The Tribunal then considered the evidence for the purpose of determining whether there was a sufficient nexus between the November 1993 incident and the applicant's employment. It noted that the incident was the disclosure by a co‑worker to a mutual friend and said that the information disclosed had no relationship with her employment duties or conditions. The Tribunal then said:
"Given the circumstances, the employment nexus can be shown only if it can be said that her records had been inspected and the information conveyed to a third party because she was an employee of HIC".
The Tribunal then distinguished the facts from those in Mills v Australian Postal Corporation (1994) 32 ALD 489 and concluded:
"Here there was no involvement of the employer, the information was unrelated in any sense to the employment of Mrs Lodkowski and the communication was unrelated to the work place. The Tribunal finds that there was no contribution by her employment and the incident did not arise out of, or in the course of, employment."
The Tribunal then went on to consider whether subsequent to July 1995 the applicant continued to be incapacitated for work as a result of the accident in 1990 and whether the respondent should be liable for the costs of further medical treatment. The Tribunal analysed the evidence and in particular the medical evidence and said:
"The Tribunal cannot be satisfied, on the balance of probabilities, that, after 6 July 1995, Mrs Lodkowski continued to suffer an ailment or injury caused by the accident in 1990".
Having concluded that it could not find that there was any employment related reason for any ongoing symptoms beyond 6 July 1995 the decision under review was affirmed.
Did the Tribunal misconceive its function?
The applicant submitted that as the Tribunal took the view that its function was adversarial rather than inquisitorial, the whole proceeding was infected and affected and should be set aside. It is true that the Tribunal at one stage in the course of argument said that the proceeding before it was adversarial and that in its reasons for judgment it came to a conclusion related to its satisfaction on the balance of probabilities. However, in my opinion, these statements did not result in the Tribunal misconceiving its function and proceeding in a manner that was not appropriate having regard to the issues before it. It is important to identify the context in which the relevant passages attacked arose. After the Tribunal had raised with counsel the issue as to whether or not the November 1993 incident was work‑related the Tribunal gave counsel the opportunity to consider the matter over the luncheon adjournment. After the adjournment counsel for the applicant said that the matter had not been raised previously and that counsel for the respondent had not objected to any evidence about the November 1993 incident. The Tribunal then said:
"No, because I said that I would admit it. My point made before lunch was simply this: irrespective of the normal adversarial position in these cases, it is still the Tribunal's responsibility to come up with the correct or preferable decision, not necessarily bound by only limited to matters which either party might raise. In fairness, if the Tribunal sees an issue, then it is appropriate that I raise it prior to submissions."
If the Tribunal was saying that the proceedings before it were adversarial then it was incorrect because they are rather to be characterised as inquisitorial: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. However, in my opinion, the Tribunal was doing no more than adverting to the fact that although counsel for one party may not have objected to evidence, it was not the Tribunal's role simply to be guided on the issues by the way the parties conducted their cases, but rather the Tribunal had to come up with what the Tribunal referred to as "the correct or preferable decision". These are precisely the words used by Brennan J in Bushell (supra) at 425. This view is made clear by the Tribunal saying that it was not necessarily bound or only limited "to matters which each party might raise". Even if the Tribunal was under the impression (which I do not accept) that the proceedings were adversarial rather than inquisitorial, it did not misconduct the proceedings or misdirect itself as to the manner in which the proceedings should be conducted.
The only other reference made in the course of argument to the fact that the proceedings were adversarial was by counsel for the respondent when he was responding to the applicant's counsel's submission that whether the November 1993 incident was work‑related had not been an issue. He said that he had not made the concession that the November 1993 incident was work‑related and said that the incident did not arise in the course of the applicant's employment and he would argue that it did not arise out of it. He then said:
"I respectfully submit that whilst it is adversarial the decision has got to (be) the right one. The Act has got to be followed."
Counsel's words in this respect may have been loose but the point he was seeking to make was that the Tribunal had to reach the correct result irrespective of the parties' submissions. This point was picked up by the Tribunal who then said:
"It is not long ago that I was berated by a Federal Court judge for making a decision on the basis of the quality of the submissions made by counsel, and I should not make a decision or finish up with an answer because of the failure of counsel. It is my role to come to the right decision."
In this passage I consider the Tribunal was properly identifying the function which it had to carry out. Although Counsel for the respondent had said that the proceeding was adversarial he made this statement in the context of submitting that the Tribunal had to reach the right result, in effect, independently of what the parties had submitted. The other basis upon which it was submitted that the Tribunal had misconceived its function was its reference in paragraph 25 of its reasons, after considering the medical evidence in relation to the applicant's condition of fibromyalgia, to the fact that:
"The Tribunal cannot be satisfied, on the balance of probabilities, that, after 6 July 1995 Mrs Lodkowski continued to suffer an ailment or injury caused by the accident in 1990".
It was submitted that the notion of onus of proof has no part to play in the administrative proceedings before the Tribunal, reliance being placed on the decision in Kuswardana v Minister for Immigration (1981) 35 ALR 186; Bushell (op cit) at 425. I do not consider that the Tribunal's expression of non‑satisfaction "on the balance of probabilities" resulted in the Tribunal misapprehending "the matters of which it has to be satisfied in reaching a decision": Kuswardana (supra) at 194. The Tribunal was faced with conflicting evidence as to whether after 6 July 1995 the applicant continued to suffer an ailment or injury caused by the 1990 accident. It was apparent that the Tribunal was not satisfied that this was so. But how else could the Tribunal express itself? "If it simply said that it was not satisfied ..." it might be open to the criticism that it had applied an incorrect or inappropriate approach to determining its level of satisfaction. Faced with conflicting evidence, if the Tribunal was unable to form the view on the evidence that the applicant continued to suffer an ailment or injury caused by the accident in 1990, it was appropriate, in my opinion, to apply language akin to the civil standard of proof to determine its level of satisfaction. The applicant's reliance on Kuswardana is, in my view, misconceived. By using the language appropriate to an onus of proof analysis, the Tribunal did not misapprehend the matters of which it had to be satisfied in reaching a decision on the matter before it.
Was the applicant denied procedural fairness or natural justice?
In my opinion the extensive analysis of the evidence and the submissions to which I have referred discloses that the applicant had not been denied procedural fairness or natural justice in relation to the manner in which her case was presented to the Tribunal. The relevance and significance of the November 1993 incident as work related was not only raised at the close of the evidence but the applicant's counsel was specifically given the opportunity to respond to the issue.
It is a trite proposition of law that the issues to be determined by a tribunal or court should be identified to the parties to enable them to address those issues and lead evidence and make submissions in relation to them during the currency of the hearing: Kioa v West (1985) 159 CLR 550, 582, 584; Jung Sheng Xia v Minister for Immigration (1993) 27 ALD 668, 673 ‑ 674; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, 714 ‑ 715. But that is exactly what occurred before the Tribunal. It appears there was a misunderstanding during the leading of evidence as to whether or not it was accepted or conceded by the respondent that the November 1993 incident was work‑related. The evidence which was lead, particularly from the applicant, as to the circumstances in which the November 1993 incident arose, differed significantly from the version set out in the applicant's statement of facts and contentions. As the Tribunal set out in its reasons it was after the conclusion of the evidence that this matter was raised by the Tribunal and at that time, the parties and, in particular, the applicant and her legal advisers were well apprised of the issue. At that stage it was open to the applicant's counsel to seek an adjournment to consider the matter or to seek a further hearing or a re‑opening of the evidence at which further evidence could be called. No such opportunity was sought by the applicant's counsel but, rather, he took the approach of seeking fourteen days within which to make written submissions. Those submissions were subsequently filed and were before the Tribunal for the purpose of it considering its reasons. It appears from paragraph 17 of the Tribunal's reasons that those submissions refer to either the existence or the possible existence of "detailed evidence as to the nexus between the 1993 events and her employment". These words appear in paragraph 17 of the Tribunal's reasons and are not found in the transcript of the hearing which was in evidence. I therefore infer that this quotation is taken from the applicant's written submission. Whether or not such detailed evidence was available to the applicant was a matter for the applicant and her legal advisers to consider. The applicant's counsel could have sought the opportunity to lead further evidence of such a nexus at the time the matter was raised by the Tribunal but he did not do so.
I am satisfied that the Tribunal observed the requirements dictated by the principles of natural justice or procedural fairness by bringing the issue of whether or not the November 1993 incident was work‑related to the attention of the parties in such a manner as to give the applicant and her legal advisers the opportunity to take such steps and make such submissions as they may be advised in all the circumstances. It was not incumbent, in my opinion, for the Tribunal to require the applicant to lead further evidence on the issue. It was not within the knowledge of the Tribunal whether such further evidence might be available and as I have noted earlier, this matter had been touched on in earlier evidence. This was noted by the Tribunal in paragraph 17 of its reasons and, on the material before it, it was not inappropriate for the Tribunal to say:
"It is difficult to see how Mrs Lodkowski herself could have provided any further factual evidence of any nexus".
To the extent to which the Tribunal may have been in error in this respect, it was for the applicant and her legal advisers to consider whether such further factual evidence was available and to make application to lead such further evidence, if it existed, at the time the Tribunal raised the matter with them. I am satisfied that the Tribunal gave the applicant's counsel the opportunity to consider whether or not he wished to call further evidence. The matter was specifically brought to his attention and although it may be said that the proceedings were inquisitorial rather than adversarial, having regard to the fact that both parties were represented by counsel, it was not inappropriate for the Tribunal to say, in effect ‑ how do you wish to deal with this issue?
It was submitted by the applicant that the denial of procedural fairness deprived the applicant of the possibility of a successful outcome and that it is not open to say that a properly conducted trial could not have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141. However, as I have found, there was no denial of procedural fairness by the Tribunal and the proceeding was properly conducted by the Tribunal.
Did the Tribunal address relevant issues properly and have relevant evidence before it?
The applicant submitted that the Tribunal defined too narrowly the inquiry as to whether or not there was an employment nexus with the November 1993 incident. The Tribunal set out the applicant's evidence in relation to the circumstances in which the November 1993 incident came about and said:
"Given these circumstances, the employment nexus can be shown only if it can be said that her records had been inspected and the information conveyed to a third party because she was an employee of HIC".
The Tribunal's conclusion was that there was no employment involvement in, or in relation to, the November 1993 incident. On the evidence before it, it was quite open to the Tribunal to make that finding of fact and I can find no error in the manner in which the Tribunal approached that finding of fact. The applicant's termination had taken place before the commencement of her employment and the communication of the information to the applicant was unrelated to the workplace. It was submitted that the Tribunal failed to take into account, address or evaluate the evidence of a threatening phone call but the totality of that evidence did not advance the applicant's case. The applicant had given evidence about the circumstances in which the November 1993 incident had come about, had said she consulted a psychologist and had made a formal complaint which was investigated and charges were laid against the HIC employee. The following question and answer then appears in the transcript:
"Did anything happen at home in relation to phone calls as a result of this complaint?---I had threatening phone calls made to myself, and I also had her husband coming over and threatening me."
What was there in this evidence for the Tribunal to take into account, address or evaluate? The answer is - nothing.
If the evidence before the Tribunal was deficient on the issue of the work‑related nature of the November 1993 incident, or if the Tribunal defined narrowly the inquiry as to whether or not there was an employment nexus with the November 1993 incident, that deficiency did not come about due to any default of the Tribunal or a failure on its part to allow the applicant's counsel to address the issue. The Tribunal directed its enquiry to the evidence relating to November 1993 incident which was before it. If the applicant's case was conducted on a limited basis in this respect and was not expanded when the Tribunal brought the matter to the attention of the parties that is not the fault of the Tribunal.
Counsel for the applicant submitted that the Tribunal did not look at relevant evidence and that the reason for this was that the Tribunal confined itself too narrowly as to how the employment nexus could be established. However, the Tribunal identified the manner in which the employment nexus might be shown by reference to the evidence before it. In other words, the Tribunal examined the evidence and then asked itself the question "how can the employment nexus be established from this evidence?" It was submitted that the concept of whether or not an injury arises out of, or in the course of, employment is far wider than the manner in which the Tribunal approached the evidence: Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 632 ‑ 633. The applicant relied upon that decision to say that it was relevant for the Tribunal to look at the juxtaposition of the applicant and the employee who looked at the applicant's records. This juxtaposition was the applicant's employment. It was then submitted that the evidence of this juxtaposition of these two persons was not expanded. If that submission be correct it was not due to any default on the part of the Tribunal. That was a matter for the applicant's counsel to consider when the matter was brought to his attention by the Tribunal. If it be correct that the Tribunal adopted too narrow a view of the facts for the purpose of applying the law (a proposition which I do not accept), the reason for that is because the facts only warranted such an analysis. The applicant's real submission in this respect was rather that the full facts had not come out before the Tribunal and that if the Tribunal had considered the full facts it would have adopted a more expansive view of the evidence. As I have noted earlier, if that be correct it was not due to any default of the Tribunal but was a matter for consideration and action by the applicant's counsel.
The applicant relied upon the decision of Ryan J in Mills v Australian Postal Corporation (supra) and submitted that the manner in which the Tribunal distinguished Mills did not deal with the substance of the principles set out in it. In Mills it was found by Ryan J that the Australian Federal Police search which caused the relevant injury to the employee was part of an investigation instigated by the employer into alleged misappropriation of cleaning chemicals by the employee. The Tribunal distinguished Mills on the basis that in the case before it there was no involvement of the employer incident, that the information which had been improperly communicated was unrelated to the applicant's employment as the communication was to the mutual friend. The passages in Mills relied upon by the applicant at 496 and 497 ‑ 498 do not assist the applicant.
The applicant criticised the Tribunal for limiting its consideration of the facts before it and not considering whether the performance, employment duties or any association or possible association of, or with, the employee who disclosed the information leading to the incident could arise out of, or in the course of, the employment within the provisions of the Act. On the evidence before it, it was open to the Tribunal to find that no such consideration by the Tribunal was warranted. I do not consider that the Tribunal limited its consideration of the facts before it in an impermissible or inappropriate way having regard to the nature and extent of the evidence which was led before it.
It is important to remember that the jurisdiction being exercised by the Tribunal was such that the Tribunal was bound to determine the matter, namely, the liability of the respondent to cease paying compensation, notwithstanding the submissions of either side. It is apparent from ss 14, 16, 19 and 24 of the Act that it was for the Tribunal to make this decision.
I am also satisfied that the Tribunal analysed the evidence not only in relation to the November 1993 incident but also the evidence as to the medical consequences and effect on the applicant of the 1990 car accident. In my opinion the Tribunal did not confine itself to a consideration of the circumstances surrounding the November 1993 incident but rather reviewed and considered the evidence relating to the accident on 1 October 1990 and the applicant's evidence in relation to the consequences of that accident. In paragraphs 7 to 12 of its reasons the Tribunal considered the medical evidence in a comprehensive manner and considered that evidence not only in relation to the November 1993 incident but also in relation to the 1990 car accident. Its conclusion was that, after 6 July 1995, no symptoms suffered by the applicant were caused by the accident in 1990. The Tribunal did not confine itself to the November 1993 incident but dealt with all matters arising after 1990.
In my opinion the Tribunal committed no error of law in its reasons nor did it commit any error of law or deny the applicant natural justice or procedural fairness in the manner in which it conducted the hearing.
The appeal will be dismissed with costs.
I certify that this and the preceding twenty‑five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg