May, Ms Spencer focused on her submission that Ms Freeman had suffered an injury. She submitted:
“In this case, the evidence before the Tribunal is that the applicant developed malignant melanoma. This evidence includes the applicant’s evidence, the medical records concerning her diagnosis and treatment and the expert medical evidence before the Tribunal. The applicant’s development of a malignant melanoma, being a cancerous tumour of the skin, involved a ‘physiological state’. It involved a development of an ascertainable lesion on her thigh, a change to the normal state and functioning of her skin cells, and constitutes an ‘injury (other than a disease)’ within s 4(1). …”
72. I have omitted the reference in Ms Spencer’s Footnote to the case of Accident Compensation Commission v McIntosh [[1991] 2 VR 253] (McIntosh) in support of her submission that Ms Freeman’s malignant melanoma is an injury other than a disease. I understand the citation to refer to the following passage from Murphy J’s judgment [at 257]:
“It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change causing incapacity and occurring during a protected period is an ‘injury’ within the meaning of the Workers Compensation Act (Vic.).”
73. McIntosh was a case to which Gageler J referred in his judgment in May as an example of the need to look beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations. He described the condition considered by the Full Court of the Supreme Court of Victoria and found to be an injury in McIntosh as “rupture of blood vessels”. That might be thought to support Ms Spencer’s submission that Ms Freeman’s suffering an ascertainable lesion on her thigh, and so a change to the normal state and functioning of her skin cells, leads to the conclusion that she suffered an injury.
74. I respectfully suggest, however, that it does not when regard is had to the whole passage in Gageler J’s judgment. It does not do so, I also suggest, when regard is had to the judgment of Murphy J in McIntosh or to the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning, to which I have referred at [63] above and which makes specific reference to McIntosh. Before there can be said to be an injury, there must be something more than a change from the normal state and functioning of the human body to an abnormal state. That change must have come about in a way that is, as held by the plurality in May, a definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.
75. I will begin with the judgment of Murphy J, with whom Crocker and Cummins JJ concurred. Ms McIntosh suffered a cerebral haemorrhage while at work. Under the Accident Compensation Act 1985 (Vic), her cerebral haemorrhage was deemed to have arisen out of, or in the course of, her employment. The only issue was whether it was an “injury”, which was defined to mean “any physical or mental injury”. At first instance, the Accident Compensation had found that it was an injury. The cerebral haemorrhage was the consequence of a rupture and bleeding on the right-hand side of Ms McIntosh’s brain and was probably due to a congenital malformation of the blood vessels although rupture could have occurred without any arteriovenous malformation. Ms McIntosh had not claimed compensation in respect of that underlying condition.
76. The Accident Compensation Commission had argued that Ms McIntosh had an underlying malformation of the arteriovenous formation in the brain to which the haemorrhage was due. Therefore, the malformation fell within the definition of “disease”. Ms McIntosh’s position was that the aetiology of the rupture and haemorrhage might be medically interesting but was not a relevant consideration in deciding whether the episodic rupture of blood vessels causing haemorrhage in the brain is a physical injury.
77. Citing the judgment of Dixon CJ in Kavanagh v The Commonwealth [[1960] HCA 25; (1960) 103 CLR 547 at 553] and of Fullagar J in The Commonwealth v Hornsby [[1960] HCA 27; (1960) 103 CLR 588 at 596-597], Murphy J said [[1991] 2 VR 253 at 256] that it did not assist the Accident Compensation Commission to argue that the underlying defect, which predisposed Ms McIntosh to suffer a rupture and to haemorrhage, may well have been a disease. It did not assist the Accident Compensation Commission to argue that an aggravation, acceleration or exacerbation of that underlying disease would not have been an injury unless employment was a contributing factor to it.
78. The passage to which Ms Spencer referred and that I have set out at [72] above, sits between the following two paragraphs:
“Latham CJ in the same case [Hume Steel v Peart [1947] HCA 34; (1947) 75 CLR 242] said, at pp. 252-3: ‘It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect to the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury.”
…
In Willis v Moulded Products Sholl J. said, at p. 70: ‘I do not myself see why under the Victorian Act, a defined, separate, and observable step in the progress of a disease (occurring during a protected period) should not, if it produces incapacity or death, be compensatable [sic].’”
79. When read in its immediate context and the wider context of his whole judgment, it is clear that Murphy J was referring to a “lesion” in the sense of an “injury or wound” [Chambers 21st Century Dictionary, 1999, reprinted 2004, (Chambers)] and not in its sense of simply “an abnormal change in the structure of an organ or tissue as a result of disease or injury”[Chambers]. Both meanings are open in the ordinary sense of the word and when medically defined [Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw Hill (Goulds)] but it is in the sense of “injury or wound” in which Gleeson CJ and Kirby J were later to understand the word when used in medical reports before them i.e. as a reference to “… a sudden change or disturbance to the physiological state of …”, in that case, Mrs Petkoska [[2000] HCA 45; (2000) 200 CLR 286, 289]]. It is clear that Gageler J in May was citing McIntosh as an example of a situation in which an employee had suffered a definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable [[2016] HCA 19 at [75]-[78]].
80. In the case of Ms Freeman’s condition, Professor Fox has described Ms Freeman’s condition as a “disease” [Report dated 10 September 2014; T documents T34 at 80]. Melanoma may be a malignant tumour whose parenchyma is composed of anaplastic melanocytes or any tumour, benign of malignant, of melanocytes [Goulds]. It involves a disturbance of the normal functions of the body, to adopt the words of Spender J in Mooi. The evidence from both Professor Fox and Dr Sedal is that sun exposure increases a person’s overall risk to his or her contracting melanoma. Having regard to all of the evidence, I am not satisfied that there Ms Freeman’s melanoma resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable. I am not satisfied, therefore, that she suffered an injury in the primary or ordinary sense of that word but I am satisfied that she has suffered from an ailment and so satisfied the [(a)] of the definition of “disease”.
31 The Tribunal then turned to address the questions “Does the presumption of section 7(1) apply?”, “Is melanoma a disease of a kind specified in the 1988 SD Notice?” and “Is melanoma related to employment of a kind specified in the 1988 SD Notice?” Summarising the effect of s 7(1) (see [2016] AATA 741 at [97]), the Tribunal noted that:
[I]f the three criteria set out in ss 7(1)(a), (b) and (c) are established, Ms Freeman’s ADF service will be taken, for the purposes of the SRC Act, to have contributed in a material degree to the contraction of her melanoma unless the contrary is established. That is to say, her melanoma will be taken to be a “disease”, and so an “injury” for the purposes of the SRC Act unless it is established that her service did not contribute in a material degree to the contraction of her melanoma.
32 The Tribunal made a number of findings in this context, including that “Ms Freeman’s melanoma is a disease of a kind that is caused by a physical agent, being sunlight”. The Tribunal did not find, however, that her melanoma came within Item 25 of the 1988 SD Notice, as required to satisfy s 7(1)(b). At [2016] AATA 741 at [91], the Tribunal stated that the evidence did not address the questions on which a determination in Ms Freeman’s favour on this issue depended, and accordingly the Tribunal did not find that Ms Freeman was suffering from a disease of a kind specified by the Minister by notice of the kind described in s 7(1)(b).
33 The Tribunal might have reverted to the parties before reaching a final decision but it did not do so because it determined that Ms Freeman’s service in the Army Reserve did not contribute in a material degree to Ms Freeman’s melanoma: see [2016] AATA 741 at [110]. It followed from this that Ms Freeman could not take advantage of what was referred to by the Tribunal as the “presumption” created by s 7(1) because “the contrary is established”: see s 7(1). The Tribunal so concluded, having regard to the evidence before it, which it considered primarily under the heading “Has any presumption raised by s 7(1) been rebutted?”
34 In this context, the Tribunal indicated that it was not assisted by Dr Sedal’s report, stating ([2016] AATA 741 at [102]-[103]):
Dr Sedal made two statements about the evidence that he had. One was explicit and was to the effect that there is no specific evidence to suggest that the contribution of genetic factors, skin type and childhood/adolescent sunlight had a greater contribution than service-related sun exposure. At the same time, he referred to no other evidence to suggest that the contrary was so. The other statement about the evidence that he had was implicit in Dr Sedal’s report. It was implicit in his statement that, if it were assumed that Ms Freeman met one of the two factors he had drawn from SoP 80, the contribution of her service-related sun exposure would be significant and greater than 50%. Dr Sedal had referred to those two factors on the basis that it would be reasonable to test Ms Freeman’s service against them. No evidence was available to him as to whether she had been sunburnt at least five years before the clinical onset of her melanoma or that she had a solar UV exposure factor ratio of at least 1.2 before that time. He did not profess to have expertise to comment on the specific defence-related activities that might have led to sun exposure in Ms Freeman’s case. In fact, he said that it was beyond the scope of his expertise to do so.
When those matters are borne in mind, Dr Sedal’s report does not assist me in coming to a decision in Ms Freeman’s particular circumstances. To be fair to Dr Sedal, he did not profess to speak beyond his expertise and he was given only the medical records and radiology reports on the SRCA and MRCA files at the time. Ms Freeman was yet to complete the Solar Skin Damage Questionnaire that she did so when asked some three months later on 5 August 2014. Therefore, Dr Sedal did not have access to Ms Freeman’s description of her activities during her early life and adolescence before her service as well as her activities during her service.
35 The Tribunal’s ultimate finding on the material contribution issue turned on Ms Freeman’s answers to the SSD Questionnaire and Dr Fox’s reports. The Tribunal stated (at [104]) that:
On the basis of Ms Freeman’s answers to the SSD Questionnaire, I find that Ms Freeman lived in Townsville for approximately 15 years before she joined the Reserves. She was physically active undertaking a range of activities, some of which, such as ballet, were conducted indoors but the majority of which were engaged in the outdoors. I accept that she wore a range of clothing suited to the activities. That range of clothing included long pants for some and long pants or shorts for others. Questions regarding whether she was ever sunburnt and, if so, whether that occurred before, after or during her enlistment, do not appear in the questionnaire. That means that I do not have evidence of one of the risk factors identified by Professor Fox – intermittent sunburn in adolescence or childhood – but I do have evidence of intermittent exposure and I have made findings regarding Ms Freeman’s outdoor activities. I have also made findings consistent with another risk factor identified by Professor Fox i.e. Ms Freeman’s move as a young child from Victoria to Townsville where the risk of developing melanoma is much higher than in Victoria. Ms Freeman’s statement in the SSD Questionnaire was that she served for approximately 100 days during each year of her Reserve service which extended over a total period of six years. Given that she estimated that she carried out half of her duties indoors and half outdoors, I accept that this estimate of her exposure to the sun during her service in the Reserves is a fair estimate.
36 In relation to the reports made by Dr Fox, the Tribunal stated (at [105]-[106] and [109]-[110]) that:
Professor Fox is a Consultant Physician who has specialised in medical oncology and clinical haematology involved in the treatment of patients suffering various forms of cancer and blood diseases. His work has involved him in clinical and scientific research and he has written extensively in the field. Between 1985 and 2006, Professor Fox was Professor and Director of the Royal Melbourne Hospital’s Department of Clinical Haematology and Medical Oncology as well as at the University of Melbourne. From 2007 until 2013, Professor Fox held the position of Director of Research at St Vincent’s Hospital. At the same time, he was President of the Clinical Oncology Society of Australia and President of the Australian Cancer Council.
Professor Fox was first asked to report after Ms Freeman had completed the SSD Questionnaire and it was made available to him together with surgical and specialist reports. The material on which he based his opinion is consistent with the findings I have made. His expertise was not questioned although his expression of his opinion was. Ms Spencer questioned Professor Fox’s expression of his opinion when he used expressions such as “likely to influence”, “in a significant way” or “responsible for” in relation to the development of the melanoma. To express his opinions in that way is to attach an additional requirement to the statutory test of material contribution. I do not agree. Professor Fox has expressed his opinion in medical terms as he understands them to be and in light of the questions that he was asked. The questions and his answers have to be read together and his report has to be understood as a whole. Had he expressed his opinion in terms of “material contribution” or otherwise, it would have been open to Ms Spencer to submit that he was expressing an opinion on the ultimate issue and to question whether he understood what resolution of that ultimate issue entailed. Professor Fox has written his report and answered the questions as asked drawing on his medical expertise in the relevant field.
...
Professor Fox has considered the whole of Ms Freeman’s history and her risk factors extending across her life, as I have found them to be on the evidence, and assessed them in light of his unchallenged expertise in the development of cancer including melanoma. I accept his evidence to the effect that the causal connection between her service in the Reserves up to the date of her diagnosis with melanoma, which is the relevant part of her service, is less than minimal being 4% or “very minor”. He had based his assessment of the contribution of Ms Freeman’s service and the onset of melanoma on the duration of her service alone. Apart from that, he did not draw any causal link between the two.
Like Dr Sedal, he had no evidence of particular incidents of sunburn or circumstances that would meet factors of the sort set out in SoP 80 in relation to claims under the VE Act in relation to the onset of melanoma. What Professor Fox did have evidence of, and what I have made findings about, are the fifteen or so years that Ms Freeman had spent in Townsville prior to her joining the Reserves in 1991 and prior to the onset of her melanoma that was diagnosed in 1999 as well as her primary Anglo-Celtic ethnicity. That is consistent with Professor Fox’s evidence that melanoma is primarily caused by sun exposure in childhood and in the period of adolescence. Having regard to that evidence, to Ms Freeman’s activities in her childhood and adolescence, her dressing throughout her various activities, including those in the Reserves, and the absence of any particular incidents such as sunburn during her service, I am satisfied that her melanoma was not contributed to in a material degree by her service in the Reserves.
The Tribunal went on to affirm the decision under review. This was the decision subject to appeal to this Court under s 44 of the AAT Act.
the nature of the appeal under section 44
37 Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law from a decision of the Tribunal. As noted, Ms Freeman appealed to this Court under s 44.
38 The questions of law identified in the Further Amended Notice of Appeal were as follows.
(1) In concluding that the Tribunal was not satisfied that the applicant’s melanoma was an “injury” within the meaning of paragraph (b) of the definition of “injury” in s 4(1) of the SRC Act, did the Tribunal:
(a) deny the applicant procedural fairness;
(b) contravene s 39(1) of the AAT Act,
in that the Tribunal relied on extracts from medical reference works, [the Blakiston’s Dictionary] and [the Chambers Dictionary] directed to the aetiology of melanoma tumours without raising that matter or material with the applicant and giving her an opportunity to make submissions and/or adduce material in response?
(2) In concluding that the Tribunal was not satisfied that the applicant’s melanoma was an “injury” within the meaning of paragraph (b) of the definition of “injury” in s 4(1) of the SRC Act, did the Tribunal err in law, in that the Tribunal:
(a) erroneously applied the primary or ordinary meaning of “disease” to the word “disease” appearing in parentheses in paragraph (b) above, when on the proper construction of the SRC Act, “disease” bears the more limited meaning defined in s 4(1) of the SRC Act, that is (relevantly), an ailment “that was contributed to in a material degree by the employee’s employment by the Commonwealth”; and
(b) thereby construed “injury” in paragraph (b) above too narrowly?
(3) In concluding that the Tribunal was not satisfied that the applicant’s melanoma was an “injury” within the meaning of paragraph (b) above, did the Tribunal err in law, in that:
(a) the Tribunal reached that conclusion on the basis of a finding that having regard to all of the evidence the Tribunal was not satisfied that the applicant’s melanoma “exhibited any definite or distinct physiological change or disturbance for the worse which ... was identifiable; and
(b) on this issue, the only conclusion that was lawfully open to the Tribunal on the material before it was a conclusion that the applicant’s melanoma “exhibited [a] definite or distinct physiological change or disturbance for the worse which ... was identifiable; and/or
(c) the Tribunal’s conclusion lacked an evident and intelligible justification or was otherwise legally unreasonable.
(4) In concluding that the Tribunal was not satisfied that the applicant’s melanoma was an “injury” within the meaning of paragraph (b) above, did the Tribunal err in law, in that:
(a) the Tribunal reached that conclusion on the basis of a finding that having regard to all of the evidence the Tribunal was not satisfied that the applicant’s melanoma “exhibited any definite or distinct physiological change or disturbance for the worse which … was identifiable”; and
(b) the Tribunal’s statement of reasons ([2016] AATA 741, particularly at [80]) failed to meet the requisite standard imposed pursuant to s 43(2) and (2B) of the AAT Act.
39 The grounds of appeal reflected these questions. The applicant sought leave to amend her Amended Notice of Appeal to incorporate the underlined question 3(c). She also sought to amend her grounds of appeal to reflect this proposed amendment. I would grant the leave sought although, for the reasons stated, it does not appear to me that this ground is made out.
40 The subject matter of the Court’s jurisdiction under s 44 of the AAT Act and the ambit of the appeal are confined to these questions of law: see Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62]; May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 233 FCR 397 at [161] (appeal allowed, on a different point: see Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468).
41 Ms Freeman sought orders, pursuant to s 44(4) of the AAT Act, setting aside the Tribunal’s decision and remitting the matter to the Tribunal, differently constituted, “for re-determination according to law”.
Question 1: was there a denial of procedural fairness or a breach OF section 39(1) of the AAT Act?
The parties’ submissions
42 Ms Freeman submitted that in relying on extracts from the Chambers Dictionary and the Blakiston’s Dictionary to reach its decision, the Tribunal contravened s 39(1) of the AAT Act and denied her procedural fairness: see [2016] AATA 741 at [79] and [80].
43 The MRCC contended that the Tribunal’s failure to inform the parties that it was proposing to have regard to these extracts did not constitute either a breach of procedural fairness or a contravention of s 39(1) of the AAT Act.
Consideration
44 It may be accepted that an asserted failure to comply with s 39(1) of the AAT Act and to afford procedural fairness raises a question of law for the purposes of s 44 of the AAT Act: see Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202] and Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28 at [8].
45 Section 39(1) of the AAT Act provides that, subject to presently immaterial exceptions, the Tribunal is required to “ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents”.
46 It may also be accepted that “the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his [or her] case constitutes statutory recognition of an obligation which the law would, in any event, imply”: Sullivan v Department of Transport (1978) 20 ALR 323 at 342; see also De Simone v Commissioner of Taxation [2009] FCAFC 181; 77 ATR 936 at [15]; Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 (Jagroop) at [32]; and O’Sullivan v Repatriation Commission [2003] FCA 397; 128 FCR 590 (O’Sullivan) at [45] (Sackville J). Broadly speaking, the common law would oblige the Tribunal to disclose information that is adverse, credible, relevant and significant: see Kioa v West [1985] HCA 81; 159 CLR 550 at 573, 588 and 628-629 (Kioa v West) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 95-96 (VEAL). As Sackville J said in O’Sullivan at [45], however, depending on the circumstances, the Tribunal’s obligation in s 39 to ensure that a party has an opportunity to inspect documents “might go further” than the common law: see also [58]-[60]. To quote Sackville J (at [45]), s 39 “reflects a clear statutory policy that a party should have an opportunity of inspecting documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents”.
47 As noted, the Tribunal referred in its reasons for decision to the Chambers Dictionary and the Blakiston’s Dictionary. It is common ground that none of the parties gave these dictionary extracts to the Tribunal and that the Tribunal did not inform the parties that it was proposing to have regard to them. It is clear enough that the Tribunal referred to these extracts on its own initiative. In so doing, it acted under s 33(1)(c) of the AAT Act, which provides that the Tribunal “may inform itself on any matter in such manner as it thinks appropriate”. The question raised by this ground is whether the Tribunal was also obliged, by s 39, to afford the parties an opportunity to inspect the two dictionary extracts and to make submissions if they wished before it made its decision.
48 I accept that the extracts from the Chambers Dictionary and the Blakiston’s Dictionary on which the Tribunal relied were “documents” for the purposes of s 39(1): see the definition of ‘document’ in s 2B of the Acts Interpretation Act 1901 (Cth); also Jagroop at [61], referring to Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 (Scorgie) and Martinez v Minister for Immigration and Citizenship [2009] FCA 528; 177 FCR 337.
49 Turning first to s 39(1) of the AAT Act, there is a preliminary question as to whether the Tribunal’s obligation – to provide the parties with a reasonable opportunity to inspect documents and to make submissions in relation to them – applied to the two dictionary extracts. This is because s 39(1) in terms provides that this obligation arises only in respect of “documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding”. The Full Court in Jagroop at [62] stated, after referring to Scorgie at [34], that, in order for the inspection obligation in s 39(1) to be enlivened, a document must be relevant or perceived by the Tribunal to be relevant, and the Tribunal must be proposing to have regard to the document for the purpose of reaching a decision.
50 In applying this analysis in Jagroop at [58], the Full Court treated the Tribunal’s reference to one textbook as “a matter of no consequence”, since the Tribunal apparently used a passage from it as simply “a convenient and succinct summary of the nature and purpose of parole, rather than as a matter of significance to its decision”: see also [63]. It reached a different conclusion with respect to another textbook concerning the deterrent and rehabilitative effect of a sentence of imprisonment, stating (at [64]) that “[t]he number and nature of the quoted passages from the ... textbook make it appropriate to conclude that the AAT relied on this material in implicitly rejecting the submission of the appellant’s counsel as to the salutary effect of his having served a period of imprisonment”, which was a matter bearing on the ultimate decision. The Full Court concluded on this basis that the Tribunal had denied the appellant procedural fairness.
51 It may be accepted that the Tribunal referred in its reasons for decision to these two dictionary extracts because it had had regard to them and considered them significant enough to be included in these reasons. As observed in Jagroop at [62], “AAT members are unlikely to have regard to documents which they perceive as irrelevant”.
52 The respondent’s submission was that the Tribunal did not treat the dictionaries as relevant or significantly adverse to its findings of fact in Ms Freeman’s case, or as relevant to its ultimate decision. As the respondent put it, the dictionary references “were neither adverse to the applicant nor significant” in the sense used in Kioa v West or VEAL.
53 As the respondent said, in [79] of its reasons, the Tribunal referred to the two dictionaries merely to show that the word “lesion”, as used by Murphy J in Accident Compensation Commission v McIntosh [1991] 2 VR 253 (McIntosh), had two possible meanings. I accept that, as the respondent submitted, the existence of the two meanings of the word “lesion” was relevant because of the submissions made by Ms Freeman to the Tribunal. This appears from those submissions, as explained below.
54 In written submissions dated 26 May 2016 and filed in the Tribunal on Ms Freeman’s behalf, it was said:
The applicant’s development of a malignant melanoma, being a cancerous tumour of her skin, involved a “physiological change” or a “disturbance of the normal physiological state”. It involved the development of an ascertainable lesion on her thigh, a change to the normal state and functioning of her skin cells, and constitutes an “injury (other than a disease)” within s 4(1).
After the reference to s 4(1), there was a footnote reference to McIntosh, which was said to concern “an ascertainable lesion being an injury in the primary sense”. Mr Berger, for the respondent, also directed attention to the written submission in reply filed on Ms Freeman’s behalf, submitting that here again Ms Freeman raised “what McIntosh and other authorities say about such a lesion”. In those submissions, it was said that:
... the applicant’s development of a malignant melanoma involved a “physiological change” or a “disturbance of the normal physiological state”. It involved the development of an ascertainable lesion on the applicant’s thigh, a cancerous tumour, being a change to the normal state and functioning of her skin cells. It was therefore an “injury (other than a disease)” for the purposes of the Act.
Once again, there was a footnote reference to McIntosh “concerning an ascertainable lesion being an injury in the primary sense”.
55 Mr Berger submitted that the effect of the written submissions filed on Ms Freeman’s behalf was to advance the claim that she suffered from a “lesion and on the authorities a lesion is an injury simpliciter”, and that this was how the Tribunal understood the submission being made to it. Having regard to Ms Freeman’s submissions as a whole and to the Tribunal’s reasons, I accept Mr Berger’s submission in this regard, notwithstanding that it seems to me that this involves attributing to Ms Freeman’s submissions a failure to recognise that any lack of relevant medical evidence could not be met by the findings made in another case.
56 As Mr Berger said, between paragraphs [70]-[79], the Tribunal examined the law as set down in cases such as McIntosh and Kennedy Cleaning Services and, in response to the submissions made by Ms Freeman, proceeded to consider what McIntosh and Kennedy Cleaning Services actually decided. The outcome was the Tribunal’s rejection of Ms Freeman’s submission.
57 In rejecting Ms Freeman’s submissions on this point, the Tribunal looked closely at Murphy J’s reasons for judgment in McIntosh, as well as the joint reasons of Gleeson CJ and Kirby J in Kennedy Cleaning Services. As the Tribunal noted (at [76]), a critical issue in McIntosh was whether “the episodic rupture of blood vessels causing haemorrhage in the brain” was a physical injury. At p 257, Murphy J stated
Until recent days, the rupture of an artery has, for so long as workers compensation legislation has been in force, been held to be an “injury”… . The only debate has been whether it was “injury by accident” and this was decided to mean unexpected by the worker at the time. It was by accident and not by an accident.
…
It has always been accepted in Victoria that any ascertainable lesion or dramatic physiological change causing incapacity and occurring during a protected period is an “injury” within the meaning of the Workers Compensation Act (Vic.).
58 The latter part of this passage was set out in the Tribunal’s reasons and subsequently referred to by the Tribunal in dealing with Ms Freeman’s submission that her “lesion” was, relevantly, an “injury”. The Tribunal’s statement at [79] of its reasons that, in McIntosh, Murphy J was referring to “a ‘lesion’ in the sense of an ‘injury or wound’” and not “an abnormal change in the structure of an organ or tissue as a result of disease or injury” was the outcome of the Tribunal’s reading of Murphy J’s judgment.
59 Also in [79], the Tribunal stated its conclusion, based on its analysis of the joint reasons of Gleeson CJ and Kirby J in Kennedy Cleaning Services, that Gleeson CJ and Kirby J understood the word “lesion” in the same way, when they referred (at [8]) to “a sudden change or disturbance to the physiological state of ...” of the worker. This is evidently correct when reference is made to [8] in their Honour’s joint reasons, which reads as follows:
The word “lesion”, for example, in its ordinary use, connotes primarily an injury, in the sense of a sudden impairment of the function of affected tissue or a morbid change in the functioning of the body. But medical and forensic dictionaries indicate that the word is sometimes used in modern medical parlance to include changes in organs and tissues through a disease process. There was no clarification by oral evidence of the way in which the particular medical experts were using the word in this case. However having regard to the whole of the medical evidence, the way in which the proceedings were conducted, the sudden and dramatic consequences of the “stroke” and the findings of the magistrate at first instance, it is appropriate to conclude that the word “lesion” in the medical reports here meant a sudden change or disturbance to the physiological state of the respondent.
In [79] of its reasons, the Tribunal included a footnote reference to this passage.
60 As the Tribunal stated, reference to the context explained why Gageler J in MRCC v May at [78] cited McIntosh as “an example of a situation in which an employee had suffered a definite or distinct physiological change ... for the worse, which if not sudden, [was] at least identifiable”: see [2016] AATA 741 at [79]. That is, in substance, the Tribunal rejected the proposition advanced on behalf of Ms Freeman (see [55] above) because it was not supported by an analysis of Murphy J’s reasons in McIntosh, or by the subsequent joint reasons of Gleeson CJ and Kirby J, and the separate reasons of Gageler J, in Kennedy Cleaning Services.
61 The above places the dictionary references in [79] of the Tribunal’s reasons in context. As part of its reasoning at [79], the Tribunal cited, in two footnotes, the Chambers Dictionary in support of the proposition that the word “lesion”, in medical parlance, can mean either an “injury or wound” or “an abnormal change in the structure of an organ or tissue as a result of disease or injury”. In the following footnote, the Tribunal cited the Blakiston’s Dictionary in support of the proposition that “[b]oth meanings are open in the ordinary sense of the word and when medically defined”. The dictionary references were, however, peripheral to the Tribunal’s reasons in [79]. As the respondent submitted, they did no more than confirm its exposition of Murphy J’s reasons in McIntosh and of the joint reasons of Gleeson CJ and Kirby J in Kennedy Cleaning Services. Accordingly, I accept the respondent’s submission that the inspection obligation in s 39(1) was not enlivened by the Tribunal’s references to the dictionaries in its reasons at [79], because the Tribunal’s reasons do not indicate that the dictionary extracts were relevantly used by the Tribunal for the purpose of reaching its decision. Further, there was no breach of any common law obligation because the dictionary definitions in [79] were not information that might relevantly be described as adverse, relevant and significant to Ms Freeman’s case.
62 At [80] the Tribunal stated that “[m]elanoma may be a malignant tumour whose parenchyma is composed of anaplastic melanocytes or any tumour, benign of [sic] malignant, of melanocytes”, referencing, in a footnote, the Blakiston’s Dictionary. The Tribunal included this definition of “melanoma” in the Blakiston’s Dictionary to amplify the medical evidence, particularly that of Professor Fox who, in the immediately preceding sentence, was reported as describing Ms Freeman’s condition as a “disease”. The medical evidence showed that Ms Freeman had suffered a malignant melanoma in 1999, but there was little, if any, medical evidence as to the nature of a melanoma. The Tribunal’s reference to the medical dictionary did no more than elucidate Professor Fox’s description of her condition as a “disease” by reference to an accepted medical definition of a “melanoma”. It does not seem to me that much, if anything, turned on the dictionary reference. The significant findings that followed the reference did not flow out of the reference. Rather, these findings depended on the Tribunal’s conclusion that there was insufficient evidence to satisfy the Tribunal that Ms Freeman’s melanoma fell within the term “injury” in the statutory sense because, on the evidence before the Tribunal, the Tribunal was not satisfied that her melanoma “resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable”. The Tribunal was, however, satisfied that the medical evidence supported the finding that Ms Freeman suffered from an ailment and, therefore, a disease, as statutorily defined.
63 For these reasons, I accept that the inspection obligation in s 39(1) was not enlivened by the Tribunal’s reference to a dictionary definition of “melanoma” in [80] of its reasons, since this definition was not used by the Tribunal for the purpose of reaching its decision. Further, there was no breach of any common law obligation because the dictionary definition in [80] was not information that might relevantly be described as adverse, relevant and significant to Ms Freeman’s case.
64 As will be seen from the foregoing, this was not a case in which the Tribunal was required to inform Ms Freeman about a critical issue that would not have been apparent from the nature of the decision that it was called on to make, or about an adverse conclusion that would not have been obviously open on the known material.
65 It was submitted for Ms Freeman that had she known of the Tribunal’s proposed use of the extracts from the Chambers Dictionary and the Blakiston’s Dictionary, then she would have made some further contentions in response. Senior Counsel for Ms Freeman repeated this submission at the hearing, when he submitted that Ms Freeman was deprived of an opportunity “to head off what could well have been an operative error in the approach that was taken”, in that she was “deprived of an opportunity to persuade the Tribunal that in fact the authorit[ies] shouldn’t be read in that [restrictive] way”. There was, however, no new point raised by the dictionary material, and the Tribunal was, for the most part, responding to the submissions that had been presented to it on Ms Freeman’s behalf.
66 For the reasons stated, ground 1 of Ms Freeman’s appeal is not made out. There was, in the circumstances of this case, no contravention of s 39(1) of the AAT Act. Nor was there a denial of procedural fairness.
67 I am confirmed in this conclusion by reference to some other decisions to which the respondent referred, including Winch v Repatriation Commission [1999] FCA 408; 55 ALD 351 (Winch) (no denial of procedural fairness); Kirkpatrick v Commonwealth of Australia [1985] FCA 594; 9 FCR 36 (Kirkpatrick) (no denial of natural justice); and McMullen v Commissioner for Superannuation [1985] FCA 143; 61 ALR 189 (McMullen) (no denial of natural justice). In Winch, it was held that the Tribunal’s reference to three medical texts not mentioned at the hearing was not a denial of procedural fairness because the Tribunal had used the medical texts only to confirm a known scientific fact which had been the subject of evidence by a medical witness, and the issue to which it related had been clearly raised at the hearing: see also Jagroop at [65]. In Kirkpatrick at p 42 a Full Court of this Court said that “it is not to be doubted that the Tribunal was entitled to consult a standard medical dictionary in order better to understand medical evidence in which technical words were employed by the witnesses”. It held that there was no denial of procedural fairness as a result of the Tribunal’s failure to give the applicant an opportunity to make submissions about a medical dictionary, because no “new point [was] discovered”, which the applicant had not been given an opportunity to meet. In the earlier decision in McMullen, a Full Court similarly held (at p 209) that there was no breach of the common law obligation occasioned by the Tribunal’s reference to medical publications to assist it “in determining the question whether the words ‘mental condition’ in [the relevant statutory provision], on their proper construction, were wide enough to include the applicant’s personality disorder as established by the material before it”.
68 Although, as Ms Freeman noted in submissions, these three decisions were decided prior to VEAL (and Kirkpatrick and McMullen, prior to Kioa v West), it does not seem to me that these earlier decisions involved a relevant error of principle judged by these later decisions. While each must be considered by reference to their own facts and circumstances, they are nonetheless illustrative of the general principles that continue to inform what is required of the Tribunal in the present context. As the respondent emphasised, and I accept, the Tribunal was under an obligation to afford a reasonable opportunity to the applicant to present her case, and what was “reasonable” was informed by the relevant statutory context, including s 2A (“fair, just, economical, informal and quick” review that is “proportionate to the importance and complexity of the matter”) and s 33 (mentioned earlier).
Question 2: did the Tribunal misconstrue the word “disease”?
69 In its reasons at [70], the Tribunal asked the question whether, “[p]utting aside temporal and causal issues related to the employee’s employment, is [the condition in relation to which compensation is sought] a disease or an injury?” As we have seen, at [80] the Tribunal referred to a report by Professor Fox that described Ms Freeman’s condition as a “disease”. The Tribunal went on to conclude, also at [80], that it was not satisfied that Ms Freeman “suffered an injury in the primary or ordinary sense of that word but [was] satisfied that she ha[d] suffered from an ailment and so satisfied the [(a)] of the definition of ‘disease’” in s 4(1) of the SRC Act. The Tribunal nonetheless rejected Ms Freeman’s case because it was satisfied that her ailment was “not contributed to in a material degree by her service in the Reserves”, and therefore her condition did not satisfy the entire definition of “disease” in s 4(1) of the SRC Act: [2016] AATA 741 at [110].
70 Ms Freeman submitted that the Tribunal’s approach was erroneous, because it “applied the primary or ordinary meaning of ‘disease’ to the word ‘disease’ appearing in parentheses in paragraph (b) of the definition of ‘injury’ in s 4(1) of the SRC Act”. She further submitted that the Tribunal “introduced a dichotomy between ‘disease’ and ‘injury’ by which if a condition is a ‘disease’ in the ordinary or primary meaning of that word ‘[p]utting aside temporal and causal issues related to the employee’s employment’, then it cannot be an ‘injury’ within paragraph (b) of the definition of ‘injury’ in section 4(1) of the SRC Act”.
71 The respondent submitted that, read fairly and in context, the reasons of the Tribunal demonstrate no misconstruction of the terms of the SRC Act.
72 In my view, on a fair reading of the Tribunal’s reasons, the Tribunal did not misapply the definition of “disease”, as Ms Freeman has argued.
73 The Tribunal specifically set out the statutory definitions of “injury”, “disease” and “ailment” at the commencement of its reasons: see [11]-[13]. At [28], the Tribunal recognised the statutory questions that were to be addressed: see especially [28(3)] and [28(5)]; also [30]-[31]. The passages emphasise that the Tribunal appreciated the need to understand the word “disease” in its statutorily-defined sense.
74 Further, the heading above [70] in the Tribunal’s reasons is important because it makes clear that the Tribunal was cognisant of its proper task. The heading, “Is malignant melanoma a disease or an injury (other than a disease)?”, expressly shows that at this stage the Tribunal was dealing with the first aspect of the statutory criteria: put simply, is Ms Freeman’s condition an ailment, or is it an injury simpliciter? The Tribunal also made this clear at [70], when it included the words “[p]utting aside causal or temporal issues related to the employee’s employment”. This is a clear indication that the Tribunal was purporting to leave aside the question whether Ms Freeman’s condition was either “contributed to in a material degree by the employee’s employment by the Commonwealth” or “arose out of or in the course of” the employee’s employment”, to focus on whether Ms Freeman had suffered from: (i) an ‘ailment’ (thereby satisfying paragraph (a) of the definition of ‘disease’ in s 4(1)); or (ii) an ‘injury (other than a disease)’, which is sometimes called an ‘injury simpliciter’. It is evident that the Tribunal then directed itself to submissions, which had been made on Ms Freeman’s behalf, on this issue, noting the contention was first that her melanoma was a disease as that term is defined in s 4(1) of the SRC Act, because it was an ailment contributed to in a material degree by her employment with the Army or with the Army Reserve and, in the alternative, that it was an injury. This recitation tends to confirm that the Tribunal was aware that ‘disease’ had to be understood in its statutorily-defined sense and that the questions falling for its determination included whether Ms Freeman suffered from an ‘ailment’ (see paragraph (a) of the definition of ‘disease’ in s 4(1)) or an ‘injury simpliciter’.
75 In the following paragraphs [71] to [79], the Tribunal reviewed the relevant authorities concerning the distinction between ailments and injuries simpliciter, before applying these principles to the evidence in [80]. The reference in this paragraph to Professor Fox’s description of Ms Freeman’s condition as a disease is to be understood as a reference to the evidence to which the Tribunal had regard in concluding that it was not satisfied that Ms Freeman’s melanoma “resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable”. The Tribunal went on to conclude that, while it was not satisfied that Ms Freeman suffered an injury simpliciter, it was satisfied that she suffered from an ailment, thereby satisfying the first part of the statutory definition of a ‘disease’. At this point, as the Tribunal indicated at the commencement of its discussion, the Tribunal had put aside causal and temporal issues.
76 It may be inferred from [70] and [80] of the Tribunal’s reasons that the Tribunal proceeded on a correct understanding of the words “injury” and “disease”, and that it did not misconstrue the definitions in s 4(1) of the SRC Act (as they then stood) as alleged by Ms Freeman. This is confirmed by [81] and following, where the Tribunal turned to consider whether the causal aspect of the definition of ‘disease’ had been satisfied.
77 It does not seem to me that the Tribunal’s reference to Comcare v Mooi [1996] FCA 508; 69 FCR 439; 137 ALR 690 at 696, referring to the ordinary meaning of the word ‘disease’ (as indeed the Tribunal had noted at [32]) is sufficient to displace the conclusion that otherwise arises from the Tribunal’s reasons that the Tribunal appreciated that the word ‘disease’ was a statutory construct, as defined in s 4(1) of the SRC Act. Ground 2 of Ms Freeman’s appeal should be rejected.
question 3: Was there no evidence to support the Tribunal’s finding at [80]? Did the Tribunal’s conclusion lack an evident and intelligible justification?
No evidence ground
78 Under ground 3, Ms Freeman relied on the ‘no evidence’ ground of review. Whether there is no evidence to support a finding of fact is a question of law for the purposes of s 44 of the AAT Act: see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [90]-[91] and Comcare Australia v Lees (1997) 151 ALR 647 at 652-3. To succeed on the “no evidence” ground of review, Ms Freeman must show that there was no probative material before the Tribunal upon which a particular conclusion could properly be based: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-356.
Unreasonableness ground
79 By an amendment to ground 3, Ms Freeman also sought to introduce an unreasonableness ground. By this ground, Ms Freeman sought to challenge the Tribunal’s conclusion at [80] of its reasons (see below) on the additional ground that it lacked an evident and intelligible justification or was otherwise legally unreasonable. The reference to “evident and intelligible justification” is a reference to an aspect of the error of law of unreasonableness formulated in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [76]. At [76], Hayne, Kiefel and Bell JJ stated that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.
80 Whilst noting the remarks of Griffiths J in Howes v Comcare [2016] FCA 1521 at [59], it may, for present purposes, be accepted that a ground of this kind may raise a question of law for s 44 purposes. The respondent accepted that the principles relating to unreasonableness deriving from Li – and discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh), Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (Eden) – broadly applied to the concept of unreasonableness in the context of a s 44 appeal: see also Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; 227 FCR 459 (Ekinci) at [70].
81 A useful though non-exhaustive statement concerning legal unreasonableness in the context of judicial review appears in Eden at [58]-[65]. It was said in Eden at [60] that:
[T]here are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
Ms Freeman apparently sought to raise the second aspect.
82 It was also said in Eden at [64] that:
[W]here reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
83 In the context of an appeal under s 44 of the AAT Act, the Full Court in Ekinci at [72] described the limits of the ‘unreasonableness’ ground by reference to concepts of illogicality and irrationality as follows:
There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] that it is not the Court’s function to substitute its own decision for that of the primary decision-maker:
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
It is apparent that in this case there is a good deal of overlap between the ‘no evidence’ and ‘unreasonableness’ grounds advanced by Ms Freeman.
Parties’ submissions on the no evidence ground
84 As already noted, the Tribunal concluded at [80] that “[h]aving regard to all of the evidence, [it was] not satisfied that … Ms Freeman’s melanoma resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable”. In support of the no evidence ground, it was submitted for Ms Freeman that the evidence to which the Tribunal referred in making this finding was incapable of providing a probative basis for the finding, or compelled a contrary conclusion. Instead, it was said that “the only conclusion ... lawfully open to the Tribunal on the material before it was a conclusion that [her] melanoma ‘exhibited [a] definite or distinct physiological change or disturbance for the worse which … was identifiable’”. Alternatively, it was said that the conclusion reached by the Tribunal at [80] lacked an evident and intelligible justification or was otherwise unreasonable.
85 It was noted in submissions for Ms Freeman that the Tribunal commenced [80] by referring to a report of Professor Fox dated 10 September 2014, in which Ms Freeman’s metastatic condition was described as a disease. It was said that the references to “disease” in that report were not probative of the Tribunal’s conclusion at [80], because they were not “logically probative of whether the applicant’s melanoma ‘exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable’”.
86 The same submissions also mentioned the extract from Blakiston’s Dictionary concerning the nature of a melanoma, which was referred to by the Tribunal, contending:
First, on its face, [the Blakiston’s Dictionary] describing a melanoma as a “tumour” composed of “melanocytes” was consistent with Ms Freeman’s melanoma exhibiting a “definite or distinct physiological change” or a “disturbance for the worse which ... was identifiable”. The Tribunal did not find otherwise. Second, the Tribunal’s apparent use of [this] extract to find that melanoma involves “a disturbance of the normal functions of the body” was incapable of providing a probative basis for its subsequent finding that it was not satisfied that Ms Freeman’s melanoma was a “disturbance for the worse which ... was identifiable” Rather, it compelled the contrary conclusion.
It was also contended for Ms Freeman that the evidence of Professor Fox and Dr Sedal – that sun exposure increased a person’s overall risk of contracting melanoma – did not have any probative relevance to the question of whether the melanoma was an injury in the primary or ordinary sense.
87 On behalf of Ms Freeman, reference was made to the treatment of a malignant melanoma in or around July 1999 and its subsequent excision in September 1999. (I note, in this connection, that it was later confirmed that the histopathology report to which senior counsel for Ms Freeman referred at one point in argument was not in evidence before the Tribunal.) It was submitted that “her melanoma [was] a localised identifiable physiological change in the normal functioning of her skin cells”. Citing Zickar, these submissions added, “[t]hat this distinct physiological change was both internal and external, and that it may have been in some way connected with, or a consequence of, an underlying process did not prevent it from being an injury within paragraph (b) of the definition in s 4(1) of the SRC Act”. On behalf of Ms Freeman, it was said that there was no evidence to support the Tribunal’s conclusion at [80] concerning the absence of ‘an injury (other than a disease)’. It was also said that there was no evident or intelligible justification for its finding at [80] that it was not satisfied that Ms Freeman’s melanoma “exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable”.
88 As the respondent stated, however, the finding at [80] was that the Tribunal was not satisfied, on the evidence, that Ms Freeman’s melanoma resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse which, even if not sudden, was identifiable.
What did the authorities require?
89 In determining in effect that it was not satisfied on the evidence that Ms Freeman had suffered ‘an injury (other than a disease)’ although she had suffered an ‘ailment’, the Tribunal was required to have close regard to the relevant provisions of the SRC Act and what the authorities said about their operation. The Tribunal clearly did just that.
90 Every physical ailment will involve some physiological change to a person’s body. As, however, Gageler J remarked in MRCC v May at [77], not every ailment “can be described as an injury in the ordinary sense”. The position is less straightforward under the SRC Act. By reason of the definition of “injury” in s 4(1), an “injury” as there defined includes both a “disease” (as defined in s 4(1)) and “an injury (other than a disease)” (assuming the relevant causation requirements are satisfied and the exclusion in the definition of “injury” in s 4(1) is not engaged). In characterising a physiological event as an “injury”, the authorities have drawn a distinction between a physiological change occurring during the progression of a disease, which is not distinct from the defect, disorder or morbid condition constituting the disease and bringing about the change, and other “definite or distinct” changes to the body (see MRCC v May at [78] (Gageler J)) that have ascertainable, significant and usually immediate and dramatic consequences for the employee. ‘Injuries simpliciter’, as they are often conveniently called, are of the latter kind.
91 Hence, in McIntosh “the episodic rupture of blood vessels causing haemorrhage in the brain” was held to be a physical injury. In Kennedy Cleaning Services, the sudden change or disturbance to the physiological state of the respondent consequent upon a stroke or brain lesion was also held to be a physical injury. In that case, Gleeson CJ and Kirby J expressly noted (at [8]) that, while a lesion can include changes in organs and tissues occurring in a disease process, this was not the kind of lesion suffered by the employee. Rather, this lesion immediately rendered her incapable of speech and incapacitated her for work. Their Honours held that having regard to these “sudden and dramatic” consequences, there was a “sudden change or disturbance to the physiological state”, which was properly described as an “injury”.
92 The analysis in the joint judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services was referred to with apparent approval by the High Court in MRCC v May at [45]-[46] (French CJ, Keifel, Nettle and Gordon JJ) and [78] (Gageler J). It is true that in the joint judgment in MRCC v May, the plurality accepted (at [47]) that suddenness is not necessary for there to be an injury in the primary sense, and that such an injury can arise and be described in various ways. Their Honours did, however, note that “suddenness” was not irrelevant since it can distinguish what has occurred from the natural progression of an underlying condition. Their emphasis was on the nature and incidents of the physiological change in question.
Findings and evidence
93 In the present case, the Tribunal found (at [5]) that Ms Freeman had a wide local excision of a level 2 melanoma from her left upper thigh in September 1999. It seems that there was no specific evidence before the Tribunal as to precisely when the melanoma arose, although it appeared that the melanoma was first treated in July 1999. In 2010 Ms Freeman was diagnosed with left groin recurrent node positive melanoma and, on 30 September 2010, she underwent a left radical groin dissection. Since that date, Ms Freeman has suffered recurrences of metastatic disease in her brain, left lung and right shoulder requiring surgical and other treatment.
94 There was evidence before the Tribunal from Professor Richard Fox and Dr Felix Sedal that sun exposure, particularly at a young age, significantly increased a person’s overall risk of contracting melanoma. Professor Fox also stated that people who migrated from “a southern to [a] more equatorial latitude”, especially when they were children, exhibited a higher incidence of melanoma than the rest of the population. Dr Sedal referred to the fact that sun exposure and sunburn were recognised risk factors for melanoma and he directed attention to the link between sunburn at least five years before and the clinical onset of malignant melanoma identified in the Statement of Principles (the MRCA/VEA SOP) made under the Veterans’ Entitlements Act 1986 (Cth). Both Professor Fox and Dr Sedal stated that Ms Freeman’s light-skinned complexion increased her risk of melanoma. I set out much of their medical reports below, since they evidently formed the basis of the Tribunal’s conclusion at [80].
95 In his report dated 10 September 2014, discussed and set out in part in the Tribunal’s reasons at [23], Professor Fox recorded that:
[Ms Freeman] has only ever had one skin melanoma, her subsequent disease is recurrence and metastatic disease from the original primary lesion resected from her thigh in late 1999.
The first recurrence appears to have happened while she was pregnant which is a known risk factor.
Her service post 1999 in the Army Reserve would not have had any impact on the likelihood of recurrence or development of metastatic disease. These are not related to sun exposure.
The basic issue is whether her service period in the Army Reserve between July 1991 and September 1993 and the second period January 1996 to November 1999 was responsible for the development of her original melanoma.
...
Ultraviolet rays, i.e. sun exposure is major risk factor for melanoma.
Epidemiological evidence demonstrates higher rates of melanoma in people with extensive or repetitive intensive exposure to sunlight. The majority of melanomas develop on sun exposed skin. Notes that intermittent exposure and sunburn in adolescence or childhood was strongly associated with increased risk of melanoma while occupation exposure did not confirm increased risk.
...
The incidents of melanoma are higher among people who migrate from a southern to more equatorial latitude in Australia.... The effect is predominantly seen among those who were children at the time of migration.
In terms of assessing Ms Freeman’s risk I note that her first five years of life was in Victoria and then migrated to Townsville spending most of her childhood and the late teens in Townsville and not entering the Army reserve until the age of 21.
Her total time with his [sic] Army Reserve was 100 days per year over six years which would be the equivalent of just under two years total. This work was that a pay clerk/soldier implying approximately at least half of the time was spent outdoors. ...
Any sun exposure, post 1999 i.e. after her primary melanoma was excised is not relevant.
Given her presumed light skin complexion & had living most of her life in Townsville prior to service, hat [sic] this was the predominant cause of her melanoma.
I note that the primary was on her thigh ... This was presumably an area covered by clothing, in her military work and not exposed to the sun. In my opinion her military work with the reserve would have played a minimal role, approximately 4% of her sunlight exposure at that time.
96 Professor Fox went on to answer some specific questions. I shall not set them all out here. I note, however, that Professor Fox identified the condition being suffered by Ms Freeman as “melanoma” and the symptoms as “multiple metastases which will eventually progress and prove fatal”.
97 In a supplementary report dated 17 December 2015, also referred to by the Tribunal in its reasons at [24] and [27], Professor Fox stated, when asked what level of contribution, if any, would service related sun-exposure have had on the onset of the primary melanoma or a metastatic disease:
Sun exposure is not related to the development of metastatic disease. The only issue is whether sun exposure had relationship to the onset of primary melanoma. The lesion was on her thigh which is an area presumably covered by clothing.
I had simply suggested a causation of 4% based on time of the duration of service.
....
98 In answering whether he considered that service related sun-exposure was a factor that “actively operated” or was “likely to influence” the cause of the primary melanoma or metastatic disease, Professor Fox said:
Sun exposure has no relationship to the development of metastatic disease. I do not believe that it actively operated or was likely to influence in any significant way the cause of the primary melanoma.
I note that she had lived in Townsville from the age of 5 to joining the Army at the age of 21.
She would have been at a high risk of melanoma due to living in that area and to be[ing] of primary Anglo-Celtic ethnicity.
Melanoma is primarily exposed by sun exposure in childhood and in the period of adolescence.
99 Dr Sedal also made a report dated 22 January 2014, which was before the Tribunal. This report referred to Dr Conrad Brandt’s letter of 8 March 2013, indicating that Ms Freeman was suffering from a progressive metastatic malignant melanoma, with an initial diagnosis in 1999 and a recurrence in 2011. Also set out in the Tribunal’s reasons at [18] was a report (headed “Minute”) dated 14 May 2014, in which Dr Sedal stated that:
Sun exposure and sunburn are known risk factors for the development of malignant melanoma. ...
It would be reasonable to test Ms Freeman’s service against the following factors from the MRCA/VEA SOP:
(a) having sunburn, where the first episode of sunburn occurred at least five years before the clinical onset of malignant melanoma of the skin; or
(b) having a solar UV exposure factor ratio of at least 1.2 at the time of the clinical onset of malignant melanoma; or …
... Assuming that one of the above factors is met, contribution is significant and greater than 50%
... Genetic factors, skin type, and childhood/adolescent sun exposure are also risk factors for the development of malignant melanoma. There is no specific evidence in this case to suggest that these factors would have had a greater contribution than service related sun exposure. ...
100 In its reasons, the Tribunal specifically referred to the report of Professor Fox, where he stated that “[m]elanoma is primarily exposed by sun exposure in childhood and in the period of adolescence”: [2016] AATA 741 at [80]. It also referred to the MRCA/VEA SOP mentioned by Dr Sedal, where he noted that having sunburn occur at least 5 years before the clinical onset of malignant melanoma of the skin was a factor that might be relied on to connect a malignant melanoma with the circumstances of a person’s relevant service: [2016] AATA 741 at [19], [102], [110].
101 As attention to the above paragraphs shows, the evidence before the Tribunal, which included the reports of Professor Fox and Dr Sedal, indicated that there was a strong possibility (even if not a probability) that Ms Freeman’s melanoma was initiated by sun exposure occurring some years before the melanoma was diagnosed and removed in 1999, which had induced a physiological change to part of her skin tissue. This may be inferred from the statements in the reports of Professor Fox and Dr Sedal about sun exposure, particularly at a young age, and about the heightened risk of melanoma for light-skinned people, as well as Professor Fox’s stated opinion about the incidence of melanoma in people moving from Melbourne to Townsville in childhood. There was also Dr Sedal’s reference to the MRCA/VEA SOP, identifying the link between sunburn at least five years before and the clinical onset of malignant melanoma. Further, the medical reports, particularly those of Professor Fox, indicated that the physiological change initiated by sun exposure progressed in a way that was not distinct from the underlying defect, disorder or morbid condition. There was apparently no other medical evidence to the contrary before the Tribunal.
102 It was in this context that the Tribunal stated it was not satisfied, on the evidence, that Ms Freeman’s condition resulted from any definite or distinct incident or exhibited any definite or distinct physiological change or disturbance for the worse that was sudden or identifiable. In other words, the Tribunal was not satisfied that Ms Freeman’s condition was an injury simpliciter as opposed to the outcome of a disease process. The medical evidence indicates clearly why the Tribunal so concluded. Even if the Tribunal’s conclusion at [80] were to be read as a conclusion that Ms Freeman’s malignant melanoma was not “an injury (other than a disease)”, there was, as outlined above, an evidentiary basis upon which such a conclusion could be reached.
103 Reference to other parts of the Tribunal’s reasons is also instructive as to the Tribunal’s appreciation of the evidence. In discussing issues of causality, the Tribunal was clearly aware that the risk factors identified in the medical evidence gave rise to at least a strong possibility that Ms Freeman’s melanoma was initiated by sun exposure occurring some years before the melanoma was diagnosed and removed in 1999. The Tribunal specifically noted, at [104] of its reasons, that there was no evidence before it of intermittent sunburn in childhood or adolescence, but that there was evidence of “intermittent [sun] exposure”. The Tribunal noted that its findings were “consistent with another risk factor identified by Professor Fox i.e. Ms Freeman’s move as a young child from Victoria to Townsville where the risk of developing melanoma is much higher than in Victoria”. At [109] and [110], when the Tribunal turned again to the medical evidence as to the cause of Ms Freeman’s condition, it referred again to “the fifteen or so years that Ms Freeman had spent in Townsville prior to her joining the Reserves in 1991 and prior to the onset of her melanoma ... diagnosed in 1999 as well as her primary Anglo-Celtic ethnicity”.
104 It is evident from the reasons it gave for its decision that the Tribunal accepted Professor Fox’s evidence, because the Tribunal went on to observe, in [110], that this was “consistent with Professor Fox’s evidence that melanoma is primarily caused by sun exposure in childhood and in the period of adolescence”. I accept that, as Mr Berger submitted, although the Tribunal was here concerned with causation, these passages of its reasons indicate that the Tribunal was not satisfied that the diagnosis of Ms Freeman’s melanoma in 1999 was close to the start of “a dramatic ascertainable identifiable” event that was distinct from the underlying disease process.
The no evidence ground not made out
105 Having regard to the evidence before the Tribunal, it was clearly open to it to conclude that it was not positively satisfied that Ms Freeman’s malignant melanoma was “an injury (other than a disease)” in the requisite sense. That is, it was open to the Tribunal not to be satisfied that there had been a definite and ascertainable physiological disturbance or change, for the worse, that was distinct from the underlying defect, disorder or morbid condition.
The unreasonableness ground not made out
106 Furthermore, having regard to the evidence and the Tribunal’s reasons for decision, I would reject the submission that the Tribunal’s conclusion lacked an evident and intelligible justification or was otherwise legally unreasonable. The Tribunal’s reasons must be read as a whole. Paragraphs and sentences cannot be read in isolation, which Ms Freeman’s focus on [80] of the Tribunal’s reasons may appear to invite. It must also be acknowledged that the Court cannot revisit the merits, as at times the submissions for Ms Freeman appeared to encourage.
107 Before arriving at the conclusion stated in [80], the Tribunal considered each of the matters on which such a conclusion turned, recognising the need to have “close regard … to the evidence” before it ([69]), considering the evidence in detail (see [17]-[27]), examining the authorities in light of the parties’ contentions (see [69]-[79]) and then bringing them together in its conclusion at [80]. As we have seen, this conclusion expressed its considered opinion that, as it had explained, the evidence did not satisfy it that Ms Freeman suffered an ‘injury simpliciter’ rather than an ‘ailment’ within the meaning of paragraph (a) of the definition of disease in s 4(1). As already stated, it was open to the Tribunal on all the medical evidence before it to infer that there was a strong possibility (even if not a probability) that Ms Freeman’s underlying defect, disorder or morbid condition was initiated by sun exposure occurring some years before the melanoma was diagnosed and removed in 1999: cf. MRCC v May at [62]. Viewed in this way, it does not seem to me that the unreasonableness ground is made out.
Question 4: were the TribunaL’s reasons inadequate?
108 It was contended for Ms Freeman that the Tribunal failed to provide adequate reasons for concluding that Ms Freeman had suffered an ailment rather than an “injury (other than a disease)”. Again, the focus was paragraph [80] of the Tribunal’s reasons. The submission was that the Tribunal’s reasons did “not expose the path of reasoning by which the Tribunal arrived at its conclusion at [80] that Ms Freeman had not suffered an injury”. The respondent submitted that this ground should fail and, for the reasons stated below, I have reached the same conclusion.
109 The Tribunal’s duty to provide adequate reasons for its decision is contained in s 43(2B) of the AAT Act. This provision relevantly states:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
110 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court considered the adequacy of the Refugee Review Tribunal’s reasons in the context of s 430 of the Migration Act 1958 (Cth). This provision is analogous to s 43(2B) of the AAT Act. The plurality (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed) stated (at [68]) that the Tribunal would have discharged its obligation under s 430 if it “set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision” (emphasis original). Their Honours observed that the “requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker”.
111 In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, a case to which Ms Freeman’s submissions referred, the High Court considered the duty of a medical panel to provide a written statement of reasons for its decision under s 68(2) of the Accident Compensation Act 1985 (Vic). The Court said (at [55]) that:
The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. … If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
112 There are also numerous decisions in this Court in which the adequacy of reasons has been discussed, including Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 91 ALD 103; Willis v Repatriation Commission [2012] FCA 399; 200 FCR 323; National Australia Bank Ltd v Georgoulas [2013] FCA 1412; 217 FCR 382; and Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 (Summers). As the Full Court of this Court noted in Summers at [110] a central object behind the statutory obligation to give reasons is to expose the Tribunal’s reasoning process which may facilitate appeals on a question of law or judicial review.
113 For the reasons I have explained at [106]-[107] above, it has not been shown that the Tribunal’s conclusion at [80] lacked an evident and intelligible justification or was otherwise legally unreasonable. For much the same reasons, it has not been shown that the Tribunal failed to discharge its duty under s 43(2B) of the AAT Act. As already stated, before arriving at its conclusion in [80] that the evidence did not satisfy it that Ms Freeman suffered an ‘injury simpliciter’ rather than an ‘ailment’, the Tribunal considered the evidence in detail, including the evidence of Professor Fox and Dr Sedal (see [17]-[27].) The logical process by which it reached this conclusion moved from consideration of the evidence to a consideration of the authorities in light of the parties’ contentions (see [69]-[79]), and this led it to its conclusion in [80]. Whether or not the Tribunal’s reasons were “adequate” is very much a question of degree. In this case, however, it seems to me that the Tribunal has clearly included in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (emphasis added): see s 43(2B). It may be that the Tribunal could have given a more detailed account of how it reached its conclusion in [80], but the possibility that there might have been “fuller and more detailed discussion” is not sufficient to establish a breach of the Tribunal’s obligation under s 43(2B) of the AAT Act: see Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65; 95 ALR 654 at 656.
Disposition
114 For the reasons stated, the appeal under s 44 of the AAT Act should be dismissed. At the hearing, the respondent indicated that, if successful, it did not seek its costs.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
