Australian Postal Corporation v Hughes

Bedford N and Creyke R, "Inquisitorial v Adversarial Processes in Australian Tribunals in Shaping Administrative Law for the Next Generation", in Finn R, Shaping Administrative Law for the Next Generation: Fresh Perspectives (AIAL National Administrative Law Forum, 1999) Osborne G, "Inquisitorial Procedure in the Administrative Appeals Tribunal - A Comparative Perspective" (1982) 13 Fed L Rev 150 Thawley T, "Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal" (1997) 4 AJ Admin L 61 AUSTRALIAN POSTAL CORPORATION v KATE HUGHES NSD 439 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER N ISENBERG and DR M THORPE, MEMBER BETWEEN: AUSTRALIAN POSTAL CORPORATION

1. The Notice of Appeal as filed on 19 May 2009 is dismissed. 2. The Applicant is to pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of orders can be located using eSearch on the Court's website.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER N ISENBERG and DR M THORPE, MEMBER BETWEEN: AUSTRALIAN POSTAL CORPORATION

REASONS FOR JUDGMENT 1 The Respondent to the present appeal works for the Applicant, the Australian Postal Corporation. 2 On 13 January 2006 she was injured whilst performing her delivery duties on a motorcycle. A claim was made and ultimately resolved by a decision of the Administrative Appeals Tribunal on 21 April 2009: Hughes v Australian Postal Corporation [2009] AATA 260. The Tribunal concluded that Ms Hughes continued to suffer from the effects of an injury to her lower back and left hip joint. The Tribunal further concluded that Ms Hughes was not entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). The conclusion of the Tribunal as to permanent impairment is not in issue in this appeal. 3 In the hearing before the Tribunal, Ms Hughes gave evidence. Her claim was sought to be supported by medical evidence from Dr Fearnside (a neurosurgeon) and Dr Ginnane (Ms Hughes' general practitioner). The Corporation relied upon the medical evidence of Dr Maxwell (an orthopaedic and spinal surgeon), Dr Brennan (a neurosurgeon), Dr Dan (a neurosurgeon), Dr Holman (an orthopaedic surgeon), Dr Horsley (an orthopaedic surgeon) and Dr McGee-Collett (a neurosurgeon). 4 The Corporation now appeals to this Court from that part of the Tribunal's decision whereby it concluded that Ms Hughes continues to suffer from the effects of the injury to her lower back and left hip joint and that the Corporation continues to be liable. Reliance is placed by the Corporation upon s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the 1975 Act") and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the 1977 Act").

Questions of Law - Jurisdiction 5 Jurisdiction is conferred upon this Court to hear an appeal from a decision of the Tribunal by s 44(1) of the 1975 Act. That subsection provides as follows: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 6 Although s 44(1) employs the language of an "appeal", the jurisdiction of the Court being exercised is its original jurisdiction and not its appellate jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61 per Bowen CJ and Deane J. 7 The jurisdiction being exercised is nevertheless constrained by the requirement that the appeal be "on a question of law". In Brown v Repatriation Commission (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ observed in respect to this constraint: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. 8 In the present proceeding, the Questions of Law as formulated in the Notice of Appeal were identified as follows: (a) Whether the Tribunal failed to comply with its duty to give reasons for its decision. (b) Whether the Tribunal made findings that were not supported by any evidence. (c) Whether the Tribunal failed to consider a submission worthy of serious consideration. Each of these Questions of Law and each of the three Grounds of Appeal was intended to raise for resolution whether or not there was any evidence to support, or whether the reasons provided by the Tribunal adequately explained, how the account of the injury as provided by Ms Hughes gave rise to the injury for which compensation was awarded. In summary form, the Corporation contended that the account of the injury provided by Ms Hughes could not have caused the particular injury as found by the Tribunal. 9 The jurisdiction of this Court to entertain the present "appeal" was not put in question.

The Requirement To Give Reasons and State Findings 10 Where the Tribunal provides written reasons for its decision, s 43(2B) of the 1975 Act provides for the content of those reasons. That subsection provides as follows: 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. 11 The Questions of Law as expressed by the Corporation raise in one way or another whether the Tribunal has complied with the requirements imposed by s 43(2B). But there was no dispute on the hearing of the present appeal between the Corporation and Ms Hughes as to the object or purpose sought to be achieved by provisions such as s 43(2B) or the manner in which s 43 and other like provisions are to be applied to any particular decision of the Tribunal. The dispute was whether the Tribunal in the present proceeding had done that which it was required to do by s 43(2B). 12 There was thus no dispute that "sufficient reasons" must be provided "to make the system of appeals effective and to fulfil its assumptions": Roncevich v Repatriation Commission [2005] HCA 40 at [62], 222 CLR 115 at 135 per Kirby J. It must be possible "to discern from the reasons given the actual reasoning process adopted": Comcare Australia v Mathieson [2004] FCA 212 at [61], 79 ALD 518 at 531 per Weinberg J. "… [T]he tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40], 91 ALD 103 at 111 per French J. See also: Comcare v Davies [2008] FCA 393 at [31] to [33], 173 IR 294 at 302 to 303. 13 There was also no dispute that the requirement to provide "findings on material questions of fact" does not impose a requirement to make findings on all questions of fact; it is a requirement to set out those findings of fact which a tribunal does make and a requirement to refer to the evidence on which those findings were made. When construing a comparable provision to s 43(2B) as found in s 430 of the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 considered the requirement to set out "the findings on any material question of fact" and concluded (citations omitted, emphasis in original): [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is 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. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. See also: Lang v Comcare [2007] FCA 47 at [53], 94 ALD 141 at 152. Given a statutory requirement to set out "findings on material questions of fact", the absence of any reference in the reasons for decision of the Tribunal to those findings of fact material to the decision to be reached may preclude a conclusion that the Tribunal impliedly took various considerations into account: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [27], 107 FCR 133 at 140. 14 The requirement that there be "a reference to the evidence or other material on which those findings were based" has received arguably less consideration than other aspects of s 43. It is, however, clear that the requirement that there be "a reference to the evidence" does not impose a requirement that the Tribunal refer to every piece of evidence relevant to a particular finding: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ. And the requirement to make"a reference to the evidence" is confined to a requirement that there be a reference to the evidence of "those findings", namely the Tribunal's findings "on material questions of fact". 15 In Applicant WAEE, their Honours made reference to whether an "issue has at least been identified at some point". A mere passing reference to evidence, however, may not be sufficient compliance with the requirements imposed by s 43(2B). The mere fact that an administrative tribunal refers to information or evidence does not of itself mean that the tribunal has given that evidence proper consideration: SZGYT v Minister for Immigration and Citizenship [2009] FCA 705 at [24] per Edmonds J. 16 The reference in s 43 to "other material" is a reference to "material" which may not be evidence, including such materials as an agreed statement of facts or policy statements: Milbourn v Repatriation Commission [2009] FCA 176 at [29], 174 FCR 486 at 492 per Graham J. 17 But s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make "reference" to either evidence or other material upon which it proceeds to "base" its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make "reference" to the conflicting evidence and to set forth that evidence upon which it proceeds to "base" its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20]. As observed by French, Sackville and Hely JJ in Applicant WAEE, supra: [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is "fundamental" may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ. 18 A Tribunal's compliance with all aspects of s 43(2B) - be it the requirement to set forth its "reasons", the requirement to include "findings on material questions of fact" or the requirement that there be "a reference to the evidence or other material" - is a matter of substance and not form: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Comcare v Davies, supra, at [33]. The statutory requirement, it is to be recalled, has as a principal objective the exposure of the reasoning process of the Tribunal to judicial scrutiny. There must be sufficient compliance with each aspect of s 43 such that judicial scrutiny is not frustrated. But the manner in which the Tribunal discharges its responsibility to comply with s 43(2B) must inevitably depend upon - among other things - the nature of the cases coming before the Tribunal, the nature of the evidence and legal complexity of each case, and the particular style in which Tribunal members choose to express themselves. The less important a particular matter may be to the conclusion reached by the Tribunal, the less the need for the Tribunal to "refer to" or deal in any depth with the evidence relevant to that matter: e.g. Lafu v Minister for Immigration and Citizenship [2009] FCA 733 at [28] to [30] per Jagot J. A failure to refer to evidence of little ultimate significance to the conclusion reached may not permit an inference that such evidence has not been considered. 19 And there was also no dispute that reasons provided for an administrative decision are not to be scrutinised in an "over-zealous" manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In a passage which has often been repeated, Brennan CJ, Toohey, McHugh and Gummow JJ there referred to the earlier decision of the Full Court of this Court which was the subject of the appeal, and continued at 271 to 272 as follows: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. See also: Kirby J at 291 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36], 99 ALD 1 at 9 per Branson, Sundberg and Dowsett JJ. 20 To the extent that the Corporation in the present appeal seeks to raise a contention as to whether or not there was "any evidence" in support of particular findings, it may be noted that in Australian Postal Corporation v Sellick [2008] FCA 236 at [91], 101 ALD 245 at 264, Bennett J observed that "[a] decision made under an enactment is invalid if there is a total absence of evidence to satisfy an essential element of the decision". 21 But what must be shown to establish "no evidence" remains unclear. For example, in Comcare Australia v Lees (1997) 151 ALR 647 at 652 to 653, Finkelstein J expressed his views as follows: The first ground alleges that there was no evidence before the tribunal to support its finding that the respondent had suffered an injury that resulted in an impairment to his legs. Generally speaking, a finding of fact is not reviewable by the court. But it has long been established that an insupportable finding of fact may be set aside. This is because the question whether there is any evidence of a particular fact is a question of law. Further, whether a particular inference can be drawn from facts is also a question of law. In the province of judicial review the making of findings and the drawing of inferences in the absence of evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-6; 94 ALR 11 per Mason CJ. Precisely what must be shown to make out a case of "no evidence" has been the subject of much judicial comment. In a recent decision in the Supreme Court of Victoria, Roads Corp v Dacakis [1995] 2 VR 508 at 520, Batt J said that a finding of fact will only be open to challenge as an error of law if there was no evidence to support it and that such a finding would not be open to challenge merely because it was not reasonably open on the evidence. Batt J went on to say that an inference will be open to challenge if it was not reasonably open on the facts. There is no doubt that the first proposition is correct. It follows directly from what was said by Mason CJ in Bond as well as many other cases in Australia although the position might be different in England. Most of the important cases are collected in the judgment of Phillips JA in Powley v Crimes Compensation Tribunal (CA(Vic), 16 December 1996, unreported). It is not clear whether the second proposition accurately states the law and I notice that Batt J himself had some doubt about it. The difficulty comes about from a passage in the judgment of Mason CJ in Bond at CLR 360 where his Honour said that "an inference will be reviewable on the ground that it was not reasonably open". In my view there is a very real possibility that the use of the word "reasonably" in the passage quoted was not intended to make less onerous the task of challenging, as an error of law, the drawing of an inference. Certainly Phillips JA did not think so in Powley: see his reasons at 12-14. 22 For present purposes, however, it is unnecessary to further clarify what is meant to be conveyed by a submission that there is "no evidence" to support a finding. Irrespective of the precise test to be applied before finding there is "no evidence", evidence exists to support the Tribunal's findings in the case at hand.

A Failure To Give Reasons 23 The Corporation's first Ground of Appeal focused attention upon the following two paragraphs of the reasons for decision of the Administrative Appeals Tribunal: [43] We accept that both Professor Fearnside and Dr Maxwell accepted that the incident caused the gluteal injury. Ms Hughes' description of events around the injury involved adduction (away from the midline) of her left leg rather than adduction (towards the midline). Both Professor Fearnside and Dr Maxwell considered gluteal tendinopathy to result form [sic] an adduction of the leg rather than abduction. There was some evidence relating to twisting. Professor Fearnside presumed that there had been a twisting from the manner of the fall. Dr Maxwell said in effect that if she [sic] was any twisting at that point that could have caused the injury. … [45] We find that as at 24 April 2007 Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006. She was asymptomatic before the incident on 13 January 2006 and continues to experience symptoms. Australia Post therefore continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Act. 24 It was common ground that one form of "gluteal injury" is an injury that occurs when there has been some "internal rotation of the hip" or where there has been "a sort of twisting". That form of movement was described as "adduction". By way of contrast, "abduction" is the movement which occurs where the leg moves sideways as opposed to twisting. There was some unresolved debate as to whether the Tribunal had correctly employed the term "adduction" at the outset of its findings at paragraph [43]. 25 The Corporation contended that the Tribunal's conclusion expressed at paragraph [45] was founded upon its finding at paragraph [43] that the "hip injury" was a "gluteal injury" occasioned by a "twisting" movement and that there was no evidence of any such injury. The Tribunal erred, so it contended, because the Tribunal's reasons for decision did not include any reference to the evidence or other material on which its finding of liability for that "gluteal injury" or that form of "injury to [the] left hip joint" was based. 26 The case for the Corporation was that there was no evidence to support any such finding. The Corporation accepted the account of the "incident" or "accident" suffered by Ms Hughes on 13 January 2006. The account as summarised by the Tribunal was as follows: [8] Ms Hughes gave evidence that on Friday 13 January 2006, while delivering mail on a motorcycle, she turned right up a driveway and as she pulled up to a delivery point she slid on a seed pod when she put her left foot down. She was suspended momentarily off the bike and "did the splits", with her left hip lower than her right. She felt a popping sensation in her hip and a burning sensation in her hip and lower lumbar region. Her right leg was hooked over the seat, "semi bent" and her left leg was "directly straight out, as in the splits". She was unable to reach the right-hand handle bar to access the kill switch. She placed her left hand on the fence and "walked" herself up, enabling her to let the bike go with her right leg. She rested for a short while and then resumed her deliveries. … Relevant to that account, according to the Corporation, was the absence of any reference to a "twisting" movement. The Corporation also placed reliance upon a similar account provided by Ms Hughes to the medical practitioners, including Dr Fearnside. His report repeats the same description that she "did the splits". 27 The Corporation submitted that the manner in which the medical witnesses approached their task further supported its claim that there was a lack of evidence of an injury occasioned by a "twisting" movement. One medical expert (for example) said that he "perhaps … omitted to ask her about rotational elements …". Another expert stated that he "didn't get any specific history of particularly twisting; it was more of an abduction strain to her hip" and that "there was no particular twisting injury she related to me". 28 The case for Ms Hughes was that paragraph [43] of the Tribunal's reasons for decision should not be given the significance or prominence advanced by the Corporation. The submission on her behalf was that the principal finding was that set forth at paragraph [45], namely a simple finding that she continued to suffer from the effects of the injury to her lower back and hip joint sustained during the course of her employment. Alternatively, it was contended on her behalf that there was evidence of a "gluteal injury" occasioned by "twisting". 29 The first Ground of Appeal has not been made out. It is considered that the Tribunal's reasons adequately disclose the manner in which it proceeded and that its conclusion as to the liability of the Corporation was supported by the evidence. It matters not whether the reading of the Tribunal's reasons as advanced by the Corporation or on behalf of Ms Hughes prevails - on either approach, it is not considered that the Tribunal committed any appellable error. 30 On either approach, the Tribunal accepted that the accident occurred on 13 January 2006. And it further accepted that Ms Hughes had "a total absence of any symptomatology of the lower back or hip prior to 13 January 2006" and accepted that as at April 2007 she "continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment …". The medication being taken by Ms Hughes was said to be consistent with the evidence that she gave. This, together with the other medical evidence summarised by the Tribunal in its reasons for decision, would support the conclusion expressed at paragraph [45]. 31 Paragraph [45] is, however, clearly susceptible of the interpretation sought to be ascribed to it on behalf of the Corporation. Paragraph [45] is within that part of the reasons for decision which sets forth what may be regarded as the Tribunal's account of its findings on "material questions of fact" - and the inference is that the finding at paragraph [43] was "material" to the ultimate conclusion reached at [45]. But the Tribunal's reasons, when read in their entirety, expose a more generally expressed conclusion that Ms Hughes continues to suffer from an injury to her left hip or joint. To confine that conclusion by reference to whether or not there was a "gluteal injury" and to then isolate the evidence relevant to an injury occasioned by a "twisting" of the joint is to not read the reasons for decision in their entirety. Any looseness of language as may emerge from paragraph [45] does not lead to a conclusion that the Tribunal has not resolved the claim as advanced on behalf of Ms Hughes. 32 Even if, however, the Tribunal's reasons were confined to a finding that the only injury suffered by Ms Hughes was a "gluteal injury" occasioned by "twisting", it is further considered that there was evidence in support of that finding. As the Tribunal recognised, "some evidence" of that was to be found in what had been said by Dr Fearnside. 33 For the purposes of s 43(2B) of the 1975 Act, the requirement that there be a "reference to the evidence" is satisfied if the Tribunal identifies in a meaningful manner the evidence upon which it relies in making a finding on a "material question of fact". The evidence to which "reference" is made need not be set forth in its entirety. Section 43(2B) merely requires that there be a "reference" to the evidence. It may not be sufficient in a particular case if the Tribunal merely refers to the evidence of a particular witness or simply states that there was evidence but without identifying the evidence it had in mind. If an identified witness only gives evidence on one discrete matter relevant to a finding on a material question of fact and that evidence is brief and succinct, it may be a sufficient compliance with s 43(2B) if the Tribunal simply refers to the evidence given by that witness without more. Much may depend upon the factual issues in dispute in any particular case and the nature of the evidence being given by a number of witnesses. It may also be the case that a failure on the part of the Tribunal to expressly refer to the evidence of a particular witness or to refer to identifiable evidence may not be a failure to comply with the terms of s 43(2B) or that any such failure is non-prejudicial. The evidence relied upon may be readily identifiable even in the absence of any express reference to it on the part of the Tribunal. But, given the requirements imposed by s 43(2B), and where a contention is advanced that there is "no evidence" to support a particular fact, it may not be permissible for this Court when entertaining an "appeal" to itself review the evidence given before the Tribunal with a view to itself determining whether there was evidence upon which the impugned finding of fact may have been based. The task of making findings of fact and the task of referring to the evidence are tasks entrusted to the Tribunal. Likewise, the task of explaining the decision reached is a task which only the Tribunal itself can discharge. 34 But such difficulties may presently be left to one side. In the present proceeding the Tribunal at paragraph [43] of its reasons for decision identified both the witness upon whom it was relying - Dr Fearnside - and that part of his evidence which it had in mind - namely, his evidence that he had "presumed that there had been a twisting from the manner of the fall". That "reference to the evidence" is sufficient to enable the following parts of his evidence to be identified. One passage in his evidence-in-chief was the following exchange: Can you tell the tribunal why you formed an opinion that the applicant suffered from that condition arising out of the fall, the incident I should say?---In the history, while low back injuries can cause pain in the buttock, Ms Hughes had what I thought was probably more pain than I would have expected given the pathology in her back and it was more placed over the upper end of her femur and the side, the lateral aspect of the buttock. So that was a feature in the history that required further investigation. In the physical findings she had a restriction of hip movement, in particular internal rotation of the hip. Internal rotation of the hip places on stretch the muscles and the attachments of the gluteal muscles to the femur. The gluteal muscles run from the sacrem or the tailbone to the back of the femur and they, when they contract, rotate the hip and the leg outwards. So if one performs the opposite action of internally rotating the hip, it places those muscles and the tendons on the stretch. So if there is an inflammatory reaction or there has been an injury, then pain will occur in the local region and that was so with her. Thirdly, the investigations by way of ultrasound and also by way of MRI, the ultrasound being that of 28.2.06 and the MRI of 15.6.06, did show abnormality at the insertional levels and I therefore concluded that she had sustained an injury to those attachments. Again, I thought that the mechanism of the injury could have caused such an injury. There was also shortly thereafter the following exchange: So your written notes are identical to paragraph 1.2?---I would need to check that but I would be very disappointed if they weren't. She put her left foot down after she pulled up the motorbike. Her right foot was on the brake. She put her left foot on the ground and it slipped on some flame tree seed pods and she sustained a forced abduction injury, which means the leg going out, and in that I would anticipate that there would be a rotational element as well because that would be usual, which left her right leg hanging over the bike and her left foot was angled between the concrete of the footpath, I think, and a fence, that's right. Now my handwritten notes confirm that and after that she lent herself up against the fence with the left hand and climbed off the bike. In fact she said that she let it fall to the ground. I have got an indication there that the bike was fully laden with mail. So it was presumably heavy to manipulate. The significance of any evidence as to a rotational movement was clearly at the forefront of the minds of both of the Counsel appearing and of the two Tribunal members. There was thus an objection taken on behalf of the Corporation to the evidence being given upon the basis that "[t]here was never any evidence about a twist in the leg". There was then a further exchange during Dr Fearnside's evidence-in-chief as follows: Just to end on that point. If you were to presume that there was a twisting, does that have any significance to the type of injury that you have diagnosed?---No. I mean I suppose it makes it more possible that she sustained an injury either or both to the back and to the leg. There's generally a rotational [element] in these sorts of injuries and I mean perhaps I omitted to ask her about rotational elements but I thought that I obtained a fairly concise history of that. 35 Such evidence may not have been as fulsome as may be desirable, but the weight to be given to such evidence was a matter for the Tribunal and not for this Court. The Tribunal was not bound to only have regard to such parts of the evidence as the Corporation now wishes to emphasise. The evidence of Dr Fearnside to which the Tribunal referred cannot simply be dismissed, as the Corporation sought to characterise it, as but a "presumption" as to what had happened on 13 January 2006; his evidence was evidence as to the present medical condition of Ms Hughes and evidence as to how such conditions occur. 36 There is a further basis upon which the Corporation's first Ground of Appeal should be rejected. 37 Not only is it impermissible for the Corporation to seek to confine the basis of the Tribunal's decision to a conclusion as to "gluteal injury" and to thereafter seek to isolate the evidence referable to that injury, such a course is equally impermissible when reference is made to the claim in respect to the "injury" for which compensation was claimed. 38 Section 14 of the 1988 Act provides that Comcare is liable to pay compensation "in respect of an injury suffered by an employee …". Section 53 requires notice to be given "of the injury" and s 54 provides that compensation is not payable "unless a claim for compensation is made …" that complies with certain requirements set out in that section. Section 54 is a procedural prerequisite to an entitlement to compensation: Lang, supra, at [43]. The claim as made by a claimant is to be given "a broad, generous and practical interpretation …": Abrahams v Comcare [2006] FCA 1829 at [18], 93 ALD 147 at 152; Australian Postal Corporation v Sellick, supra, at [55]. Section 24 provides for the payment of compensation for "permanent impairment" and s 25 provides for the "interim payment of compensation" pending the final determination of a claimant's disability. Section 26 provides that "an amount of compensation payable to an employee under section 24 or 25 … shall be paid to the employee within 30 days after the date of the assessment of the amount". 39 In the present proceeding, the claim as made by Ms Hughes was dated 23 February 2006 and identified the injury as follows: Lower Lumbar 5 / I.T Left Hip Repetitive Strain / Bursitis The injury was similarly described at each of the various stages of reconsideration prior to the application for review before the Administrative Appeals Tribunal. Before that Tribunal, Ms Hughes in her Statement of Facts, Issues and Contentions claimed to be "entitled to compensation in respect of permanent impairment to her lower back and left hip joint, including bowel bladder dysfunction, pursuant to section 24 and 26 of the Act". The Corporation in its Statement of Facts and Contentions contended as follows: The medical evidence supports the conclusion that the Applicant does not suffer ongoing lower back and left hip conditions that were materially contributed to by the Applicant's employment. 40 Although it may readily be accepted that there are no "pleadings" before a tribunal, the findings of fact as made by a tribunal may be informed by reference to (inter alia) the decision the subject of review and the issues identified by the parties as relevant to reaching the "correct or preferable decision" in respect to the decision under review. 41 In the present proceeding, the decision the subject of review by the Tribunal was the decision refusing compensation in respect to the "injury" as claimed by Ms Hughes. The issues as identified by the parties relevant to the Tribunal's decision-making processes did not then seek to confine the injury to that of a "gluteal injury" occasioned by "adduction" or "twisting". 42 Nor, it is considered, was the Tribunal in its reasons for decision attempting to narrow down its finding to either: · the resolution of a claim founded upon a "twisting" movement; or · the resolution of the claim as strictly described in the account given by Ms Hughes of the events of 13 January 2006. Paragraph [43] of its reasons unquestionably exposes the fact that the Tribunal was aware of the difference between "abduction" and "adduction". Indeed, given the expertise of the medical member of the Tribunal, it would be surprising if such a distinction was not well understood. Section 7(2)(b) of the 1975 Act provides for the appointment of persons to the Tribunal who have "experience … in … the practice of a profession …" and such a member is "entitled to use his or her experience in interpreting and weighing the material and in reaching conclusions on technical matters": cf Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2 at [7], 257 ALR 765 at 770. 43 But the reference by the Tribunal to the difference in the nature of the physical movements to which reference had been made in the evidence is not a sufficient basis upon which to conclude that the Tribunal was thereafter confining its attention to the resolution of a claim founded upon that difference alone and to the resolution of a claim for compensation in respect of an injury different to that originally claimed in February 2006 and as identified in the statement of issues as filed by the parties. 44 It should finally be noted that there is not considered to be a clear distinction as between the claim as made by Ms Hughes and her description of the manner in which the accident or injury on 13 January 2006 occurred. Both the claim and the description are but a means of communicating to a decision-maker a description of the injury for which compensation is claimed and how that injury occurred. Either may give content to the other and the two should be read together. 45 Given the absence of any reference in her description of the accident or injury to any "twisting" movement and her description of having done the "splits", it is perhaps understandable that the Corporation accepted Ms Hughes' account and did not question her as to whether there was any "twisting" movement involved. The Corporation may have wished to confine her account of the events to as narrow a factual description as possible. But the task of the Tribunal, however, was to reach the "correct or preferable" decision. And, in discharging that task, s 33(1AA) of the 1975 Act imposes upon the person who made the decision under review the responsibility of using "his or her best endeavours to assist the Tribunal to make its decision …": Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [19], 158 FCR 252 at 257 per Gyles J. 46 In the present proceeding, the potential significance of a "twisting" movement or "adduction" as opposed to "abduction" was a matter that did not emerge only during the course of the hearing before the Tribunal. It was a matter of significance that had been identified as early as 6 November 2006 in a report provided to the Corporation by another orthopaedic surgeon, Dr Horsley. His report stated in part: The injury as described to me by Ms Hughes is of her doing the "splits". This, if anything, would tend to stretch the adductor tendons. In this position, in fact, the gluteus medius and minimus tendons are relaxed. I find it difficult to understand why there would be mild tendinosis with the type of injury she describes. The distinction having been thus highlighted, it is surprising that there was no further questioning - either in chief or in cross-examination - of Ms Hughes as to the description she had provided. The failure to further question Ms Hughes as to the movement experienced during the accident on 13 January 2006 did little to "assist" the Tribunal. 47 The procedures of the Tribunal, it must be recalled, are not adversarial but designed to facilitate the Tribunal making the "correct or preferable" decision in a manner which is "fair, just, economical, informal and quick": s 2A. The responsibility imposed by s 33(1AA) remains irrespective of whether or not an applicant before the Tribunal is represented or unrepresented. Even prior to the amendments to the 1975 Act which introduced ss 2A and 33(1AA), in Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332 the Tribunal, comprised of the then President, a Deputy President and a Member, observed: [24] Proceedings before this tribunal are not adversarial but are designed to enable the tribunal to reach the correct or preferable decision in the circumstances of the case. To this end the role of the parties is to assist the tribunal in reaching its decision. The tribunal expects departments and agencies involved in the review process to have an understanding of that role. … The non-adversarial role of the Tribunal has been repeatedly referred to: Osborne G, "Inquisitorial Procedure in the Administrative Appeals Tribunal - A Comparative Perspective" (1982) 13 Fed L Rev 150; Bedford N and Creyke R, "Inquisitorial v Adversarial Processes in Australian Tribunals in Shaping Administrative Law for the Next Generation", in Finn R, Shaping Administrative Law for the Next Generation: Fresh Perspectives (AIAL National Administrative Law Forum, 1999) p 91. The non-adversarial role of the Tribunal is of paramount importance. Indeed, with reference to the distinction between adversarial and inquisitorial procedures, it has been noted that a "perceived dichotomy" exists between "an adjudication of the evidence presented and … a search for the truth": Thawley T, "Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal" (1997) 4 AJ Admin L 61 at 63. 48 Given these tasks and responsibilities it is not considered appropriate to either confine Ms Hughes' claim or her account of the accident or injury in any artificial manner. The evidence of Dr Fearnside supports the conclusions he reached and his "presumption" - even if that is how his evidence is to be properly characterised - was supported by a "generous and practical interpretation" of both the claim as made and the account of the events that occurred on 13 January 2006. 49 In contrast to the present set of circumstances is the decision in Tralongo v Malios [2007] VSC 239, 27 VAR 74 where a misstatement in the decision of a medical panel as to the history provided by a claimant led to a conclusion that a decision of the panel should be set aside. In the present proceeding it is considered that the account provided by Ms Hughes was clearly at the forefront of the mind of the medical practitioners and the Tribunal itself. 50 The first Ground of Appeal is thus rejected.

Findings Not Supported by Evidence 51 The second Ground of Appeal focuses attention upon the following finding as made by the Tribunal: [41] Her symptoms did not subside as may have been expected, and in fact spread to other areas. … This reference as to the symptoms having spread to "other areas" was a reference to the evidence Ms Hughes had earlier provided and which was summarised by the Tribunal earlier in its reasons for decision as follows: [11] She had a cortisone injection in late February 2006. By September 2006 she had been prescribed Endone, a narcotic for her occasional severe pain. She has developed a variety of symptoms. She told Dr Fearnside in October 2007 she has continued to experience back, left buttock and left hip pain; also that she had developed left sided sciatica with referred pain to the foot. She also described having alternate cold and burning feelings in the left hip and buttock region and had experienced some paraesthesia in her right buttock and thigh, but no sciatica. Also since January 2006 she had been constipated and also experienced loss of bladder sensation and some urinary incontinence. [12] She said that since 13 January 2006 she has had virtually the same level of back pain, the intensity of which varies according to her activities. Her left hip has deteriorated and that pain also fluctuates. Her hip is more troublesome than her back. Nonetheless since late August 2007 she has worked 7 hours 21 minutes each work day and does 1-1½ hours overtime most days. [13] She said she has had several experiences of her left hip locking and her left leg giving way. That might occur once a month, although it occurred three times one month. These paragraphs may be taken as an account of the symptoms claimed to be suffered by Ms Hughes. 52 On behalf of the Corporation it is contended that "the Tribunal failed to include in its Reasons a reference to the evidence or other material on which" the finding at paragraph [41] was based, namely that Ms Hughes' symptoms had "spread to other areas". Reference was again made on behalf of the Corporation to the evidence of the medical witnesses. One witness, for example, Dr Brennan, had said that he "[did] not see a structural … cause to the bladder dysfunction related to her spine". Another witness, Dr Fearnside, had said that Ms Hughes' radicular complaints were "non-verifiable". A further witness indicated that "[t]he report of bladder and bowel symptoms … appear to have no objective neurological basis". It was contended by the Corporation that "there was no evidence before the Tribunal to the effect that those tests or consultations had established a causal connection between the symptoms and the 13 January 2006 incident". 53 The Corporation obviously accepted that it was for the claimant to set forth her symptoms - but contended that such an account did not establish that those symptoms had been caused by the January 2006 accident. 54 Again, however, the Ground of Appeal is to be rejected. 55 The Tribunal set out the account provided by Ms Hughes of her symptoms (at paragraphs [8] to [14]) and thereafter (at paragraph [41]) made the finding of present relevance - namely, the finding that the symptoms had "spread to other areas". 56 Paragraph [41] is contained in that part of the Tribunal's reasons for decision under the heading "Findings". And there is indeed no reference in that part of the Tribunal's reasons where it makes its "Findings" to the evidence or other material on which its findings are based. 57 But it is not considered that paragraph [41] can be construed and read in isolation from the balance of its reasons for decision. Previously, and when the Tribunal was summarising the evidence given by the medical witnesses, the Tribunal stated in part: [23] On 27 June 2006, Dr Jeffrey Brennan, neurosurgeon, reported (T19, 2007/2281) that Ms Hughes had had low back pain since her injury in January. Dr Brennan noted that it was of concern that Ms Hughes developed a "change in bowel and bladder habit", "loss of sensation, the sensation of incomplete emptying, and a need to urgently use the toilet where her bladder is very full. She is no longer able to use her bowels unless she [has] some aperient." Ms Hughes complained of "pain and irritability around the left hip." Dr Brennan stated that Ms Hughes possibly "developed a disc herniation at L5/S1 and may have cauda equina compression" and recommended a repeat MRI. [24] On 7 July 2006, an MRI (T23, 2007/2281) of Ms Hughes' lumbosacral spine indicated "continued evidence of a small tear of the annulus fibrosis at L5-S1, unchanged from the previous examination." On 11 July 2006, Dr Brennan reported (T24, 2007/2281) that the repeat MRI did not indicate a structural cause to the bladder dysfunction related to Ms Hughes' spine. Dr Brennan stated that "patients with chronic pain can develop reflex bladder dysfunction due to the disturbance of normal neurological control related to the constant pain input." This summary of the medical evidence, it is considered, goes beyond a mere recitation of the account given by Ms Hughes and extends to evidence that the account of symptoms now being given by Ms Hughes is attributable to the January 2006 accident. 58 There is considered to be no failure on the part of the Tribunal to make a finding and to refer to the evidence on which its findings were based. Section 43 of the 1975 Act does not require that reasons for decision be expressed in any particular way or according to any particular formula. The manner in which Tribunal members may express their reasons for decision is as diverse as the manner in which Judges of this and other Courts express their reasons. The reasons for decision of the Tribunal in the present proceeding, and the manner in which it has expressed its findings and referred to the evidence before it, are expressed in sufficiently clear terms such that a conclusion can safely be reached on appeal that the Tribunal has referred to the evidence upon which it reached the finding of present relevance.

A Submission Worthy of Consideration 59 The final Ground of Appeal seeks to contend that there has been a failure on the part of the Tribunal to consider "a submission worthy of serious consideration". According to the Corporation, that submission was its submission that "the Tribunal should reject or heavily discount the evidence of the respondent because of discrepancies between the findings made in investigations of the respondent's pathology, the findings made by expert witnesses in their examinations of the respondent, and the respondent's reports of pain". 60 A failure on the part of the Tribunal to resolve a submission advanced before it for resolution may give rise to a "question of law" within the meaning of and for the purposes of s 44(1) of the 1975 Act. And the failure on the part of the Tribunal to mention a submission or particular evidence advanced before it may give rise to an inference that the submission or the evidence has not been taken into account during the decision-making process. Or, if the submission or evidence has been taken into account, a failure to refer to the submission or the evidence in the reasons for decision may expose a failure to comply with the requirements of s 43 of the 1975 Act. 61 But not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick, supra, at [35], Bennett J also referred to the need to address a submission of "substance" or a submission which would have "affected the outcome". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J. 62 A failure on the part of the Tribunal "to respond to a substantial, clearly articulated argument relying upon established facts" may constitute a constructive failure to exercise jurisdiction: cf Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] to [25], 73 ALD 321 at 326 per Gummow and Callinan JJ. The comments there made in respect to a failure on the part of the Refugee Review Tribunal have been applied by the Full Court of this Court in respect to a decision of the Administrative Appeals Tribunal: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 at [26], 136 FCR 47 at 58. 63 There can be no question in the present proceeding that the submission advanced on behalf of the Corporation before the Tribunal, namely the submission as to the weight to be given to Ms Hughes' evidence, was indeed "a submission worthy of serious consideration". Questions as to the weight to be given to the account provided by Ms Hughes and the evidence of the medical experts were placed at the forefront of the Corporation's case. Reason for reservation arose due to Ms Hughes' own evidence. Reason for reservation also arose from the qualifications expressed by some of the medical experts, one of whom (for example) stated that "[o]n physical examination there were no abnormal signs" and by reason of such objective evidence as an MRI exposing no "structural (i.e. surgical) cause to the bladder dysfunction related to her spine …". 64 But, on a fair reading of the Tribunal's decision, it is again apparent that it did consider the submission being advanced. The Tribunal on numerous occasions throughout its reasons exposes the necessity for it to carefully consider the account being advanced by Ms Hughes and the discrepancies in the evidence. It considered the evidence she gave and proceeded to resolve what evidence could be accepted, including the medical evidence. So much is evident from the following observations of the Tribunal: FINDINGS [35] This was a difficult matter. There were aspects of the medical evidence which were problematic, and there were credit issues which emerged. We formed the view that having regard to her evidence and the evidence of Mr Webb that Ms Hughes had "gilded the lily" in describing her educational qualifications and her career, finding it unlikely that both doctors had mis-heard her work history. [36] However, it was clear to us that there is no evidence which would lead us to a view that the incident on 13 January 2006 did not occur as Ms Hughes described. Further, her evidence, supported by the notes of Dr Ginnane, is as to a total absence of any symptomatology of the lower back or hip prior to 13 January 2006. [37] We accept, too, her evidence that she had discomfort over the weekend of 14-15 January 2006. There was medical evidence that she attended Dr Singh on 16 January 2006 and that, on examination, showed a reduced range of movement in the left hip, and that movement was painful. It is somewhat bizarre though, in our view, that Ms Hughes made no connection between the incident on 13 January 2006. [38] Also, curiously perhaps given that the pain persisted, she did not go back to a doctor until 20 February 2006, about a month later. However, we accept her evidence that she did not attend earlier because she thought the pain would subside. Again though, she did not mention what had happened on 13 January 2006, although Dr Ginnane was prepared to issue a WorkCover certificate. 65 There is considered to be no necessity for the Tribunal to expressly identify any particular submission being advanced for resolution, or to identify it in the same or similar terms to that being advanced by a party, and to then expressly address and resolve that submission. The manner in which the Tribunal resolves competing submissions, and the manner in which it expresses those submissions, is a matter for it to determine. That which is required, however, is for it to be readily apparent that a submission of "substance" or one "worthy of consideration" has in fact been addressed and resolved. The Tribunal discharged that task in the case at hand.

Conclusions 66 It follows that the appeal pursuant to s 44 of the 1975 Act should be dismissed. 67 No separate submissions were advanced on behalf of either the Corporation or Ms Hughes as to whether it was appropriate for the Corporation to file both an appeal pursuant to s 44 and also rely upon s 5 of the 1977 Act. No submission, for example, was advanced on behalf of Ms Hughes that applications may not be made pursuant to both s 44 of the 1975 Act and s 5 of the 1977 Act. In other cases such a submission has been advanced: e.g. Australian Postal Corporation v Sellick, supra, at [92] to [95]. 68 Both parties sought costs in the event that they should prevail, the proposition common to both parties being that costs should follow the event. 69 There is no reason why costs should not follow the event in the present proceeding.

ORDERS 70 The orders of the Court are: 1. The Notice of Appeal as filed on 19 May 2009 is dismissed. 2. The Applicant is to pay the costs of the Respondent. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 21 September 2009 Counsel for the Applicant: Miss R Henderson

Solicitor for the Applicant: Graham Jones Lawyers