2. In accordance with this ruling, Mr McDermott, on behalf of the respondent, presented his case first and placed before me the following evidence:-

(a) Oral evidence of Mr Russell Miller, orthopaedic surgeon, together with a large bundle of reports and letters written by him.

(b) Report of the Bundoora Family Clinic of 24 July 1999.

(c) Hand-written notes from the Bundoora Family Clinic.

3. Reference was also made by Mr McDermott to reports of Dr Peterson, found in the applicant's Tribunal book at pp.23 and 25, although these do not seem to have been introduced into evidence.

4. Mr Brett, on behalf of the applicant, elected to introduce no evidence.

5. Some discussion ensued as to whether or not a submission of no case to answer could be made. Mr Brett made the very proper concession that, given my earlier ruling that, in an application such as this, no burden of proof in the curial sense exists, a submission of no case to answer would be neither appropriate nor available. As stated, that seems to me to be a proper concession because of the clear connection between such a submission and the concept of a burden of proof. Such concession is also consistent with the observations of Jenkinson J in McDonald v Director-General of Social Security (1984) FCR 354 at 368 and 369. It is there said:

"But the administrative decision-maker will commonly inform himself of the facts by his own inquiries, as well as receiving such proofs as the individual citizen and those who may be authorised to opposed a citizen's interest choose to place before him. And he will not ordinarily be free, as a court is ordinarily free, to determine a matter against the party on whom lies the onus of proof, and who fails to offer any proof in discharge of the onus, without further inquiry. When the party to litigation on whom the onus of proof of an issue lies has concluded his evidence, the court may be called upon by the other party to determine the question of law whether that evidence can support a verdict or finding for him on whom the onus lies. Except by special legislative direction no administrative decision-maker could be so constrained."

6. Of course, Mr Brett was at liberty to place before me as much or as little evidence as he deemed fit. He chose to introduce no evidence. Some discussion then ensued as to whether or not an adverse inference could be drawn against the applicant because of his failure to adduce any evidence, and particularly because of the failure of the applicant himself to give evidence. As discussed during argument, it does not seem to me that such an inference could be drawn and relied upon in a no case to answer submission. However, that is not the situation here. I see no reason why the rule in Jones v Dunkel would not apply in a matter contested in an adversarial manner before this Tribunal. If it were so applied, the failure of the applicant, being a party, to give evidence may very well attract the operation of the rule. As stated in Cross on Evidence, 6th edition, at page 35:-

"Considerable significance may attach if the absent witness is ... the party ..."

"It is easy to apply the principle where it is the party who fails to give evidence."

8. However, as stated by Mr Brett, the position in the present case is more complicated. The respondent has placed before its witness Mr Miller, obtained his comments upon, and ultimately placed in evidence the detailed statement of the applicant dated 27 July 2001. In other words, as argued by Mr Brett, the respondent has effectively placed in evidence what would be the applicant's evidence in chief. Why, he asks, should he then call his client? The same logic, he argues, applies in relation to the witnesses whose statements were tendered by the respondent.

9. There is some force in Mr Brett's admission. The waters have certainly become muddied. In the circumstances, is it appropriate to draw the inference that the uncalled evidence would not have assisted the party's case when some of that evidence has in fact been introduced? When the respondent has chosen to put such a statement in evidence, ultimately without opposition, what inference, if any, do I draw from the failure of the applicant to place himself in the witness box, effectively for cross-examination, when what is essentially his evidence in chief has already been presented for him? In this particular case, and for reasons that will be discussed, the application of the rule makes no difference to the ultimate outcome of this matter. However, in the peculiar circumstances prevailing in this case, I have considerable reservations as to whether any meaningful inference could be drawn in any event.

10. The next issue is the nature of the question before me. In coming to a decision, and in putting myself in the shoes of the original decision-maker, what is the question that has to be determined? Mr McDermott, on behalf of the respondent Commission, proposed it as follows - "was the determination to cease payments justified?" In my opinion, that is correct. The alternate way of wording the question might be: "Is the applicant entitled to payments?". In this particular case, whichever form of question is adopted, the outcome would be the same. However, this issue was raised, and I make the observation that the question proposed by Mr McDermott seems to me to be the correct one. I say this for the following reasons:-

(i) The applicant made a claim in 1994. The respondent accepted the claim and made payments for some six years. It then determined to cease payments. It did this without consultation with, hearing from, or obtaining any current material from the applicant. It determined to interrupt or overturn a long-established state of affairs. The question as proposed by Mr McDermott is consistent with what was the reality of the situation and of the decision taken.

(ii) As stated in my earlier ruling, whilst no burden of proof in the curial sense exists, some assistance can be obtained from procedures and decisions of courts relating to curial matters. The authorities relating to burden of proof and carriage were discussed in Green v Victorian WorkCover Authority (1997) 1 VR 364. At page 372, Tadgell JA stated:-

"... where the commission ... had all along denied and contested the claimant's entitlement to compensation it would be unsound in theory and illogical in practice, unless the statute constrained it, to require the opponent of the claim to marshal, master and present facts which would disprove the claimant's case. ... if the claim were accepted and met, for example by the making of weekly payments of compensation, the statutory entitlement would attach in accordance with its statutory terms. By contrast, the party obliged to pay compensation might then bear an onus to displace the entitlement if it were sought to displace it."

Whilst no onus of proof exists here, the above statement is useful in that it illustrates the approach that may be adopted in a curial setting. Clearly, if the approach of Tadgell J A were adopted, the party seeking to displace the entitlement would have to prove that it had sufficient grounds for so doing. That approach is consistent with the question posed here by Mr McDermott.

(iii) The wording of the question in this form also seems to me to be consistent with the approach adopted by Jenkinson J in McDonald v Director-General of Social Security, and in particular at pp369 and 370.

11. The Tribunal is obliged, when reviewing a primary administrative decision, to be satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one. There are a number of authorities in support of that proposition, and they are referred to and the principle summarised by Tadgell JA in Transport Accident Commission v Bausch (1998) 4 VR 249 at 263. As was said by Woodward J in McDonald at p.358, when discussing the question of whether a burden exists, and the common-sense approach to be adopted:-

"The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go."

12. This is such a case. The decision being reviewed is a determination that the applicant is not and never has been entitled to payments from the TAC in respect of any transport accident on 11 September 1994. Mr Griffin, who originally appeared on behalf of the Commission and who conducted the argument concerning the burden of proof and order of receiving evidence, made it quite clear that this was a fraud case. The Commission determined that benefits cease because no accident, or no accident as described by the applicant, ever occurred. Whatever nuances the Commission now seeks to attach to the determination, it was made crystal clear at the commencement of this case that the issue was as stated above, which is entirely consistent with the letter of 22 August 2000 from the Commission to the applicant in which he is notified of the determination of benefits.

13. Whichever form of question is adopted, the result is the same. The evidence is essentially all one way. On the basis of the material placed before the Tribunal, the respondent was not justified in ceasing payments. The applicant is entitled to payment of benefits.

14. Leaving to one side for the moment the evidence of Mr Miller, there is in evidence and before the Tribunal a statement of the applicant that, in essence, on 11 September 1994 a motor vehicle ran over his left leg. There is the statement of the eye-witness Stulic confirming the occurrence of the accident. There is the statement of the driver of the vehicle, Juric, confirming the occurrence of the accident on the day in question. There is the statement of the applicant's brother, Robert Golem, concerning contemporaneous complaint and limping. All of this points in the one direction - namely, that the applicant was the victim of a motor vehicle accident involving injury to the left leg on 11 September 1994.

15. Before turning to Mr Miller, other items of evidence before me are a little more confusing. The tendered statement of Mr Kozul relates principally to the circumstances in which he signed an earlier statement. That earlier statement, which was not tendered but which is contained in the respondent's Tribunal book, needs to be examined if any sense is to be made of the tendered statement. I assume it was intended that both statements be tendered and have treated them as so being. It then becomes clear that Kozul was a front seat passenger in the car on the day. In his initial statement he recalled the applicant alighting from Juric's car but could recall no incident of injury, the car stopping, Juric assisting the applicant or the like. In his statement of 30 October 2001, he refers to the circumstances in which he signed such statement, what he refers to as uncertainties, and states that he does distinctly recall the applicant complaining about his leg and ankle immediately after alighting from the car and indicating that he had been run over by the vehicle. Kozul was not called to give evidence. On the basis of the material before me, and in the absence of any oral evidence, I am far less prepared to accept his evidence, either as set out in his original statement or in his subsequent statement. It might be considered that the rule in Jones v Dunkel should well operate in relation to him, but, again, the Commission did tender a statement in which he effectively retracts some of what he had previously said. All in all, the position regarding him could be summarised by saying that his evidence is unsatisfactory.

16. The medical evidence from Bundoora Family Clinic is also confusing. The report of Dr Ratnavelar of 24 July 1999 indicates that Dennis Golem apparently attended the clinic under the name of Robert Golem on 14 September 1994 giving the history of a motor vehicle accident involving his left lower leg three days previously. There is no evidence as to why this should have occurred, although, during the initial argument about onus and carriage, and whilst discussing allegations of fraud, Mr Brett asserted from the Bar table that this was due to some confusion concerning the use of Medicare cards. My recollection is that Mr Griffin was silent on the issue, not that one would necessarily expect that he would have made any remarks at that time. Often contemporaneous medical histories can be of considerable assistance. I am not prepared to speculate as to why Dennis Golem apparently attended the clinic under the name of Robert Golem. In the absence of evidence or material before the Tribunal as to what in fact happened, the evidence of the Bundoora Family Clinic could best be described as equivocal. In relation to any inference to be drawn, I again point out that the material was tendered by the Commission.

17. Thus, the essential evidence before the Tribunal is the statement of the applicant as to the occurrence of the accident in question, and the supporting statements of two eye witnesses, with a further statement of a witness who observed the applicant limping a short time after the occurrence of the accident. There is the unsatisfactory evidence of Kozul and the equivocal evidence of the Bundoora Family Clinic, but in my opinion neither of those items of evidence ultimately tend to disprove the happening of the accident. Both could be further indications that it occurred, or point in the opposite direction. They are certainly not sufficient to overturn the balance of the evidence.

18. I turn now to the evidence of Mr Miller. His evidence could be summarised as follows. Its high water mark, from the respondent's viewpoint, would be Mr Miller's answer that, especially with the benefit of hindsight, the injury sustained to the applicant's left leg, particularly as originally recorded, was not consistent with the motor vehicle accident as described.

19. However, he made various concessions in relation to this. In answer to a question of mine, he stated that any scepticism he might have related not to the occurrence of an accident but to the degree of seriousness of the injury sustained in it. He made it reasonably clear, particularly in cross-examination, that he could not and would not say that no accident occurred. This quite honest assessment of the situation is also insufficient to overturn the clear evidence of the occurrence of the accident.

20. The issue concerning which I have to arrive at a correct decision does not involve the degree of injury suffered by the applicant nor the reasonableness of the treatment which he has received. The respondent took a decision based upon a premise, and that premise was explained at the outset. That simple issue is whether the accident occurred at all, or occurred as alleged. On the basis of the material presented to me, I have no hesitation in arriving at a conclusion that the applicant suffered injury to his left leg in a motor vehicle accident on the date in question, and that the accident occurred when the vehicle in which he had been a passenger effectively ran over his left leg after he had alighted from the vehicle. I am not of the opinion that any inference which I am asked to draw is capable of overturning the material put before me, which is strongly supportive of the proposition that the accident did in fact happen. In the circumstances, there is no need for me to make any ruling concerning the effect or applicability of the decision in Briginshaw v Briginshaw.

21. Accordingly, it is my determination that the decision of the respondent of 22 August 2000 should be set aside and in lieu thereof there is a decision that the applicant is entitled to payments from the Transport Accident Commission in respect of a transport accident which occurred on 11 September 1994.

22. I shall now hear arguments in relation to costs.