"In approaching the decision of an expert Tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
This does not mean that it is not open for me to form such a view but it at least dictates caution in my approach to the evidence." (Emphasis added)
His Honour went on to say:
".... the essence of an expert tribunal is that it is expected to some extent to bring to bear its own expertise; ... It may involve a determination of the precise extent to which in any particular instance such a Tribunal can properly prefer its own expert knowledge to the evidence adduced before it by the parties or one of them and of what notice must be given to the parties so that they have knowledge of the collective mind of the Tribunal and seek to combat and alter by argument the proposed application by the Tribunal of some particular aspect of its expertise or experience to the case before it." (Emphasis added).
Those principles were cited and applied in Roads Corporation v Dacakis [1995] 2 VR 508 at 529-530 per Batt J. See also Minister for Health v Thomson (1985) 8 FCR 213 per Beaumont J; and McIntosh v Minister for Health (1987) 17 FCR 463 per Davies J. The relationship between the use of expert members in the AAT and the requirements of procedural fairness is discussed by Hayley Katzen in an article "Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal (1995) 2 AJAL 169. There is also a consideration of the question in "Natural Justice" by G A Flick, 1979 at 77-84.
To borrow the words of Holmes J in Chicago, Burlington and Quincy Railway Co v Babcock (1907) 204 US 585 at 598, a decision of an expert panel of the Administrative Appeals Tribunal might in some respects be described as an expression of "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions". The extent to which expert knowledge is brought to bear in the evaluation of evidence presented to such a body can rarely be analysed or formulated with precision. This consideration is an important reason why judges ought to tread with caution before finding that such a body has failed to properly perform its administrative function. The judgment of Lucas J, in the Queensland case of Re Anderson and the Ulster Hotel [1969] Qd R 525 at 529 where he approaches the decision of an expert body as a review of a discretion, is also of assistance in this area.
It is a well settled principle that even in judicial review of decisions by non-expert bodies, the Court will not scrutinise the decision with a fine toothcomb eager to detect error. See the remarks of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, and also the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032 per Lockhart J. A practical balanced approach is called for.
No doubt Dr Thorpe, who sat on the AAT, was well qualified by reason of his training and experience to assess the weight and importance of the medical evidence. There is nothing in the material placed before this Court which indicates that the importance or effect of that medical evidence escaped attention or was the subject of misapprehension.
On its face it not unreasonable to prefer an opinion expressed in terms of a specific reference to a particular muscle condition as against an opinion which makes only an indirect and more generalised inferential reference.
Procedural fairness
It was further submitted for Telstra, that because the AAT appears to have favoured the views of Dr McEwin over the other medical advisers on the ground of lack of specific comment by them on the condition of the right trapezius muscle, there was a lack of procedural fairness. This is said to arise because the importance assigned to this matter by the AAT was not at any stage raised with Telstra so that it could make submissions as to why this view should not be taken.
This submission, in my view, adopts too broad a view of the requirement of procedural fairness. The decision under review must be looked at in its totality and the question asked whether the parties had a reasonable opportunity at the hearing to anticipate or address on this matter. In my view they did.
As a general principle procedural fairness does not require that a line of reasoning proposed to be taken when deciding adversarial proceedings must be disclosed to the parties so that they can advance further submissions. See Luu v Renevier (1989) 91 ALR 39 at 44-46; Powerlift (Nissan) Pty Limited v Minister of State for Small Business Construction and Customs (1993) 113 ALR 339 at 361.
There is no requirement in adversarial proceedings that the parties must be notified of tentative conclusions or offered an opportunity to make further submissions. Such a procedure would often prove disruptive and impracticable on the grounds of expense and delay. Of course a decision-maker should not generally speaking be permitted to decide questions on new independent issues not raised by submissions or pleadings or at the hearing: Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. However, there is no duty to disclose tentative conclusions or reasons to the parties where the issues have been identified and the evidence relied on has been made known to the parties: Telstra Corporation Ltd v Kendall (1995) 55 FCR 221. There is a helpful discussion of relevant principle in Judicial Review of Administrative Action 1st edn (1996) Aronson and Dwyer, at 541 ff; see also Dobbie v Department of Social Security (1995) 85 SSR 1244b.
There will, of course, be cases where the conclusion was not obviously open or might not have reasonably been anticipated where procedural fairness requires an opportunity to provide further evidentiary material or make further submissions. Cf Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 715; Mahon v Air New Zealand Ltd [1984] 1 AC 809 at 821 and 835-6.
It is important to bear in mind that this submission is made in relation to one link in a chain of reasoning concerned with the reasons why the evidence of one witness was preferred over that of another. This is a matter which is, to a significant extent, one of impression and which can involve a wide range of considerations. It arises in an area where considerable weight must be given to the AAT's views.
In substance, Telstra's submission is that the AAT, when considering the evidence and submissions after the close of the hearing, has an obligation to inform the parties as the proposed reasoning processes of the members, so that specific submissions can be made. In the instant case, this submission would require the AAT to disclose to the parties that it saw some importance in the fact that no specific statement was made in two of the medical reports to the condition of the trapezius muscle. If accepted, such an obligation could render the administrative appellate process unworkable and could encourage endless challenges to decisions. Apart from this practical consideration, and more importantly, there is no procedural unfairness in the present case where it was open to the parties to address on all questions including the issue as to which medical opinion should be preferred. There has been no denial of, or constraint upon, the opportunity of either party to deal with this issue. The question as to whose views should be preferred was plainly a central and obvious issue in the hearing.
There is an important distinction between structured adversarial proceedings such as the present, and a broader open-ended inquiry into a generalised area with indeterminate wide ranging issues. In the latter case it may, in some circumstances, be appropriate to give the parties a draft of the proposed findings and invite submissions. I understand this procedure has been followed by the New South Wales Ombudsman. It was not an appropriate course in the present case.
In deciding which expert evidence to prefer the AAT had the advantage of the oral testimony and the cross-examination of Dr McEwin.
Of course, in some cases, a wholly new or unanticipated critical point may occur to, or be perceived by, the Tribunal after the hearing has concluded. In such cases it could be unfair to decide the matter on a basis not argued. But that is not this case. Here, full submissions were made and the AAT has preferred one expert view over the others. The preference as to evidence raised a question of fact and degree within the expertise of the AAT.
In addition it is worth observing that the AAT simply "noted" the lack of direct specific comment by the doctors and the specific examination by Dr McEwin. It did not state that the "omission" was the only or a major reason for the preference given to Dr McEwin's evidence.
The AAT was also entitled to give appropriate weight as it thought fit to the dates and content of the medical reports, to the impression made by Dr McEwin in the witness box, and to the complaints and oral testimony of Mr Warren in the light of the totality of the evidence when reaching its conclusion as to whose evidence was to be preferred.
For the above reasons, the submissions on this contention must fail. There has been no procedural unfairness.
Failure to consider relevant matters
A further error of law alleged is that the AAT failed to take account of various considerations, namely: