Pmunck rod CATCHWORDS Administrative law - appeal from decision of Administrative Appeals Tribunal - whether s. 28(2) Evidence Act 1958 (Vic.) applied to Tribunal - fTribunal's discretion to exclude evidence - whether "appropriate" to exclude pursuant to 5. 33(1)(c) AAT Act - whether contrary to "equity, good conscience" to admit pursuant to 5s. 20(2)(a) Compensation (C.G.E.) Act - whether Tribunal considered real issue before it - whether Tribunal applied proper test of proof - whether Tribunal erred in considering evidence before it. Administrative Appeals Tribunal Act 1975 ss. 3(1), 33(1) Judiciary Act 1903 s. 79 Acts Interpretation Act 1901 ss. 38, 40 Compensation (Comm. Govt. Employees) Act 1971 ss. 20, 29 Evidence Act 1958 (Vic.) s. 28(2) Re RC and Director-General Social Services (1981) 3 ALD 334 LESLIE JAMES BROWN v COMMONWEALTH OF AUSTRALTA Vi 116 of 1985 KEELY J MELBOURNE 28 AUGUST, 1986 Ke Co IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION COURT: DATE: PLACE: NO. VG 116 of 1985 BETWEEN: LESLIE JAMES BROWN Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent KEELY J 28 AUGUST, 1986 MELBOURNE THE COURT ORDERS THAT: 1. (Note: The decision of the Administrative Appeals Tribunal made on 19 April 1985 be set aside. The matter be remitted to the Tribunal to be heard and decided again with the hearing of further evidence at the discretion of the Tribunal. The respondent pay to the applicant his costs of this appeal. Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.) . IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) NO. VG 116 of 1985 ) ) GENERAL DIVISION BETWEEN: LESLIE JAMES BROWN Applicant AND: COMMONWEALTH OF AUSTRALTA Respondent 28 AUGUST, 1986 KEELY J. REASONS FOR DECISION This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), given on 19 April 1985, which affirmed a determination, dated 16 August 1984, of the Delegate of the Commissioner for Employees' Compensation (the Delegate) that the respondent was "not liable to pay compensation in respect of the condition of bilateral cataracts suffered by Cthe applicant]". The notice of appeal, as amended at the hearing without objection, raised 12 questions of law and contained 10 grounds of appeal but because of the interrelationship of certain matters, which was reflected in the way in which the case was presented on behalf of the applicant, it is not necessary to deal separately with each of those matters. It is convenient to deal first with the ground that the Tribunal erred in law in failing to uphold an objection, by the applicant, to Dr. Colvin giving evidence that he had made certain findings in 1969 when he examined the applicant, who had been referred to him as a patient. The cbjection was based upon s. 28(2) of the Evidence Act 1958 (Vic.) which provides:~ "No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient." The Tribunal, after hearing argument, refused to uphold the objection and permitted Dr. Colvin to give the evidence. Mr. Hill and Mr. D. Aronson, of counsel, on behalf of the applicant, have argued that the Tribunal erred in 50 ruling. Having considered those arguments and the opposing arguments advanced by Mr. lLenczner, of counsel, for the respondent, I have reached the conclusion that s. 28(2) of the Evidence Act did not apply to the proceedings before the Tribunal and that the Tribunal's ruling upon that question was correct. In this connexion it will be noted that 5s. 79 of the Judiciary Act 1903 is expressed as applying to "Courts exercising federal jurisdiction" and the Tribunal is not a Court (see Re RC and Director-General of Social Services (1981) 3 ALD 334 at 342). It was also argued that the Tribunal should have refused to admit the evidence, in the exercise of its discretionary powers under 5s. 33 of the Administrative Appeals Tribunal Act. I should say immediately that the word "enactment" ins. 33(1)(a) and (b) in my opinion does not include an enactment of a State Parliament - see 5s. 3(1) Administrative Appeals Tribunal Act and ss. 38 and 40 Acts Interpretation Act. It was submitted that it was not "appropriate", within the meaning of s. 33(1)(c), for the Tribunal to admit the avidence having regard to the policy of confidentiality underlying s. 28(2) of the Evidence Act. It was also submitted that the Tribunai in admitting the evidence was not "guided by equity, Cand good conscience" and that it should have been so0 guided having regard to the terms of 5. 20(2)(a) of the Compensation {Commonwealth Government Employees) Act 1971 {the Compensation Act). In my opinion, neither the Delegate charged with the statutory function of making a determination with respect to the applicant's claim for compensation, nor the Tribunal in reviewing that determination, were acting in any way contrary to "equity, good conscience and the substantial merits of the case" in considering evidence or a report from a treating physician or surgeon (Dr. Colvin) as to matters which were relevant to the issues before them - notwithstanding the employee's refusal to consent. Nor was 4. it "contrary to natural justice" for the Tribunal to do so - a matter to which the Tribunal referred and which appeared un the notice of appeal before 1t was amended. The evidence was relevant and logically probative and assuming, without deciding, that the Tribunal had a discretionary power to reject the evidence, in my opinion the Tribunal did not err in the exercise of its discretion in deciding to admit the @vidence of Dr. Colvin. Accordingly I am unable to uphold the applicant's submissions as to the admission of evidence. Mr. Hill strongly submitted that the Tribunal erred in law in failing to consider the real issue before it, namely whether or not the exposure of the applicant to radiation at his employment was a contributing factor to the contraction, aggravation or acceleration of the cataracts - see s. 29 of the Compensation Act. The argument advanced by the parties on this issue has involved a detailed consideration of the written reasons for decision given by the Tribunal, and of much of the medical evidence referred to in those reasons. Having carefully considered Mr. Hill's criticism of the Tribunal's reasons for decision - both as to what appeared and as to what did not appear in those reasons ~ I am not prepared to uphold that ground of appeal because I have concluded that the Tribunal did give consideration to the issue whether the exposure of the applicant to radiation at his employment was a contributing factor to the contraction, aggravation or acceleration of the cataracts. The criticism of the Tribunal's written decision related partly to a reference in it to evidence on the question whether microwaves can "cause" or "produce" cataract in human beings. However, it should be noted that those words (paragraph 10) are taken from a report by Dr. Markwick; he was the surgeon who had operated on both cataracts and the Tribunal quoted a passage from his report as setting out "the conflicting views of the medical experts". Reliance was also placed upon the fact that the Tribunal did not expressly vefer to 5. 29 of the Compensation Act and did not expressly state 1ts opinion on that issue in giving its conclusions. Further, reliance was placed upon the fact that the Tribunal expressed the conclusion "that the extent of a link hetween the exposure to radar and radio waves and the development of the applicant's cataracts has not been established" (paragraph 21). It may be said immediately that the meaning of that passage, and in particular of the word "extent", is not clear. Mr. Lenczner contended that it did not refer to the question of whether the radiation was a contributing factor but to the absence of evidence as to the level of exposure. In considering the applicant's criticism of the Tribunal's written decision, regard should be had to four aspects of its context. (1) The application to the Tribunal was to review the Delegate's determination of a claim 6. described by the Delegate as being "the employee's claim that his cataracts were related to exposure to microwave radiation". (2) The determination under review expressly stated that the Delegate was "unable to find that the condition" was the result of "... the aggravation, acceleration ... of a disease to which his employment was a contributing factor". (3) The Tribunal expressly ""affirmed" that determination, the full text of which was before the Tribunal. (4) The applicant's counsel had clearly stated the issue before the Tribunal in opening the case to the Tribunal, when he said "the relationship which we have to establish on a balance of probabilities Cisd that it was more likely than not that his occupational exposure to radiation was a factor in the development of those cataracts". It seems to me to be almost inconceivable that the Tribunal, constituted by Mr. Ballard, could have failed to understand that that was the issue. Turning to the Tribunal's decision, although it did not expressly refer to 5s. 29 of the Compensation Act, it referred, on a number of occasions, to passages in the evidence which dealt with the question whether the condition was "work-related" or had some "connection" with or was "associated with" the work and referred in one pasSage to evidence as to whether the exposure to radiation was "a contributing factor". The Tribunal referred toa the following: (1) Professor Hollow's evidence that it was very likely that the applicant's cataracts were "work-related" 7. (paragraph 11). (2) Dr. Markwick's evidence that it was probable that the microwaves were "a factor in the cataracts" (paragraph 12). (3) Dr. Appelton's evidence that he had no knowledge of any scientific evidence supporting the hypothesis that "there would be any connection" (paragraph 13). (4) De. Colvin's evidence that he saw "no connection" between the microwave radiation and the applicant's cataract; it then cited a passage from his evidence saying that there is no scientific evidence "linking" human cataract to microwave energy (paragraph 14). (5) the opinion evidence of Dr. Gale (another eye specialist, called as a witness by the respondent) that it was highly improbable that the exposure to radiation in the course of his employment was "a contributing factor" to the aggravation or acceleration of his cataracts (paragraph 15). (6) another medical opinion (that of Mr. Fenton) that it was unlikely that the cataracts were "associated with" the applicant's radar work (paragraph 16). It may be noted that matters (3) and (4) were not opinions directed solely to excluding "causation"; they were opinions against any "connection" between the radiation and the cataracts. In my opinion, when regard 1s had to the four matters of context set out earlier and to the six passages in the evidence cited in the Tribunal's written decision, the applicant's submission that the Tribunal failed to consider the real issue before it cannot he upheld. I am also unable to uphold the applicant's submission that the Tribunal, in its approach to the issue before it, had wrongly posed for itself the question, "was there scientific proof" that the applicant's cataracts were caused by exposure to radiation. Although there are references in the Tribunal's decision to "scientific evidence" and to "scientific views", in my opinion the Tribunal did not consider the review on the basis that it was necessary that there be scientific proof; its references to "scientific evidence" and "scientific views" were simply references to the opinions of doctors, expressed in evidence or in reports, which were part of the material before the Tribunal. However, there were errors of law by the Tribunal in its consideration of the matter, as demonstrated by other submissions by the applicant. First, I accept that the Tribunal erred in law in saying "Con] this evidence alone it seems to me that the claim must fail" (paragraph 19). Although it was open to the Tribunal to accept the evidence there referred to, in my opinion that "evidence alone" did not, require, as a matter of law, "that the claim must fail". It should be added that paragraph 19 makes no reference to the evidence as to the development of cataracts over a period of many years. 9. Second, in my opinion the Tribunal erred in law (paragraph 20) in saying that "the statement by Dr. Colvin as to the view taken in the United States Courts and Tribunals" assumed "special significance", The respondent's counsel accepted that the reference to "the United States Courts and Tribunals" was not supported by any evidence but suggested that the Tribunal must have been referring to evidence as to the view taken by "federal compensation agencies"; it 15 not clear what bodies would be included in that description. In any event to attach "special significance" to Dr. Colvin's statement "as to the view taken" by "Courts and Trabunals" (or by "compensation agencies" if that was intended) in the U.S.A. was an error of law in that, apart from other difficulties, there was no evidence of the function of those bodies in taking whatever "view" they were said by Dr. Colvin to have taken. The Tribunal had before it no evidence as toa what was the issue (if any) before those bodies in forming a "view"; accordingly the Tribunal did not know whether those bodies had expressed any opinion as to the question before the Tribunal, namely, whether radiation was a contributing factor to the contraction, aggravation or acceleration of cataracts. Accordingly, in my opinion it was not open to the Tribunal to attach "special significance" to "the view taken" by them. The significance attached by the Tribunal to that matter should be read in the light of its statement 10. (paragraph 14) that it was "of some significance that Dr. Colvin said that he had 8 trips to America working for NASA ~..". The Tribunal then commented that Dr. Colvin "was not questioned on his evidence as to the federal compensation agency" - a comment which tends to underline the significance attached to that matter by the Tribunal. Third, the Tribunal also said (paragraph 20) that the "evidence of Dr. Appelton assumes special significance" - apparently because "much of the scientific evidence Cemanates] from the United States of America". I accept the applicant's submission that that statement also revealed an error of law by the Tribunal in 1ts approach to the evidence. Those errors of law are such as to require, in my opinion, that the decision be set aside and the matter remitted to the Tribunal to be heard and decided again. It was also argued that, on the material before the Tribunal, no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. Having regard to my conclusion that the appeal must be allowed, it is not necessary to express an opinion on this question and it is undesirable to do so as the matter is to be heard again. Nor is 1t necessary to deal with the applicant's criticism of the Tribunal's statement that "there really is no lay evidence" (paragraph 17 - see also paragraph ll. 9) except to say that the Tribunal was not entitled, in my opinion, to "infer that if others working on this machine had developed cataracts, evidence to this effect would have been - given." Accordingly the appeal will be allowed, the decision of the Tribunal made on 19 April 1985 will be set aside and the case will be remitted to the Tribunal to be heard and decided again, with such further evidence as the Tribunal may admit, according ta law. The respondent shall pay to the applicant his costs of this appeal. I< rthes tues an! ten m- cCeaing (ieee eo copy wast _ : ee His Honour zs gons Fr. due 2G as of His Hur