Transport Accident Commission v Bausch [1998] VSC 248; [1998] VICSC 20

For the Appellant Mr A.G. Uren Q.C. Dunhill Madden Mr W.R. Middleton and Butler

For the Respondent Mr R.R.S. Tracey Q.C. and Williams Winter & Mr M.J. Croyle Higgs

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SC/SD VICTORIAN GOVERNMENT REPORTING SERVICE 9603 2404

TADGELL, J.A.: This appeal from a judgment of Eames, J. raises important questions touching the role and responsibility of the maker of an administrative decision when a review of the decision is undertaken by the Administrative Appeals Tribunal. It concerns also the responsibility of the Tribunal when undertaking such a review. The administrative decision-maker in question was the present appellant, the Transport Accident Commission, a review of whose decision was sought by the present respondent, Glen Stewart Bausch.

The respondent, whom I shall for avoidance of confusion call "the claimant", was injured on 17 February 1989 when a motor car of which he was the only occupant veered off Plenty Road and overturned in open country in the region of Mernda or South Morang. Later in 1989 he claimed compensation from the Commission under the Transport Accident Act 1986. On 31 October 1990 the Commission advised his solicitors that, in accordance with s.47 of the Transport Accident Act, it had determined his degree of impairment to be "30 per centum or more", that his injury was therefore deemed to be a serious injury within the meaning of the Act and that consent was granted to institute proceedings at common law. By separate letter of the same date the Commission advised the solicitors in effect that, because the claimant's condition had not stabilised, a further examination would be arranged after nine months with a view to assessing impairment benefits. The claimant began a common law proceeding in the County Court in March 1991, alleging that the driver of an unidentified motor vehicle had negligently caused the accident by forcing his car off the road, and claiming damages against the Commission pursuant to s.94(7) of the Transport Accident Act.

Liability for medical and related expenses incurred by the claimant as a result of the accident was accepted by the Commission but nothing further appears to have been done, either on behalf of the claimant or by the Commission, to forward the assessment or payment of an impairment benefit, until 15 December 1994. By letter of that date the claimant's solicitors specifically requested the Commission to determine the amount of an impairment benefit under s.47 of the Transport Accident Act. So far as is now relevant, s.47 provides in effect that, where the Commission has determined the degree of impairment of a person (as it had done in the case of the claimant) it "must assess an impairment benefit in respect of the person" in accordance with a specified formula and pay the amount assessed as a lump sum. The Commission did not respond to the solicitors' letter and, on 24 February 1995, they wrote another seeking payment of an impairment benefit to the claimant and threatening proceedings in default of payment. Again the Commission made no reply and it made no payment of an impairment benefit. By notice dated 10 March 1995 the claimant applied for review by the Administrative Appeals Tribunal of the Commission's decision, described in the notice as "Failure to forward an impairment benefit payable pursuant to s.47 of the Transport Accident Act". The application for review of "a decision of the Commission" was authorised by s.77 of the Transport Accident Act, and the provisions of Part IV of the Administrative Appeals Tribunal Act 1984 were thus attracted.

The so-called "decision" of the Commission of which the claimant had sought review was not an actual decision, for relevantly (so far as appears) the Commission had simply done nothing. Section 3(4) of the Administrative Appeals Tribunal Act (which I shall call "the Tribunal Act") has the effect, however, that the Commission's failure to do an act or thing "within the period prescribed" by the Transport Accident Act for doing it is deemed to constitute the making of a decision, at the expiration of that period, not to do it. The "decision" is in that sense notional. Perhaps the notional decision of the Commission of which the claimant should have sought review by the Tribunal was one not to assess an impairment benefit, rather one than not to pay it. In the event nothing much seems to turn on the distinction: I take what is in effect a complaint of a failure to pay the benefit to include a complaint of a failure to assess it.

Section 78 of the Transport Accident Act requires the Commission, within 28 days after receiving a copy of an application under s.77 for review of a decision of the Commission, to reconsider the decision; and s.80 authorises the Commission, after doing so, to vary or revoke it. There is no indication that the Commission took any step to comply with s.78. In particular, so far as appears, the Commission did not seek from the claimant or his solicitors any particulars of his motor accident by way of supplementation of the exiguous details which the completed prescribed claim form contained. The Commission appears never to have interviewed the claimant or obtained or sought to obtain from him any statement about the accident. Nor, so far as appears, had the Commission ever indicated to the claimant or to his solicitors that an impairment benefit would not be assessed or paid to him, let alone disclosed to him or them any reason why this would not be done. Although, by the combined force of s.47 of the Transport Accident Act and s.3(4) of the Tribunal Act, the Commission is to be regarded as having made a notional decision not to pay, it is not perfectly clear when such a decision is in this case to be taken to have been made. Section 47 does not in terms prescribe a time or period by or within which an impairment benefit is to be assessed and paid. The section merely requires that an assessment is to be made when the degree of impairment is assessed; and s.46A requires that an assessment be made, at latest, as at the time when the injury stabilises. The time when the claimant's injury stabilised does not appear from the available material but, the injury having occurred in February 1989, it seems fair to assume that it had stabilised by the time payment of the impairment benefit was sought in February 1995. It may therefore be assumed that, when the application for review was made in March 1995, a decision not to assess should be taken to have been made. Everyone concerned appears to have proceeded before the Tribunal on that footing. It may nevertheless be doubted whether, at the time the application was made, the Commission had actually come to a conclusion that an impairment benefit should not be assessed or paid to the claimant: by letter dated 3 May 1995 to his solicitors the Commission required him to attend for examination by two medical practitioners, on 15 and 18 May, "to be medically assessed for permanent impairment ...". If, when that letter was written, the Commission intended not to pay an impairment benefit, medical examinations designed to assess permanent impairment would presumably have been unnecessary. Perhaps, however, as counsel for the Commission suggested, its right hand was merely out of touch with its left. So far as appears, the first indication by the Commission that it did not intend to pay an impairment benefit to the claimant was made in a statement filed with the Tribunal on 20 September 1995 in purported compliance with s.36(1) of the Tribunal Act. By this document the Commission announced that it "... considers that the applicant's injuries were sustained whilst driving home from work and that the applicant is not therefore entitled to compensation pursuant to the Transport Accident Act 1986".

The Commission's attitude, so expressed, depended on s.38(2) of the Transport Accident Act which, subject to some exceptions not now relevant, provides that the Commission -

"... is not liable to pay compensation in respect of a person who is injured or dies as a result of a transport accident to a person who is, or appears to the Commission to be, entitled to compensation in respect of that injury or death under the Accident Compensation Act 1985".

At the relevant time s.82(1) of the Accident Compensation Act 1985 provided that -

"If there is caused to a worker an injury arising out of or in the course of any employment the worker shall be entitled to compensation in accordance with this Act.";

"An injury to a worker shall be deemed to arise out of or in the course of any employment if the injury occurs -

(b) while the worker is travelling between his or her place of residence and place of employment; ..."

We do not know whether the claimant was a worker within the meaning of ss.82(1) and 83(2). It was, however, apparently common ground before the Tribunal that if, when he had his accident, the claimant was, as the Commission considered, "driving home from work", he was not entitled to receive compensation under the Transport Accident Act. Each party was represented before the Tribunal, and counsel for the Commission persuaded the Tribunal, against the objection of counsel for the claimant, that the Tribunal should decide as a preliminary question of fact whether, at the time of the accident, the claimant was travelling between his place of employment and place of residence. Evidence and argument were accordingly presented before the Tribunal (consisting of a single member) on 20 November 1995 and a decision was handed down on 4 April 1996.

The Tribunal determined as a matter of fact that, immediately before the accident, the claimant's car was travelling in the direction of his home at Heathcote Junction (which is not far from Wallan, due north of Melbourne) and that the accident occurred while he was travelling home "after he had attended a work barbecue" at West Heidelberg. In the opinion of the Tribunal the claimant's injury therefore arose out of or in the course of his employment according to sub-s.(2)(b) of s.83 of the Accident Compensation Act and there was no substantial interruption of or substantial deviation from his journey for the purposes of sub-s.(3) of that section. Hence the Tribunal expressed its satisfaction that, by virtue of s.38(2) of the Transport Accident Act, the Commission was not liable to pay compensation to the claimant. The Tribunal's conclusion was that the claimant could not succeed in his application for review and accordingly the application was dismissed.

The claimant appealed to the Supreme Court from the decision of the Tribunal on questions of law pursuant to s.52 of the Tribunal Act. Eames, J. allowed the appeal. There is perhaps more than one legal basis which might be assigned for his Honour's decision. The decision itself, however, was that the proceeding before the Tribunal did not amount to a valid review of the Commission's decision. Eames, J. accordingly set aside the Tribunal's decision and ordered a re-hearing. Hence this appeal.

At the place of the accident Plenty Road runs generally north and south. The contention of the claimant before the Tribunal was that, at the time of the accident, he was not driving to his home at Heathcote Junction, which would have required him to travel north from his place of work along Plenty Road, but that he was driving in the opposite direction - south - with a view to visiting a brother in Fairfield. This was in accordance with the two claim forms that had been lodged in support of the claim. The claimant gave sworn oral evidence to that effect but the Tribunal disbelieved it.

There was before the Tribunal other evidence which would have justified a rejection of the claimant's oral evidence and supported a conclusion that his motor car was, immediately before it veered off Plenty Road, travelling northerly in the direction of his home. I need not set out that material as extensively as both the Tribunal and Eames, J. did in their careful reasons, but summarise it as follows -

(1) Senior Constable Mooney, stationed on 26 April 1989 at Wallan police station, then and there interviewed the claimant about the accident. Mooney made a statement setting out the interview in the form of questions and answers. The statement was tendered for the Commission before the Tribunal and Mooney orally verified it. The statement attributed to the claimant answers that he had "knocked off work at about 9.15 to 9.30"; that he imagined the accident had happened at about 9.45 p.m.; that he was then travelling north and was going home; that another car had cut across him and he had swerved to the left to avoid it; that he had had no current driving licence but had previously had one in the Northern Territory; that he had not been drinking on the day of the accident and that his injuries were "nerve damage in the arms, neck and back and left leg and kidney failure". In the course of cross-examination before the Tribunal Mooney admitted that he had had in front of him, during his interview with the claimant, the police accident file and that it had contained a number of statements and an accident report, but he was asked no more about it in the course of his evidence.

(2) Tony Lazarevski, a fellow-worker of the claimant's, made a statement on 31 July 1991 to a representative of the Commission and signed it. In his statement Lazarevski said (evidently referring to the day of the accident, a Friday) that there had been a customary barbecue at work at which the claimant was present, that the barbecue started soon after 5 p.m. and "it usually would finish around 7 p.m. or 8 p.m.". He recalled the claimant's drinking beer; he could not recall the time at which the claimant left to go home and was not even certain if he was going home after he left the party. He was not sure if the claimant was affected by his alcohol consumption. About five days after the accident he went to the Austin Hospital to see the claimant, who told him "that he was going home when he was ran off the road". Lazarevski made another statement on 9 November 1995 to the claimant's solicitors and signed it. In it he said that the claimant left the barbecue shortly after it started, perhaps fifteen minutes or so after 5 p.m. He also said in that statement that he did not recall seeing the claimant drinking at the barbecue. The two statements were tendered before the Tribunal - the first for the Commission and the second for the claimant - and Lazarevski gave oral evidence, but he was unable to explain satisfactorily (as the Tribunal found) the discrepancies between the two.

(3) Robyn Mary Moreland made a signed statement on 20 November 1992 to a representative of the Commission and verified it before the Tribunal, where it was tendered for the Commission. Mrs Moreland deposed that she was a psychiatric nurse living at Whittlesea and described something of what was evidently the scene of the claimant's accident as she saw it at about 6.45 a.m. on the morning after it occurred. She was then driving her motor car south along Plenty Road at Mernda and noticed a car standing on its roof in a paddock to her right. She stopped, walked over to it and saw a male (it was apparently common ground that he was the claimant) in the driver's seat. He was upside down and conscious and she believed that a seat belt was holding him in position. There was a strong stench of stale alcohol and vomit. She got down on her haunches and spoke him, asked his name and address and how he came to be where he was. He said he did not want the police involved, that he had been at Epping and was heading home to Heathcote Junction. Ultimately the seat belt was cut to get him out. In cross-examination by counsel for the claimant Mrs Moreland swore that it appeared to her that the upturned car had been travelling the same way as she had - that is, towards the south.

Before the Tribunal the Commission led its evidence first, and Mooney, Lazarevski and Moreland were its only witnesses.

The claimant gave sworn oral evidence before the Tribunal on his own behalf. The gist of his account to the Tribunal was this. On the day of the accident he was an employee of K.H. Stramit, of West Heidelberg. He finished work at about 5.30 p.m. on that day and then attended a barbecue at his workplace where he consumed no more than two cans of beer. He left at 6.30 or 7 p.m., being among the first to leave, intending to drive home to his residence at Simmons Court, Heathcote Junction. That required him to travel north along Plenty Road. He arrived at Heathcote Junction within about 45 minutes but called in at the house of his brother, Ken Bausch, at Rail Street, which was on the way to his own. He there learned that another brother, Terry, an interstate truck driver, had that morning come to Melbourne for the first time in two years, and was staying in Fairfield. (Fairfield is a suburb close to West Heidelberg.) He decided to visit his brother Terry and, after spending some two hours with his brother Ken and Ken's wife and family, and not going on to his own house - which was distant some five minutes' drive by car - he journeyed south, again travelling along Plenty Road, towards Fairfield. It was on that journey that the accident occurred. Ken's wife, Mrs Susanne Bausch, had offered to go and tell his own wife where he had gone and he believed she did so, the telephone at his house having been disconnected. The claimant swore that he thought the accident occurred at about 9.30 p.m. He swore further that, at the time of the accident, his car swerved to the right, and that he had been wrong in telling Mooney that it had swerved to the left. The claimant called Mrs Susanne Bausch, as his only other witness, to give oral evidence. She had made, but apparently not signed, a statement (it is not clear at whose behest) dated 15 July 1992 in which she had said that the claimant had been in her house on the night of his accident but she could not recall the time of his arrival or departure. She estimated that "it was between 7 p.m. and 8 p.m."; and she drove up to the claimant's house at about 9 p.m. and had a cup of tea with his wife. That statement was tendered on behalf of the Commission in cross-examination of Mrs Susanne Bausch. In the course of her oral evidence Mrs Susanne Bausch swore, in accordance with a second statement she had made to the claimant's solicitors on 9 November 1995, that on the night in question the claimant had arrived at her house at around 7 p.m. and left at about 8-8.30 p.m.

Plainly enough there were striking discrepancies between Mooney's sworn evidence of the claimant's account to him of the accident and the account to which the claimant himself swore before the Tribunal. The claimant admitted that he had told untruths to Mooney about his alcohol consumption on the day of the accident and about his having once held a Northern Territory driving licence. He insisted in his sworn evidence, however, that his statements to Mooney that he had finished work at about 9.15-9.30 p.m., that he had been travelling home and that his car had swerved to the left, although inaccurate, were in accordance with what he had honestly believed when he made them. He attributed their inaccuracy to his state of health: he swore that at the time of the interview with Mooney he was still undergoing treatment for his injuries as a hospital in-patient or out-patient (he could not remember which) and was "totally disorientated" and unwell, being in particular unable to use his arms or to write. It is scarcely surprising that, having regard to the other material before it, the Tribunal did not accept the claimant's explanation for the discrepancies or other shortcomings in his sworn evidence, and instead treated the account attributed to him by Mooney, said to be supported to some extent by Lazarevski's evidence, as more likely to be true. Apart from the claimant's admitted untruths, the Tribunal was influenced by his failure to call evidence corroborating his alleged parlous state of health at the time he voluntarily went to tell his story to Mooney, or to call his wife or his brother Ken as witnesses to the events of 17 February 1989. Moreover, the evidence of the only corroborating witness he did call - Mrs Susanne Bausch - contained unexplained discrepancies. The Tribunal was also moved by the claimant's inability in cross-examination to specify with whom or at what address in Fairfield his brother, Terry, was staying when he allegedly drove south to visit him. As against that, however, the claimant did swear in chief that he knew where Terry was because Ken had told him. It is perhaps a little stern to criticise him for an inability specifically to recall the address nearly seven years later.

The Tribunal treated the claimant's answers to Mooney - given some two-and-a-half months after the accident - as the evidence of its circumstances "most contemporaneous" to it, save for material in Lazarevski's statement. This was to discount the testimony of Mrs Moreland, which provided not only direct and independent evidence but evidence of what she heard and saw just as close in time to the accident as anything of which Mooney could speak. It is true, as the Tribunal found, that her evidence that the claimant had told her that he was heading home to Heathcote Junction supported the likely correctness of his statement to that effect made to Mooney. Her evidence of her belief that the claimant had been travelling south when he had had his accident was, however, altogether at odds with what the claimant had said both to her and to Mooney. It may be observed that when he spoke to Mrs Moreland the claimant had, on any view, been suffering from serious injury and had been trapped, immobile, wrong-side up and alone in his car for upwards of about eight hours. In the circumstances it might have been thought optimistic to place much reliance on the accuracy of what he said to her; but the Tribunal seems not to have been troubled by considerations such as these. On the other hand, the Tribunal was disposed to "make nothing" of Mrs Moreland's opinion of the direction of travel of the claimant's car "given the lack of adequate material as to the circumstances of the accident and whether it was likely the car, whilst travelling north, could have spun around so that it was pointing south". There was in fact no evidence before the Tribunal that, after the accident, the claimant's car was "pointing south".

I say no more about the use to which the Tribunal was or was not prepared to put the evidence of the claimant and Mrs Moreland: the Tribunal, as fact-finder, was entitled to make of it as much or as little as it thought proper. It is to be noted however that the Tribunal appears to have harboured and expressed a measure of regret about a lack of "adequate material as to the circumstances of the accident". The truth was that more material about it was available than the Tribunal was allowed to know or prepared to seek.

The documentary evidence produced by the Commission before the Tribunal was limited to the statements that had been made by Mooney and Mrs Moreland, one of the statements made by each of Lazarevski and Mrs Susanne Bausch, two forms seeking compensation for the claimant - one dated 17 July 1989 initialled "GB" by him or on his behalf and one dated 14 September 1989 signed by the claimant's wife on his behalf, and the so-called "statement in accordance with section 36" of the Tribunal Act.

Neither of the claim forms provided specific information about the circumstances of the accident, and neither of them by itself assisted the inquiry into the direction of the claimant's travel at the relevant time. Beneath the requirement to "Describe the circumstances of the accident" there was written in the form dated 17 July "Unidentified driver and vehicle ran me of [sic] the road. Accident has been investigated by Thomastown Police"; and in the form dated 14 September there was written in the comparable space "Refer to police". The first claim form contained a generally unhelpful plan and in the second, in the space provided for the drawing of a plan, there was again written "Refer to police". Both forms indicated that there had been no witness to the accident. A copy of the police accident report, being evidently the one which Mooney had mentioned during his cross-examination, was obtained by the Commission by 1991. So much appears from an affidavit of documents, sworn on 17 July 1991 on behalf of the defendant in the County Court action which the claimant had begun against the Commission earlier in 1991. A copy of the affidavit and of the report were not before the Tribunal but were part of the claimant's evidence before Eames, J. - apparently without objection. In his reasons his Honour stated that the Commission had had possession of the whole of the police file, an observation that was not in contest before us.

The police accident report, dated 20 February 1989, was signed by Constable Mark Vernon Newman, of Thomastown Police Station, and was accompanied by a statement by him. Thomastown is a suburb not far south-west of the place of the claimant's accident. The statement, which I need not set out in full, contained the following information -

(a) Newman, at about 7.09 a.m. on Saturday 18 February 1989, attended with another police officer the scene of a single-car accident which he described as Plenty Road, Mernda, approximately 500 metres north from Hunters Lane. Plenty Road is a single-lane carriageway running north and south and is at that point 10.7 metres wide.

(b) Newman observed on arrival that the front of the car was approximately 10 metres in from the roadway, on its roof, on the western side of Plenty Road.

(c) On walking over to the car Newman observed the driver lying next to the driver's side door. A cheque book in the name of Glenn Stewart Bausch, of 2 Simmons Court, Heathcote Junction, was found in the car.

(d) Newman saw and measured skid-marks beginning at a point generally northerly from the upturned car and leading to it over a distance of about 80 metres. Of these marks, approximately 50 metres were on the roadway, beginning at the point where the driver had lost control, skewing across from left to right - i.e. east to west - and approximately 30 metres were off the roadway.

(e) The statement concluded by saying that the driver

"... was able to recall to me that the accident had occurred at approximately 11.15 p.m. the night before and he had been trapped in it until help arrived at about 6.30 a.m.".

The accident report contained a sketch plan conveying generally what Newman's statement described and showing skid marks leading to the car, which was marked "1" and depicted pointing towards the roadway in a direction somewhat south of east, following which was a summary, thus -

"Unit 1 was travelling south along Plenty Road, Mernda. Driver lost control of vehicle on straight stretch of road for unknown reason. Vehicle slid sideways for approximately 50m. before entering paddock crashing through fence rolling over several times. Accident occurred at 2315 hours on 17.2.89. But accident not discovered until about 0630 hours on 18.2.89. Driver was trapped, still in seatbelt of overturned vehicle until help arrived".

"A person who has made a decision that is the subject of an application for a review by the Tribunal shall, within 28 days after receiving notice of the application, lodge with the Tribunal such number of copies as is prescribed of -

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b) every other document or part of a document that is in the possession or under the control of the person and is considered by the person to be relevant to the review of the decision by the Tribunal."

(Section 36(1)(a) is reminiscent of sections 29(2) and 49(3)).

The Commission received a copy of the claimant's application for review on 28 March 1995 but, as I have indicated, did not purport to comply with s.36(1) until 20 September 1995. The statement (undated) which the Commission put forward as complying with sub-s.(1)(a) was described by Eames, J. as "a rather coy document". If it was coy it was also misleading, if not disingenuous. The Commission was required by s.36(1)(a) to provide three distinct kinds of information: first, to set out the findings on material questions of fact upon which the decision the subject of review was made; secondly, to refer to the evidence or other material on which those findings were based; and, thirdly, to give reasons for the decision. Under a heading "Findings of fact" the document set out a chronology, in paragraphs numbered 1 to 10, of some events, beginning with the claimant's suffering injury and ending with the giving of the notice for review, including the claimant's police interview on 26 April 1989 (described by the Commission as a statement by him) and the making of statements by Lazarevski on 31 July 1991 and Mrs Moreland on 20 November 1992. This technique actually stated no finding of fact by the Commission material to the decision which was the subject of review. Under the heading of "Evidence relied upon" was stated simply "The respondent relies [sic] upon the applicant's statement to the Victoria Police dated 26 April 1989". This was evidently a reference to Mooney's statement. Plainly, however, it was not the only evidence on which findings on material questions of fact were based. The statement appears to have acknowledged as much under its next heading - "Reasons for decision". Under that heading there were set out the provisions of s.38(2) of the Transport Accident Act 1986 and ss.82(1) and 83(2)(b) of the Accident Compensation Act 1985, as they relevantly stood, followed by this, and no more -

"Based on the statement by the applicant to the Victoria Police on 26 April 1989 and the statements made to the respondent's investigator by Mr Lazarevski and Ms Moreland, the respondent considers that the applicant's injuries were sustained whilst driving home from work and that the applicant is not therefore entitled to compensation pursuant to the Transport Accident Act 1986".

The last page of the document purportedly filed in accordance with s.36 claimed to be an index of documents lodged under s.36(1)(b). This referred to no document that had not been referred to in the statement made in purported compliance with s.36(1)(a). The Commission made no reference in any part of the document to the police file, to the police report or to any part of either of them save the statement by Mooney. It was not a case of overlooking the police file or the accident report but of selecting from the police file only the statement of Mooney and omitting a reference to any other part of it.

In each of the forms of claim by which the claimant sought compensation from the Commission (both dated after his interview with Mooney) a question "Did the accident occur on a journey to or from employment"? was answered No. The form dated 17 July 1989, in stating that the accident "has been investigated by Thomastown Police", signified plainly enough that the claimant relied upon the result of that investigation. The police file obtained by the Commission revealed that an investigation by Thomastown police had indeed been made and that it supported the claimant's assertion that the accident did not "occur on a journey to or from employment". In his reasons Eames, J. noted that the Commission asserted (it is not clear to whom) that only the claim form dated 14 September 1989 was lodged with it. Be that as it may, the Commission appears to have been in possession of both forms, for counsel for the Commission tendered both before the Tribunal; and the Tribunal found as a fact that both had been lodged with the Commission, a fact now, moreover, apparently acknowledged on behalf of the Commission in a memorandum dated 13 February 1998 submitted to this court after the conclusion of the hearing of the present appeal. On any view the Commission knew that the claimant relied on the police to support his claim. Yet, having obtained the police file, the Commission sought to rely on and disclose to the Tribunal that part of the file that could (by itself) assist it to avoid liability to pay compensation and chose not to reveal those parts of it that would or might have assisted the claimant. The Commission must have known, at the time the statement pursuant to s.36 was prepared, and earlier, of the existence of the accident report and of the statement by Constable Newman, both of which provided support for a conclusion that the claimant was at the time of the accident travelling south, away from his place of residence. At the very least these documents were calculated to throw serious doubt upon the accuracy of the statements which Mooney and Lazarevski attributed to the claimant, whether he actually made them or not.

If the Commission failed to take into account the police accident report and the statement of Constable Newman when deciding not to assess an impairment benefit for the claimant, its decision was flawed by reason of a failure to heed relevant considerations. If, as I would infer it did, the Commission took them into account but rejected or discounted or for some reason discarded them, it was legally and morally obliged to have informed the Tribunal pursuant to s.36 of the Tribunal Act of the course it had taken and its reasons for taking it. In failing to mention this material in the statement purportedly lodged in accordance with s.36 the Commission did a grave disservice to the claimant, to the Tribunal and to its own integrity.

The statutory compensation scheme which it is the Commission's task to administer is, needless to say, intended to provide a benefit to those members of the community to whom compensation is due. At the same time the scheme provides for a curtailment of common law rights. It should again be unnecessary to say that the community is entitled to expect that the scheme will be administered fairly, honestly and impartially and with proper regard to the purposes for which it was established. The scheme necessarily carries with it an entitlement on the part of a disappointed claimant to have an administrative decision by the Commission properly reviewed by the Tribunal. That entitlement carries, of course, a corresponding obligation on the part of the Commission, as the primary administrative decision-making body, to assist the Tribunal in making the review: McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 1 F.C.R. 354, at 366, per Northrop, J. The review is in no sense to be treated as raising a lis or amounting to an adversarial contest in which the Commission is entitled to engage in curial tactics. That is not to say that there can not be disputed issues between the parties raised for resolution, or that the Commission may not seek actively to support before the Tribunal its decision which is under review. If it does seek to do so, however, it is a fortiori imperative that its reasons for its decision, and the material that it considered in making it, should be squarely and unequivocally revealed to the Tribunal. Moreover, subject to certain exceptions which are not now relevant, the Tribunal is obliged to ensure that each party to a proceeding before it is given a reasonable opportunity to present the case: s.44 of the Tribunal Act. The obligations imposed on the Commission by s.36(1) of the Tribunal Act are obviously designed to assist the Tribunal to understand how the decision under review was made and the reasons for its making. I have no doubt that the person seeking the review (in this case the claimant) should ordinarily be entitled to the same information in order to enable the decision to be investigated and appraised. To set out findings of fact, and the basis for them, is but part of the tripartite obligation imposed on the decision-maker by s.36(1)(a) to make a statement rendering the decision intelligible and enabling an intelligent criticism of it.

Section 36 contemplates a need for reasoned decision-making: cf. Independent F.M. Radio Pty. Ltd. v. Australian Broadcasting Tribunal (1989) 3 B.R. 458, at 477. The obligations imposed on the Commission by s.36 of the Tribunal Act are, to borrow the language of the Commonwealth Administrative Appeals Tribunal (Full Tribunal, at which Fisher, J. presided) in Re Palmer and Minister for the Capital Territory (1978) 1 A.L.D. 183, at 192-3, speaking of comparable provisions in the Commonwealth Act -

"... a crucial feature of the current right of the citizen to obtain from an impartial Tribunal a review of an administrative decision, and where appropriate the substitution by that Tribunal of another decision ...".

After referring with approval to the well-known explanation by Megaw, J. in Re Poyser & Mills' Arbitration [1964] 2 Q.B. 467, at 477-8 of the purpose of a statement of reasons by an administrative decision-maker or statutory arbitrator, and to some similar remarks by Lord Denning, M.R. in Iveagh v. Minister of Housing etc. [1964] 1 Q.B. 395, at 410, the Tribunal in Palmer continued, at 193 -

"By requiring the decision-maker to give not only the reasons for his decision but additionally a statement of 'the findings on material questions of fact referring to the evidence or other material on which those findings were based', Parliament certainly intended that the citizen should be fully informed. These further requirements will be satisfied by a statement setting out the findings of fact, together with a reference to 'the evidence or other material' on which the findings were based. It is important to note that neither s.28 nor s.37 requires that the relevant 'evidence or other material' be 'set out' in the statement, only that it be referred to. Moreover, the citizen's entitlement to be fully informed was not merely an incident arising in the course of and for the purpose of a review by this Tribunal. It is a right which arises consequent upon a decision being made which is capable of being so reviewed, and the reasons, when properly given, ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further, and if so whether to make representations to the Minister, proceed in the appropriate court of law or to seek a review by this Tribunal. It follows that to achieve this end the reasons must, in the words of Megaw J. in Re Poyser & Mills' Arbitration, supra, at 478, 'be reasons which will not only be intelligible but which deal with the substantial points that have been raised'."

In a second memorandum sent to the Court after the hearing of the appeal, in answer to one for the claimant, counsel for the appellant urged caution in applying to this case dicta in some of the authorities concerned with a statutory obligation of some decision-making bodies to supply reasons for a decision. It was submitted that sometimes the purposes of a statutory requirement for the provision of reasons will have no necessary relevance to proceedings in an Administrative Appeals Tribunal in Australia. The reasoning in Palmer's Case to which I have referred appears to me, however, to be unexceptionable and to show that commonsense will often suggest a purpose for a requirement to give reasons which is of general application and perfectly consistent with the raison d'^tre of an Australian Administrative Appeals Tribunal, its aims and its objects. In this connection I refer to the following remarks of Lord Lane, C.J. in R. v. Immigration Appeal Tribunal, ex p. Khan [1983] Q.B. 791, at 794, referring to a statutory tribunal -

"... I would not go so far as to endorse the proposition set forth by Sir John Donaldson [speaking as President of the National Industrial Relations Court in Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] I.C.R. 120, at 122] that any failure to give reasons means a denial of justice and is itself an error of law. The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions."

That is another dictum (Ackner and Oliver, L.JJ. concurring) which, in my opinion, is entirely applicable to a decision-maker giving reasons pursuant to s.36(1)(a) of the Tribunal Act. Lord Lane's dictum should not be understood to mean that a decision-maker is to indicate only the evidence which has been accepted and acted on: if a party has relied on evidence or material which the decision-maker has rejected, reference to that may be necessary, too, in order that reasons are rendered adequate for the purpose of s.36(1)(a). Moreover, in giving reasons under s.36(1)(a) which deal with the substantial points that have been raised, the primary decision-maker should in my opinion ordinarily deal with any conflict of evidence which it has had to consider and should plainly state its findings - that is, acceptance or rejection of such evidence: cf. Levy v. Marrable & Co. Ltd. [1984] I.C.R. 583, at 587, per Waite, J., delivering judgment of the Employment Appeal Tribunal; and see Wade and Forsyth, Administrative Law, 7th ed., 942-5. The judgment of Hill, J. in Copperart Pty. Ltd. v. Federal Commissioner of Taxation (1993) 26 A.T.R. 327, at 329, referring to comparable obligations of the Commonwealth Administrative Appeals Tribunal, also repays examination.

What is due compliance with the third requirement imposed by s.36(1)(a) of the Tribunal Act, to give reasons for the decision, will depend on all the circumstances: cf. Kioa v. West [1985] HCA 81; (1985) 159 C.L.R. 550, at 585, per Mason, J. The requirement imposed on the Commission to give reasons was not satisfied in this case by the statement of a conclusion and asserting that it was founded on an acceptance of the three statements of Mooney, Lazarevski and Moreland. If, as in this case I assume was the fact, the Commission considered the result of the police investigation upon which the claimant's claim form indicated that he relied, and rejected it as evidence or material on which to base findings on material questions of fact, the Commission should have given in its statement pursuant to s.36(1)(a) its reasons for rejecting it. The result of the Thomastown police investigation (on which, as the Commission knew, the claimant relied) was at once so strikingly relevant and cogent that the Commission could not give fair and sensible reasons for its decision without adverting to it and assigning reasons for its rejection.

I respectfully agree with Eames, J. that the significance which the Tribunal attached to Mooney's statement would have been - or at the very least it might well have been - quite different had the Tribunal been aware that it had been denied the remainder of the police file, including the accident report and the statement made by Constable Newman. The review of the Commission's decision which the claimant sought, to which he was entitled and which the Tribunal was obliged to provide and the Commission was obliged to facilitate, seriously miscarried: the Tribunal was not placed in the position it should have been in to make a proper and effective review as the Tribunal Act required it to do. How could it have been in such a position when it was ignorant of critical material on which the claimant relied and which the Commission had had and to which, without saying so, it had declined to give effect? The practical attitude of the Commonwealth Administrative Appeals Tribunal in those circumstances is indicated in Re Tolo and Commonwealth of Australia [1985] AATA 250; (1985) 9 A.L.D. 225, at 235. A central cause of the miscarriage of the review was the Commission's failure to comply with s.36 of the Tribunal Act. Senior counsel for the Commission upon the appeal to this Court (who did not appear before the Tribunal or before Eames, J.) conceded that the Commission should have referred the Tribunal to the police report. He submitted nevertheless, for reasons to which I shall now turn, that the learned judge had been wrong to set the Tribunal's decision aside and to order a rehearing of the review.

The material in support of the appeal to Eames, J. necessarily revealed a copy of the entire police file in the hands of the claimant's solicitors: it was exhibited to an affidavit in support of the appeal, together with a receipt which suggested that the solicitors had obtained it as early as May 1991 at a cost of $73.80. Moreover, counsel who appeared for the claimant before his Honour (not having appeared before the Tribunal) fairly conceded that counsel who had appeared for the claimant before the Tribunal had had the full police report placed in the brief that was delivered to him by the solicitors for the claimant. Astonishing as it may now seem, therefore, the legal representatives of both parties were evidently in a position to introduce before the Tribunal the material that had been omitted by the Commission from the s.36 statement. The reasons why neither of them did so are unrevealed. Eames, J. noted that he was unable to say whether counsel for the claimant actually had the relevant document in his brief at the hearing before the Tribunal, and we in this Court are in no different position. I have mentioned the passing reference to the police file in the course of Mooney's cross-examination before the Tribunal, but counsel for neither party nor the Tribunal pursued the matter. Whether, in particular, counsel for the claimant took his course by design or accident, error or otherwise, one may merely speculate.

In these circumstances a submission in the forefront of the argument before this Court on behalf of the Commission was that, having had the opportunity to place before the Tribunal the whole of the police report and not having taken advantage of it, the claimant ought not to be heard now to complain of the failure of the Commission to refer the report to the Tribunal or of the Tribunal's failure to consider it. The submission was that, save in exceptional circumstances, the law will not permit a party at a hearing to lie by, for reasons which seem good at the time, and allow a course of conduct to occur, being in a position to meet or prevent it, and later to complain if the decision is adverse. Assuming that the Commission had failed to comply with s.36 of the Tribunal Act, counsel submitted that the statute provides for no particular consequence of non-compliance and that the result or consequences of it (if any) should depend on considerations flowing from the general law. It is not clear from the reasons of the learned primary judge that this point was taken before him but there was in any event no objection to its being argued in this court.

Counsel for the Commission placed reliance on cases in which certiorari had been denied to set aside a decision for want of natural justice where the moving party had waived a right to complain of ostensible bias (R. v. Magistrates' Court at Lilydale; ex p. Ciccone [1973] VicRp 10; [1973] V.R. 122); and where a failure to obtain a hearing, producing a prima facie breach of the audi alteram partem rule, resulted from negligence of legal advisers, there being no fault on the part of the decision-maker (Al-Mehdawi v. Secretary of State for the Home Department [1990] 1 A.C. 876). These and other authorities on which counsel for the Commission relied were, for the most part, cases in which the courts were either concerned with a complaint about a judicial proceeding or were disposed to apply to administrative decisions the limitations to relief by way of certiorari or other discretionary remedy applicable to judicial decisions. In Australia, a curial remedy founded on an error of law in respect of a decision of an Administrative Appeals Tribunal has not necessarily been denied because it would be unavailable in respect of a non-administrative decision. In particular, a remedy based on an error of law may be granted even though the complaining party has condoned the Administrative Appeal Tribunal's error or even contributed to it. The circumstances will dictate the Court's appropriate course if, on an appeal on a question of law, an error of law is demonstrated.

It is now well established that the Commonwealth Administrative Appeals Tribunal (and those State and Territorial tribunals established by cognate legislation, as in Victoria) are obliged by statute, when reviewing a primary administrative decision, to be satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one: Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 F.L.R. 409, at 419, per Bowen, C.J. and Deane, J.; 429-30, per Smithers, J.; Bushell v. Repatriation Commission [1992] HCA 47; (1992) 175 C.L.R. 408, 424-5; McDonald v. Guardianship and Administration Board [1993] VicRp 36; [1993] 1 V.R. 521, at 528. It has been said that the Tribunal is required to undertake its task regardless of the form which the parties' submissions take: McKeown v. Repatriation Commission, unreported, 25 October 1995, Federal Court of Australia (Jenkinson, J.). An error of law may be committed by the Tribunal through ignoring a central issue, even if no submission at all is directed to it on the point: Australian Trade Commissioner v. F.& F. Asia Pty. Ltd. (1996) 69 F.C.R. 252, at 266, per Carr, J. These propositions follow from the decision of the Full Federal Court of Australia in Kuswardana v. Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 54 F.L.R. 334.

In Kuswardana's Case review by the Commonwealth Administrative Appeals Tribunal had been sought of a deportation order made under the Migration Act 1958 (Cth), which enabled the making of an order for the deportation of "an immigrant". It was assumed on either side before the Tribunal that the applicant for review was an immigrant within the meaning of the Act, and no argument was addressed to the Tribunal on the point and the Tribunal did not consider it. The deportation order was affirmed. Upon an appeal to the Full Federal Court on a question of law, counsel for the appellant argued that the Tribunal had erred in not considering the point. Bowen, C.J., at 341-2, said -

"... it may be thought that the material before the Tribunal relating to the history and circumstances of the applicant should have been sufficient in themselves to raise in both the counsel for the applicant and in the Tribunal a desire to canvass the issue of immigrant or other status. However, counsel assumed immigrant status as did the Tribunal. ...

There is ample authority for the general proposition that an error of law arises where a Tribunal not exercising judicial power fails to consider a relevant factor in arriving at a decision or misapprehends the matters of which it has to be satisfied in reaching a decision. In this case not only is the consideration of immigrant status relevant but it is fundamental to the application and operation of the section. It is clear that the failure of the Tribunal to consider and decide whether the applicant was an immigrant was an understandable result of the approach of the applicant's counsel - the thrust of the latter's attack was to the merits of the decision of the Minister not its 'jurisdictional' basis.

Does one, therefore, say that the Tribunal made no error because of the approach of counsel? Alternatively, is the position that the failure to consider the question was an error but because of the conduct of the case before the Tribunal the consequences of that error may not be that the decision of the Tribunal is set aside or the case remitted? If the former is the position, the applicant has not made out a question of law for the purposes of s.44(1) of the [Administrative Appeals Tribunal] Act. Whereas if the latter is the position he has made out the question of law, but may be denied any consequential relief."

The Court's decision was both that the Tribunal had erred and that the appeal should be allowed, notwithstanding that counsel for the appellant appearing before the Tribunal had conduced to the error. Bowen, C.J. referred to a number of decisions standing for the principle (to use the language of Barwick, C.J. in Port Jackson Stevedoring Pty. Ltd. v. Salmond and Spraggon Pty. Ltd. [1978] HCA 8; 139 C.L.R. 231, at 241) that "... it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial". Bowen, C.J. quoted also the dictum of Dixon, J. in Burston v. Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 C.L.R. 143, at 167 that -

"Often it would be unjust to set aside a verdict for a reason which but for the default of the party moving, would never have existed. What is done and omitted at the trial is an important consideration to be weighed in determining a new trial application, but in the absence of a specific enactment or rule, it affects the exercise of discretion but does not amount always to a positive bar. There is not a rigid rule of law or practice."

Turning to the case before him, Bowen, C.J. declared, at 343, that it was -

"... not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status."

In the circumstances, and having regard especially to the seriousness of the matter to the appellant, the injustice to him warranted the Court's interfering "... notwithstanding the contribution of the conduct of the case for the applicant before the Tribunal in the making of the error by the Tribunal". Fox, J. referred to the circumstance that the point sought to be made upon appeal was not taken before the Tribunal and said, at 348 -

"There is not, however, any requirement that 'the point be taken' before the Tribunal and we should be cautious in trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting. This is not to say that an administrative tribunal may not, subject to the regulations governing it, find it convenient or helpful to follow in some respects procedures which over the span of many years have been found by courts of law to be most conducive to the interests of justice. They plainly must be able to accept concessions of fact, but so to express the matter is to confuse their function, which is one of administrative inquiry, without rules of evidence."

Fox, J. agreed with Bowen, C.J. that the matter should be remitted to the Tribunal for rehearing and Deane, J., although expressing himself to be troubled on the question whether the appellant's failure to raise the issue precluded the intervention of the court on appeal, concluded also that the order of the Tribunal should not stand and that the matter should be remitted for rehearing.

Kuswardana's Case has been many times followed in the Federal Court and clearly we, too, should follow it so far as it applies here. Counsel for the Commission sought to distinguish it on the footing that it was a case in which, not having decided that the applicant before it was "an immigrant", the Tribunal had had no jurisdiction, thus justifying interference with its decision by the court, and that that was not the present case. I think the distinction relied on cannot be supported. The question was not whether the Tribunal had jurisdiction but whether the facts gave the Minister "jurisdiction", in the sense in which Bowen, C.J. used the word, to make the deportation order. The Tribunal was empowered to determine the existence of facts upon which the Minister's jurisdiction, and its own jurisdiction, depended: Schwerin v. The City of Sale [1997] 2 V.R. 219, at 222, and the cases there cited; Santamaria v. Secretary of the Department of Human Services, not yet reported, Court of Appeal, 12 May 1997, at p.11. Had the Tribunal no such jurisdiction there would have been no basis for remitting the case to it.

A decision of the Full Federal Court in Perpetual Trustee Co. (Canberra) Ltd. v. Commissioner for Australian Capital Territory Revenue [1994] FCA 1150; (1994) 50 F.C.R. 405, sitting on appeal from the Supreme Court of the Australian Capital Territory, is also instructive. The Australian Capital Territory Administrative Appeals Tribunal undertook a review of a decision of the Commissioner for Australian Capital Territory Revenue, who had disallowed an objection to an assessment of stamp duty under Australian Capital Territory legislation. The Tribunal proceeded upon a statement of facts that had been agreed between the parties. Davies, J., in the Full Federal Court, expressed himself, at 407, to be -

"... not satisfied that the agreed facts which were presented to the Tribunal dealt with all those matters which an administrative decision-maker, such as the Administrative Appeals Tribunal, should have before it."

Having discussed some of the issues in respect of which the agreed statement of facts was silent, and because, as he said (at 409) "these and like issues were open to be considered by the Tribunal and were not considered", his Honour proposed that the matter be remitted for rehearing. Wilcox, J. agreed and, at 418-9, made these observations which are germane to the present case -

"The Tribunal agreed to determine the critical question in the case on the basis of a statement of agreed facts that was patently inadequate. If we were concerned with a decision of a court, made on a basis of issues framed by the parties' pleadings, there would be much force in an argument that, the case having been fought on those issues, the unsuccessful party should not be allowed a second chance. However, we are not concerned with such a decision, but with the decision of a body whose function was 'to review the administrative decision that is under attack before it'. Those words were used by Bowen, C.J. and Deane, J. in Drake v. Minister for Immigration and Ethnic Affairs ... in relation to the Commonwealth Administrative Appeals Tribunal, but they apply equally to its Australian Capital Territory counterpart [as they do to its Victorian counterpart]. The statutory function of the Tribunal requires that it form its own view about the matter in issue. In approaching that task, it is legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions of fact, but the Tribunal should never permit parties to place it in the position of deciding a case on an artificial or inadequate factual basis.

The determination of a case on the basis of a statement of agreed facts is often a convenient course, but only where it is clear that the statement extends to all material facts. This condition was not fulfilled in the present case. Having regard to its statutory responsibility to make the appropriate decision, the Tribunal erred, in my opinion, in agreeing to use this statement for the purposes of determining [a principal matter in issue]."

Counsel for the Commission before us sought to distinguish the Perpetual Trustee Co. Case on the ground that, there, the Tribunal had insufficient material on which to decide, which was not the present case. Again I think the supposed distinction is not made good. I cannot see how it could be maintained that, in respect of a critical matter in issue - whether at the time of the accident the claimant was travelling north or south - the Tribunal had sufficient material to enable it to make a proper decision when it was ignorant of material on which, to the Commission's knowledge, the claimant relied and which the Commission had discarded and, in the preparation of its statement pursuant to s.36, ignored. To borrow and adapt from Davies, J., the facts and material which were presented to the Tribunal did not deal with all those matters which an administrative decision-maker, such as the Administrative Appeals Tribunal, should have before it. It is, in my view, absurd to suppose that, in this case, the Tribunal could properly have performed its statutory function of review when there had been material before the Commission going directly to the central issue which the Commission had rejected and which was not before the Tribunal. The decision of Madgwick, J. in Oliveri v. Administrative Appeals Tribunal (1997) 26 A.A.R. 118, at 120-2, reported since the conclusion of the hearing of the present appeal and to which we were referred in a note from counsel for the claimant, supports the view I have expressed.

It was submitted for the claimant before us that the Tribunal had been guilty of a denial of procedural fairness, albeit perhaps inadvertently, by failing to call for those parts of the police file which had not been placed before it. An argument was advanced to the effect that the passing reference to the existence of the police file during the cross-examination of Mooney should have excited the Tribunal sufficiently to prompt it to require that the file be produced, as s.36(6) would have entitled it to do. Theoretically that may be true but, sensibly, it would be difficult to criticise the Tribunal for not reacting to the mere passing reference. More realistically, perhaps, the Tribunal might have been expected to assume that a motor accident such as the claimant's would be likely, as a matter of routine, to generate a police investigation and a file which might very well throw relevant light on the matter. Even more realistically, the Tribunal might have been expected to notice the assertion in the claim form dated 17 July 1989 that the accident "has been investigated by Thomastown Police". To expect the Tribunal, without being specifically referred to the assertion, to have been prompted by it to infer that the claimant relied upon such an investigation, and to make inquiry about it, might seem to impose a heavy task on the Tribunal. Given, however, that the Tribunal is required to make the correct or preferable decision on the material before it, regardless of the form of submissions, a failure to pursue the statement that "the accident has been investigated by Thomastown Police" may very well have consisted of an error of law: cf. Videto v. Minister for Immigration etc. [1985] FCA 326; (1985) 8 F.C.R. 167, at 178-9. Eames, J. seems to have founded his decision, at least in part, on a denial of procedural fairness which flowed from non-compliance by the Commission with s.36 of the Tribunal Act. I shall briefly return to the point in a moment.

It was also submitted for the claimant that the Tribunal should be regarded as having had all along constructive knowledge of the police file because it was, in effect, standing in the shoes of the Commission, which had had actual possession of it. The remarks of Wilcox, J. in Peko-Wallsend Ltd. v. Minister for Aboriginal Affairs (1983) 5 F.C.R. 532, at 562-3, and in Prasad v. Minister for Immigration etc. [1985] FCA 47; (1985) 6 F.C.R. 155, at 165-6 were said to support such a conclusion. The former case was one in which, as Wilcox, J. held, a minister of the Crown should be treated as having had constructive knowledge of correspondence placed on his Department's files, notwithstanding that the correspondence had been received by his predecessor in office. Prasad's Case was of a similar kind. Whatever might be the justification for attributing knowledge to a minister of the Crown of what his departmental officers know, there may be difficulty in reaching a similar conclusion in a case such as the present where, although in some senses the Tribunal stands in the shoes of the principal administrative decision-maker, it necessarily stands in another sense away at arm's length. At all events, I have no need, in deciding this case, to pursue that point and shall not do so. Nor need I pursue the question whether the Tribunal was in error in not pursuing, of its own motion, the clues contained in the evidence before it which, if pursued, would probably have led to the discovery of the police file. I prefer to decide the case not as one of a denial of natural justice but on the ground, which I take to be very clearly made out, that the review miscarried because the Tribunal had not before it material that was critical to the resolution of an issue between the parties. This was material which had been before the Commission, was known by the Commission to be material on which the claimant relied but which the Commission had rejected and yet had chosen to withhold from the Tribunal.

The Tribunal, whether or not it led itself into error, was led into error by the Commission. It may be that it was also led into error by counsel for the claimant. Assuming, without making any finding about it (for we have no material upon which to make such a finding) that counsel for the claimant was at fault in his conduct of the case before the Tribunal, that conduct was not in my opinion, given all the circumstances, sufficient to preclude interference with the Tribunal's decision by the Supreme Court. The Commission's dereliction of its duty in failing, without explanation or apology, to refer the Tribunal to the whole of the police file was so glaring that it should not, in my opinion, receive the benefit of any refusal of the Court to grant relief to the claimant because of the conduct of his counsel. Apart from that, this is a case, like the Perpetual Trustee Co. Case, in which justice requires that the claimant's application for review be re-heard before another member of the Tribunal. No less than nine years having now elapsed since the accident without resolution of the claim, it is entirely desirable that the re-hearing be prompt and determinative.

I certify that the 33 preceding pages are a true copy of the reasons for judgment of Tadgell, J.A. of the Court of Appeal (Tadgell, Batt and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on 10 March 1998.

BATT, J.A.: I have had the benefit of reading in draft the reasons for judgment of Tadgell, J.A. I concur in them.

I wish only to add a brief comment on s.36(1) of the Tribunal Act. Where a decision-maker resolves a factual dispute on an issue not unimportant to the decision, para.(a) of the sub-section requires reference to be made in the statement lodged to the evidence or other material rejected. It does this, in my view, not by virtue of the requirement that the statement refer to the evidence or other material on which the findings on material questions of fact were based, but by virtue of the requirement that the statement give "the reasons for the decision", as Tadgell, J.A. explains. Reference in such a case to the evidence or other material accepted is of course required not only by the latter requirement but also by the former requirement. Even if evidence or other material rejected by the decision-maker were in such a case not required to be referred to in the statement under para.(a), each document containing any such evidence or material is, in my opinion, if in the possession or under the control of the decision-maker, required to be lodged by virtue of para.(b). It is true that for there to be an obligation to lodge a document the document must be "considered by the [decision-maker] to be relevant to the review of the decision by the Tribunal". To my mind, the words which I have last quoted are to be interpreted as referring to consideration by the decision-maker acting reasonably: compare, for example, Braunstein v. Accidental Death Insurance Co**.** [1861] EngR 995; (1861) 1 B&S 782; 121 E.R. 904 (a case of contract, not statute). If that were not so, a decision-maker could, by taking an unreasonably narrow, albeit honest, view of relevance, deprive the Tribunal of an important document. Such a construction would tend to frustrate the object of the Act.

I certify that the previous page is a true copy of the reasons for judgment of Batt, J.A. of the Court of Appeal (Tadgell, Batt and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on 10 March 1998.

BUCHANAN, J.A.: I have read the draft judgment of Tadgell, J.A. and agree that the appeal should be dismissed for the reasons he has given.

I consider that on their face the accident report and Constable Newman's statement constituted cogent evidence as to the issue on which the respondent's entitlement depended. The correctness of the decision of the Commission depended upon the existence of grounds to reject that evidence. Without an account of the evidence and such grounds, the Commission failed to give "the reasons for the decision" required by s.36(1)(a) of the Tribunal Act, and breached the duty imposed upon it by s.36(1)(b).

I certify that this is a true copy of the reasons for judgment of Buchanan, J.A. of the Court of Appeal (Tadgell, Batt and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on March 1998.