Munswamy v Australian Postal Corporation

Federal Court of Australia|2015-07-07|Before: Robertson J, Allsop J, Emmett JJ, Jagot J

Competency of this appeal 1 This is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that: 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. 2 Before a recent decision of a five member bench of the Full Court of the Federal Court, the most expansive position concerning the scope of s 44 was perhaps that expressed by Robertson J in O'Kane v Comcare [2014] FCA 341; (2014) 221 FCR 482 (O'Kane) at [81] as follows: I reject the respondent's submission that the present appeal may not be brought on a mixed question of fact and law. I do so for the reasons I gave in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [86], that is that in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J, with whom Lindgren and Emmett JJ agreed, explained Comcare v Etheridge as follows, Collins being a case involving s 120 of the Veterans' Entitlements Act 1986 (Cth). His Honour was considering an argument, the first of two arguments, that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact-finding, prohibited because of the terms of s 120 of the Veterans' Entitlements Act, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious (at [55]): [55] The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244; Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291; [2006] FCAFC 34. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an "appeal" under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a "question of law" to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an "appeal" under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court. As I observed in Martinez: [87] It follows that it is too simple a proposition to say that there cannot be a question of law within s 44 of the AAT Act merely because it is necessary to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. 3 The approach of Robertson J in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 is orthodox. Questions of law can involve considerations of factual findings by an administrative decision-maker. However, the first sentence of [81] in O'Kane, if read literally, could not be readily reconciled with previous authority, particularly Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 in which Branson J, with whom Spender and Nicholson JJ agreed, said: [15] In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. [16] A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]: In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 4 In Haritos v Commissioner of Taxation [2015] FCAFC 92 (Haritos), the five member decision of the Full Bench, the Court summarised the law in respect of appeals on a "question of law" in these terms: We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows: (1) The subject-matter of the Court's jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law. (2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal. (3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44. (4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction. (5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal. (6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. (7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law. (8) The expression "may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal" in s 44 should not be read as if the words "pure" or "only" qualified "question of law". Not all so-called "mixed questions of fact and law" stand outside an appeal on a question of law. (9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court's discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an "error of law" in the failure in the Tribunal to make a finding first urged in this Court. (10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241. 5 Their Honours also said this: [90] However, although the subject matter of the appeal, and the ambit of the appeal are confined to a question or questions of law it remains to identify when and by what means this Court has jurisdiction. [91] It is of great importance that the question or questions of law should be stated with precision. That is the point of r 33.12 of the Federal Court Rules, and of its predecessor, O 53 r 3(2). We have set out the present rule above at [3]. But the end sought to be achieved by the rule is to have the question of law stated with sufficient precision. [92] We agree with Ryan J in [Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; 12 AAR 515] that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: "[I]t simply begs the question of law to commence it with the words 'whether the Tribunal erred in law'. If the question, properly analysed, is not a question of law no amount of formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law." (Emphasis added.) But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression 'whether the Tribunal erred in law' if that is given sufficiently precise content by what follows. [93] We also agree that there would be a deficiency in a notice of appeal if the asserted questions of law did no more than invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; 200 FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ. [94] In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law. 6 The notice of appeal in the present case identifies eight alleged "errors of law" in the following terms: The applicant appeals from so much of the decision as related to the injuries of 28 October 2011 and 14 August 2012. 1. The decision as a whole is unreasonable at law for the reasons set out in the grounds of appeal at paragraphs 17, 20, 21, 22, 26, 29, 30, 31, 33, 34, 35, 36, 38, 39, 40, 44, 47, 48, 49, 51 and 52 which are herewith incorporated by reference; 2. The material findings of fact at paragraphs of the grounds of appeal are unreasonable at law for the reason set in those paragraphs 17, 20, 21, 22, 26, 29, 30, 31, 33, 34, 35, 36, 38, 39, 40, 44, 47, 48, 49, 51 and 52 which are herewith incorporated by reference; 3. The material findings of fact at paragraphs 17, 20, 21, 22, 26, 29, 30, 31, 33, 34, 35, 36, 38, 39, 40, 44, 47, 48, 49, 51 and 52 of the grounds of appeal are without any basis in the evidence to support them; and are inconsistent with such evidence as existed on the point; 4. The Tribunal refused and failed to consider the claim made by the applicant for an injury sustained on 14 August 2012 on the erroneous assumption of law that a claim arising from the repetitious nature of bending and lifting was not before it for consideration per paragraphs [14]-[16] of the grounds of appeal. 5. The Tribunal refused and failed to consider the core case or central thesis advanced by the applicant that the work related injuries of 28 October 2011 and 14 August 2012 were aggravations of existing damaged lower discs, which in turn were in a symptomatic and/or damaged state by reason of an earlier accepted work injury of 30 January 2008 per paragraphs [12]-[13][19] of the grounds of appeal; 6. The Tribunal wrongly considered that an issue estoppel of some form arose from the consent settlement in the Tribunal of April 2011 in relation to the injury of 30 January 2008 per paragraphs [12]-[13] of the grounds of appeal; 7. The Tribunal failed to recognise and apply the proper principle of law determinative of its jurisdiction as enunciated in Telstra v Hannaford (2006) 151 FCR 253 in that the Tribunal refused to turn its mind to the role of the injury of 30 January 2008 as an ongoing factor in the later aggravations; 8. The Tribunal's reasons for decision are inadequate for the reasons given at paragraphs 52 and 53 of the grounds of appeal which are incorporated herewith. 7 Those alleged errors of law are followed by 53 paragraphs said to be grounds of appeal which do not, in any way, identify why a particular answer to the non-questions raised would affect the outcome of the matter before the Administrative Appeals Tribunal (the Tribunal). Instead, the 53 paragraphs, in the main, constitute a narrative of the case the applicant put to the Tribunal. 8 If it were necessary to decide the case on the basis of the competency of the appeal, I would invite further submissions from the parties about the effect of Haritos on their respective cases. Without the benefit of such submissions I would say only that paragraphs 1 to 3 of the notice of appeal, and the cross-references to numerous paragraphs of the so-called grounds, in no way discharged the obligation to state questions of law with precision. As a matter of substance, and not merely form, the expression of those issues was inappropriate and unhelpful. Whatever else might be said, the Full Court was not suggesting in Haritos that expressing questions of law in a notice of appeal in the manner adopted in paragraphs 1 to 3 in the present case was acceptable. 9 However, it is not necessary to resolve the appeal on the basis of any of these matters. I informed the applicant at the commencement of the hearing that I found the notice of appeal and written submissions unhelpful (noting that the written submissions incorporated the whole of the notice of appeal by reference and relied on the grounds set out therein as the major part of the applicant's written submissions). Accordingly, I required full oral submissions to be made in support of each alleged error of law on the basis that I would treat the oral submissions as the applicant's case. Counsel for the applicant made oral submissions as requested and, in so doing, helpfully and effectively exposed the essence of each of the applicant's complaints of an error of law by the Tribunal and thus enabled me to resolve the substance of those complaints.

The decisions in issue 10 It is convenient to deal with the alleged errors of law in the same order as the applicants' counsel adopted in oral submissions. First, though, I should record that the Tribunal (insofar as relevant) affirmed two decisions of the respondent. The two decisions were described by the Tribunal in its reasons (Munswamy and Australian Postal Commission [2014] AATA 757) in these terms: 5. Matter 2012/3270 concerns an application Ms Munswamy made with regard to an injury arising from an incident on 28 October 2011. The decision under review accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for aggravation of constitutional degenerative changes in the lumbar spine, but found that as of 11 November 2011 the effects of the injury had ceased such that Ms Munswamy was no longer entitled to compensation for medical expenses and incapacity pursuant to sections 16 and 19 of the Act. … 7. Matter 2012/5629 concerns an application Ms Munswamy made with regard to an incident she says occurred on 14 August 2012. Liability for aggravation of constitutional degenerative changes in the lumbar spine was denied pursuant to section 14 of the Act. 11 Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) provides that: (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. 12 By s 5A(1) of the SRC Act: "injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

Grounds 6 and 7 13 These grounds are related. In Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 at [8] Heerey J said: The text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based. Mr Hannaford's case concedes that a reconsideration under s 62 (and AAT review of the making or declining of such reconsideration) of a s 14 determination would be available. This would necessarily include the reconsideration of any finding of fact. Section 62 reconsideration is not subject to any time limit. The argument then must be reduced to saying that Telstra (or the AAT on review) cannot do under, for example, a reconsideration of a s 16 determination exactly the same thing as it could under a s 14 determination. Such a degree of formalism, reminiscent of the old common law forms of action, does not fit well with a modern, practical statutory scheme for the compensation of injured workers. 14 To the same effect Conti J said: [59] I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the [SRC] Act and in the events which happened: (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation; and (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and (iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT. 15 It was submitted for the applicant that the Tribunal in the present case acted contrary to these principles in that it considered itself effectively estopped from dealing with the applicant's central thesis that the injuries she suffered in 2011 and 2012 were related to (in the sense of being an aggravation of) the injury she suffered in 2008. The Tribunal, according to this argument, considered itself bound not to deal with this central thesis because of the consent orders in 2009 by which the applicant agreed she was no longer entitled to compensation for the 2008 injury. This inference, it was said, was supported by the structure of the Tribunal's reasons which dealt with the 2008 injury separately from the subsequent injuries and the reasoning disclosed at [40] - [42] of the Tribunal's reasons. 16 At [40] - [42] the Tribunal said: 40. We are satisfied from the evidence of the MRI scans, Dr Shnier, and that of Professor McGill and Dr Maxwell who examined Ms Munswamy, that the 2008 incident did not cause structural damage to her spine, but was an aggravation of her multilevel degenerative spine. Professor McGill concluded that Ms Munswamy had not incurred a significant disc injury. He noted that Ms Munswamy suffers episodes of non-specific low back pain, which he opined occur in a large number of people, and resolve spontaneously. He also noted that the Applicant has constitutional degenerative changes at multiple levels of her spine. He opined that following the 2008 incident, she did not have signs or symptoms of radiculopathy. 41. We accept from the medical evidence that whether or not structural change occurs is not the deciding factor in whether a person suffers back pain. We understand that Ms Munswamy's reports of her leg pain did not conform to a physiological pattern, and that may have been the reason why the doctors were focused on commenting on radiculopathy. However, we also accept that radiculopathy is not necessarily the deciding factor in whether a worker who experiences back and leg pain should be compensated. Liability for Ms Munswamy's 2008 injury was accepted, and she had rehabilitation programs to get her back to work. A consent decision of the Tribunal with terms signed on behalf of Ms Munswamy and Australia Post held that she did not have present entitlement to compensation from 19 May 2010. We are satisfied from the evidence that the effects of the 2008 injury which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable following the settlement of Ms Munswamy's claim at the Tribunal in April 2011. We noted the decision that she had no present entitlement to compensation for her 2008 injury after 19 May 2010. 42. We moved then to consider Ms Munswamy's injury incurred on 28 October 2011 as a separate injury. 17 I do not accept the applicant's submissions. It is plain that, far from considering itself estopped or failing to apply the principles in Telstra v Hannaford, the Tribunal understood the applicant's central thesis and resolved it at a factual level. That this is so is apparent from any reasonable reading of the Tribunal's reasons as a whole and, in particular, the following statements by the Tribunal, apart from [40] - [42] themselves which, when read in context, are inconsistent with the applicant's submissions: 6. The Applicant seeks to relate the 2011 injury to the 2008 injury. In that regard, we note the decision of the Tribunal arrived at by consent of Ms Munswamy and Australia Post, and having taken into account the evidence and submissions of both parties, for reasons which we discuss further on in this document, reject her claim that the 2011 injury or aggravation of her degenerative spine arose out of the 2008 injury. … 14. The Tribunal must decide: • Matter 2012/3270 concerns an application Ms Munswamy made with regard to an injury arising from an incident on 28 October 2011. Liability was accepted for aggravation of constitutional degenerative changes in the lumbar spine. The Tribunal must decide whether the effects of the 2011 back injury ceased to result in a need for medical treatment or an incapacity for work as at 11 November 2011. • The Applicant seeks to relate the 2011 injury to the 2008 claim. The Tribunal must decide whether injuries/aggravations the Applicant has suffered following the 2008 incident arise out of that incident. • Matter 2012/5629 concerns an application Ms Munswamy made with regard to an incident she says occurred on 14 August 2012. Liability for aggravation of constitutional degenerative changes in the lumbar spine was denied pursuant to section 14 of the Act. The Tribunal must decide whether liability should be accepted for that incident. … 30….She told us that at that time, her back was the same as after the accident in 2008, that she was suffering pain, and that she was not coping well as the work was aggravating her leg and back. Her evidence was that following the incident of 30 January 2008, the pain in her back and her legs in which she experienced a burning sensation, continued. She said that she had not experienced anything like that before 2008. … 35. Dr Davies noted that the initial MRI scan showed evidence of pre-existing degenerative changes in Ms Munswamy's lumbar spine. He also noted, however, that she had been asymptomatic prior to 30 January 2008. … 38. We are mindful of the medical evidence regarding the incident of 30 January 2008… … 39. We have noted the reports of the doctors who examined Ms Munswamy in connection with the 2008 incident. Mr Anforth submitted that Drs Davies, Griffith, Dan and Abraszko, (a neurosurgeon and spinal surgeon), amongst others, disagreed with Professor McGill and Dr Maxwell who appeared focused on there not being a long term aggravation possible because they perceived no structural change had occurred in Ms Munswamy's spine following the incident of 30 January 2008. … 43. Mr Anforth argued that on 30 January 2008, Ms Munswamy suffered a frank injury to her lumbar spine at L3/4, L4/5 and L5/S1, and that the aggravation on 28 October 2011 was onto her spine, which had been damaged on 30 January 2008. He submitted that there was no evidence to suggest that she suffered the disc injuries (as described by Drs Kafiris, Darwish, O'Neill and Dan), other than in that incident. 18 It is clear from the Tribunal's reasons that the applicant's case was rejected on the facts. The Tribunal simply was not satisfied that there were ongoing effects of the 2008 injury which were related to the claimed injuries in 2011 and 2012. Instead, the Tribunal was persuaded that the applicant suffered from a degenerative spinal condition, unconnected to her work, which would flare up from time to time. The Tribunal did not treat the consent orders into which the applicant and respondent had entered in 2009 as some form of estoppel and did not consider itself in any way hampered from determining whether, on the facts, the 2008 injury was causally relevant to the claims for injury in 2011 and 2012. As the respondent submitted: 27. The Tribunal referred to the prior consent decision at [3], [6], [29] and [41], but it was not seen as legally precluding any finding other than that to which the parties had then agreed - namely that the applicant had no present entitlement to compensation for her 2008 injury after 19 May 2010. At most, the Tribunal was seeing the applicant's agreement as evidence that she at the time accepted that to be correct - but, even if the Tribunal took into account in that sense the applicant's agreement, the Tribunal nonetheless undertook its own evaluation of the evidence. As noted above, the Tribunal, at [41], found itself "satisfied from the evidence that the effects of the 2008 injury, which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable" by the time that the parties had agreed in that consent decision. That was said in the context of the medical evidence that it had reviewed in the preceding paragraphs, but if the Tribunal also attached significance to the fact that the applicant had signed the consent orders, it was doing so only in the evidential sense described above - not as some "estoppel" or "bar". We note in this respect that the Tribunal, at [29] (also last dot point of [11]), reject the applicant's evidence that she "did not read or understand the settlement and was coerced to signed it". Also, at [6], the Tribunal, while noting the prior consent decision, said that it has "taken into account the evidence and submissions of both parties" and that for reasons that it would discuss later, it rejected the applicant's claim that her 2011 injury or aggravation arose out of the 2008 injury. (That later discussion is referred to above). 28. Nor was there any departure from Hannaford. The Tribunal plainly appreciated that injuries may or may not continue and properly saw its role as being to form its own view whether the 2008 injury had the continuing effect alleged by the applicant. That is no less so because the Tribunal rejected the contention.

Ground 4 19 The focus of this ground was the Tribunal's reasons at [80] in which this was said: In coming to a decision regarding the claim for an aggravation on 14 August 2012, we noted that Ms Munswamy was unable to attribute the injury/aggravation to the lifting or moving of a particular parcel, and said that there were typically a lot of bags and parcels. What she wrote in her claim form, which was, frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading it in my van my back got aggravated, indicated to us that it was more by way of a nature and conditions claim, which is not before us. Accordingly her claim for compensation for an injury or aggravation which occurred on 14 August 2012 cannot succeed. 20 The statement at [103], to the same effect, should also be noted. The Tribunal said: We have found for the reasons stated above, that the 2012 incident may relate to a nature and conditions claim which is not before us. For the reasons discussed above, we have affirmed the decision that there is no liability to pay compensation for the injury alleged to have arisen that incident. 21 The applicant submitted that the Tribunal's approach was irrational. If, as it said at [80], the applicant's claim concerned frequent bending and lifting, which seemed to be like a nature and conditions claim, then it was not reasonably open to the Tribunal to treat her claim as if a nature and conditions claim had not been made. In other words, the reasoning in [80] was internally inconsistent. Further, according to the submission, the Tribunal's approach to the claim was narrow and pedantic which was contrary to principle. For example, in Kennedy v Comcare [2014] FCA 82; (2014) 63 AAR 100 Katzmann J said: [44] In Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129 (Szabo), upon which Comcare also relied, the tribunal decided that it had no jurisdiction to consider a claim that the employee's back injury was due to the nature and conditions of his employment. The primary judge held that the tribunal did not err in law in making this decision and the Full Court dismissed the appeal, Emmett and Greenwood JJ holding (at [41]) that it was not possible to find in the documents submitted by Mr Szabo to Comcare a claim in respect of some injury or disease arising out of the nature and conditions of his employment. Their Honours held (at [42]) that "until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal". [45] In a case of psychiatric injury, however, it is not always easy to discern the nature of a claim. Neither the original decision-maker nor the review officer referred to a claim for compensation for injury in 2009. But the tribunal's jurisdiction does not depend on how Comcare characterises the claim. To the contrary, "the tribunal must assess for itself the true scope of the claim" and conduct the review on that basis: Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AATA 802 (Durham) (Jagot J, sitting as a presidential member of the tribunal) at [51]. The question of whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant's claim for compensation: Durham at [53]. … [53] The contention could certainly have been put with greater precision in the request for reconsideration, but "a broad, generous and practical interpretation" is called for: Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 at [18]; Szabo at [50]. Construed broadly, generously and practically Ms Kennedy was asking Comcare to reconsider several aspects of her case. One of them was her claim that bullying and harassment at the workplace from June/July 2009 caused her injury. 22 In Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [18] Madgwick J said: [18] The original decision-maker might conceivably have had many powers, the exercise of which may have been prompted by what he or she knew of the applicant's claim, without those powers being powers or discretions relevant to the exercise of the decision to be made. However, it seems to me that the Tribunal Member did not adequately appreciate or apply the following legal propositions, which I think are correct: 1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice. 2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met. 3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given. 5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount. 23 In the present case, I am not persuaded that the Tribunal erred in its approach to the applicant's claim. The applicant filled out a claim form in which she stated she had aggravation of the lower back which happened, or which she first noticed, on 14 August 2012. She completed another form saying the incident occurred or symptoms were first noticed on 14 August 2012 and the incident happened at the Ingleburn Hub of the respondent. She said she suffered lower back aggravation in circumstances where before her normal duties "there [were] no back symptoms" but her back was aggravated by frequent bending and lifting to place parcels from the floor into her van. Her supervisor completed a report in which he recorded that the applicant said the incident had happened during the 17.00 final clearance but she did not identify any particular heavy parcel that had caused the incident, only the repetitive lifting which she had done. 24 A "broad, generous and practical interpretation" of this claim yields a result consistent with the approach the Tribunal took. The applicant was saying that before she carried out her duties on 14 August 2012 she did not have symptoms of a back injury. During the clearance of postal articles at 1700 hours on 14 August 2012 she experienced symptoms which she believed had been caused by the bending and lifting she carried out during that clearance. Not only was it reasonably open to the Tribunal to conclude that the applicant's claim was for an injury which occurred on 14 August 2012, the Tribunal was correct to so characterise the claim. There was no claim before the Tribunal that the aggravation resulted from the nature and conditions of the applicant's work, although the Tribunal accepted that it might be that the applicant could make such a claim. This is all the Tribunal is saying at [80] and [103]. No error is disclosed in the Tribunal's approach.

Ground 3 25 This ground was said to involve three aspects. 26 The first aspect concerns the Tribunal's adverse credit finding against the applicant. It was submitted that the Tribunal's conclusions were based on flimsy or incorrect factual foundations, analogous to the circumstances in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 (SZSNW) in which Buchanan J said: [91] In my view, in the present case there was an error of law committed by the IMR when he disregarded the plain fact that the first respondent had raised claims to have been sexually assaulted during an interview which took place on Christmas Island directed specifically to assessing his claim to be a refugee. The IMR became bound to take that fact into account when it embarked on findings adverse to the credit of the first respondent, based on the false premise that he had not, as he asserted, made such a claim. 27 The observations by Mansfield J in SZSNW, submitted the applicant, are also applicable. Mansfield J said: [15] It is clear from Li [Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332] that the principle or standard of reasonableness generally applies to decisions made under the Act, and is not confined to discretionary decisions. The reasons for judgment of French CJ addressing "Reasonableness" would appear to be directed to the exercise of a statutory discretion: see at [23], but his Honour's observations at [26]-[30] are of more general application. His Honour refers to "the rules of reason" as an essential element of lawfulness in decision-making, and to "the framework of rationality", as a descriptor of a range of what might be seen as subsets of, or illustrations of, that general principle. Some illustrations referred to do not relate to discretionary judgments. The plurality judgment at [72] made the same point, as did Gageler J at [91]-[92]. Gageler J in [91] also made the point through a reference to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 300 that the implied condition of reasonableness covers both why a decision is made and how it is made. [16] Like French CJ in Li at [30], I do not find it necessary to explore whether the boundaries of rationality and reasonableness differ in principle. That is because, in this matter, notwithstanding the detailed reasons of the IMR for rejecting the claim of the first respondent, the decision of the IMR is unreasonable in the sense discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J, and as explained by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234. It is not a matter where the IMR's decision is within the area of "decisional freedom" (as explained by French CJ in Li at [28]) because it wrongly attributes to the first respondent a failure to complain of a particular matter in circumstances where, plainly, that complaint was made and it significantly builds on that wrongful attribution to reject the claims generally made by the first respondent. 28 The present case, however, is nothing like SZSNW. In the present case, the Tribunal's adverse credit finding was not based on a material error of fact. It was based on the Tribunal's overall assessment of the applicant in the giving of her evidence, both in chief and under questions from the respondent's counsel. The overall impression the Tribunal formed was as described at [10] of its reasons, namely, that: We did not consider Ms Munswamy to be a convincing witness. She gave vague replies at the Tribunal, and answers to questions often either retreated into can't recall, or answering to best advantage. 29 The Tribunal reiterated its adverse view of the applicant's credit as follows: 59. We were not satisfied that Ms Munswamy was entirely candid in reporting her levels of pain and its duration. Her evidence was sometimes quite vague… … 101. As discussed above, we consider that there are issues of credit involving Ms Munswamy in this matter. 30 Contrary to the applicant's submission, the matters at [11] are not a statement of the reasons for the Tribunal's conclusion about the applicant's lack of credit. They are examples of specific instances that the Tribunal considered supported the impression it had formed based on the applicant's evidence. At [11] the Tribunal said: Amongst others, we noted the following: • Notwithstanding that 2006 and 2004 consultations with doctors about her back and leg pain had already been the subject of evidence at the Tribunal in 2009, Ms Munswamy gave evidence before us that she was unable to recall 2006 and 2004 injuries. She was reluctant to admit that she had suffered any back pain prior to 2008. • We noted that the history Professor McGill elicited from Ms Munswamy was that she had no incidents prior to that of 30 January 2008. However, he noted from the medical records that her doctor had recorded as follows: • 5 December 2006 - muscle pain in her back. Hurts moving arm and back. No injury or strain. Voltaren prescribed. • 28 October 2007 - [one week] gradual onset of pain at left lower anterior chest wall aggravated by movement. Disturbed sleep. Woke up with same pain. Tender +++. Denied any trauma. Brufen continued. • 5 March 2008 - injured her back last [month] after picking up an oversize unlabel [sic] parcel ... • 5 May 2009 - Dr B Darwish, a neurosurgeon and spinal surgeon, recorded: she continues to complain of lower back pain not radiating anywhere and not associated with any sensory or motor symptoms. Her examination was unremarkable. Advised continue analgesics. • Ms Munswamy's evidence regarding a consultation with Dr Lee on 18 November 2004 where she allowed her brother-in-law to use her Medicare card, and at which it seems from the doctor's notes that she was not present. Dr Lee's medical notes of 18 November 2004 indicate as follows: only partner present request voltaren for leg pain suggest to come in for examination due for her pap smear • Ms Munswamy denied she agreed to sign consent orders at the Tribunal in April 2011, stating that she was coerced to sign. We reject that evidence on the basis that she was legally represented throughout the proceedings. 31 The applicant misunderstood the points the Tribunal was making. Whether or not the events in 2004 and 2006 related specifically to lower back pain is immaterial. The point was that the applicant had been confronted about events in 2004 and 2006 in proceedings before the Tribunal in 2009. She had thus had those events brought to her attention relatively recently and in circumstances where it was open to the Tribunal to infer she was likely to recall, yet gave evidence she could not recall those matters. 32 The fact that the Tribunal recorded Professor McGill's notes of events after 2008 is also immaterial. The Tribunal was not saying those parts of the notes were relevant to the applicant's reluctance to recall any back pain before 2008. 33 The Tribunal was entitled to consider that the fact that the applicant had allowed her brother-in-law to use her Medicare card was relevant to her credit irrespective of the treatment he received. It was not saying the leg pain was necessarily that of the applicant (although, if it was, that inference was reasonably open in any event). It was saying she had allowed someone not entitled to use her Medicare card to do so. 34 The Tribunal's rejection of the applicant's evidence that she was coerced to sign the 2009 consent orders was a proper foundation for an adverse credit finding. It is not irrational for the Tribunal to reason that, as the applicant was legally represented, she could not have been coerced to sign consent orders. 35 The attempt in submissions to contend that it was somehow unfair of the Tribunal to form an adverse impression of the applicant's credit given that English is not her first language and she is "unsophisticated", does not advance matters. It was the Tribunal which saw and heard the applicant give evidence. It was open to it to make credit findings as it saw fit. To suggest that, in so doing, the Tribunal acted unreasonably or irrationally is an illegitimate invitation to this Court, on fragments of the evidence that was before the Tribunal, to interfere with a matter that was squarely within the remit of the Tribunal, involving matters of fact and degree, as well as of evaluation and impression. The illegitimate invitation for this kind of review is a very long way from the kind of appeal s 44 permits and thus must be rejected. 36 It should also be noted that given its adverse view of the applicant's credit, it is hardly surprising the Tribunal did not accept her claims of continuous back pain since 2008 at face value. That too was a conclusion open to the Tribunal. 37 The second aspect of this ground is that it is said that the Tribunal acted unreasonably and irrationally in preferring the conclusions of Professor McGill because, in so doing, the Tribunal failed to engage with the mass of contrary evidence and appears simply to have elected to prefer Professor McGill's evidence without there being any "evident and intelligible justification" for doing so (Li at [76]). 38 These submissions are confounded by the Tribunal's reasons. The Tribunal engaged with the substance of the case which the applicant put and rejected it. In so doing, the Tribunal was not bound to refer to every piece of the apparently very large volume of material before it. It was bound, in giving its reasons, to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based" (s 43(2B) of the AAT Act). The fact that the Tribunal engaged with the applicant's case is evident from its reasons at [6] and [14], in particular (already set out above), but also the following: 17. Dr G Griffith, a consultant surgeon, provided a report dated 8 November 2012 (Exhibit A6). He was the only doctor to refer to the 2008 injury as the Index Injury. Dr Griffith agreed with the diagnosis of Dr Kafiris that the problem following the injury of 30 January 2008 was primarily discogenic, and that there is a neuropathic pain element present. Dr Griffith's view was that Ms Munswamy suffered two level disc protrusions on 30 August 2008. 18. Dr Griffith mentioned Professor McGill's inclination to attribute the Applicant's problems to degenerative disease, opining that there were certainly elements of degenerative disease present at the time of his (that is, Dr Griffith's) examination. He emphasised however, that there were quite specific acute disc lesions at L4/5 and L5/S1 which occurred on 30 January 2008. He noted there was also some evidence of pain behaviour. … 26. As can be seen from the above, following the 2008 injury, Ms Munswamy consulted a number of doctors. She had various radiological investigations and treatments, and a graduated return to work. Drs Kafiris, Maxwell, (orthopaedic and spinal surgeon), and others commented upon her pain and illness behaviour even in 2008… … 33. Dr Maxwell not only disagreed with the report of Dr M Davies, a neurosurgeon, dated 17 December 2010… … 35. Dr Davies noted that the initial MRI scan showed evidence of pre-existing degenerative changes in Ms Munswamy's lumbar spine. He also noted, however, that she had been asymptomatic prior to 30 January 2008… 36. Dr Davies disagreed with Professor McGill that Ms Munswamy's condition is simply constitutional and unrelated to her work incident of 30 January 2008. He noted that Professor McGill acknowledged the work duties in late October [2011] probably caused an increase in symptoms but that it was unlikely that those duties caused any change to the structure of her back. He opined: One does not need to see changes in structure ... to be able to relate somebody's back pain to a back injury. 37. In his further report of June 2013, Dr Davies commented on Dr Maxwell's report, and the differing views they have of pain. He summarised as follows: I disagree with Dr Maxwell's opinion regarding complete lack of relationship between Mrs Munswamy's employment with Australia Post and her symptoms… 38. We are mindful of the medical evidence regarding the incident of 30 January 2008… 39. We have noted the reports of the doctors who examined Ms Munswamy in connection with the 2008 incident. Mr Anforth submitted that Drs Davies, Griffith, Dan and Abraszko, (a neurosurgeon and spinal surgeon), amongst others, disagreed with Professor McGill and Dr Maxwell who appeared focused on there not being a long term aggravation possible because they perceived no structural change had occurred in Ms Munswamy's spine following the incident of 30 January 2008. 39 The idea, put for the applicant, that at [39] of its reasons, the Tribunal was not dealing with the medical evidence that supported the applicant's case of a causal relationship between the 2008 injury and the subsequent claimed injuries, is untenable. 40 The Tribunal, moreover, explained exactly why it preferred Professor McGill's evidence. It did not consider the applicant to be a reliable witness. It considered that the medical evidence did not support her claim of continuous pain after January 2008. It preferred Professor McGill's view that the applicant has a degenerative back condition which will cause pain from time to time. It did not consider the radiological results to be indicative of an injury which occurred in January 2008 (which was consistent with Dr Shnier's evidence that such changes as seen in the applicant's back were not the explanation for her claimed pain). There was evidence from the applicant herself that she was asymptomatic at times, including before the claimed incident on 14 August 2012. All of these matters pointed in the direction of Professor McGill's conclusions. Such a conclusion was thus explained by the Tribunal and had an ample "evident and intelligible justification". The applicant's submissions to the contrary involve a reading of the Tribunal's reasons which is not open. 41 The third aspect of this ground, which is a variant of the second aspect, is that the Tribunal erred at [58] of its reasons where it said: We were satisfied from the medical evidence that the aggravation of 28 October 2011 was just that, an aggravation of degenerative changes in Ms Munswamy's spine, and that the effects would have resolved by 11 November 2011 as held by the Respondent. 42 This, it was submitted, was an error of law because it was based on the erroneous adverse credit finding (rejected above), a lack of engagement with the contrary evidence (also rejected above), and was unsupported by any evidence that the pain actually did resolve, which is something different from a medical opinion that the pain should have resolved. The last of these points alone is new. I do not accept this point. In circumstances where the Tribunal did not accept the applicant's accounts of her pain, and where Professor McGill had opined that the pain she had experienced should have resolved by 11 November 2011, it was open to the Tribunal to infer that the pain had in fact resolved by that time. At [51], the Tribunal recorded this opinion of Professor McGill. At [52], it referred to his further opinion that the effects of the incident on 28 October 2011 "was likely to have resolved in less than two weeks". Therefore, the evidentiary foundation for the finding made was sufficient.

Grounds 1 and 2 43 These grounds were dealt with together and also had three aspects. 44 The first aspect was said to arise from [30] of the Tribunal's reasons. At [30], in the last sentence of the paragraph, the Tribunal said: Her evidence of continuous pain following the incident of 30 January 2008, was not borne out by the medical records of Professor McGill, and the clinical notes of her general practitioners. 45 This sentence was said to disclose legal error in that the Tribunal failed to refer to the wealth of material which supported the applicant's case that her pain was continuous. 46 There are at least three answers to this proposition. 47 First, the Tribunal was not bound to refer to all of the material. It plainly understood the competing cases and resolved them at a factual level as it was bound to do. This point has been made above and need not be expanded upon. 48 Second, there was ample material before the Tribunal which supported its conclusion that the applicant's pain was not continuous but intermittent. This point has also been made above and need not be expanded upon. 49 Third, reasonable minds could differ about the true import of the material which the applicant contended supported her case of continuous pain. This material was said to be accurately summarised in the applicant's statement of facts and contentions, it being contended that numerous entries showed that the applicant was in continuous pain after the January 2008 injury. Even assuming the applicant's statement of facts and contentions is a complete and accurate record of all of the clinical notes and medical records, which seems doubtful, it is not a necessary inference from that material that the applicant continued to suffer pain in between her many visits to medical practitioners. Nor do the notes and records themselves necessarily lead to the view that she was in continuous pain. For example, there are references to the applicant's pain being subject to "temporary aggravation", the applicant having suffered "some exacerbation", the applicant showing "no pain behaviours", and her incapacity being due to a "flare up". While there are other references to her complaining of continuous pain and suffering from chronic pain, the relevant point is that it was for the Tribunal alone to evaluate the material and to decide what inferences it supported, such inferences being matters about which reasonable minds could differ. The fact that the Tribunal referred to so much of the medical evidence discloses that it actively engaged with the case the applicant put, and the material on which it was based, but reached a factual conclusion which was against the applicant. In so doing, no error of law is exposed. 50 As the respondent submitted, a submission which applies to much of the applicant's case: 11. Although in rare and limited circumstances a decision may be vitiated by jurisdictional error if it is irrational or unreasonable, a court will not be satisfied that such an error has been made "where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based": SZOOR v Minister for Immigration and Citizenship and Anor (2012) 202 FCR 1 at [85] per McKerracher J, Reeves J relevantly agreeing at [112]-[113], and per Rares J at [3], referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, especially at [131] and [135] per Crennan and Bell JJ and at [78] per Heydon J. 12. Plainly, these two conditions were not fulfilled in the present case, as is evident from the Tribunal's reasons. The Tribunal's decision in relation to each of the two applications rested upon findings of fact that were plainly available on the evidence to which the Tribunal referred. The questions involved were (at best for the applicant) ones upon which reasonable minds could differ depending upon which evidence was preferred. 51 The second aspect was said to arise from [17] of the Tribunal's reasons where the Tribunal said that Dr Griffiths "was the only doctor to refer to the 2008 injury as the Index Injury". By this, it was said, the Tribunal wrongly asserted that Dr Griffiths was the only medical expert who said that the 2008 injury was the cause of the applicant's subsequent injuries when, in fact, numerous medical experts had said this was so. According to the applicant, the Tribunal would hardly find it necessary to record a reference to "index injury" merely because it was an unusual phrase. 52 I do not accept this submission and, indeed, find it far-fetched. The fact is that Dr Griffiths was the only expert to use the phrase "index injury". The Tribunal cannot be inferred to have been saying that it thought he was the only medical expert who believed the 2008 injury was causally relevant. So much is apparent from the whole of the Tribunal's reasons which are directed towards resolving the issue of the causal significance of the 2008 injury and the competing medical evidence in that regard. As discussed, the suggestion that in its reasons at [39], when it referred to the experts who disagreed with Professor McGill about degenerative changes being the cause, the Tribunal did not have in mind that those experts said the 2008 injury was causally significant, is untenable. 53 The third aspect is said to arise from the reference to Dr Shnier at [40], the contention being that the Tribunal erred because Dr Shnier did not say that the applicant was suffering from degenerative changes. The submission misses the point the Tribunal is making at [40]. The point is that Dr Shnier opined that the radiological review was not the explanation for the applicant's symptoms. In other words, the various changes that could be seen in the applicant's back were not causally significant.

Ground 5 54 The conclusions reached above expose the reasons why ground 5 cannot be accepted. The contention that the Tribunal refused and failed to consider the applicant's central thesis that the injury in 2008 was causally related to aggravations of that injury suffered in 2011 and 2012 is unsustainable on any fair reading of the Tribunal's reasons.

Ground 8 55 The applicant acknowledged that ground 8, alleging inadequate reasons, was dependent on the other grounds of error. For the reasons already given, it cannot be accepted that the Tribunal failed to give adequate reasons for its decisions. I again adopt the respondent's submissions as follows: 30. The Tribunal is not obliged [to] deal with every argument presented to it or to expressly discuss each item of evidence. See, for example, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]. The obligation of the Tribunal is in s 43(2) and (2B), having made its decision, is to state its reasons, including its findings on questions of fact that it considers material with reference to the evidence or other material on which it relied. The Tribunal discharged the obligation. Compliance with these subsections is not to be impugned simply by pointing to other reasons, findings or references that may or may not have attracted themselves to, or been given by, another person. It is the Tribunal's view of materiality and what it found and relied upon that drives the obligation in s 43(2B). As Robertson J said in Lawrence Smith v Comcare [2014] FCA 811 at [90]: "It is the Tribunal's actual reasons which need to be given rather than the reasons which a party thinks should have been given: Minister for Immigration and Multicultural affairs v Yusuf (2001) 206 CLR 323 at [1], [34], [68] and [217]; see also the reference to the actual path of reasoning in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 at [55] that the reasons may show an error is not a criticism of the reasons themselves." In addition, it is noted that in WAEE it was observed at [47] by French, Sackville and Hely JJ that "it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality, or because there is factual premise upon which a contention rests which has been rejected". Here, no non-compliance with s 43(2) or (2B) is shown. The Tribunal did what those provisions required of it.

Conclusion 56 For the reasons given above, the appeal must be dismissed, with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

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