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).