Par FOR LIMITED DISTRIBUTION ONLY 7 on \ g* CATCHWORDS ADMINISTRATIVE LAN - Appeal from the Administrative Appeals Tribunal - Commonwealth Government Employees Compensation - heart attack suffered in course of employment as labourer - decision that employment contributed to acceleration of underlying coronary artery disease - conflicting medical evidence - reliance upon presumptive inference - whether error of Law ROLE OF TRIBUNAL - consistency in decision-making - use of specialist expertise to draw inferences from evidence Compensation (Commonwealth Government Employees) Act 1971 (Cth) - ss.20, 29 Administrative Appeals Tribunal Act 1975 (Cth) - s.43 Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Re Roder and Department of Veterans' Affairs (1983) 5 ALD 103 Re Dowling and Commonwealth of Australia (1979) 1 CCD Delahunty v Commonwealth (1981) 53 FLR 9 Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 BETWEEN : *" AUSTRALIAN TELECOMMUNICATIONS COMMISSION Applica: AND 2 ANTONIO ZANICOTIT Respondent No. G.41 of 1986 CORAM : Davies J 18 December 1986 Melbourne IN THE FEDERAL .COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.41 of 1986 GENERAL DIVISION ) ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION BETWEEN : AUSTRALIAN TELECOMMUNICATIONS COMMISSTON Applicant AND : ANTONIO ZANICOTTI Respondent JUDGE MAKING ORDER DATE _OF ORDER WHERE MADE THE COURT ORDERS THAT ae MINUTE OF ORDER Davies J 18 December 1986 Melbourne 1. The appeal be dismissed with costs. 2. The decision under appeal be affirmed. Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.41 of 1986 wweeww GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION BETWEEN : AUSTRALIAN TELECOMMUNICATIONS COMMISSION Applicant AND : ANTONTO ZANTCOTTI Respondent REASONS FOR JUDGMENT CORAM : Davies J 18 December 1986 This is an appeal from a decision of the Administrative Appeals Tribunal given on 20 January 1986 which found that the employment by the applicant, the Australian Telecommunications Commission of the respondent, Mr Antonio Zanicotti, had been a contributing factor to the acceleration of his underlying coronary artery disease and that he was thereby entitled to compensation for total incapacity and for medical treatment. The appeal is brought on points of law only. There is no general appeal from the Administrative Appeals Tribunal to this Court. On 17 December 1981, while in the course of his employment with the Australian Telecommunications Commission, Mr Zanicotti suffered an infarction. He had had pre-existing coronary artery disease and the issue before the Tribunal was whether the work which Mr Zanicotti did on 17 December 1981 contributed to the infarction which he suffered. Section 29(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act") provides, inter alia, that, where any employment by the Commonwealth is a contributing factor to the aggravation or acceleration of a disease, then the provisions of s.29(2) shall have effect. Section 29(2) of the Act provides, inter alia, that where the total or partial incapacity for work of an employee results from the aggravation or acceleration of the disease, then the aggravation or acceleration shall be deemed to be a compensable personal injury to the employee arising out of the employment of the employee by the Commonwealth. The Tribunal accepted the evidence of Mr R. Pulitano, the applicant's foreman. Mr Pulitano gave evidence that he and Mr Zanicotti had had to diga trench and lay piping therein. The pipe had to go through a wall or the footings thereof and he and Mr Zannicotti took it in turns to use a sledgehammer to make the hole. In the course of this work, Mr Zanicotti suffered severe chest pains and called out to Mr Pulitano. Mr Pulitano saw that Mr Zanicotti was i111 and that he had changed colour. He took Mr Zanicotti back to the depot. Subsequently, Mr Zanicotti found his own way to his home. He saw his local doctor and was examined in hospital. It was ascertained that he had suffered an infarction. The Tribunal said, "We accept and find that the — applicant was doing heavy work on that day immediately (preceding) the onset of the infarction." Evidence supporting the contention that Mr Zanicotti's work had been a contributing factor in the infarct was given by Dr W.A. Seldon and Dr E. Schiller, both cardiologists. Dr Schiller gave this evidence: "Doctor, before we go to the post-operative behaviour of this man, I take you to page 3 of your report, under the heading, Relationship of Illness to Working Conditions. You took a history that he developed his initial symptoms while engaged in heavy physical work. Doctor, 1s it your opinion that heavy physical stress can, in fact, in a person who has a disease of the heart, cause an infarct?---Yes, 1t can precipitate it, or accelerate 1ts occurrence - it can cause it in that sense. Doctor, is your opinion, do you think, in any way controversial?-~--I think opinions in this field very often are controversial, and the opinion may be more strongly based if the person was doing exceptionally heavy work, or if he had to continue doing work in the face of symptoms, or did, in fact, continue to do so. It is much weaker 1f he was doing light work tc which he was well used, and stopped when he developed his symptoms. So, doctor, just coming back to the initial cause of this infarct, 1s it your opinion that stress, including heavy physical work, can cause an infarct?---It can contribute to or aggravate or accelerate the occurrence of an anfarct. It us not the primary cause inasmuch as there is disease in the coronary artery before this work or other stress occurred. And in Mr Zanicotti, given that he had this disease, would the physical exercise have aggravated his condition to cause an infarct?---Yes, it probably aggravated it." Dr Seldon gave this evidence "Now, just on that point, are you able to link his work with that onset of pain and that shortness of breath which was ultimately determined to be the signs of a heart attack?---Yes. I would not have any doubt that somebody doing strenuous work such as apparently he was who developed chest pain which was later shown to be related to - later shown to be due to myocardial infarction or angina - I would not have any doubt that the work produces the symptoms and subsequently heart damage. Is not it the situation that his disease at that stage had reached such a point that he could have suffered an infarct at any time?---I suppose he could have suffered an infarct at some time but the concurrence of the effort and the symptoms make it, I would think, highly probable that the two were related in the same way as it is well recognized that people drop dead in a fun run, for example, and they have been training for months beforehand and they have not died so, presumably, the effort on that day had something to do with the result. I think it is well recognized that a strenuous effort, particularly something like using a sledge hammer not only is hard work in the sense of the activity of the muscles but it puts up the blood pressure, that type of work, and the combination of increased heart rate and increased blood pressure causes a more rapid flow of blood through the diseased artery and tends to lift up one of the little plaques on the wall of the artery and that then leads to a blockage in the artery." Professor D.E.L. Wilcken and Dr D. Brender, cardiologists, who were called on behalf of the Australian Telecommunications Commission, expressed views to the contrary. Professor Wilcken said : "Well, assuming that he had been working that day and had been working immediately prior to experiencing pain, if one makes that assumption what is your opinion as to whether or not work or employment in those circumstances aggravated or accelerated the coronary artery disease?---Well, you know, it is impossible to say for certain; but I mean, on the probabilities I would say - and by way of an opinion - that I do not see any definite evidence that the two are related, except in time. But here we have a circumstance where heavy physical labour, and I think you used the expression, you could not link it causally, you said it is only a temporal link. I am not asking you to link it causally; I am asking you whether it has some role to play in the fact that this disease, as you said, could have been there for 10 to 15 years but on that particular day, heavy physical work, using a sledge-hammer and then followed by the onset of chest pain, what factor would that have played?---It is impossible to say; there is a temporal association, obviously, and I could equally put the question back; the majority of acute myocardial infarctions, 1f you look at then statistically, tend to occur, these transmural infarctions, the more serious ones, tend on the whole to occur in the morning on a statistical basis; they are slightly more likely to occur in the early hours of the morning or before 6.00 o'clock or so in the morning than after lunch ona statistical basis and this is when patients are at rest and so the fact that these two events occurred in time, there 1s no way that I can say yea or nay to your question. They are temporarily associated. It could have contributed, it could have been a contributing factor; there is no way that I can say definitely that it was." De Brender gave this evidence "Why do you say you cannot see a work relationship between the two?---Well, he had never had chest pain - he had been doing this job as a linesman for Telecom from 1975, apart from the time he was off for his back. He always did the same work. He had never had angina or chest pain doing the work. Subsequent to his having the infarct, he was able to exercise on a treadmill for seven minutes without getting any pain or any cardiograph changes; and subsequently, again, he has had a thallium study, which does not show any reversible changes; and this was a one off episode. I mean, it igs not as if he would know that 1f he picked up the sledge hammer by 3.00 o'clock in the afternoon he was going to be distressed. He did this all the time. This one day he has a one off event." I need not deal with the medical evidence in any detail. In substance, two experienced cardiologists more gave evidence that they thought it probable that Mr Zanicotti's work had contributed to his infarct, while two other eminent cardiologists gave evidence either that they thought that Mr Zanicotti's work had not contributed to his infarct or could not Say that it did. The case was finely balanced. There was no Clear evidence one way or the other. In finding for Mr Zanicotti, the Tribunal said : "16. We think that this is a case where a presumptive inference does arise from the sequence of events that morning (per Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at p.563; also Morgan v Commonwealth unreported No VG 198 of 1984). This is so notwithstanding our finding that the applicant did not return to work after he first had chest pains and notwithstanding the fact that the applicant was engaged in his regular work. We have found that the applicant was engaged in heavy work using a sledgehammer when the chest pains commenced ; in the circumstances we think that was stressful objectively and subjectively stressful to the applicant. The presumptive inference from that is that the heavy work was a contributing factor to the acceleration of the heart disease resulting in occurrence of the heart attack when it occurred. That view accords with evidence of Dr Seldon and Dr Schiller. We find the facts accordingly. Thus we find that the employment was a contributing factor to the acceleration of the applicant's underlying coronary artery disease so that the applicant is entitled to compensation for the resulting incapacity and medical treatment." The Tribunal therefore determined th. matter by adopting the approach so clearly enunciated by Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 where, at 562-3, his Honour said : "The special magistrate's award refused compensation to the now respondent, the widow of a deceased workman who collapsed while at work and died. A post-mortem examination disclosed evidence of a coronary thrombosis which would cause occlusion and consequent cardiac insufficiency. Having heard an abundance of medical evidence from witnesses whose attainments and eminence neither were nor could be challenged, but whose opinions exhibited no greater degree of unanimity than is commonly met with in other departments of abstruse knowledge and of scientific research, the learned magistrate arrived at a negative conclusion. His finding was, in substance, that coronary thrombosis could not, in the present state of knowledge, be connected with exertion and accordingly that it was not established that the workman's employment materially contributed to the cause of his death. The learned judges of the Full Court considered the whole of the medical evidence, as, under the Act, they are entitled to do, and, having described the duty of the court to arrive at some conclusion on an issue of fact, however 'difficult or invidious' it might be made by the state of scientific knowledge and opinion, their Honours proceeded, by a course of reasoning which combined common sense with the application of logic to physiological facts, ta infer 'on the preponderance of probabilities' that the thrombus was precipitated as the result, in part, of some unusual exertion undertaken by the workman before his collapse. In my opinion the conclusion of the Full Court ils correct. I am greatly impressed by the seauence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore's labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone : Cf. Partridge Jones and John Paton Ltd v James £1933] AC 501, at 505. Ido not see why a court should not begin its investigation, ie, before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. ...". There was no ground of appeal directed to this course which the Tribunal took, namely, to draw a presumptive inference from the sequence of events on 17 December 1981. Mrs P. Flemming, QC, senior counsel for the applicants, did not submit that it was improper for the Tribunal to have drawn the inference which it did. That matter, therefore, was not an issue in the appeal ana I have no cause to consider whether or not the circumstances called for the inference which the Tribunal drew and which determined the case in Mr Zanicotti's favour. The following grounds of appeal were relied upon by Mrs Flemming : "2. The Tribunal in taking into account medical opinions expressed in other proceedings without adequate notice to the applicant, denied the applicant natural justice. 3. The Tribunal fell into error in holding that in matters involving contentious medical issues it should adopt a consistent approach in deciding such issues. 4. The Tribunal erred in finding that it possessed the necessary specialist medical expertise so as to enable it to determine the relevance of medical opinion expressed in other proceedings to the medical issues before it." Mrs Flemming submitted that the Tribunal must have taken into account and been influenced by medical opinions expressed in other proceedings or by other decisions of the Tribunal but she was not able to point to any medical opinion in another proceeding that the Tribunal had relied upon or to any other decision of the Administrative Appeals Tribunal in which a like factual situation had been resolved in favour of there being a connection between the work and the infarction. Mrs Flemming put the same argument in two further ways, namely, that the Tribunal had relied upon medical opinions in other proceedings or upon decisions of the Tribunal which had resolved like factual matters in favour of a work connection and thereby denied natural justice to the Australian Telecommunications Commission by not drawing its attention to these medical opinions or decisions and, furthermore, that the Tribunal did not have the necessary specialist medical expertise to apply the medical opinions to the facts of the case which the Tribunal was actually deciding. I do not accept that the Tribunal relied upon medical opinions given in other cases. The Tribunal was under a duty imposed upon it by 3s.43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) which reads : "43(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." The Tribunal gave a written decision which dealt at length with the evidence given by Mr Zanicotti and Mr Pulitano and also with the evidence of the four medical experts whom I have mentioned. In that decision, the Tribunal fully disclosed the facts which it took into account and its reasoning process. It would he inconsistent with the duty of the Tribunal and 'nconsistent with the reasons which the Tribunal expressed for the Tribunal to have decided the case by reference to medical opinions expressed in other cases to which it did not refer. I do not accept that this occurred. The following are two of the passages in the Tribunal's 10. reasons for decision which led to the grounds of appeal : "13. During the course of addresses it was suggested by the Presiding Member to counsel that the Tribunal might take account of other similar matters that had come before it in this field. Counsel for the respondent expressed concern that the Tribunal might take such a course. Since addresses were not taken on transcript this exchange was not recorded. Counsel specifically asked that the Tribunal make reference to this matter in its decisions; we willingly do so. Counsel for the applicant asked the Tribunal to consider such other matters and, in particular Roder's case CRoder and Department of Veterans' Affairs (1983) 5 ALD 1033. However this is not a new point (see, for example, the discussion in Director-General of Health v Robinson (1983) 5 ALD 367 at pp.370-371). In Rv Deputy Industrial Injuries Commissioner Ex parte Moore [19653 1 QB 456 the court of appeal held that the Deputy Industrial Injuries Commissioner had not erred in law in treating as independent evidence medical opinions given in previous reported decisions. It is well settled that this Tribunal is not bound by the rules of evidence or procedure (McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at p.208) but is under a duty to observe the requirements of natural justice (Minister of Immigration and Ethnic Affairs v Poche (1980) 31 ALR 666 at p.686). We do not feel that we should be restricted to decide the matter solely on the evidence in this matter without regard to other matters which have come before the Tribunal. We respectfully concur with the view that there 1s a need for consistency in an approach by decision makers. ...". In my opinion, contrary to the submission put by Mrs Flemming, the Tribunal was not there indicating that there were unspecified medical opinions given in other cases or unspecified decisions on like facts which it would take into account in the present case. I draw that conclusion from the fact that no relevant medical opinions in other cases and no decisions in other cases on like facts were mentioned. It is further made il. clear by an examination of the decisions to which the Tribunal did refer. Re Roder and Department of Veterans' Affairs (1983) 5 ALD 103 is an example. In that case, a Flight Service Officer in the Department of Civil Aviation and the Department of Transport became medically unfit because of ischaemic heart disease. The Tribunal rejected the view that Roder's physical exertions at work had contributed to the aggravation and acceleration of the disease and, in doing so, it accepted the evidence of Dr Brender, one of the cardiologists who gave evidence for the Australian Telecommunications Commission in the present case, as against that of a Dr W.L. Calov. In that case, the Tribunal found for Mr Roder on the basis of stress at work, its contribution to Mr Roder's psychological state and the contribution of that state to Mr Roder's ischaemic heart disease and its incidents. It was the psychological not the physical aspect which, in Roder's case, persuaded the Tribunal to find for the employee. In the present case, counsel for Mr Zanicotti put to the Tribunal a case based on Mr Zanicotti's psychological condition. I have not mentioned the facts relating to it. The case on psychological grounds received such short shrift by the Tribunal that it was not mentioned by the Tribunal. I need not set out why the Tribunal was correct in rejecting the argument. There is no issue in the present appeal relating to that. However, in the passage I have set out above, the Tribunal recorded that counsel for Mr Zanicotti had asked the Tribunal to consider Roder's case. The Tribunal did consider Roder's case but it did not take it into account in the way that counsel for Mr Zanicotti had sought. The Tribunal's actual line of reasoning is exposed by the 12. passage which it cited from Roder's case, which read as follows : "35 In these cases, notwithstanding the absence of any scientific proof that stress can contribute independently to ischaemic heart disease, it has been accepted as a matter of medical probability that psychic stress may in some circumstances be a contributing factor in conjunction with other factors in the development of ischaemic heart disease. Eacn case needs to be evaluated within the broad framework : (a) as to wnether the particular employment was stressful and {b) as to tne reaction of the employee to that stress. But we would agree with the observation of Mr Ballard in Re Dowling (€(1979) 1 ccD 225] ('Dowling's case'), that in a review Tribunal such as the former Commonwealth Employees' Compensation Tribunal and now this Tribunal, there is a need for consistency in approach on contentious medical issues such as the relationship of stress to ischaemic heart disease." In Roder's case, the Tribunal, presided over by Deputy President Hall, had approved remarks in Re Dowling and Commonwealth of Australia (1979) 1 CCD 225 in which the Commonwealth Employees' Compensation Tribunal had been constituted by Mr J.0. Ballard, who presided in the Tribunal in Mr Zanicotti''s case. In Re Dowling, the Tribunal had also resorted to the presumptive inference relying upon the guidance given by Rich ACJ in Forst's case, cited above. The Tribunal had said : "ll. In cases where this Tribunal is faced with conflicting medical opinion the approach is taken of applying the test of the presumptive inference from the sequence of events arising in the mind of a common sense person uninstructed in pathology (Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563)." Such approach having been approved in Re Roder, by a Tribunal 13. presided over by Deputy President Hall, the Tribunal in the present case drew guidance from this and thought that a presumptive inference ought to be drawn, if it properly could be drawn. The Tribunal algo cited the following passage from Delahunty v Commonwealth (1981) 53 FLR 9 "Once the view is accepted that stress can, independently, be a contributing factor to a myocardial infarction, the case is a tolerably clear one. The appellant's employment involved stress. The appellant was being treated for hypertension to which his employment was plainly a contributing factor. As a matter of probability, the inference would seem unavoidable that both stress from his employment and hypertension to which his employment had contributed, were contributing factors to the myocardial infarction which he suffered. In the words of the Act, the appellant's employment was a 'contributing factor' both to that myocardial infarction and to the underlying arterial degeneration. It is relevant to note that this conclusion accords with the conclusion of two of the three medical specialists who gave evidence. It also accords with the conclusion of the medical practitioner who was the appellant's general practitioner. It follows that the appellant was entitled to compensation pursuant to the provisions of ss.27 and 29 of the Act." It will be noted that in that case the Court, constituted by Evatt, Northrop and Deane JJ, also drew an inference as a matter of probability connecting employment with coronary artery disease. The citation from Delahunty's case, cited above, was made shortly before the Tribunal stated the significant findings that I have set out above. The task which the Tribunal had was a difficult one, for it was called upon to make a decision inan area in which the medical experts, who were all eminent cardiologists, were not in 14, agreement. From the medical point of view, this was a marginal case. The Tribunal was entitled, if it thought it proper to do so, to dismiss the case on the basis that it was not satisfied that the applicant was entitled to succeed. The Tribunal may have decided the matter according to the standing and reputation sf the medical experts who gave evidence before it, though no avidence as to such was given to it. The Tribunal may have been guided by the view most preferred in the Australian medical profession with respect to circumstances such as were under consideration, if evidence as to such view had been given to it. The Tribunal did not take any such course, but relied upon the approach taken in other decisions, which it mentioned, to draw the inference from the performance of the work and the onset of the infarct that the work was a contributing factor to the happening of the infarct at that time. As I have said, I do not express any view as to whether the approach which the Tribunal took was the best approach or a correct approach. The drawing of a presumptive inference was one of the possibilities which, in the circumstances, the Tribunal ought to have considered. There was no appeal on the ground that it ought not to have drawn an inference. If the Tribunal was influenced by Delahunty's case and Roder's case to conclude that Mr Zanicotti's case was one where, factually, a presumptive inference ought to be drawn, it would have been wrong in doing so. I agree with Mrs Flemming that no analogy from the facts of those cases ought to be drawn. Mrs Flemming pointed to the following passage as showing that the ) 15. Tribunal was persuaded by those cases to draw the inference : "We recognize the risk factors present in the applicant on the 17th December 1981; these are analagous to the risk factor of hypertension present in Delahunty's case. Delahunty's case dealt, of course, with mental stress but it is clear, inter alia from Roder's case, that the same principles apply to physical stress (for some discussion of unusual stress by comparison with accustomed stress see Dowling's case). ..."". If read on its own, that passage would support Mrs Flemming's contention. However, it was followed by this sentence, which concluded paragraph 15 : ",.- The claim is made out even if an event which was likely to occur to an applicant in any event at some point occurred when it did because of physical stress arising from work; that would amount to an acceleration." That was a correct statement of legal principle. In my opinion, it was this principle, rather than a factual analogy, which the Tribunal drew from the cases mentioned. Mrs Flemming in her submissions did not clearly identify an error in reasoning on the part of the Tribunal. Mrs Flemming submitted, inter alia, "... SO we say that to look to Roder's case and to Delahunty's case is indicative of some sort of error that must have been made by this tribunal. When one looks at the amount of space in the judgment which Roder's case takes up, one cannot simply ignore it. It is our submission that it is an indication that the tribunal misdirected itself when considering the evidence in the matter before it. We submit that the tribunal moved from cases in which it has been held that mental stress can cause a heart attack to assume that physical stress can cause a heart attack although we put it simply was not an issue in these proceedings and irrelevant, but it seems that the tribunal saw it as an issue, that they then moved from that, having been mislead, we would put, to the position 16. that they need not examine only the evidence before them, they moved to the presumptive inference point and totally ignored the evidence ef the two doctors before them who put the contrary view. It is our submission that each of those steps led the tribunal into those errors. Our second submission is that the appellant was denied natural justice in that having, we say, clearly placed some considerable significance on either the medical conclusion in Delahunty and Roder's case or some evidence in it, the appellant was not given the opportunity to either cross-examine any of the doctors who gave evidence in those cases or to put to its own witnesses whatever material it was that the tribunal was relying upon, or to put submissions in respect of the appropriateness of the approach that the tribunal was taking." I do not accept Mrs Flemming's contention that the Tribunal was led by Delahunty's case or Roder's case or other cases to conclude that physical stress contributes to an infarct. All the cardiologists who gave evidence before the Tribunal were agreed that physical stress could do so but they were not in agreement as to whether, in this particular case, it did so. There is no reason to think that the Tribunal misunderstood their evidence. In concluding that the physical exertion did in fact contribute to the infarct, the Tribunal relied upon the presumptive inference which it drew from the sequence of events. Nor do I accept Mrs Flemming's contention that the Tribunal totally ignored the evidence of Professor Wilcken and Dr Brender. In its reasons for decision, the Tribunal dealt fairly with their evidence. Nor do I accept the contention that the Tribunai relied upon medical conclusions or evidence in Delahunty's case and Roder's case or that the references to Roder's case indicate that the Tribunal must have misdirected itself in some way. 17. The confusion in this case arises from the Tribunal's reference to the statement in Re Roeder that "there is a need for consistency in approach on contentious medical issues" and the Tribunal's own remarks that "there is a need for consistency in an approach by decision-makers". In my opinion, neither the Tribunal in the present case nor the Tribunal in Re Roder was saying any more than the Commonwealth Employees' Compensation Tribunal, constituted by Mr J.0. Ballard, had said in Re Dowling, 1 CCD 225 at p.229, namely, "12. Specialist tribumals such as this Tribunal are set up because they can be expected to acquire specialist expertise; they are entitled to use this expertise to draw inferences from evidence; for this purpose they may use their past experience which may be based on evidence given in previous cases (S$ Ade Smith Judicial Review of Administrative Action (3rd ed) at 181). By the same token, persons conducting business in such a tribunal are entitled to expect a consistent approach from the tribunal rather than to have Matters determined in an ad hoc manner in accordance with the degree of expertise which particular witnesses demonstrate when giving evidence at that particular hearing." Such a consideration is a perfectly proper one for the Administrative Appeals Tribunal to adopt. As the then President of the Administrative Appeals Tribunal, Sir Gerard Brennan, said in Re Drake and Minister for Immigration and Ethnic Affairs (No.2), (1979) 2 ALD 634 at 639, "Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice." The function of a tribunal as constituted for a particular case goes far beyond the ascertainment and application of the legal rules applicable to the case. Consistency in the application of any legal or administrative standards, that is to say, fact 18. evaluations, is just as important. In the present case, there was a standard to be applied, for 3.20 of the Act provides, inter alia, that the decision-maker, "(Ca) shall be guided by equity, good conscience and the substantial merits of the case without regard to technicalities;". Moreover, a tribunal constituted to determine a particular case may be aware of and, if it appears useful to do so, may make the parties before it aware of other decisions of the Administrative Appeals Tribunal dealing with like facts. A decision purely of fact is not a precedent but the perusal of such a decision may assist to clarify the factual issue which the tribunal has to resolve. In my opinion, it was this view that the Tribunal propounded. It was a view that had been propounded by the presiding member, when he constituted the Commonwealth Employees' Compensation Tribunal in Re Dowling, and it was a view which had subsequently been approved in Re Roder. Neither in Re Dowling mor in Re Roder nor in the present case do I see any suggestion that the Tribunal ought not to make up its own mind on the facts of the case after taking into account decisions in other cases. In my opinion, the Tribunal simply reiterated the view put in Re Dowling that the Tribunal was not bound to decide the matter having regard to the eminence of the doctors who appeared before it but ought, if the case was an appropriate one and it was Proper to do so, draw an inference from the sequence of events which led to the infarct. In my opinion, the Tribunal properly took into account the . 19. passages cited from Forst's case, Delahunty's case and Roder's case. It did not improperly rely upon other unspecified matters stated in other cases and it had no need to refer the parties to Matters which, as familiar matters of law, were matters of which all counsel appearing before it would or should have been aware. Thus, although there are aspects of the Tribunal's reasons for decision which could have been better expressed, I am not satisfied that the Tribunal fell into error in its reasoning. In my opinion, the grounds of appeal have not been made out. 'For these reasons, the appeal will be dismissed with costs. The decision under appeal will be affirmed. S424 | ' ji y t prececing 7az-sS are 2 true copy of the Reasons Tor Fuwlgneny herein > @ Assocmate Dated: 1 Decomber lag Bene ee 5 20. Counsel and solicitors for the applicant : Ceunsel and solicitors for the ezspondent : Date of Hearing : Date Judgment Delivered : Mrs P. Flemming, QC, with Mr G. Scragg, instructed by the Australian Government Solicitor Mr C. Gee, QC, with Mrs T. Kavanagh, instructed by McLellands 22 September 1986 18 December 1986