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Re Martin and Commonwealth of Australia

(1983) 5 ALD 277

(Judgment by: A N Hall (Deputy President) )

Re Martin and Commonwealth of Australia

Administrative Appeals Tribunal

A N Hall (Deputy President)

Legislative references:
Compensation (Commonwealth Government Employees Act 1971 - s 27(1)
Commonwealth Employees' Compensation Act 1930 - The Act
Administrative Appeals Tribunal Act 1975 - s 3(3); s 33; s 33(1)(c); s 43(1)

Case references:
Johnston v. Commonwealth of Australia - (1982) 43 ALR 559; 56 ALJR 833
The Commonwealth v. Bourne - (1960) 104 CLR 32
The Commonwealth v. Thompson - (1960) 104 CLR 48
The Commonwealth v. Rutledge - (1964) 111 CLR 1
Drake v. Minister for Immigration and Ethnic Affairs - (1979) 2 ALD 60
Heath v. Commonwealth of Australia - (1982) 43 ALR 673
Collins v. Repatriation Commission - (1980) 32 ALR 581
Re Waddy v. Secretary, Department of Transport - (1978) 1 ALN No 3
Kuswardana v. Minister for Immigration and Ethnic Affairs - (1981) 35 ALR 186
Re Connair Pty Ltd v. Fredericksen - (1979) 24 ALR 155
Ladic v. Capital Territory Health Commission - (1982) 5 ALN No 45

Hearing date: 8 December 1982
Judgment date: 18 March 1983


Judgment by:
A N Hall (Deputy President)

1 This application for review relates to the determination on 6 October 1981 by a delegate of the Commissioner for Employees' Compensation of a claim for compensation made by the applicant on 16 August 1979 (exh T3). In a covering letter of the same date Mr Martin said that he made his claim "on the ground of excessive workload that I was subjected to over the past 10 to 20 years as the staff clerk responsible for the researching and calculating and compilation manually of all administrative documents for in excess of 400 Public Service or Industrial Personnel". He claimed that the pressures of his work had caused an anxiety state and had aggravated his condition of Meniere's Syndrome, which had been accepted as a war-caused disability.

2 Relying on opinions expressed in a medical report dated 30 March 1981 by Dr L M Marinovich, a consultant psychiatrist to whom Mr Martin was referred on behalf of the Commissioner for examination, the delegate determined that in the course of the applicant's employment by the Commonwealth at the Explosives Factory in Maribyrnong, Victoria, the applicant had sustained an injury, namely " aggravation of pre-existing conditions of anxiety neurosis and Meniere's Syndrome, to which his employment was a contributing factor". The determination went on to provide that the Department of Industry and Commerce was liable to pay compensation in accordance with s 27(1) of the Compensation (Commonwealth Government Employees Act 1971 (the Compensation Act), but then concluded as follows:

 the effects of the personal injury to the said William Brennan Martin arising out of his employment namely, aggravation of the pre-existing conditions of anxiety neurosis and Menier's Syndrome ceased to exist not later than 27 June 1980 and thereupon he ceased to be entitled to any payments of compensation under the said Act in respect of that personal injury.

3 There was no challenge, either by the applicant or by the Commonwealth, to the correctness of this determination as to liability notwithstanding, so far as the applicant was concerned, that liability was based on a finding that there had been a work-contributed aggravation of a pre-existing anxiety state, not a work-caused anxiety state, as the applicant had claimed.

4 In the application for review dated 6 January 1982 lodged with this Tribunal by the applicant's solicitors (exh T1) it was said that the decision to be reviewed was the determination dated 6 October 1981. The reasons given in support of the application were that the determination was wrong in law, that it was against the weight of evidence before the delegate and that on the evidence before the delegate he should have determined that: "The effects of the personal injury to the said William Brennan Martin arising out of his employment namely, aggravation of the pre-existing conditions of anxiety neurosis and Meniere's Syndrome did not cease to exist on 27 June 1980 and he did not thereupon cease to be entitled to payments of compensation under the Act in respect of that personal injury."

5 The applicant's case was opened by Miss M Hickey on the basis that the applicant's employment had aggravated his pre-existing condition of anxiety neurosis and that the question at issue was whether the incapacitating effects of that aggravation had ceased by 27 June 1980 as determined by the delegate. Miss Hickey made it clear that the applicant was not seeking to argue that his employment had contributed to the aggravation of his Meniere's Syndrome. Mr C Wheeler, who appeared on behalf of the Commonwealth, took the same view as Miss Hickey as to the question for decision by the Tribunal.

6 It is, on the face of it, unnecessary, therefore, to trace in detail the applicant's employment history. It suffices to say that if one accepts that the applicant's anxiety neurosis was a war neurosis, as Dr Marinovich believed, the concession by the Commonwealth that the stresses of the applicant's employment had aggravated his pre-existing condition, was supported by the evidence given by Mr Martin at the hearing. His evidence detailed the pressures entailed in the duties which he was required to perform during his long years of service at the explosives factory, particularly as staff clerk from the 1960's onwards, and the impact of those pressures upon his mental health. There seems little doubt from his evidence that until the personnel section at the explosives factory was reorganised in approximately 1978, Mr Martin was expected to perform duties in excess of those reasonably required of one officer. There is evidence that he was a diligent and conscientious officer but that the pressures of his work, such as meeting regular time limits and making adjustments to pay following award rate or other arbitration variations in wages and salaries, became progressively too much for him and led to his early retirement.

7 On 4 June 1979 the applicant was recommended for retirement from the Commonwealth Public Service by a Commonwealth Medical Officer on the grounds of "nervous anxiety" (50 per cent), "vertigo and hearing loss" (50 per cent). There is no dispute on the evidence before me that the vertigo and hearing loss are symptoms of Meniere's Disease, which has been accepted by the Department of Veterans' Affairs as a war-caused disability and for which the applicant receives a 30 per cent war pension.

8 Mr Martin last worked on 2 March 1979. He was on sick leave at the time when he was medically examined for retirement and continued on accumulated sick leave until his ultimate retirement on 27 June 1980. He was then aged 60 years.

9 As the only psychiatric evidence before the delegate was the report by Dr Marinovich and as the opinions which he expressed are the foundation of the determination now under review, it will be convenient if I refer to his report and to the evidence which he gave on behalf of the respondent confirming and elaborating on his opinions, before turning to the evidence called on behalf of the applicant.

10 In his report, Dr Marinovich expressed the opinion that the applicant suffered from an anxiety neurosis. Based on the history given to him by the applicant, which was that his anxiety symptoms had started during the Second World War, Dr Marinovich concluded that the anxiety neurosis was originally war-caused. He noted, however, that the condition had not been accepted as such by the Department of Veterans' Affairs. The condition, he said, was evidenced by symptoms of nervous tension, anxiety and unnecessary worry. Feelings of depression, changes in sleep, concentration and memory were considered by Dr Marinovich to be in keeping with the applicant's anxiety state.

11 Dr Marinovich said that in his opinion the applicant's war neurosis had been aggravated both by his Meniere's Disease, which was quite a distressing condition, and by his work stresses. As Dr Marinovich explained in his report, the aggravation of the applicant's anxiety neurosis contributed to by his work stresses was rather involved: "His pre-existing condition of anxiety neurosis and Meniere's Disease are likely to some extent (to) reduce his ability to cope satisfactorily with a job which thereby makes the job seem larger and harder to cope with which in turn increases his anxiety level, which further reduces his capacity to cope and further increases his anxiety levels etc. Thus, in my view, the work stress situation is partly due to his job and partly due to his limitations. I would apportion a 50/50 50/50 basis to these two factors. However, the work stress/anxiety vicious circle then commences with increasing anxiety levels giving decreasing work capacity, giving increasing anxiety and further decreasing his ability to cope with the job until eventually he has to come out of the job."

12 Dr Marinovich had no doubt that the applicant had to get away from his former work situation. In his opinion, however, any incapacitating effects due to the aggravation of his underlying anxiety neurosis would have been basically temporary in nature and the effects would have "ceased when he came out of the job".

13 So far as concerned the applicant's work capacity since retirement, Dr Marinovich said that in his experience, once a person had retired, the question of a return to work did not really arise in that person's mind. He explained this opinion in his report as follows:

7 In my opinion it is not a question of being totally incapacitated with regard to what types of work he can perform, but the fact that he has retired. In his own mind he has retired and is unfit for work medically and is on superannuation. Thus, his total incapacity is part of his mental attitude.

Dr Marinovich then went on to say: "With regard to his mind and mental powers, he is quite alert, converses well and apart from his neurosis his mind and mental powers are good. His powers are such that, in my opinion, he could be capable of undertaking some form of light employment. However, one is again confronted by this impasse where he believes he is no longer medically fit for work, supported by the observation that he has been superannuated out from work on medical grounds and has now retired."

14 Dr Marinovich was unable to be more specific as to the type of light work the applicant might do, except perhaps for a part-time cleaning job. He said that he had really not explored that question with the applicant as he believed that it was no more than a theoretical question because of what he described as the "retirement factor". He agreed that there was no question of the applicant resuming his former employment as a staff clerk.

15 For the applicant, evidence was given by Dr P G Marsh, the applicant's treating general practitioner, by Dr G Mendelson, a psychiatrist who examined the applicant on 25 November 1982, and by the applicant himself.

16 Dr Marsh said that he had first been consulted by the applicant in March 1973. He had complained of attacks of giddiness and tension. Mr Martin had said that his job was worrying him and getting on top of him. Dr Marsh had diagnosed anxiety and had prescribed tranquillisers. At that stage, however, the giddiness had not been diagnosed as Meniere's Disease. There was a further consultation in May 1973 in relation to giddy turns.

17 In June 1974, there was a consultation with respect to giddy turns and worry. A further course of tranquillisers was prescribed. There were similar complaints in February 1976, September 1976, January 1977, July 1977 and June 1978. By April 1979 the applicant's giddiness had been diagnosed as Meniere's Disease. Dr Marsh said that the symptoms of that disease made the applicant more tense and anxious and increased his inability to cope. Dr Marsh said that there was no doubt that the applicant found his job extremely stressful and that this increased his anxiety and exacerbated his Meniere's Syndrome (see report dated 5 December 1981 -- exh A). In his opinion the cumulative effects of the Meniere's Disease and the anxiety state made the applicant permanently medically unfit for work, either full time or part time.

18 The psychiatric evidence given on behalf of the applicant by Dr Mendelson threw a totally different light on the matter and was, in my view, completely inconsistent with the evidence of Dr Marinovich on which the determination was based. This evidence had not been available to the Commissioner as the applicant had not been referred by his solicitors to Dr Mendelson until some two weeks before the Tribunal hearing. A copy of Dr Mendelson's report was not made available either to the respondent or to the Tribunal until shortly before he was called to give evidence, notwithstanding a direction given by the Tribunal as to exchange before the hearing of medical reports intended to be relied upon by either party (see letter dated 30 June 1982 from deputy registrar, R R Stubbs, Canberra, to the applicant's solicitors).

19 Despite an attempt by Miss Hickey to suggest otherwise, Dr Mendelson's evidence, if I accept it, would destroy the whole basis of the determination under review in so far as that determination involved a finding that the applicant suffered an aggravation of a pre-existing condition of anxiety neurosis. Dr Mendelson's opinion was that the applicant's anxiety state was caused by the stresses of his employment. He said that when he saw the applicant on 25 November 1982, he had had available to him, a copy of Dr Marinovich's report. He was aware of Dr Marinovich's opinion that the applicant's condition was basically a war neurosis. He said that he had asked the applicant about the history relied on by Dr Marinovich and that the applicant had said that he had not experienced any symptoms prior to 1962. Dr Mendelson made it quite clear, therefore, that he had noted, considered and rejected Dr Marinovich's opinion that the applicant had a pre-existing neurosis.

20 Dr Mendelson said that Mr Martin had told him that he had developed a "nervous illness" which he attributed to the stress of his work. Mr Martin's description of that illness was that "since about 1962 he had felt under increasing pressure at work, and said that this became gradually worse over the years. He told me that for a period of about 10 years he had received treatment for nervous symptoms and that, for this reason, he was superannuated from work in 1979" (see report -- exh B, p 3). Dr Mendelson said in his evidence that he had understood the period of "10 years" to refer to the 10 years up until the time of Mr Martin's retirement (ie from 1969 or thereabouts). His impression was that the applicant had been receiving continuous treatment for that 10 years whereas previously it might just have been "on and off" that he had symptoms.

21 The history given by the applicant to Dr Mendelson is entirely consistent, it should be noted, with the following history given by Mr Martin to the Commonwealth Medical Officer at the retirement medical examination on 4 June 1979:

He also had a long history of nervous anxiety exacerbated by his job as a personnel officer.

His symptoms have gradually become worse over the past 10 years.

It is also consistent with the statements made by the applicant himself in his letter dated 16 August 1979 in support of his claim for compensation (exh T4).

22 Miss Hickey attempted to gloss over this difference of opinion by putting to Dr Mendelson in re-examination the following question:

Q.--If one assumed for the moment, and I do not think that there is any evidence that this is so, but assume for the moment that there were symptoms prior, earlier on, what would you then say as to the relationship between the anxiety and the work stresses? A.--Well, then I think it would be a case of this having had an aggravating effect over the years, again culminating in his being retired on medical grounds.

Relying on this answer as, in some way, qualifying the quite clear opinion evidence which Dr Mendelson had given that the applicant suffered from a work-caused anxiety state, not a pre-existing war neurosis aggravated by work, Miss Hickey put it to Dr Marinovich in cross-examination that Dr Mendelson's opinion agreed with his. Dr Marinovich was at a disadvantage in knowing whether this suggestion was correct or not. However, I reject that suggestion completely. It was no part of Dr Mendelson's opinion that the applicant had a pre-existing anxiety neurosis which his work had aggravated.

23 On the question of the incapacitating consequences of the applicant's condition, Dr Mendelson went on to say that in his opinion Mr Martin was most unlikely to be able to return to gainful employment at any time in the future. Dr Mendelson considered Mr Martin incapable of returning to his old job and unable to cope with any other gainful employment. Any attempt to do so would, in his opinion, increase the severity of the applicant's symptoms. Dr Mendelson also agreed with Dr Marinovich's opinion, that having regard to the various medical conditions now afflicting the applicant (anxiety, depression, deafness, episodes of dizziness) and the fact that he has been retired on medical grounds, the applicant was unlikely to try to return to the workforce. Although Dr Mendelson considered that "emotionally he does have an incentive to work" (because of feelings of depression, uselessness and boredom since he stopped work), the applicant now considers himself to be medically unfit to work (by reason of having been superannuated out of the Public Service). Dr Mendelson also considered that the applicant's symptoms were unlikely to disappear as they have continued now for nearly four years since he stopped work and was taken out of the stressful environment.

24 However, in relation to this evidence, there is no doubt in my mind that Dr Mendelson's opinions were based on the premise that the applicant's anxiety neurosis was caused by his employment with the Commonwealth. On that basis, the whole of the continuing incapacitating consequences of that work-caused condition were attributable to that condition. At no stage was Dr Mendelson concerned to direct his mind to the question which Dr Marinovich had considered important, namely for how long, if at all, and if so, to what extent, did the work-contributed aggravation of the war-caused neurosis continue to contribute to the applicant's incapacity for work after retirement.

25 In terms of the narrow question which the parties posed as the question to be decided by the Tribunal, Dr Mendelson's evidence is, in my view, of no assistance to me. On the contrary, as I said earlier, his evidence, if I were to accept it, raises a question which goes to the whole basis of the delegate's determination. His evidence, which is entirely consistent with the applicant's original claim, raises the difficult question whether, having regard to the provisions of s 104 of the Compensation Act, that Act applies to the determination of the liability of the Commonwealth to pay compensation in this matter. Section 104 deals with the circumstances in which the 1971 Compensation Act applies to a disease the symptoms of which first became apparent before the date of commencement of that Act. As was pointed out in Johnston v Commonwealth of Australia (1982) 43 ALR 559 ; 56 ALJR 833 at 837 (per Gibbs CJ, Mason and Wilson JJ): "This Act (ie the 1971 Act) replaced the Commonwealth Employees' Compensation Act 1930, which adopted a different criterion for compensation for death resulting from an aggravation of a disease. Under that Act the relevant question was whether the aggravation was contributed to by the nature of the employment [s 10(1)]: see The Commonwealth v Bourne (1960) 104 CLR 32; The Commonwealth v Thompson (1960) 104 CLR 48; The Commonwealth v Rutledge (1964) 111 CLR 1."

And later: "It will be seen that the Act does not entitle a person to receive compensation under the Act in respect of an aggravation of a disease the symptoms of which first became apparent before the proclaimed date (that is, 1 September 1971) unless compensation was payable under the preceding Act."

26 I raised with both counsel the question whether s 104 arose for consideration having regard to Dr Mendelson's evidence. Miss Hickey submitted that it did not. She pointed out that the only evidence given by Mr Martin related to aggravation of his anxiety symptoms from 1972 onwards and that he had given no evidence as to any anxiety symptoms before that date. Mr Wheeler said that as there had been no challenge by the Commonwealth to the determination that the applicant's pre-existing anxiety state had been aggravated by work stresses he did not believe that he could go behind the determination and did not seek to do so.

27 I have been considerably troubled as to how I should proceed in the circumstances which I have described. The primary function of this Tribunal in reviewing determinations under the Compensation Act is to decide what is the right or preferable decision having regard to the evidence and other materials before the Tribunal [cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (per Bowen CJ and Deane J)]. In reviewing decisions under the Compensation Act the Tribunal should be guided (as should the Commissioner) by the principles laid down in s 20(2) of the Act, namely "equity, good conscience and the substantial merits of the case without regard to technicalities" [cf Heath v Commonwealth of Australia (1982) 43 ALR 673 per Mason and Wilson JJ at 680]. But that does not mean that the express and at times complex prescriptions of the Compensation Act governing the entitlement to compensation can be ignored [see Collins v Repatriation Commission (1980) 32 ALR 581].

28 As I said recently in Re Kelly and Australian Postal Commission (1983) 5 ALN No 49: "Where a claim for compensation is made, the function of the Commissioner is to determine all matters and questions arising under the Act in relation to that claim. In reviewing a determination in relation to such a claim the powers of the Tribunal are co-extensive with those of the Commissioner [see ss 3(3) and 43(1) of the Administrative Appeals Tribunal Act 1975]. All the powers and discretions that are conferred by the Compensation Act on the Commissioner are available to be exercised by the Tribunal in making its decision. Whether they are all exercised by the Tribunal in a particular case is a matter for the Tribunal to determine having regard to the evidence before it and the options available to it as to the way in which it frames its decisions [see s 43(1)(a), (b) and (c)]."

29 In my view, when an application for review is lodged by either party in relation to a determination of a claim for compensation, all aspects of that determination are open to review by the Tribunal [cf Re Waddy v Secretary, Department of Transport (1978) 1 ALN No 3]. However, in the exercise of its wide discretion over its own procedures (see s 33 of the Administrative Appeals Tribunal Act 1975), the Tribunal may accept concessions by the parties of particular facts or issues that would otherwise require determination by the Tribunal [see Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186]. The decision under review in this case is the Commissioner's determination in relation to the applicant's claim for compensation. As neither party had called into question the determination as to the liability of the Commonwealth, and as there was evidence to support a finding of liability, I would have been content, in the ordinary course of events, to act upon that concession. But where the evidence adduced before the Tribunal by the applicant raises a serious doubt as to the correctness of the conceded issue, the Tribunal may well be obliged to reject the concession (cf Kuswardana ) and to open up the whole of the determination under review for reconsideration.

30 The dilemma in which I have been placed by the conflict of expert testimony is compounded by the fact that no evidence was led from the applicant in relation to his pre-1971 anxiety symptoms. He was not asked whether he now claimed or had in the past claimed to have had a war-caused neurosis. In the way the case was presented on behalf of the applicant, I took it to be accepted by him that Dr Marinovich's opinion regarding a basic war neurosis was correct. At the stage when Mr Martin gave his evidence, the thrust of Dr Mendelson's evidence was quite unknown and Mr Martin was not, therefore, questioned about his earlier history. On the evidence as it stands, I have no satisfactory evidence by which to resolve the conflict in expert testimony. Depending on how that conflict is resolved, the further question may then arise whether the applicant's anxiety state was "due to the nature of his employment" by the Commonwealth [see s 10(1) of the 1930 Compensation Act and the cases cited in Johnston's case , supra, and Re Connair Pty Ltd v Fredericksen (1979) 24 ALR 155]. As those cases make clear, the "nature of the employment" test is a much more stringent test than that which arises under the 1971 Act [see ss 5(11) and 29]. Before I could attempt to resolve the conflict between the expert psychiatric evidence, I would need to reconvene the hearing to enable further evidence to be given with respect to Mr Martin's pre-1972 medical history and to hear further argument as to the effect of that evidence. That would entail additional cost to both parties and is not a course to be embarked on lightly.

31 The alternative course available to me is to disregard Dr Mendelson's evidence on the ground that it is not relevant to the narrow question posed by the parties for decision by the Tribunal namely whether the incapacitating effects of the applicant's work-aggravated war neurosis ceased when he discontinued working in a stressful environment. Not without considerable misgivings I have decided that I should adopt that course, partly because the Commonwealth, whose financial interests are at stake, does not urge me to do otherwise, and partly because the adoption of that course avoids putting the applicant to any further expense. Whether the question posed by the parties is the right question, may be another matter.

32 In his evidence, Dr Marinovich said that he was not claiming that the applicant recovered "magically" the day after he was officially retired. The history he had obtained from the applicant, he said, was one of "progressive improvement" once the applicant came out of his stressful work situation. Dr Marinovich's evidence was that when the applicant had told him that he felt he was "breaking even", he had understood him to mean that he had reached the point where he was coping with himself and his anxiety levels, whereas previously he was not coping. I must say, however, that the reference to "breaking even" in the doctor's written report (exh T9), seems hardly capable of bearing that interpretation. What Dr Marinovich recorded in his report was as follows: "His treatment consists of attending his Repat doctor, Dr Marsh. He had anti-depressant medication, but it upset him. He said he had previously been given Valium and Stematil. Currently, he takes Serepax and Serc. Overall, he did not think there was any basic improvement and that he was 'breaking even' ." (emphasis added)

33 I asked Dr Marinovich whether, in respect of psychiatric disorders, there was any difference between the disease itself and the symptoms of the disease. He replied that "at his point in our understanding, or lack of, no difference. The disease is basically the symptoms of the disease." Once such a disease has established itself, he said, it may be aggravated either by an increase in the severity of the pre-existing symptoms or by the addition of further anxiety symptoms over and above what was present before the stress in question.

34 Dr Marinovich had formed the opinion, based on the applicant's description of his anxiety symptoms starting during the war (see his report -- exh T9, p 4, para 2), that the anxiety neurosis, which manifested itself again under the pressures of the applicant's work, was originally war-caused. However, so far as the evidence goes, it was not until some 17 years after the end of the war that the applicant first complained of anxiety due to stress at work and it was not until the late 1970's that, with constant stress, his anxiety levels had increased to the point where he could no longer cope.

35 Having regard to the accumulating effects of the applicant's work-caused anxiety on his pre-existing anxiety state as described by Dr Marinovich in his report (see para 11) it seems to me to be improbable that those effects, entrenched by years of working under pressure, would have dissipated as quickly as Dr Marinovich suggested. Having regard to the long period after the Second World War when the applicant was evidently free of symptoms of any war-caused neurosis, I find it difficult to accept that the accretion to his underlying disease by at least 10 years of anxiety symptoms due to considerable and consistent work stresses could be said to have disappeared after some 14 months. If the symptoms and the disease are truly indistinguishable, it seems more probable, with a man of the applicant's age and with his history, that whatever accretion there was to his anxiety state due to the stresses of his work, he was likely to have that accretion for some time. To attribute his present anxiety state to war neurosis and in no way to his work stresses seems to me to discount, to an improbable degree, the impact upon the applicant of the work stresses which he described. To do so is quite at variance with the history given by the applicant to Dr Marinovich as to the absence of improvement in his mental state since retirement, with the applicant's evidence before the Tribunal and with the evidence of his treating doctor.

36 In these circumstances, I find that, on the probabilities, the aggravating effects of the applicant's work stress had not ceased by the date of his retirement on 27 June 1980, and that those effects are continuing; that those aggravating effects have contributed and are still contributing to the applicant's incapacity; that, in accordance with s 5(11) of the Act, the applicant's incapacity is to be taken to have resulted from the aggravation; and that the applicant is and has since his retirement been totally incapacitated for work. On the evidence before me, I do not consider that the applicant has any saleable capacity for part-time work.

37 In so far as there may have been symptoms of aggravation of the applicant's anxiety neurosis which first appeared before the date of commencement of the 1971 Compensation Act, I respectfully adopt what was said by the High Court in Johnston's case , supra, at 837-8 and find that there were symptoms of the worsened state of the applicant's anxiety neurosis which first appeared after the commencement of the Act and that the aggravation of the condition thereafter is compensable under the 1971 Act. I propose therefore to vary the determination under review accordingly. It will be a matter for the Commissioner to determine the applicant's entitlements under the Act having regard to the findings I have made.

38 Pursuant to s 64(2) of the Compensation Act costs will be awarded in accordance with scale E in the County Court of Victoria. However, having regard to my comments with respect to the evidence of Dr Mendelson I propose to reserve the question whether I should allow that part of the applicant's costs that relates to the report by and evidence of Dr Mendelson. I am reserving that question because of the failure by the applicant to make a copy of Dr Mendelson's report available to the respondent and to the Tribunal prior to the hearing [cf Re Barton and Australian Broadcasting Commission (1982) 5 ALN No 26 and because of the fact that, for the reasons I have given, I have not been assisted by Dr Mendelson's evidence.

39 In an administrative review jurisdiction where there are no pleadings, it is of the utmost importance, in my view, to ensure that both sides are properly informed, before the hearing, as to the nature of the issues to be raised. The present case is a good illustration of the confusion created by the last minute production of a medical report which casts doubt upon the basis on which the case is presented for review.

40 I will give leave to both parties to submit a written submission to the Tribunal within 14 days from the date on which the decision in this matter is handed down as to whether the costs of Dr Mendelson's evidence should be allowed. If either party requests in its written submission that an opportunity for an oral hearing be allowed, I will consider convening a telephone hearing on a suitable date to hear final oral submissions on the question.

41 In conclusion, I should say that I have not found it necessary to deal with the submissions made by counsel as to where the onus of proof on particular issues in this matter was thought to lie. The rules as to onus of proof which have been judicially developed as a means of resolving the issues that arise in adversarial litigation are part of the rules of evidence [see Phipson on Evidence , 12th ed Chapter 4; cf Ladic v Capital Territory Health Commission (1982) 5 ALN No 45]. This Tribunal is expressly not bound by such rules [see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975]. Whilst the Tribunal may be guided by the rules of evidence, a rigid adherence to judicial rules as to onus is incompatible, in my view, with the principles of administrative review by reference to which the Tribunal is required to exercise its functions (cf Drake v Minister for Immigration and Ethnic Affairs , supra) In this regard I respectfully agree with the observations of my colleague, Deputy President Todd in Re Holbrook and Australian Postal Commission (1983) 5 ALN No 35 (see para 23) which I adopt without repeating. It should not be assumed, therefore, that in exercising its administrative review functions in matters under the Compensation Act the Tribunal will regard itself as constrained by rules as to onus of proof in arriving at what is the right or preferable decision in a particular case. To what extent those rules, or more precisely the principles underlying them, may be relevant in proceedings before the Tribunal under the Compensation Act will need to be worked out as particular issues arise [cf Re Kevin and Minister for the Capital Territory (1979) 2 ALD 238].


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