Secretary of the Department of Defence v Gorton

The Tribunal's decision 10 The Tribunal unanimously reversed the Delegate's decision and remitted Mr Gorton's claim to Comcare for assessment of compensation. 11 No question was raised when the matter was before a delegate for determination as to whether Mr Gorton was required to notify a claim within six months of the arthritic condition arising or, if he were, whether the failure to give notice was occasioned by mistake or other reasonable cause on his part so that the provisions of s 16 of the 1930 Act (the terms of which are set out later) did not operate to bar his claim. However, the Tribunal itself apparently raised the matter. It seems that when the question of s 16 was raised by the Tribunal the argument for Comcare largely concentrated on a submission that because the Commissioner appointed under the 1930 Act no longer existed the Tribunal could not itself find whether there had been a lack of prejudice, an argument which would seem to have little merit and which was not repeated before me. Little attention was paid on behalf of Comcare before the Tribunal to the question whether s 16 did apply to Mr Gorton's case and indeed this was acknowledged by counsel for Comcare before me. Be that as it may, the Tribunal concluded that s16 of the 1930 Act had no application to the case. 12 The Tribunal's conclusion that s 16 of the 1930 Act had no application was based upon its view that Mr Gorton's claim was in respect of a "disease" rather than an "injury". The Tribunal concluded that at the relevant time, presumably in 1955 when the disease first manifested itself, the time limits in s 16 applied only to injury and not to disease. Although, as the Tribunal noted, this situation had been changed by legislative amendment in 1959 when s 16 was amended to deal with disease, the 1959 amendment had no application in the present case because the amendment post-dated Mr Gorton's development of arthritis: Comcare v McGuire (1996) 68 FCR 329. Accordingly the Tribunal had no need to consider whether Mr Gorton's failure to notify that he had contracted arthritis within the six months limited by s 16 was occasioned by mistake, absence from Australia or other reasonable cause. 13 Most of the evidence before the Tribunal was and thus the reasons of the Tribunal itself were concerned with the question whether Mr Gorton's arthritis was, as he claimed, gonococcal arthritis brought about by the failure of the Navy to ensure that he was given timely and adequate penicillin treatment. It will be necessary to consider in more detail some of that evidence subsequently. What immediately follows is but a brief summary. 14 Evidence was given on behalf of Mr Gorton by a Dr Doust, a general practitioner who had worked as a medical officer in the venereal disease clinic at Sydney Hospital for six to nine months in 1953 and who had worked in the British Merchant Navy from 1956 to 1958. His view was that a diagnosis other than of gonococcal arthritis was very unlikely and that delay in the commencement of treatment could lead to the development of gonococcal arthritis. 15 A medical report from Professor Mindel, Professor of Sexual Health Medicine at both the Universities of Sydney and New South Wales was also tendered. Professor Mindel was of the view that the question was not clear cut as far as Mr Gorton was concerned. He expressed the view that pus cells were not to be found in reactive (non gonococcal) arthritis, but were to be found in direct arthritis which came about as a result of bacterial spread through the blood stream. He said there had been no formal studies which had evaluated delay in treatment on subsequent outcomes, but that there were anecdotal reports which suggested that a delay in therapy might lead to gonococcal arthritis. 16 A report was also tendered from Professor Sambrook, Professor of Rheumatology at the University of Sydney. He also gave oral evidence. In his report the Professor wrote of Mr Gorton's condition as being "a consequence of probable previous gonococcal arthritis" The pus cells which had been observed were, he said unusual if the condition was a reactive one, (that is to say not a result of the bacterial infection, but rather a reaction to the antibiotics). Under the heading of "Relevance of 6 days delay in providing treatment", Professor Sambrook wrote: "Arthritis following gonococcus can be a direct infection or a reactive phenomenon. A direct infection is pretty uncommon although it is true to say that theoretically the fact that he was allowed to go untreated for 6 days would have increased the risk of bacteraemic spread to his joints. It is also fair to say that in practice many patients are seen a few days after their episode of urethritis without any apparent increased risk of developing arthritis as a consequence of this 'delay' in their treatment." 17 In his oral testimony Professor Sambrook said that Mr Gorton's arthritis could be direct or reactive, but thought it most likely to be reactive (and therefore not brought on as a result of failure to commence timely treatment). He agreed that a delay in treatment would increase the risk of the onset of direct arthritis. 18 The Tribunal after summarising this evidence dealt with it in the following passage: "The Tribunal accepts Dr Doust's evidence that the Applicant's gonorrhoea should have been treated within 24 hours and that a delay in the commencement of treatment could lead to the development of gonococcal arthritis. While Dr Doust does not have specialist qualifications he is uniquely qualified to provide an opinion on the issue of treatment of venereal disease in the 1950s. The Tribunal finds that once treatment for gonorrhoea commenced on 7 March 1955 the treatment was appropriate. However, the delay of some eight days between contracting the disease and commencing treatment was, on the evidence of Dr Doust, significant in allowing the infection to travel to the Applicant's joints before the commencement of treatment of 7 March, and so the treatment which he received was not adequate or sufficient to arrest the extension of the disease. That is why, when the Applicant's joints became symptomatic on 23 March 1955 further treatment with penicillin was necessary but it did not cause the arthritic condition in his joints to resolve. Accordingly the Tribunal finds that there was an unreasonable delay in the commencement of treatment of the Applicant's condition. On the evidence of Professor Sambrook and Professor Mindel arthritis following gonococcus can be a direct infection or a reactive phenomenon. While there is evidence to support that the Applicant suffered from a gonococcal arthritis, that is, a direct infection, there is also evidence to support that it was a reactive arthritis, that is, an autoimmune response to a previous infection with the gonococcus which may have been treated successfully. The evidence of Professor Sambrook and Professor Mindel goes to this issue of differential diagnosis. The Tribunal has some difficulty with some assumptions made by Professor Sambrook however. He thought that the delay in treatment was not significant because the joint symptoms did not develop until almost two weeks after treatment. He assumed that the Applicant had responded to the initial treatment on 7 March, but he does not take into account that pus cells ("many threads") continued to occur in the urine when tested on 16 March 1955 (T4, p18), although by 21 March the urine was clear. This would suggest that the urethral infection did not clear until some time between 16 and 21 March, and on the balance of probabilities the Tribunal finds that there was a delay in the resolution of the initial infection beyond that acknowledged by Professor Sambrook. The Tribunal also notes that Professor Sambrook had no first hand knowledge of the practice of medicine in 1955, whereas Dr Doust not only practiced at that time, but he was involved specifically in the treatment of venereal disease. Moreover, Professor Mindel acknowledged that "theoretical possibility" of the delay in treatment of "a few days" increasing the chance of spread into the joints. He noted that the Applicant had been on antibiotic treatment at the time of the spread of the disease and he considered that it was "unlikely" therefore that the spread of the disease had been caused by the delay in treatment. His opinion does not take into account the eight day delay in treatment which is more than "a few days" and whether that would have affected the impact of the antibiotic treatment which had been commenced some 14 days before the onset of the joint symptoms. Professor Sambrook opined that the timing of treatment generally has little impact on the treatment of reactive gonococcal arthritis whereas a delay would increase the risk of developing direct gonococcal arthritis. Dr Doust noted that in the 1950s there were not the diagnostic tools available to assist in complex differential diagnoses, and that in this case treatment would have been undertaken on the assumption of a diagnosis of gonococcal arthritis. Indeed, the medical evidence is inconclusive. Taking all the evidence into account, including the ongoing uncertainty of the Applicant's treating doctors in coming to a definitive diagnosis, the Tribunal nonetheless is reasonably satisfied that the Applicant developed gonococcal arthritis as a result of the delay in medical treatment of his gonorrhoea and that he continues to suffer from the effects of gonococcal arthritis." 19 Accordingly the Tribunal found that Mr Gorton suffered a disease, namely gonococcal arthritis. It found that the nature of Mr Gorton's employment with the Navy was such that he was unable to seek immediate treatment of the gonorrhoea and that the gonococcal arthritis was due to this fact. Accordingly Mr Gorton was, in the opinion of the Tribunal entitled to compensation under s 10 of the 1930 Act, the quantum of which was to be determined by Comcare. From this decision Comcare appealed to this Court.

The submissions of Comcare 20 Counsel for Comcare made the following submissions on the appeal. 21 It was said that the Tribunal erred in holding that it was unnecessary where a claim was made under the 1930 Act in respect of a disease contracted, to consider the provisions of s 16 of that Act. This was so for three reasons. First, it was said that the Tribunal had overlooked the provisions of s 5(2) of the 1959 Act which inserted s 16(4). Secondly, ss 16(i) and (ii) were not, in any event, confined to injury but, by force of s 4(2) of the 1930 Act applied to disease as well. Thirdly, to the extent that the Tribunal relied upon the decision in Comcare v McGuire as authority for the proposition that the provisions of s 16(4) did not apply to the case of a disease contracted before 1959, that case was wrongly decided. 22 The second submission was that there was no evidence upon which the Tribunal could conclude that Mr Gorton contracted gonococcal arthritis as a result of a delay in treatment. Alternatively the submission was that this finding was so unreasonable that no reasonable person could have made it. 23 Finally, it was submitted that the Tribunal denied to Comcare procedural fairness in that it took the view that Professor Sambrook's evidence and that of Professor Mindel should be discounted because of various matters. It was said that there was an obligation on the Tribunal, before not accepting this evidence, to put to these witnesses the matters which caused the Tribunal to not accept it in accordance with the rule in Browne v Dunn [1894] 6 R 67.

The submissions on behalf of Mr Gorton 24 First, it was submitted that that the Tribunal had no jurisdiction to consider the question whether or not s 16 had application in Mr Gorton's case, and that being the case the Court, which was limited to determining whether the Tribunal had erred in law was likewise confined to considering only errors of law in respect of which the Tribunal itself had jurisdiction to consider. 25 Secondly, it was submitted that s 16(4) of the 1930 Act after its amendment in 1948 did not operate to permit the Commissioner to reject claims in respect of disease. It permitted only the rejection of claims in respect of injury where due notice was not given. Even when the 1959 legislation was enacted to extend the provisions of s 16(4) to disease claims, at least as regards claims made in respect of disease contracted prior to the 1959 Act coming into force, s 16 provided no sanction for failure to give notice within the time stipulated. 26 Thirdly, it was submitted that there was evidence upon which the Tribunal could find that Mr Gorton contracted gonococcal arthritis as a result of the failure on the part of the Navy to administer appropriate treatment in a timely way. 27 Finally, it was submitted that Professor Sambrook and to the extent that the submission related to him, Professor Mindel were expert witnesses whose evidence had been based upon assumptions of fact which were incorrect and that in such circumstances there was no obligation on the part of the Tribunal to put to them that their assumptions were incorrect. Accordingly it was submitted that there had been no denial of procedural fairness to the extent that their evidence was discounted.

The legislative provisions 28 To understand the submissions it is necessary to set out the relevant statutory provisions. In so doing I will proceed historically. 29 The 1930 Act, as originally enacted, contained no definition either of "injury" or of "disease". The basic compensation provision was s 9 which dealt with personal injury by accident "arising out of and in the course of … employment". Compensation under this heading was to be paid in accordance with the First Schedule depending upon whether death resulted from the injury or whether there was total or partial incapacity. Section 10 provided for compensation to be payable where an employee suffered from any of the specific diseases listed in the first column to the Second Schedule and thereby was incapacitated from earning full wages or where death was caused by such disease. The Second Schedule listed a number of diseases largely, although not limited to, types of poisoning and described the nature of the employment or "process" with which the disease had to be associated. Certain types of expenses were to be reimbursed under s 11. Finally, s 12 dealt with cases where the employee sustained by accident arising out of or in the course of employment an injury of a kind specified in the first column of the Third Schedule. That schedule contained a tariff applicable to a particular kind of illness. So, for example, a nominated amount was to be payable where there was a loss of both eyes, a different amount was to be payable where there was a loss of one eye with serious diminution of sight in the other, yet another amount where there was a loss of sight of one eye, and so on. 30 Section 13 of the 1930 Act as originally enacted limited the maximum amount payable. It provided: "Notwithstanding anything contained in this Act, an employee shall not, in respect of one accident, except where the injury results in total and permanent incapacity, be entitled to receive as compensation under this Act an amount exceeding Seven hundred and fifty pounds in addition to such expenses as are awarded to him under section eleven of this Act." 31 Section 16 of the 1930 Act as originally enacted contained what the side heading referred to as the "time for taking proceedings". Section 16 provided as follows: "(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made - (a) within six months from the occurrence of the accident; or (b) in case of death - within six months after advice of the death has been received by the claimant: Provided always that - (i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and (ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause. (2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened. (3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner." 32 The 1930 Act was substantially amended in 1948 by the Commonwealth Employees' Compensation Act 1948 (No 61 of 1948). For the first time there were inserted definitions of both "injury" and "disease". 33 "Injury" was defined to mean: "any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury" 34 "Disease" was defined to include: "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease." 35 Although s 9 was replaced, the change was not in any way relevant to the present case. The section still applied to make compensation under the First Schedule payable where there was a personal injury by accident arising out of or in the course of employment. 36 A new section 9A was enacted to replace a section inserted in 1944. So far as is here relevant it suffices to say that s 9A applied where there was "personal injury by accident…caused to an employee while he is travelling to or from [inter alia] his place of employment." 37 Section 10 of the 1930 Act was then amended to replace the previous section so far as it had made compensation dependent upon the employee having contracted a particular disease. Relevantly subsection 10(1) as re-enacted provided: "(1) Where- (a) an employee is suffering from a disease and is thereby incapacitated for work; or (b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment." 38 Section 11 was amended, but the amendment has no relevance to the question arising here for decision. Section 12 (1) was re-enacted to provide as follows: "(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column." 39 Section 13 was re-enacted so as to provide: "(1) Notwithstanding anything contained in this Act, the amount of compensation payable in respect of an injury caused by any one accident shall not, except as provided by this section, exceed One thousand two hundred and fifty pounds. (2) Where an injury results in the death or the total or permanent incapacity of the employee for work, sub-section (1) of this section shall not apply to limit the total amount of compensation payable under this Act. (3)… (4)… 40 Finally, for present purposes, it should be noted that s 4(2) was added. That section provided: "In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee's employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth." 41 In 1959, subsequent to the date Mr Gorton contracted arthritis, there was a further amendment made to s 16 by the Commonwealth Employees' Compensation Act 1959. That Act inserted subsection (4) which read: "In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease - (a) notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner - (i) in the case of a claim arising out of the death of the employee caused by the disease - as soon as practicable after his death; or (ii) in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become aware, as soon as practicable after his death; (b) a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made - (i) in the case of a claim arising out of the death of the employee caused by the disease - within six months after advice of the death was received by the claimant; or (ii) in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death. (c)… (d)…" 42 The 1959 amendment was contained in legislation which increased benefits following a review of the legislation. In moving the second reading of the bill which was subsequently enacted, the then Treasurer, the Honourable Mr Harold Holt said: "There is specific provision in the act at the present time for the giving of notice of an injury by accident and the making of a consequential claim for compensation. The bill extends the same provisions to disease." 43 Section 5(2) of the 1959 Act provided: "The application of section sixteen of the Principal Act as amended by this Act extends in relation to a claim (including a claim in respect of death) arising out of a disease contracted before the commencement of this Act, except that - (a) if notice of the accident was not or is not served within the time allowed by that section, the notice shall nevertheless be deemed to have been so served if it is served as soon as practicable after the commencement of this Act; (b) if a claim for compensation was not or is not made within the time allowed by that section, the claim shall nevertheless be deemed to have been so made if it is made within six months after the commencement of this Act." 44 As has already been noted, the 1930 Act was repealed and replaced by the 1971 Act. By its terms the 1971 Act applied not only in respect of an injury sustained or disease contracted etc after it came into force, but also to injuries sustained or diseases contracted before it came into force. However, by force of s 104(2) of the 1971 Act if the injury was incurred or the disease contracted before the 1971 Act came into force but after the 1930 Act commenced, no compensation would be payable if none was payable under the 1930 Act. However, as will be seen nothing turns upon the 1971 Act or its transitional provisions. 45 In due course the 1971 Act itself was repealed and replaced by the 1988 Act. Relevantly that Act as in force at the time Mr Gorton made his claim provided in s 124: (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. (1A) Subject to his Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act. (2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage: (a) … (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; ... (1) Where: (a) … (b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; … that person is not entitled to compensation under this Act in respect of that injury." 46 It is not in dispute that a claim for a disease contracted while the 1930 Act was in force, but made after 1988 was a claim made under the 1988 Act by force of s 124 of the 1988 Act. The starting point of a claim such as that of Mr Gorton is thus the transitional provisions of the 1988 Act: cf Associated Steamships Pty Ltd v Hore (1995) 61 FCR 506 at 512. For Mr Gorton to succeed in his claim for compensation he must thus show that he was entitled to compensation under the 1930 Act, as in force at the time his entitlement arose (here 1955) and that he was not disentitled to compensation under that Act. As the Tribunal put it, entitlement to compensation under the 1930 Act is "a pre-condition" to Mr Gorton's entitlement to compensation under the 1988 Act: Brennan v Comcare (1994) 50 FCR 555.

Did the Tribunal have jurisdiction to consider whether s 16 of the 1930 Act applied? 47 The submission that the Tribunal had no jurisdiction to consider whether s 16 of the 1930 Act applied, but was limited to a review of the merits of Mr Gorton's claim, is founded upon the decision of the High Court in Australian National Airlines Commission v Cassidy (1964) 110 CLR 172. In that case the Commissioner for Employees' Compensation had decided under s 16 of the 1930 Act that he could not admit an applicant's claim because of a failure of give notice. The applicant appealed to the NSW District Court seeking both to reverse the Commissioner's ruling and to obtain compensation under the Act. The Court held that it was not open to the District Court to go beyond the preliminary matter, that is to say the question of the application of s 16 and decide the merits of the claim. In a passage which has been cited in a number of decisions, the Court drew a distinction between the word "admit", as used in s 16 and grant. Under s 16 the Commissioner was required to determine whether to "entertain" the claim. It was only once he had done so that he would take the next step and determine whether compensation was payable. 48 The submission seeks to turn Cassidy's case on its head. It is said that it stands for the proposition that there is a two-step process: admission of the claim under s 16 and determination of the claim on its merits. So much can be conceded. But then it is said that where the Delegate had admitted the claim (by not raising the question of notice of the claim) the only issue before the Tribunal was the second step, namely the determination of the claim on its merits. With respect, that is not so. 49 First, it must be said that the jurisdiction of the Tribunal differs from that of the District Court on appeal from the Commissioner. The Tribunal, while no doubt limited to reviewing a determination (here in fact a redetermination) that Mr Gorton be refused compensation under the 1988 Act, stands in the shoes of the decision maker. As it has often been said, the Tribunal exists to do again that which the decision maker was required under the relevant legislation to do. The Tribunal, by force of s 3(1) of the AAT Act, may, for the purpose of the Review, exercise all the powers and discretions that are conferred by the enactment under which the decision is made. By contrast, under s 20 of the 1930 Act the jurisdiction of the District Court (referred to in the legislation as "a County Court") was a jurisdiction to determine an appeal against the determination or action of the Commissioner. In Cassidy the only Act, or determination, which the Commissioner had made was not to admit the applicant's claim. It had made no determination with regard to the applicant's entitlement to compensation. In the present case while, perhaps, Comcare may not have turned its mind to the question whether Mr Gorton's claim should be admitted, (and there is no evidence one way or the other about this) logically it must have because it proceeded to deal with Mr Gorton's claim on the merits and reject it. So what was before the Tribunal was both the admission of the claim and the question whether Mr Gorton was entitled to compensation. 50 The subsequent decision of the High Court in Commonwealth v Rutledge (1964) 111 CLR 1, to which counsel for the applicant properly referred me, casts light on the question. In that case the County Court of Victoria had both found compensation payable, contrary to the Commissioner who had found it was not, and had proceeded to determine the quantum of that compensation, a matter which had not been addressed by the Commissioner. The argument was that as the Commissioner had made no determination as to the quantum of the compensation payable, the Court lacked jurisdiction to do so. The argument failed and Cassidy's case was distinguished as relating to a matter which arose antecedent to the claim for compensation, that is to say, antecedent to the determination. Once the Commissioner had considered the claim for compensation and admitted it, the Court had jurisdiction to dispose of all matters relating to the claim for compensation. So too in the present case. Mr Gorton's claim had been admitted (whether without proper consideration is irrelevant) and a decision had been made by Comcare. It was that decision refusing him compensation which was the subject of the review. Although the question does not arise in the present case, I would not like it to be thought that I am suggesting that Cassidy's case would have application to the Tribunal. As presently advised I do not think that is correct, having regard to the difference between an appeal to the County Court under the 1930 Act and a review under the AAT Act. But it is unnecessary here to decide what the situation would be if Comcare had rejected Mr Gorton's application by determining not to admit his claim under s 16 of the 1930 Act, for that is not the present case. 51 It follows that as the Tribunal had jurisdiction to determine whether Mr Gorton's claim for compensation should succeed and as that necessarily required the Tribunal to determine, as it did, whether it should be admitted under s 16, this Court has jurisdiction to decide whether in holding that s 16 had no application to Mr Gorton's claim the Tribunal erred in law.

Does s 16 have application to the case of a disease claim? 52 The resolution of the competing views advanced on behalf of Comcare and Mr Gorton turns in part upon the construction of the amendments to s 16 made in 1948 and in part upon the effect of the amendments made in 1959 and in particular the transitional provision contained in s 5(2) of the 1959 Act. In each case it is necessary to examine the context in which the amendments were made in order to ascertain what the legislative purpose was, to which the amendments were directed. In the case of the amendments made in 1948 this necessitates examining the law as it was, or at least was perceived to be, prior to those amendments in order to determine whether s 16(1) and (2) operated to preclude the Commissioner from admitting a claim for compensation for disease where the claim was not made in a timely way. 53 As the legislative provisions already set out make clear, the 1930 Act drew a distinction between injury by accident on the one hand and particular kinds of compensable diseases on the other. In essence the 1930 legislation followed the pattern of the United Kingdom legislation illustrated by the Workers' Compensation Act 1906 (Imp)in legislating a schedule of compensable diseases, but otherwise providing for compensation to be limited to personal injury by accident. Clearly there was a difference in meaning between the words "injury" and "disease" in the Australian legislation and in the Imperial counterpart. Where an employee of the Commonwealth suffered from one of the listed diseases in the Second Schedule the distinction was irrelevant as the right to compensation arose under s 10. Where the employee contracted a disease not falling within the Second Schedule any claim for compensation could only arise where the employee suffered a "personal injury by accident" to which the provisions of s 9 applied. 54 In the original legislation the word "injury" as used in the then s 9 did not stand alone. Rather, as Lord Macnaghten in Fenton v Thorley & Co [1903] AC 443 at 448 emphasised the phrase "injury by accident" in the context of the English Workmen's Compensation Acts of 1897 and 1906 was a compound expression and operated to confine, at least where injury was undefined, compensation to certain classes of injuries and exclude others, eg injuries by disease. The same was true in the 1930 Act as originally enacted and remained so after the 1948 and 1959 amendments. 55 One of the objects of the 1948 legislation was to replace the listed diseases in s 10 with the creation of a right to compensation, whatever the disease, provided that the disease was "due to the nature of the employment". This was held to mean that the disease in its then defined sense had to have a connection with the kind of employment which the employee had undertaken "in virtue of its tendencies, incidents or characteristics": Commonwealth v Bourne (1960) 104 CLR 32 at 39 per Dixon CJ. So if an employee were engaged by the Commonwealth in an employment which exposed the employee to a particular class of disease (for example lead poisoning) then disease resulting from that exposure was compensable under s 10. But not all cases where the employee was suffering from disease and was incapacitated or where the employee's death was caused by a disease would fall within s 10. Where the conditions of s 10 were fulfilled, the section operated to create a liability for compensation "in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment". The words underlined would thus bring to play the provisions of s 9 of the 1930 Act, the preconditions of that section being fulfilled, namely that there had been a personal injury by accident arising out of or in the course of the employment. Thus the First Schedule of the 1930 Act was made applicable. 56 However, as Menzies J at 44 recognised in Bourne there could be cases where a person suffering from a disease could without the aid of s 10, directly come within s 9 because the disease was a "personal injury by accident arising out of or in the course of his employment". His Honour used, as an illustration, the example of a telephone linesman who contracted pneumonia from working in a storm to restore interrupted communications. What is important for present purposes is that no member of the High Court suggested that s 4(2) operated by itself to make s 9 applicable in the case of an employee suffering from a disease and it is clear enough why. Section 4(2), which on any view of the matter is an interpretative provision, can only apply where the circumstances are such that the employee falls within s 10. But an employee whose circumstances fall within s 10 is by force of that section deemed to be entitled to compensation under s 9. 57 The circumstances where s 9 operated by its own force to an employee suffering from a disease without s 10 being applicable were also the subject of discussion by the High Court in Commonwealth v Ockenden (1958) 99 CLR 215, Kavanagh v Commonwealth (1960) 103 CLR 547 and Commonwealth v Hornsby (1960) 103 CLR 588, all of which were recently discussed in Zickar v MHG Plastic Industries Pty Ltd (1996) 140 ALR 156. Fullagar Jin Hornsby suggested at 596-7 that there were three categories of case where disease may qualify as a personal injury by accident, although his Honour qualified his remarks by saying that the last two classes were not strictly disease cases at all. First were cases where a disease was contracted through exposure to infection or other risk attendant on the conditions of employment. Second were cases where there was an actual internal physical injury. Finally there were cases where the death or incapacity resulted from the development or culmination of a pre-existing and progressive morbid physical condition. 58 Both Kavanagh and Hornsby were appeals concerning s 9A of the 1930 Act. There is no suggestion in the judgments in those cases that s 4(2) had any operation to assist in dealing with a claim under s 9A. Again this is not surprising. For s 4(2) could only apply to the interpretation of a provision of the Act if the provisions of s 10 are fulfilled. But if the provisions of s 10 are fulfilled, then compensation will be payable under s 9, and there will be no need to apply the provisions of s 9A. Of course, there could be a case where a disease could be described as a personal injury by accident which was caused while the employee was travelling to or from work, where s 9A could have an independent operation, but it is not easy to imagine such a case. 59 It seems to follow from the analysis to this point that s 4(2) has no role at all to play in the interpretation of any of the sections from section 9 to 12 (except, perhaps, s 9). Nor would it seem likely that s 13, which limited the compensation for injuries in respect of an accident to a nominated amount, even if it did apply at all to cases of incapacity because of disease, required the aid of s 4(2). So one is forced to the conclusion that if s 4(2) had any work at all to do that was likely to relate to s 16 or s 17A or both. 60 It is the submission of Comcare that whether or not s 4(2) had application to any other provision of the 1930 Act it operated for the purposes of s 16 of that Act. So it is said that s 16 should be read so that the reference to "a claim for compensation under this Act for an injury" in that section applied as well to a claim for compensation under s 10 as to a claim for personal injury by accident under ss 9 or 9A. For Mr Gorton, it was submitted that s 4(2) was an interpretative section and could apply only where the other provision of the Act to which it was to be applied specifically used the words "personal injury by accident arising out of or in the course of an employee's employment by the Commonwealth". Those word appeared, for example in s 17, so that s 4(2) played a part in the interpretation of s 17. Section 4(2) could likewise assist in the interpretation of ss 14 and 15. Further, even if s 4(2) might otherwise permit disease cases to be equated to injury cases so that a disease case could be treated as a claim for compensation for injury there is a difficulty in applying the terms of s 16(1)(a) with its reference to six months being calculated from the occurrence of the accident to the case of incapacity arising from a disease. 61 The question is not free from difficulty. However, I am conscious that workers compensation legislation is remedial legislation and should, so far as possible, be given a beneficial interpretation: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J and Johnston v Commonwealth (1982) 150 CLR 331 at 342-3 per Gibbs CJ, Mason and Wilson JJ and Bird v Commonwealth (1988) 165 CLR 1 at 6, 9 per Mason CJ, Brennan and Toohey JJ. Accordingly, while I see no rational purpose in the legislature providing a time limit for bringing claims where incapacity or death arises by virtue of an injury, but not where incapacity or death arises by virtue of a disease occasioned by the nature of the employment, and while the Court is directed to give effect to the legislative purpose in the event of ambiguity, I would construe s 16(1) as applying prior to the 1959 amendments only to injury claims and not to disease claims falling within s 10. This construction explains why the Treasurer, Mr Holt in introducing the 1959 amendments took a similar view. 62 As has been already noted, subsection (4) of s 16 was added in 1959. In the absence of any transitional provision it would have been clear that the subsection could only have effect, as the Tribunal itself held, in respect of a case where the incapacity or death giving rise to a claim under s 10 occurred after the commencement of the 1959 Act. While the problem of applying s 4(2) to the case of a disease to which reference is made above still remained, it seems to me clear that the legislative policy was that thereafter disease claims were to be not admitted unless the relevant notice was given and in the case of incapacity from disease the notice was required to be given within six months of the employee becoming aware that he was suffering from the disease. It is clear, beyond doubt, that the insertion of subs (4) had the consequence that the whole of s 16 had to be read as applying to the case of disease and that this was to be achieved by the application of s 4(2) of the 1930 Act. 63 However, there remains to be considered the provisions of s 5(2) of the 1959 Act to which no reference at all was made by the Tribunal. That section had the consequence that s 16(4) was to relate back to disease occurring prior to the commencement date of the 1959 Act, but subject to the proviso that the notification period was extended to six months after the commencement date of the 1959 Act in a case where notice had not been served within six months of the occurrence of the disease, ie when the disease was contracted. Although the need to give a beneficial interpretation, where possible, is still there, the problem is that after 1959 the intention of Parliament is quite clear. To say, as counsel for Mr Gorton does that after 1959 it was desirable that notification be given, but that there was no legislative sanction where timely notice was not given makes no sense of the 1959 amendment. Indeed such a construction gives no meaning at all to subs (4). The rule that the Court should give effect to the intention of Parliament must prevail over the otherwise accepted rule that legislation of this kind should be interpreted beneficially to the worker. 64 Both sides in submission referred to the decision of Carr J in McGuire. It is therefore important that I say something about that decision. The case concerned the claim of an employee who had suffered a middle ear infection wile undergoing recruit training at a school of military engineering. The claim was made under the 1988 Act and because the events giving rise to it occurred prior to that Act commencing, and prior to the 1971 Act as well, reference had to be made to the 1930 Act, just as reference in the present case has to be made to the 1930 Act. It was held that the claim fell within s 12 or s 9 of the 1930 Act as an injury by accident and not within s 10. It was argued that the Tribunal should have treated the claim as one falling within s 10, particularly having regard to the definition of "disease" in s 4. The argument was rejected, and with respect rightly so. Since the case was not one to which s 10 applied, there was no need for his Honour to consider whether s 16(4) could have application to a disease claim where the disease occurred prior to the commencement of the 1959 Act. To this extent his Honour's comments on that subsection are dicta. 65 However, Carr J at 347, at least on one view of what his Honour says, appears to suggest that s 16(4) would have had no operation where the claimant first became aware of the disease before the commencement of the 1959 Act. The judgment contains no discussion of s 5(2) of the 1959 Act so far as that subsection affects the application of s 16(4) to cases where the incapacity or death arose before the commencement of the 1959 Act. I am of the view that the case does not cast doubt upon the decision to which I have come. His Honour said at 347: "Another reason for not reading s 16(4) as applying in such a manner as to exclude the operation of the proviso to s 16(1), is that s 16(4) simply does some "deeming work". When the facts do not fall within its terms, it has no operation. It is not to be read as restricting other provisions of an exculpatory nature. The legislation is beneficial in its nature. Where two constructions of such a provision are possible, that which favours the employee should be preferred… Section 16(4) was obviously intended to ameliorate the circumstances of employees who were suffering from a disease, not to prevent them from relying on any exculpatory provisions which might otherwise apply." 66 With respect I do not understand what his Honour means in this passage. Perhaps it does not matter. On the view I have taken s 16(4) was not intended to ameliorate anything, it was intended to make a time limit applicable to disease claims where it was not before. To the extent that my view differs from that intended to be expressed by Carr J, I do so with diffidence. 67 It follows that to this extent Comcare's application must be allowed.

Was the Tribunal entitled to find Mr Gorton's incapacity arose from the delay in treatment 68 The submission advanced by Comcare can be shortly put. It was that while the evidence supported the possibility that Mr Gorton's arthritis arose as a result of the delay in treatment it was no more than one possibility which was no more probable on the evidence that the possibility that he suffered from what in the evidence was referred to as reactive arthritis where delay in treatment would have had no impact. It is said that the error of law which the Tribunal committed was to make a finding without evidence to support it, or in the alternative that the Tribunal made a decision which was unreasonable in the Wednesbury sense, that is, that the decision was so unreasonable that no decision maker could reasonably arrive at it, see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-231. 69 The present is not a case where it is appropriate to consider whether Wednesbury unreasonableness as an error of law is confined to cases where the decision maker has a discretion, or whether the doctrine extends beyond such cases, see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 605 per Gummow J. There is no doubt that if there was no evidence before the Tribunal to support its factual findings or, as it is often put, where it was not open on the evidence for the Tribunal to find the facts as it did, the Tribunal would have made an error of law. It is therefore preferable that this ground of appeal be considered on the latter basis. 70 The foundation of the submission stems from the Tribunal's comment that "the medical evidence is inconclusive". Where medical evidence is evenly balanced then, it was suggested, an applicant must lose. This may be so, but care must be taken, in the context of an administrative tribunal, not to introduce some concept on onus resting on an applicant. The Tribunal is bound to arrive at what is often referred to as "the correct or preferable decision": Re Drake (No 2) (1979) 2 ALD 634 at 642 per Brennan J. However, it can be accepted that a Tribunal may prefer one medical expert to another, and that the real question is whether there was evidence before the Tribunal upon which it could found a conclusion that the delay in treatment was causative of the arthritis which Mr Gorton developed. 71 As will have been clear from the summary of evidence which appears earlier in these reasons, there were two interconnected questions which arose at the hearing. The first was whether Mr Gorton's arthritis was properly direct arthritis, that is to say related to the fact that he had a bacterial infection (described by Professor Sambrook as where "the bug is in the joint")which had spread and thus could be affected by delay in treatment) or whether it was reactive arthritis, that is to say unrelated to the bacterial infection he had contracted, although related perhaps to the antibiotics with which it was treated where delay in treatment would have had no connection with its onset. 72 The evidence most favourable to Mr Gorton was that of Dr Doust, who, as I have already said, was a general practitioner with experience working with venereal disease. Although his qualifications were called into question by Comcare Dr Doust was qualified to give an opinion on the matter at issue albeit that he was not a rheumatologist. Indeed the Tribunal was of the opinion that he was "uniquely qualified" because, he had been specifically involved in the treatment of venereal disease. 73 I must say that not all of Dr Doust's evidence is clear to me. However, it is fair to say that it seems to have been his opinion that a person with gonorrhoea who was not treated in a timely way had a greater chance of developing complications of the joints than a patient who was treated promptly. Further it seems to have been Dr Doust's view that the fact that Mr Gorton had gonorrhoea, that after treatment he had penile discharge and that he developed complications in the joints around the same time resulted in the conclusion that the arthritis developed as a result of the delayed treatment. It was clearly Dr Doust's view that the most likely cause of Mr Gorton's arthritis was his gonorrhoea. Given that prompt treatment would have eliminated the gonorrhoea, this conclusion alone would be evidence upon which it was open to the Tribunal to make the finding it did. 74 Professor Sambrook was a witness called on behalf of Comcare. His written report, the substance of which is set out earlier, is rather ambiguous. It speaks of "probable previous gonococcal arthritis", a term I would take to relate to direct arthritis,and suggests that the evidence that it was reactive was "unclear". However, later in the report Professor Sambrook writes: "Arthritis following gonococcus can be a direct infection or a reactive phenomenon. A direct infection is pretty uncommon although it is true to say that theoretically the fact that he was allowed to go untreated for 6 days [the period between coitus and treatment was in fact 9 days] would have increased the risk of bacteraemic spread to his joints. It is also fair to say that in practice many patients are seen a few days after their episode of urethritis without any apparent increased risk of developing arthritis as a consequence of this 'delay' in their treatment." 75 The report concludes that it is difficult to give a definitive answer to whether the delay in treating Mr Gorton was unreasonably long given the medical knowledge and medical practice in 1955. 76 In oral evidence Professor Sambrook said that he was unable to say one way or another whether Mr Gorton's arthritis was direct or reactive, the significance being that on his evidence if it had been reactive the penicillin treatment for the gonorrhoea would have made no curative difference to it and a fortiori the delay in treatment also would have made no difference. He said that the risk of developing gonococcal arthritis after the onset of gonorrhoea was between 5 and 10 percent but he was not prepared to comment on what difference, if any, the timing of administering antibiotics would have had, save that timely treatment may have decreased the risk of developing a direct arthritis. 77 Finally there was evidence from Professor Mindel in the form of a report upon which he was not cross-examined. Professor Mindel wrote that there were anecdotal reports which suggested that delay in therapy might result in an increase in gonococcal arthritis. However he said that in the case of Mr Gorton the situation was not at all clear cut. He said that pus cells and organisms were not found in the reactive type of arthritis. Professor Sambrook in his oral testimony had said that other organisms were not, but that pus cells could be and that in this regard he disagreed with Professor Mindel. It will be recalled that the evidence was that there were pus cells in Mr Gorton's case. 78 The Tribunal clearly enough based its findings on the evidence of Dr Doust. Indeed it was entitled to do so. The evidence of Professor Mindel was also supportive of Mr Gorton's case, both in the reference made to anecdotal reports that delay might result in gonococcal arthritis and in his comment that pus cells and organisms were not to be found in reactive arthritis, particularly as Mr Gorton's medical notes made clear that pus cells were to be found as late as 16 March 1955. Although this view was opposed by Professor Sambrook, the Tribunal was entitled to prefer the view of Professor Mindel. The question whether the Tribunal was entitled to discount the views of Professor Sambrook based upon the fact that his conclusion depended upon the wrong premise that Mr Gorton had responded to the initial treatment on 7 March is best left to be dealt with by reference to the final submission relating to natural justice.

Was the Tribunal bound to put to Professor Sambrook the fact that Mr Gorton had not responded to antibiotics by 7 March? 79 It may be accepted that if the Tribunal failed to put to a witness a matter which in fairness the Tribunal was bound to put before reaching a conclusion in accordance with the rule in Browne v Dunn the resultant decision could involve an error of law for the purposes of s 44 of the AAT Act: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6. 80 The rule in Browne v Dunn may, for present purposes, be stated by reference to the well known discussion of it in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 where Hunt J said: "…unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings." 81 The rule is not applicable, however, in every case. It is, for example, not necessary to put to a witness a matter where in all the circumstances the witness was already on notice that the matter was in issue between the parties. This indeed was the case in Allied Pastoral. 82 The submission here is that the Tribunal was bound, before rejecting Professor Sambrook's evidence, or if it did, the evidence of Professor Mindel, on the basis, in the former case that he had failed to appreciate the delay in resolution of the initial infection and in the latter that Professor Mindel had misunderstood the length of time which had elapsed before treatment was administered. In oral submissions it was suggested that not only had the Tribunal not put to Professor Sambrook that Mr Gorton had in fact not responded well to the first penicillin treatment, but indeed that the Tribunal had itself misled Professor Sambrook on this point. 83 It will be recalled that Professor Mindel did not give oral evidence. There was no obligation on the part of the Tribunal to call him to enable it to put to him the actual length of time which had elapsed. The statement by Professor Mindel that there was "a few day's delay" was the assumption upon which he based his report. If that assumption proved to be wrong, then that part of the report on which it was based could not be accepted. There was no necessity to put to Professor Mindel the validity of the assumption upon which a part of his report depended. 84 The situation with Professor Sambrook is more complicated. The Professor's written report says no more than that after two weeks of treatment there was improvement in the urinary symptoms. Of that there was no dispute, although it is clear that on the facts there remained discharge for a considerable time thereafter. In the course of the oral evidence Professor Sambrook was questioned by a Tribunal Member, Rear-Admiral Horton. The member put to Professor Sambrook that Mr Gorton's urinary condition had cleared up "reasonably well" seven or eight days after the first penicillin treatment. This was in the context of questions asked about the significance of the fact that Mr Gorton had contracted an adenitis. Nothing in that passage suggested that the Professor's overall view had been dictated by the question Rear-Admiral Horton had put, as counsel for Comcare submitted. 85 Later, in response to a comment which the Transcript attributes to Mrs Lewis the time sequence was put to Professor Sambrook and he was asked about the significance of pus cells. The Professor then expressed the view that the presence of pus cells did not enable him to reach a conclusion one way or the other. There then follows the following interchange (the reference in the transcript to the initial question being put by Mr Campbell (Dr Campbell was another member of the Tribunal) would seem not to be correct: "MR CAMPBELL: Professor Sambrook, you said earlier that whilst in principle one would treat early but you didn't think it was significant delaying treatment in this particular case, given the chronological sequence that Dr Campbell spoke to, that is the occurrence took place on the Saturday night or the Sunday morning, that it was reported 2 days later and it was a further 6 days before medical treatment commenced, do you still hold to that same view that there wasn't a significant delay? - Well, the reason that I give that opinion hat after the infection he apparently responded and it wasn't for almost two weeks until after that treatment that he developed the joint symptoms. So in that sense it seems to have treated the original, you know, urethritis fairly adequately and it's unusual that it should develop so late. I would have thought if the delay had actually caused the symptoms to spread that he would have manifested some of those symptoms in those joints at that time rather than another two weeks after treatment. But again, one can't be definitive about this." 86 This interchange made it clear that Professor Sambrook's view that delay in treatment was not significant in the present case was dependent upon his conclusion (not one that the Tribunal had itself put to him, as was suggested) that two weeks before the arthritic symptoms had developed Mr Gorton had "apparently responded" to the treatment for his gonorrhoea. This was the assumption upon which Professor Sambrook proceeded. It was the assumption, as he himself said, or at least certainly an important assumption, upon which his conclusion that delay in treatment had not brought on the arthritis was based. The assumption was found by the Tribunal to be incorrect. Failure to accept the premise had, in these circumstances, to lead to the rejection of the conclusion. There was no unfairness to Professor Sambrook in the invalidity of the premise being put to him. That Mr Gorton had not responded to the treatment is clear enough from the medical records which showed that just two weeks before Mr Gorton reported the arthritic condition, namely on 7 March 1955, the pus cells were "profuse". Indeed on 16 March there were still many threads in his urine. This was the day he was given "sounds". In my opinion, there was no denial of procedural fairness and, in consequence, no error of law made by the Tribunal.

Conclusion 87 In my opinion, therefore, while the Tribunal made no error of law in its consideration of what may be called the merits of Mr Gorton's claim, it did err in law in failing to consider whether Mr Gorton's failure to make a claim within six months of the commencement of the 1959 Act prejudiced Comcare or was occasioned by mistake, absence from Australia or other reasonable cause. The application must accordingly be allowed and the matter remitted to the Tribunal to consider whether the claim for compensation should be considered having regard to s 16 of the 1930 Act. It would be open for either Mr Gorton or Comcare to seek leave to adduce further evidence before the Tribunal should either be so advised. In so saying I do not suggest that such an application should be made, or if made that it should be acceded to. 88 There remains the question of costs. Each party has been successful in part although the ultimate result is that the decision of the Tribunal is to be set aside. Given that the issue of s 16 of the 1930 Act was not raised by the delegate of Comcare when the redetermination was made (or for that matter when the initial determination was made) and was not raised by Comcare itself in the Tribunal, the suggestion that Mr Gorton should now pay Comcare's costs of the present application would be most unjust. Had the matter been property addressed even at the Tribunal stage it is unlikely that the Tribunal would have fallen into error. In my view the proper order should be that there be no order for the costs of the present application. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Solicitor for the Applicant: Australian Government Solicitor