Secretary Department of Family & Community Services v Verney

REASONS FOR JUDGMENT 1 Mr Keith Verney applied to the Department of Family and Community Services ("the Department) on 17 April 1996 for a Disability Support Pension. The disabilities in respect of which he claimed were listed in his application as relating to his elbows, his right shoulder and his spleen. He was sent for examination by a Dr Hood, an Australian Government Health Service medical officer. That examination took place on 9 October 1996. On 11 October 1996 Mr Verney's application was rejected on the basis that his disability to work was only of a temporary nature. 2 Mr Verney sought review of the decision to reject his application. In consequence, on 11 February 1997 an Authorised Review Officer affirmed the decision to reject the application. 3 On 15 April 1997 Mr Verney lodged an appeal to the Social Security Appeals Tribunal ("the SSAT"). The hearing of that appeal was delayed due to Mr Verney being out of Australia and his hospitalisation in Russia. On 6 August 1998 the SSAT determined that Mr Verney satisfied the requirements of s 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) ("the Act"). In coming to this view, the SSAT considered that Mr Verney's orthopaedic disabilities made up 15 per cent of the minimum 20 per cent impairment required by s 94(1)(a) and (b) of the Act. It was of the view that Mr Verney's chronic myeloid leukemia, which at the time of the appeal was worse than at the time of his original application, constituted an impairment rating of not less than 10 per cent in April 1996. 4 The Secretary of the Department ("the Secretary") applied to the Administrative Appeals Tribunal ("the AAT") to review the decision of the SSAT. The reason for the application for review was : "The SSAT erred in finding that at the date of Mr Verney's claim for Disability Support Pension on 17 April 1996, or within three months of that claim, Mr Verney had both an impairment rating of at least 20% under the Impairment Tables and a continuing inability to work for the purposes of the Social Security Act 1991." 5 On 22 December 1998 the AAT affirmed the decision of the SSAT and delivered written reasons on 16 March 1999. 6 The Secretary appealed to this Court from the decision of the AAT. The notice of appeal contained numerous grounds of appeal. On the hearing of the appeal the Secretary only sought to agitate two questions : (a) whether in law it was reasonable for the AAT to make an impairment finding in respect of the condition of thrombocytosis; (b) whether the AAT misconstrued or misapplied the "continuing inability to work" test as specified in s 94(1)(c) of the Act, as amplified by s 94(2). 7 The issues raised in the second question were subject to a pending appeal in Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572. Both parties agreed that the matter should be stood over for further argument in the light of the Full Court decision. 8 Section 94 of the Act, so far as is relevant, provides : "94 Qualification for disability support pension (1) A person is qualified for disability support pension if: (a) the person has a physical, intellectual or psychiatric impairment; and (b) the person's impairment is of 20% or more under the Impairment Tables; and (c) because of the impairment the person, has a continuing inability to work; and ..." 9 The Impairment Tables referred to in s 94(1)(b) are the Tables in Schedule 1B to the Act. 10 Section 94(2) of the Act provides : "94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: (a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and (b) either: (i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or (ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years." 11 The AAT found that Mr Verney had an impairment of the right upper limb, which is his dominant limb of 15 per cent assessed in accordance with the Tables. The AAT also found that he had an impairment of the left limb which was assessed at 5 per cent. The orthopaedic disabilities alone came to the requisite 20 per cent required by s 94(1)(b) of the Act. 12 The AAT continued : "15. I am also satisfied that that is not the extent of Mr Verney's disabilities. I think document T36, which is a report by Townsville Pathology Laboratory, which was made at the end of 1996 but sets out very clearly the cumulative history starting from April 1995 and the regular blood testing from that time on shows that, as Mr Verney says, there is a serious problem in relation to the blood count and the pathology report diagnosis, thrombocytosis. It is unfortunate that the Tribunal does not have the benefit of a medical opinion in relation to that pathology report but that is not a justification for the Tribunal ignoring the very strong evidence from Townsville Pathology to find as a fact that the respondent has marked thrombocytosis. 16. I also find that thrombocytosis can be life threatening but there is not much evidence about that. Mr Verney said that in his evidence but he is not qualified to make that assessment. No doubt he has been told that by his medical advisers but I am satisfied as a matter of general knowledge that I can take official knowledge of the fact that thrombocytosis can be life threatening and that he therefore comes within impairment rating 10 in Table 25 as a potentially life threatening condition which is currently not interfering with daily activities. It may, in fact, be that he should be rated on a higher impairment rating than 10 under Table 25 but in the circumstances I am not required to go into that. 17. I then have to consider whether or not the respondent has a continuing inability to work. Section 94 sets out in some detail as to what 'continuing inability to work' means but I am satisfied on the material before me that Mr Verney is unable to perform his previous work as a drainer at all and I am also satisfied in the light of the evidence that he is unable to perform light sedentary duties for a period of at least 30 hours a week. I have taken into account Mr Verney's evidence about that. I have also taken into account the medical evidence before the Tribunal and I have also taken into account my observations of Mr Verney while he was giving evidence in this Tribunal. 18. There is not other issue arising under s94 and I am satisfied that Mr Verney comes within the positive provisions of the section. He is therefore qualified for payment of a Disability Support Pension and the decision of the Social Security Appeals Tribunal, which is the decision under review in these proceedings, was in the circumstances the correct decision. There will therefore be a written decision affirming the decision of the Social Security Appeals Tribunal." 13 The Secretary now does not challenge the findings that Mr Verney satisfies the requirements of s 94(1)(a). Nor does the Secretary now challenge the findings in respect of the orthopaedic disabilities as found and assessed by the AAT. 14 The contention of the Secretary was that there was no medical evidence which would allow the AAT to conclude that for the purposes of Schedule 1B to the Act, the blood condition from which Mr Verney suffered was a "fully documented diagnosed condition which has been investigated, treated and stabilised." 15 It was submitted on behalf of the Secretary that the AAT was not medically qualified and that procedural fairness required that the Secretary be given an opportunity to lead evidence concerning a matter to which the AAT proposed to advert based on the AAT member's own knowledge. Further, it was submitted that if thrombocytosis was a life threatening condition, such a fact was not a matter of public notoriety. 16 In the absence of medical evidence relating to thrombocytosis, there was, it was submitted, no evidence that thrombocytosis could be an impairment for the purposes of s 94 of the Act. Such a conclusion, the Secretary contended, was therefore unreasonable and constituted an error of law. 17 Paragraph 4 of the Introduction to the Tables in Schedule 1B as it stood in April 1996 said : "4. For an impairment rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years." 18 Table 25 under which the SSAT and the AAT both assessed Mr Verney as having a rating of 10 per cent, was in 1996 headed "MISCELLANEOUS IMPAIRMENTS, FOR EXAMPLE MALIGNANCY, HYPERTENSION AND HIV INFECTION". A 10 per cent rating was applicable to a condition which satisfied the criteria specified in the Table. One of those criteria was : "Potentially life-threatening condition which is currently not interfering with daily activities." 19 The submission on behalf of the Secretary assumes that these matters raised, in paragraph 4 above, could only be made out by direct medical evidence of each of the circumstances specified. There is also a suggestion that the Secretary was unaware that Mr Verney's suffering from thrombocytosis, and that it was a condition coming within Table 25 of the Impairment Tables, was an issue before the AAT. 20 Mr Verney had, from at least 13 December 1996 when he sought a review of the original rejection, been complaining that he was afflicted with thrombocytosis and that he had material from the blood specialist which he offered to show Dr Hood, the Australian Government Health Service medical officer at the time of his examination of Mr Verney. Mr Verney complained that the offer was declined. 21 The complaint was repeated as a ground for review in the appeal to the SSAT filed on 15 April 1997. By the time the appeal was heard, Mr Verney had supplied to the Department medical reports from the Novosibirsk Regional Clinical Hospital in Russia. Mr Verney was a patient at the hospital from 1 July 1997 until 28 May 1998. He was an in-patient from 16 March 1998 to 10 April 1998 and from 13 April 1998 to 8 May 1998 in the Hospital Haematology Department. The reports disclose that he was under the treatment of a haematologist, the details of the treatment rendered and diagnose his condition as "2nd degree erythraemia with hepatosplenomegaly, hyperthrombocytosis, chronic [illegible] syndrome". 22 The SSAT, in its reasons for decision, set out the material before it in respect of Mr Verney's blood condition as follows : "5.6 The situation with respect to Mr Verney's blood condition is however more complicated. Mr Verney did indicate he had this condition on his initial claim form lodged on 17 April 1996 and also indicated that he was under the care of Dr Meagher who is a specialist haematologist. Mr Verney raised this condition with the examining medical officer at the time of his medical assessment in September 1996 but the doctor declined to examine the issue. It is clear from the pathology reports and from Mr Verney's evidence that the blood condition has been in existence since at least April 1995. 5.7 It is also clear from the pathology report dated 4 December 1996 that Mr Verney's condition deteriorated markedly in early December 1996 with a finding that there was 'Marked Thrombocytosis. Platelet anisocytosis is evident with many giant platelets seen. Neutrophil Leucocytosis.' If this condition were to be given an impairment rating now it would be a far greater impairment rating than the rating that can be assigned to the condition as at April 1996. This is because the Tribunal must examine the condition at the time of the initial application for disability support pension. 5.8 An examination of the evidence reveals that Mr Verney was experiencing pain in his spleen as a result of this condition at the time his claim was lodged and that his ability to perform tasks was restricted. The blood condition which is referred to in all the pathology reports is referred to by Mr Verney's current doctor as 'Chronic Myeloid Leukemia'. Dr Bird also substantiates that this condition has been in existence for several years. The evidence also shows that within about six months of his claim Mr Verney's condition deteriorated markedly. 5.9 It would also appear from the evidence that Mr Verney has been out of Australia and living in Russia for an extensive period of time. The file also indicates that Mr Verney was hospitalised in Siberia for the period 16 March 1998 to 10 April 1998 and was under the hospital's care as an outpatient receiving daily Interferon injections until at least late May 1998." 23 The SSAT made the following finding : "7.5 Mr Verney is also suffering from chronic myeloid leukemia which was not taken into account by the examining medical officer at the time of the examination in September 1996. The Tribunal is satisfied that this condition was in existence at the time Mr Verney lodged his claim in April 1996 but at that time the symptoms were not as severe as they are at present. Whilst Mr Verney's current condition would attract a higher rating his condition at the time he lodged his claim was causing pain and some loss of his ability to function. The Tribunal is satisfied that this condition would attract a rating of at least 10% on Table 25." 24 It was the 10 per cent impairment rating for Mr Verney's blood condition which, when added to the 15 per cent assessed for his orthopaedic impairments, took him beyond the requisite 20 per cent. The reasons for the review relied on by the Secretary in the application to the AAT necessarily included the issue of the blood condition and its rating under Table 25. 25 Mr Verney was not represented before either the SSAT or the AAT and conducted his case personally before each Tribunal. 26 The material before the AAT included the SSAT reasons for decision, a pathology report from Townsville Pathology Laboratory dated 4 December 1996, a pathology report dated 13 December 1996 from Cairns Pathology Laboratory, a pathology report dated 1 August 1997 from Sydney, New South Wales, Pathologists and the Russian medical material. That material had been with the Department since before the hearing of the SSAT appeal. 27 Before the AAT the Secretary called Dr Hood to give evidence. The medical material relating to Mr Verney's blood condition was not put by the representative of the Department to Dr Hood. Although from the questioning of Dr Hood it is clear that there is material in existence containing platelet counts, that material was not put to the doctor and his opinion sought. His cross-examination by Mr Verney principally touched the question of whether or not he was offered and refused access to medical reports concerning Mr Verney's blood platelet count as at 7 October 1996, which Mr Verney had available in his car but not in the examination room. Dr Hood was questioned by the Department's representative as to the result of Dr Hood's physical examination of Mr Verney. Dr Hood was aware that Mr Verney, prior to the examination, had made reference to a spleen problem "which he said was some years before". Dr Hood examined Mr Verney and found no physical evidence "of any splenic-type of symptoms - or signs on the patient". Nor could he find any splenic enlargement to suggest a spleen problem. 28 From the material before the SSAT, the Department knew that there was material available which supported a conclusion that Mr Verney was suffering from chronic myeloid leukemia which, on the evidence, was another name for thrombocytosis. 29 Mr Verney gave evidence before the AAT, and was cross-examined. 30 Mr Verney gave evidence that originally he thought that he had a hernia and consulted a doctor who sent him to a specialist who diagnosed a serious blood condition. In response to questioning from the AAT, he said : "It's what the doctors say that's relevant?---Okay. Well, I can only - only put forward some of the - since - since my - since I have applied for this - to the Social Security, I can - some stages give that I've been on the brink of death, close to it, three times, and I've presented - what was that - prior to that - prior to it, my count was 904 in 12.5.95, and it was - well, it got down to a reasonable state, you know, 250s and nearly 300s over - and then on 4.12.96 it was 1135 and, due to the blood thickening and all the - all the - what goes on with these things, that, at 1000 it's estimated that you have a heart attack. So, I mean, I was going through all this at this period of time, and this - it's not - it's 1135 and I was in hospital - was in a hospital in - T54 - I was getting treatment, T54. The - it was 1121 and the - my white blood cells were at an alarm rate and I was hospitalised for - well, I was getting treated from 1.12.97 till the - till May - May this year. But I was in the hospital for - hospitalised for - from February till - till the - till the May. And fortunately enough that they was able to bring me back. But what happens is - what has happened is that one - you outgrow or outlive or your body can't - will - will not fight - certain therapies, so it goes another stage further, so you have to have a stronger chemotherapy and a stronger chemotherapy. So it gets to the stage that nothing will work. And, of course, that's - that's the big problem and I face. ..." 31 He was cross-examined by the representative of the Department as to his knowledge of his blood condition and its effect on his ability to work. The following examples of the cross-examination show clearly that the existence of his blood condition was a real issue before the AAT and the Department was left in no doubt as to Mr Verney's case and the source of the information he was giving : "Can you - and I'm just wondering, the Social Security Appeals Tribunal talked about a diagnosis of leukaemia?---Mm. And I'm just trying to establish whether you had that diagnosis at the time this form was filled out or whether that came later?---I most certainly did. You did?---I most certainly did. And - - -?---If you'll have a look at those - if you'll have a look at these blood - what-do-you-call-ems - - - Blood counts?--- - - - you'll see - I mean, I thought that you was intelligent enough to realise that. Well, are you - let's see which one you're talking about?---Well, in - at that - oh ..... straight away - - - Are you talking about the pathology report at T36?--- - - - I can't understand you, mate. What page is that? Have you got the date that form was filled out, at all? Yes. That's on page 89 and it's 17 April 1996?---Okay. Yes. Now would - - -?---So if you go to the pathology laboratory tests of - it's number - page 125, okay? Yes. Yes?---And I had had previous blood samples taken before this date, but on this particular pathology laboratory people, you will see that on 7.4.95 I had a high rating of 632, on 12.5.95, I had a higher rating of 904 - - - Right?--- - - - and that's well before I signed any documentation for the Social Security. Would you dispute that? Well, I can see the figures that appear there?---Yes. Would you dispute what I've just said? That you had a high - - -?---That I was suffering from an incurable disease - - - Well - - -?--- - - - called leukaemia. It's thrombocytosis, and it is - it is - you know, do you dispute that, mate? God. I don't understand you. Oh well. Well, I'm just - I'm really not - it's not for me to give evidence about that?---Well, my question to your answer (sic) is yes, I did have it. Right. But you say you did have it but you didn't include it on the form?---I have included that and I'll say something to you now, mate. I feel that when I'm going through a mental stressful state and a public servant from the Social Security asks me and I give them that I've got a bad spleen and it's the cause of - the bad spleen causes a blood problem. Yes?---And that's what I did. ..... Well, just to be clear, you understood that you had the diagnosis of leukaemia prior to completing this form in April of 1996, Mr Verney. Is that your evidence?---Can you say that again? Yes. By the time you completed this form in April of 1996 - 17 April 1996 - you're saying you knew that you'd been diagnosed with leukaemia?---Yes. But - and is it correct to say that when - on your form you described it as a spleen problem rather than as leukaemia?---I'll tell you something now, mate. I've never told anybody until those people at the - at that other Tribunal inquired to that blood specialist. I never even told my family. Right?---And I've told these people at that place the problem. And the problem is - - - Yes?--- - - - if I lift or do something as - you know, strenuous, it - the pain comes to the spleen. Right. Well, that's what I was going to ask you then. You've got - the form asks you to describe how the condition affects your ability to work and you've indicated that when you trying to lift you get a pain in the spleen. Is that - was that correct?---That's written down, I take it, that's correct. All right. And - - -?---I've agreed to that, I thought. All right. And were there - are you saying there were any other ways it affected your ability to work apart from trouble - when you had lifting - trying to lift?---It affects you, mate, because you've got a loss of breath. You'll spit phlegm up first thing of a morning, and you'll spit phlegm up during the day. It affects you because you can't breathe properly, and it affects you in many other ways, and it affects you mentally. And you can't give your all. Yes. And that's what your condition is like now?---That's what the condition was then, also, because it's consistent - if you have a look at the platelet counts. Well, I'm suggesting if you'd had those other problems you would have mentioned those on the form?---I never mentioned them on the forms because the simple reason is these people that I'm talking to - I would not like to know - them to know I'll have some type of - and I lived in Townsville for over 30 years and I don't - did not want people knowing my medical condition. Can you understand that? No, I don't think you can. ..... Mr Verney, I just think I've - wanted to just ask you about T2 at page 5, if you could just open that up. Have you got that open?---Yes. Okay. And in paragraph 4.4, the Social Security Appeals Tribunal mentions that you had been put on medication called hydrea but it wasn't effective. Do you recall when that was?---It was effective, but it became not effective and that was in - around the period of late '96. Late '96. Right. And was that the first medication that was used for your blood disorder?---Yes. All right. Now - - -?---It happened that I was on, and then they increased doses and increased doses. Increased doses. And then, oh - - - ..... Okay, now, just bearing in mind those comments, the part I wanted to ask you about is the comment by Dr Machart that, in his opinion, you were at that time physically able to do light duties or moderate exertion. Do you agree with that conclusion, or do you wish to comment about it?---Well, what are 'light duties'? Well, for example, say you're a ticket collector at a railway station, collecting tickets from people as they walk out, or perhaps at a - one of those big car parks, you're staffing a booth where people pay as they go out, or a salesperson, perhaps, console operator at a service station where you're dealing - taking money from people, ringing things up on a till?--- Well, I feel that if I was doing something and it was repetitive it could pose a problem. Yes?---And I would also like to say that was only just a short period after this examination that I - I had a very very bad health situation divorced from my arms and my shoulders. Sorry? Divorced from?---My arms and my shoulders. Can you explain what you mean?---Well, in that prior to the December - and this is September, October - prior to that - after that I was very ill. Yes. Well, I'm just asking you to identify - - -?---Well, what I'm saying to you is that it's a combination I've got - - - Right?--- - - -that if I was to get a job and there's - it's not just the one problem involved. Yes?---And I most certainly would - most certainly would, but I am at the inability to - at many times, concentrate, because I've - I get stressed out, and - and the other situation is that I've never ever refused to work in my whole life. But if I - and - have periods where that I'm feeling very sick. So it wouldn't matter what I was doing, whether it was licking stamps - - - Yes?--- - - - I wouldn't be able to process that job in a - in a proper manner. Because of your problems in concentrating and applying yourself?---Well, mate, I - and feeling - feeling ill. And that's - that's to do with your blood condition, I assume, is it?---It's to do with my blood condition." 32 The evidence of Mr Verney, if accepted, entitled the AAT to find that : (a) Mr Verney sought medical attention for what he thought was hernia pain in 1994 and was in consequence sent to a specialist who diagnosed him as suffering from thrombocytosis; (b) after the original diagnosis he was receiving regular treatment for the condition from specialist haematologists, which included treatment with a medication called "Hydrea" and chemotherapy; (c) he was monitoring his blood platelet count regularly by attending pathology services and supplying blood samples; (d) at the time of making his application for a pension on 17 April 1996, he was being treated by Dr Meagher of Townsville and that his last visit to Dr Meagher prior to lodging the application had been in March 1996; (e) at the time of making the application in April 1996, the problem with the spleen specified in the application form was caused by his blood problems; (f) at the time of making the application Mr Verney had been told by his treating medical practitioner that he was suffering from thrombocytosis which was also known as leukaemia and that his condition was incurable and he believed that advice to be true; (g) from the time of its diagnosis, the disease had been consistent in its effects on Mr Verney and his ability to work up to 17 April 1996; (h) after April 1996 Mr Verney had experienced stages where his condition worsened and he ultimately required hospitalisation and specialised treatment in Russia; (i) the disease from which Mr Verney suffers impaired his functional ability to work over and above the impairment caused by his orthopaedic problems alone. 33 The evidence of Mr Verney was corroborated in significant ways by the pathology reports, which, contrary to some suggestion, does not require a medical practitioner to explain them. They record regular testing from at least 7 April 1995 to 13 December 1996 in Queensland, in July 1997 in Sydney, New South Wales, and from July 1997 to May 1998 in Russia. They also show a diagnosis of a marked thrombocytosis and record the platelet count against the normal range. The count is consistently significantly above the upper limit of the normal range. 34 In my opinion, the medical records produced by Mr Verney in conjunction with his evidence was sufficient to demonstrate the condition from which Mr Verney suffered, its history since its diagnosis, that it had been investigated thoroughly by competent medical practitioners, that it had been treated with chemotherapy and other medications and that it had, by 17 April 1996, stabilised and was permanent and incurable. The subsequent course of the disease and its effects on Mr Verney giving rise to the treatments he has undertaken confirm what was known as at 17 April 1996. 35 The submission of the Secretary that it has been denied procedural fairness because the AAT has used its own knowledge to conclude that thrombocytosis can be life-threatening and failed to give the Department an opportunity to call evidence to the contrary is specious. The evidence of Mr Verney was that thrombocytosis was also known as leukaemia. He was cross-examined on the SSAT reasons for judgment where it was stated to be one and the same condition. If the Secretary wished to call medical evidence to the contrary, the opportunity was always available, and for whatever reason, the opportunity was never availed of. 36 The Secretary could not reasonably suggest that the Department did not know that Mr Verney would seek to persuade the AAT that the thrombocytosis from which he suffered was the cause of his spleen problem, which he specified in his application of 17 April 1996, that it impaired his capacity to work, and, should be rated under the Impairment Tables. Nor could the Secretary reasonably suggest that it was unaware that the AAT would, if it accepted the evidence of Mr Verney, and the pathology reports and other medical records, act upon them in making its findings. 37 The AAT is not bound by the rules of evidence: s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Evidence, including hearsay evidence, which may be inadmissible in a court of law under the rules of evidence, is admissible before the AAT if it is relevant and logically probative of a fact in issue: Re Pochi and the Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 257; Casey v Repatriation Commission (1995) 60 FCR 510 at 514. 38 The AAT was bound by the principles of natural justice and was required to extend to the Secretary procedural fairness. However, in each case the question to be answered concerns the content of the principles of procedural fairness applicable to the particular case: Casey v Repatriation Commission at 514 - 515. The use of the pathology reports without calling the referring doctor or the pathologist to explain the reports or to be cross-examined, did not of itself amount to a denial of natural justice: Barbaro v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 (FC) at 694. Additionally, the Secretary was treated fairly in that the Department had all the medical material provided to it prior to the hearings in the SSAT and the AAT by Mr Verney and had the opportunity to call any evidence it desired to refute the contents of the documents or the evidence of Mr Verney as to what he had been told by the treating medical practitioners as to his condition, the disease from which he suffered, its nature and the prognosis for the future: Barbaro at 694. 39 The AAT was entitled to inform itself in any manner that it chose on the question whether thrombocytosis could be a life-threatening disease provided the means chosen in the circumstances of this case did not constitute a breach of procedural fairness: s 33(1)(c) of the AAT Act. Also, it was entitled to find that it was a matter of general knowledge that thrombocytosis was a life-threatening disease. 40 It was submitted that the error made by the AAT, in concluding that thrombocytosis can be life-threatening by recourse to matters of general knowledge, was demonstrable by reference to the decision of Mandie J in the Victorian Supreme Court in Mutemeri v Cheesman (1998) 100 A Crim R 397. 41 In Mutemeri, the appellant was charged with an offence under s 22 of the Crimes Act 1958 (Vic). That section provides that a person who without lawful excuse recklessly engages in conduct that places or may place another person in danger of death, is guilty of an indictable offence. The reckless conduct alleged was having unprotected sexual intercourse whilst being HIV positive. The Magistrate had held that judicial notice could be taken of the fact that contracting HIV results in a life endangering situation and also that such was a fact and matter of which a reasonable man would be aware. Mandie J stated the common law principle as to the taking of judicial notice by reference to Holland v Jones (1917) 23 CLR 149 at 153 and Malone v Smith (1945) 63 WN (NSW) 54 at 55. His Honour then concluded (at 405 - 406) : "In my view, a court would be well justified and entitled in an appropriate case to take judicial notice of the fact that HIV is a life endangering disease - a fact made notorious by wide publicity in Australia over a number of years. In that regard, I note also that s 19A of the Crimes Act makes it an offence to intentionally cause another to be infected with a 'very serious disease' which is defined to mean HIV. Nevertheless, I have concluded that it was not open to the magistrate to find beyond reasonable doubt, without evidence, that the appellant's conduct placed Ms AB in danger of death, that is, that it exposed her to an 'appreciable risk' of death, something more than a 'mere possibility'." 42 The decision in Mutemeri is no more than an illustration of a case where the facts, of which the Magistrate was entitled to take judicial notice, were insufficient on a criminal charge to prove beyond reasonable doubt the particular elements of the particular offence charged. It means no more than that proof that HIV was a life endangering disease does not prove beyond reasonable doubt that the conduct alleged exposed Ms AB to an appreciable risk of death being something greater than a mere possibility. 43 It was submitted that what flowed from Mutemeri was : "That the same degree of notoriety did not, it is respectfully submitted, attend the condition of Thrombocytosis. Life experience tells one that, unlike HIV, Thrombocytosis may be life threatening is not a matter of public notoriety." 44 There are two answers to this submission. The first is that it was a question of fact to be determined by the AAT whether thrombocytosis may be a life-threatening disease, and no error of law has been shown in the conduct of the AAT in determining that fact. The second is that the submission itself is an assertion of fact which may or may not be correct, if one accepts that thrombocytosis and leukaemia are both names for the same disease. However, that may be, it is not for this Court to come to any conclusion of its own on a question of fact in substitution for that found by the AAT irrespective of whether an error of law is made out: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. 45 The finding of the AAT that thrombocytosis can be life-threatening was in accordance with the evidence of Mr Verney and was an issue on the hearing which was explored by the Secretary's representative by cross-examination of Mr Verney. The Secretary should reasonably have apprehended that it was, and was always going to be, an issue before the AAT having regard to the proceedings before the SSAT, its findings and the Secretary's grounds for review before the AAT. The Secretary has been given a reasonable opportunity to present the Department's case. It was not for the AAT to ensure that the Secretary took the best advantage of the opportunity to which the Department was entitled to put its case: Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220; Winch v Repatriation Commission [1999] FCA 408 at [20] - [21]. 46 The Secretary fails on the first issue raised. 47 The Australian Government Solicitor, on behalf of the Secretary, advised the Court that the appeal to the Full Court in Pusnjak had been discontinued and it no longer contests the construction of s 94(2) of the Act applied by Drummond J, and now does not press the alternative construction advanced by the Secretary on the hearing. That means that the Secretary is content to have the matter decided on the basis "work" for the purposes of s 94(2)(a) means work of a kind which the pension applicant is, by reason of his or her existing work skills and experience capable of performing without the need for re-training. Further, such an approach requires that "work" for the purposes of s 94(2)(b)(ii) is work other than that for which the pension applicant, but for the impediment, is capable of performing without the need for retraining: Pusnjak at 579 - 580. 48 The issue remaining then is whether there was any evidence which entitled the AAT to conclude that Mr Verney satisfied the continuing inability to work test contained in s 94(1)(c), as applied by s 94(2), (3), (4) and (5) of the Act. 49 The Secretary submitted there was no evidence upon which the AAT could conclude that "Mr Verney is unable to perform his previous work as a drainer at all" and "that he is unable to perform light sedentary duties for a period of at least 30 hours a week". The submission was that on the medical evidence, Mr Verney at worst would be fit for work in some occupation other than a drainer which involved light duties, perhaps with the benefit of some vocational training within twelve to eighteen months of April 1996. On this basis, the finding made by the AAT, the Secretary submitted, was not open. 50 As the AAT correctly pointed out, the medical evidence to which the Secretary referred related only to the effect of the impairment consequent upon the orthopaedic disabilities. Those doctors did not address the effect of the thrombocytosis from which Mr Verney then suffered on his then ability to do work as a drainer, or, to do work of a kind which he was, apart from his disability, by reason of his existing work skills and experience capable of performing without retraining. Nor did the doctors address the effect of the thrombocytosis on the ability of Mr Verney to be retrained within the two year period or at all. 51 In coming to the view which it did, the AAT relied upon the evidence of Mr Verney himself as to his inability to perform his previous work as a drainer and as to his inability to perform light sedentary duties for a period of at least thirty hours a week and also relied upon the AAT's observations of Mr Verney while he was giving evidence. The AAT was entitled to do so. The AAT also took into account the medical evidence which was before it. Again the AAT was entitled to do so. 52 The AAT was required to determine whether the decision under review was the correct or preferable one on the material before the AAT: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. That material included evidence of events which had occurred since the date of the original decision: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 45; Flick Administrative Law paragraph [1364/2]. 53 Where previous evidence is in the nature of assessments or predications and evidence later becomes available which falsifies the factors on which the assessment was based or demonstrates that the predictions did not prove to be correct, the later evidence is admissible and relevant to the judicial process. To allow the assessments or predications to stand in the face of the falsifying material would not be credible to the judicial process: Mulholland v Mitchell [1971] AC 666 at 680; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 40 FCR 76 at 88. So too with administrative review. Later evidence may be relied upon by the AAT to demonstrate the falsity of any assessment or prediction and the AAT would not be entitled to ignore material of which it had notice which demonstrated that earlier material was incorrect, incomplete or misleading: Minister for Aboriginal Affairs v Peko Wallsend Ltd at 44 - 45. 54 In the present case there was evidence of Dr Lewis, an orthopaedic surgeon, in his written report dated 1 April 1996. He was of the view that Mr Verney was then not fit for any work whether it was his usual work or any other work. He expressed the opinion that Mr Verney had permanent orthopaedic disabilities but considered he would be fit for some full time work in six to twelve months; that was at some time between 1 October 1996 and 1 April 1997. 55 Mr Verney was examined during that period by Dr. Hood. Dr Hood in his written report said, in part : "... He is currently unfit for work but may become fit in twelve months and should be reviewed at that time. ..." 56 Dr Hood also expressed the opinion that Mr Verney was not then ready to start any re-training and that it would be six to twelve months before he was ready. On Dr Hood's evidence, Mr Verney was not going to be fit for work or for training before some time in the period 9 April 1997 to 9 October 1997. 57 In December 1996 Mr Verney had a deterioration in condition. He received ongoing specialised treatment for the condition. By 1 July 1997 he was under the treatment of a haematologist at the Novosibirsk Regional Clinical Hospital. That treatment included two periods of hospitalisation from 16 March 1998 to 10 April 1998 and 13 April 1998 to 8 May 1998 as an in-patient. 58 Mr Verney gave evidence as to his disabilities both orthopaedic and haematological and the effect of them on him generally and in particular his ability to do any sort of work. Part of that evidence is set out earlier in these reasons. That evidence covered the period from the time the disabilities arose, prior to his application for the pension, up to and including the date of the hearing before the AAT. That evidence was not inconsistent with the medical evidence and is, in material respects, consistent with the expressed opinions of Dr Lewis and Dr Hood as to the impact of the orthopaedic disabilities alone. The evidence of Mr Verney did however demonstrate that the evidence of Drs Lewis, Hood and Machart was incomplete, and likely to lead into error, without the other medical evidence and the evidence of Mr Verney. 59 In my view, there was more than sufficient evidence for the AAT to make the findings which it did as to the nature and extent of Mr Verney's disabilities and of the impact of those disabilities on his ability to work or to be re-trained as at 17 April 1996 and in the two years thereafter. 60 The application is dismissed with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.