|Catchwords:||ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the second respondent was employed by the applicant – where the second respondent claimed to have sustained bagassosis over a period of time – where the first respondent made a decision that the second respondent had suffered an injury under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the first respondent failed to afford the applicant natural justice – whether the first respondent provided adequate reasons pursuant to s 516 Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the first respondent applied an incorrect legal test|
The issues for determination were the applicant/employer was not afforded natural justice because they did not have an opportunity to present information in response to the ultimate issue relied upon and that the reasons failed to disclose a proper basis for their decision.
The applicant succeeded on the first ground. In determining that the Tribunal had in fact considered a finding of “fact” and not “medical” evidence his Honour considered CSR should have had an opportunity to comment and accepted their submissions:
 Prior to the consideration of this matter by the Tribunal all the medical evidence was that Mr Kerr either had bagassosis (which is agreed by the parties to be caused only by the spores from wet bagasse) or that he had interstitial lung disease which had not been caused by exposure to dust.
 CSR argues that it should have brought to its attention the fact that the Tribunal intended to rely upon exposure to dust as a catalyst for the development of the disease suffered by Mr Kerr. This, says CSR, engages the principle that a decision maker must bring to the attention of the relevant party the critical issue or factor on which the decision is likely to turn. See Kioa v West  HCA 81; (1985) 159 CLR 550 at 587. As against that, the Tribunal submits that natural justice only requires a decision maker to expose for comment by the affected party an undisclosed conclusion, head of liability or fact, and not the decision maker’s reasoning process. See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd  FCA 1074; (1994) 49 FCR 576 at 592, Lidono Pty Ltd v Commissioner of Taxation  FCA 174; (2002) 191 ALR 328. It was argued that, in the present case, the reference to the Tribunal merely required it to consider on the available evidence the injury to Mr Kerr’s lungs and to determine whether he had an injury and, if so, the nature of the injury. In doing that the Tribunal was not required to afford CSR the benefit of its preliminary review or allow CSR to make further submissions to address them.
 The Tribunal, did, in this case, proceed upon an assumption which had not been established before it, namely, that there had been prolonged exposure to a variety of dusts. In order for that conclusion to have been properly drawn the Tribunal would have needed to have before it evidence to support that. Presumably the Tribunal relied on Mr Kerr’s account which they described as “a clear history of exposure to bagasse and other dusts”. While there had been references made in the reports to the existence of dust it had been consistently dismissed as the cause of his symptoms. Mr Kerr argues that the Tribunal was entitled to use that information without alerting CSR. But what has occurred here is that the Tribunal has effectively made a finding that the extent of exposure was sufficient to cause the disease.
 The extent of exposure is not a “medical matter”. It is a finding of fact which should have been referred to CSR for comment or further evidence before it could be used as the basis on which a decision was made.
Brisbane Barrister – David Cormack