FEDERAL COURT OF AUSTRALIA

Martin v Comcare [2015] FCAFC 169

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made 8 January 2015 be set aside and the matter be remitted to the Tribunal for determination according to law including the law as explained in the reasons for judgment herein.

3.    The Respondent pay the Appellant’s costs of and incidental to the appeal and the hearing below.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J

1    I have read the reasons for judgment of Murphy J. For the reasons given by Murphy J, I agree that the appeal should be allowed and that the orders proposed by Murphy J be made.

Associate:

Dated:    30 November 2015

REASONS FOR JUDGMENT

FLICK J

2    The Appellant, Ms Peta Martin, worked at the Australian Broadcasting Corporation from January 2010 through to March 2012.

3    Initially, she worked under the direct supervision of the Station Manager, Mr Bruce Mellett. She was then based in Renmark, South Australia. From August 2011 she worked under the supervision of Ms Carol Raabus.

4    In 2012 the position of “cross media reporter” under Ms Raabus became available. Ms Martin applied. She was interviewed by a selection panel, comprised of Mr Mellett, Ms Raabus and the Regional Content Director, Mr Jonathon Wright (the “Selection Panel”). Ms Martin was unsuccessful and was notified that she would return to her previous position under Mr Mellett. On receiving the news, Ms Martin apparently “broke down” and was subsequently diagnosed with an “adjustment disorder”. She claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Compensation Act”).

5    In October 2012 Comcare rejected any liability to pay compensation. Comcare affirmed its decision in December 2012. Ms Martin appealed to the Administrative Appeals Tribunal (the “Tribunal”).

6    Before the Tribunal:

    Comcare maintained that the “injury” for which compensation was claimed was the “result” of her failure to be promoted to the position of cross media reporter;

    Ms Martin maintained that the worsening of her condition was caused by her realisation that she would be returning to the supervision of Mr Mellett and that any contribution caused by her disappointment over the loss of an opportunity for career advancement was immaterial.

If the Comcare position prevailed, a question arose as to whether Ms Martin’s “injury” was excluded from the definition of that term by s 5A of the Compensation Act. Section 5A(1) excluded from the definition “a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment…”.

7    The Administrative Appeals Tribunal set aside Comcare’s decision: Re Martin and Comcare [2014] AATA 553, (2014) 64 AAR 224.

8    Comcare appealed. Ms Martin filed a Notice of Contention, contending that her “adjustment disorder did not occur as a result of the decision not to appoint [her] to the position of cross-media reporter”. The primary Judge allowed an appeal from the decision of the Tribunal and dismissed the Notice of Contention: Comcare v Martin [2015] FCA 4. An order was made remitting the matter to the Tribunal “to be heard and determined according to law”.

9    Ms Martin now appeals from the decision of the primary Judge.

10    On the hearing of the appeal, and as formulated by the Appellant, three principal issues divided the parties, namely:

    whether on a correct reading of the Tribunal’s reasons for decision – and, in particular, para [103] of those reasons – did the Tribunal distract itself from the question of whether particular administrative action had been “taken in a reasonable manner”, by impermissibly equating that question with the administrative law doctrine of apprehended bias and then failing to apply that doctrine properly?

    is it relevant that the Selection Panel “merely made a recommendation” to a different ultimate decision-maker, when the issue was not whether Mr Mellett’s presence on the Selection Panel meant that the decision to appoint someone else was amenable to being set aside on judicial review, but whether the selection process (of which the membership of the Selection Panel was an important part) fell within the “reasonable administrative action” exclusion in s 5A(1), so as to deny Ms Martin any entitlement to compensation? and

    on the correct construction of ss 5A(1) and 5A(2)(f), having regard to the primary factual findings made by the Tribunal (which were congruent with the opinions of both psychiatrists who gave evidence), was Ms Martin’s psychological condition properly “a result of” her failure to obtain the promotion for which she had applied?

It is the third of these issues which now fundamentally divides the Court. Contrary to the conclusion of Siopis and Murphy JJ, it is respectfully concluded that the primary Judge did not err either in his construction of s 5A(1) and (2), or in his application of those provisions to the facts.

Injury – administrative action taken in a reasonable manner

11    Section 5A the Compensation Act relevantly provides as follows:

5A    Definition of injury

(1)        In this Act:

injury means:

(a)    a disease suffered by the employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

(2)    For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

(a)    a reasonable appraisal of the employee’s performance;

(b)    a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c)    a reasonable suspension action in respect of the employee’s employment;

(d)    a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e)    anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f)    anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

12    With reference to the exclusion from the definition of “injury” of a “disease, injury or aggravation” suffered as a result of “reasonable administrative action”, a finding as to whether there has been “reasonable administrative action taken in a reasonable manner” is a finding based upon all of the circumstances of an individual case. Thus, for example, in Comcare v Martinez (No 2) [2013] FCA 439 at [83], (2013) 212 FCR 272 at 293 Robertson J cited with approval the following observations of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47 to 48:

Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

In the decision in Keen, Bleby J had there also similarly observed:

… whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented: (1998) 71 SASR at 63.

The facts as found by the Tribunal & its interpretation of s 5A

13    At the centre of the factual dispute before the Tribunal was the contention advanced by Ms Martin that the work environment with Mr Mellett had become “toxic”. She alleged that she had been bullied or ignored by Mr Mellett.

14    She claimed that she applied for the role of cross media reporter to remove herself from Mr Mellett. Comcare maintained that this was a “recent invention” on her part in order to avoid the operation of s 5A.

15    The Tribunal rejected Comcare’s submission that Ms Martin’s claim that she applied for the position in order to remove herself from the supervision of Mr Mellett was a “recent invention”. The Tribunal expressed this conclusion as follows:

Conclusion

[57]    I do not agree, as I understand Comcare to suggest, that Ms Martin’s claim that the primary reason she applied for the role of cross media reporter was to remove herself from the supervision of Mr Mellett, is a recent invention designed to avoid the operation of s 5A of the Act. There is powerful evidence to corroborate Ms Martin’s claim that her belief she had been mistreated by Mr Mellett pre-dated the decision not to promote her to the position of cross media reporter. This includes the notes made by the counselling service and Dr Kulatunga, the evidence given by Ms Rooney-Harding and the evidence of the conversation between Ms Martin and Mr Hau in July 2011.

[58]    I accept Ms Martin’s claim that the cross media reporter position was not her preferred option and the primary reason she applied for that position was to remove herself from Mr Mellett’s direct supervision. I agree with the experts that what caused her to “decompensate” was the realisation that the decision meant she would be returning to Mr Mellett’s supervision and her belief that the alleged bullying would continue.

16    But the Tribunal found in favour of Comcare to the extent that it concluded that the failure to obtain promotion was one of the operative causes of her “adjustment disorder”. It expressed this conclusion as follows (without alteration):

[60]    A number of consequences flowed from Ms Martin’s failure to obtain the promotion to the position of cross media producer. These included:

*    Ms Martin would be required to return to her substantive position and work under the direct supervision of Mr Mellett; and

*    Ms Martin would be denied a small pay increase and the opportunity to further develop her skills in cross media production.

[61]    The question posed by s 5A(1) is whether the claimed ailment was suffered as a result of the nominated action, in this case the failure to obtain the promotion. It matters not which of the anticipated consequences of the offending decision was most likely to have troubled Ms Martin. That her reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant. In her mind the former was a direct and foreseeable consequence of the decision.

[62]    I am satisfied on balance that one of the operative causes of Ms Martin’s adjustment disorder was her failure to obtain the position of cross media reporter. I find that Ms Martin’s condition was “a result of” that action.

17    The Tribunal then turned its attention to whether the action was taken in a “reasonable manner”. The Tribunal resolved this issue in favour of Ms Martin. It expressed its conclusion as follows (without alteration):

[102]    Read as a whole the inescapable inference from the notes is that in the months before the selection panel met, Mr Mellett was more than a “bit annoyed” with Ms Martin. The colourful language he used to describe her conduct indicates a heightened level of annoyance, frustration and incredulity. By late January 2012 he reported to Ms IIcecin that Ms Martin’s “continued misrepresentation” was a breach of workplace behaviour standard and potential misconduct. The language used in that report reveals the seriousness with which Mr Mellett regarded Ms Martin’s conduct. He wrote that she knowingly and repeatedly made allegations she knew to be false; that her conduct was malicious; and that she had probably defamed Mr Coull. The report to Ms IIcecin was more than just idle gossip but notice that in his opinion further action was warranted. Taken together with the negative comments made about Ms Martin’s work performance: “she is missing the big yarn for the year” (10/11/11); “some of her copy is written like a 9 year old” (2/11/12) the irresistible conclusion is that by the time of the selection panel first met Mr Mellett held Ms Martin in very low regard.

[103]    As pointed out by Mr Gollan there is no direct evidence that Mr Mellett’s recorded views about Ms Martin infected the decisions he made as a member of the selection panel or those of the other members. Ms Raabus and Mr Wright considered the recruitment process unremarkable notwithstanding each believed Mr Mellett should have disclosed the views he held about Ms Martin. I cannot agree with the proposition that the evidence of Mr Mellett rating Ms Martin slightly higher than other members of the panel “proves” that those views did not influence his actions. Given the strength and duration of those views there was a real and material possibility that they consciously or otherwise influenced Mr Mellett’s deliberations. It may be, as claimed by Comcare, that Mr Mellett managed to quarantine his views from his deliberations as a panel member. I could not be positively satisfied that that occurred. More to the point, in my opinion a fair-minded observer acquainted with the notes would probably apprehend that Mr Mellett might not bring an impartial mind to his role.

[104]    For these reasons I cannot be satisfied that the decision was undertaken in a reasonable manner.

18    It was para [103] of the Tribunal’s reasons which the primary Judge concluded exposed error. After referring to the observations of both Lander and Bleby JJ in Keen v Workers Rehabilitation and Compensation Corporation, the primary Judge concluded:

[70]    I respectfully agree that these passages from Keen broadly reflect the proper approach to be taken in construing and applying the phrase “taken in a reasonable manner” for the purposes of s 5A of the SRC Act. The Tribunal appears initially to have taken a similar view but, curiously, when it came to apply the relevant part of s 5A to the circumstances here, the Tribunal appears to have adopted a different approach. As is evident from the summary above of the Tribunal’s reasons for decision, instead of taking into account all the relevant matters as identified in the passages from Keen as set out above, the Tribunal essentially focused on the question whether the recruitment process was tainted by apprehended bias in an administrative law sense by Mr Mellett’s participation on the selection panel.

[71]    With respect to the Tribunal, that approach was erroneous in law. Not only did it impermissibly equate the doctrine of apprehended bias in administrative law with the question whether or not particular administrative action had been taken in a reasonable manner, but, in any event, the Tribunal did not properly apply the administrative law doctrine of apprehended bias. It is appropriate to expand upon both those matters.

[72]    As to the first, I see no warrant for treating the reference in s 5A to “taken in a reasonable manner” as being synonymous with the doctrine of apprehended bias in administrative law. It would have been a simple matter for the Parliament to have adopted the familiar language of procedural fairness or natural justice, including the particular limb which deals with bias, if that was intended to be the relevant test. Self-evidently, however, it did not do so. Instead it used the language of whether particular administrative action “had been taken in a reasonable manner”, which requires the decision-maker to determine what is essentially a question of fact. In my view, the Tribunal misconstrued the relevant provision by unduly limiting it to a consideration of whether the administrative action in question had been taken in conformity with that aspect of the doctrine of procedural fairness which relates to apprehended bias. Further, in my view, the correct construction of that statutory phrase is that which was adopted by Robertson J in Martinez (No 2) and is reflected in the judgments of Lander and Bleby JJ in Keen, albeit in reference to a similarly worded provision in South Australia’s workers’ compensation legislation (see [66]–[68] above).

[73]    There is at least one fundamental difference between the relevant statutory phrase in s 5A and the doctrine of apprehended bias. It relates to the role of the relevant decision-maker. The statutory phrase requires either the primary decision-maker or the Tribunal on a review to decide for himself or herself whether the relevant administrative action was taken in a reasonable manner. In contrast, the doctrine of apprehended bias requires the relevant decision-maker to apply the relevant legal principles through the prism of an informed and fair-minded lay observer … As is evident from [103] and [104] of the Tribunal’s reasons for decision … the Tribunal applied a hybrid of the two approaches. Some of its findings are expressed in terms of its own direct appraisal of relevant matters, while its ultimate conclusion (which, significantly, was introduced by a reference by the words “more to the point”) was expressed by reference to the appraisal of a fair-minded observer. I reject [Counsel for Ms Martin’s] submission that these words ought to be viewed as “surplusage”. In my view, these words highlight the fact that the Tribunal saw this sentence as containing its essential reasoning.

…

[74]    In my view the Tribunal fell into legal error by reasoning as it did.    

[76]    Furthermore, and in any event, the Tribunal appears to have misunderstood or misapplied the doctrine of apprehended bias …

(Emphasis in original)

19    In dismissing the Notice of Contention, the primary Judge expressed his reasons as follows:

[106]    In my view, the Tribunal’s approach did not involve any misconstruction of s 5A(1) as submitted by Ms Martin. As is evident from [57]–[62] of the Tribunal’s reasons for decision, the Tribunal considered that Ms Martin’s anxiety at the prospect of returning to work under Mr Mellett’s supervision arose from the decision not to promote her to the permanent position of cross-media reporter. Indeed, the Tribunal expressly found at [61] that, in Ms Martin’s mind, the prospect of returning to work under Mr Mellett’s supervision was “a direct and foreseeable consequence” of the promotion decision. That was a finding of fact, which was plainly open to be made on the evidence.

[107]    In my opinion, such reasoning did not involve any misconstruction of s 5A(1) …

[108]    The text and context of s 5A, including para (2)(f) thereof, do not support such a construction. I accept Comcare’s submission that acceptance of Ms Martin’s contention would require additional words to be read into paragraph (f). In my view, there is no warrant for that approach. The remedial or beneficial nature of the legislation provides an insufficient basis for effectively rewriting the relevant exclusion in the manner sought by Ms Martin …

The “additional words” there referred to was the rewriting of s 5A(2)(f) to include the following italicised words: “anything reasonable done in connection with the employee’s failure to obtain a promotion … unless that failure led to an indirect and unintended consequence, especially one that might be the result of bullying and passive aggressive conduct by a supervisor, in connection with his or her employment…”.

Reasonable administrative action –v– reasonable apprehension of bias

20    It may readily be accepted that the reasons provided by the Tribunal are not to be read “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

21    It may further be readily accepted that the reasons expressed by the Tribunal in the present proceeding are readily susceptible to different interpretations. There was, in particular, limited uncertainty in the Tribunal’s statement:

… More to the point, in my opinion a fair-minded observer acquainted with the notes would probably apprehend that Mr Mellett might not bring an impartial mind to his role.

22    Notwithstanding legitimate room for argument, it is respectfully concluded that the manner in which the learned primary Judge interpreted the Tribunal’s reasons – and particularly para [103] of those reasons – exposes no appellable error.

23    The first of the Appellant’s arguments is thus rejected.

Reasonable administrative action – a recommendation?

24    The second of the three issues formulated in the submissions advanced on behalf of Ms Martin focussed attention upon the fact that the Selection Panel merely made a recommendation to the ultimate decision-maker.

25    The written submissions advanced on behalf of Ms Martin seemed, with respect, to “muddy” those arguments relevant to the first and second Grounds of Appeal. But whether or not that is so, matters not. What matters is the argument advanced on her behalf that:

    Mr Mellett’s participation as a member of that Selection Panel “was an important matter in determining whether the selection process was reasonable…”. It was accepted on her behalf that it was appropriate for Mr Mellett to present to a Selection Panel his own assessments of Ms Martin. But it was not “appropriate” – so it was submitted on her behalf – for him to form part of that Selection Panel; and

    it was an “essential precursor to the ultimate decision” that the Selection Panel “completed its role in a reasonable manner…”. It was essential that consideration be given to “the competing applicants for the position by a properly constituted Selection Panel acting in a fair and objective manner towards all applicants…”.

If either of these ways of presenting the argument were to prevail, it is submitted on behalf of Ms Martin that there has not been “reasonable administrative action…”.

26    In the present case, it may be noted that the presence of Mr Mellett as a member of the Selection Panel was seen by Ms Martin as being prejudicial to her interests. In other cases, the presence of a person on a selection panel may be seen by an applicant as being favourable: Dunkerley v Comcare [2015] FCA 392 at [9] per Perram J.

27    In the circumstances of the present case, the learned primary Judge relevantly concluded that the Tribunal had not properly considered whether or not the participation of Mr Mellett on the Selection Panel denied the administrative process being undertaken as “reasonable administrative action”. He expressed his reasons for so concluding as follows:

[83]    … Comcare relied on Hot Holdings and Preston in support of its submission that there is no general legal principle that a person who merely investigates or considers and then makes a recommendation to a decision-maker is required to avoid a reasonable apprehension of bias. It is notable that in its discussion of the question whether the decision was taken in a reasonable manner, the Tribunal did not address the relevance of the fact that the selection panel was merely advisory and did not itself select the successful candidate. In my opinion this is one of several factors which the Tribunal was required to assess in determining whether the action was taken in a reasonable manner.

His Honour went on to conclude:

[90]    In my respectful view, the Tribunal was required to consider the relevance of the fact that the selection panel was merely an advisory body in determining whether or not the exclusion in s 5A of the SRC Act applied, irrespective of whether or not it was appropriate to view that provision as incorporating the administrative law doctrine of apprehended bias. The selection panel’s role as an advisory body was an important matter to be considered in assessing whether or not the relevant administrative action was taken in a reasonable manner for the purposes of s 5A of the SRC Act.

Given such conclusions, his Honour was of the view that the matter should be remitted to the Tribunal for reconsideration in accordance with law.

28    In order to avoid that order being made, and in an endeavour to expose appellable error on the part of the primary Judge, it was submitted in the alternative that if “the Tribunal was not satisfied that the Selection Panel had completed its role in a reasonable manner, then it was almost bound to conclude that the exclusion in s. 5A(1) had not been made out”. The Tribunal, it will be recalled, concluded that it could not “be satisfied that the decision was undertaken in a reasonable manner”.

29    The finding of the Tribunal only addresses part of the composite phrase employed in s 5A(1) – i.e., “reasonable administrative action taken in a reasonable manner…”.

30    No appellable error, it is concluded, can be found in the reasoning of the primary Judge.

31    The second of the three arguments advanced on behalf of the Appellant is also rejected.

A result of a failure to obtain promotion

32    The third issue to be resolved on appeal was the question whether the Tribunal properly concluded that Ms Martin’s “adjustment disorder” was “a result of” her failure to obtain a promotion.

33    It is said on her behalf that such a finding is not open – given the other factual findings which were also made by the Tribunal. The Outline of Submissions filed on her behalf submitted that “the exclusion contained in s.5A(1) must be read in a way which is harmonious with the overall purpose of the SRC Act, and not unreasonably destructive of it”. It was submitted that “[c]learly, a balancing act is involved”. The submission was expanded to contend that “it could not have been the intention of Parliament to exclude every indirect and unintended flow-on from the action taken by the employer, including causing unintentional exposure of the employee to a risk of injury arising from inappropriate or wrongful conduct by another employee”.

34    The appeal from the decision of the Tribunal to the primary Judge was an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Administrative Appeals Tribunal Act”). An “appeal” may only be brought “on a question of law” – that being a phrase more confined in its operation than an appeal “involving” a question of law (TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 19 ATR 1067 at 1070 per Gummow J) and a phrase which defines the very jurisdiction of this Court (Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [11], (2003) 76 ALD 321 at 324 per Branson, Marshall and Stone JJ).

35    The correct construction and application of any given statutory phrase may give rise to a question of law or a question of fact, or both: cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ.

36    In the circumstances of the present case, at the heart of Ms Martin’s submission is her contention that a “question of law” was involved in the construction of the phrase “as a result of…”. Without there being a “question of law”, the appeal would be incompetent as falling outside the parameters of s 44 of the Administrative Appeals Tribunal Act. If the correct construction of that phrase gives rise to no “question of law” – but only a question of fact, it is not understood that Ms Martin separately contended that the application of that phrase to the facts gave rise to any separate “question of law”.

37    Reservation may be expressed with the submission at the outset. It may well be queried whether the interpretation of the phrase “as a result of” gives rise to any “question of law”. It may well be the case that the correct construction of that phrase is exclusively a question of fact: e.g., Roy Morgan Research Pty Ltd v Commissioner of Taxation (Cth) [2010] FCAFC 52 at [29], (2010) 184 FCR 448 at 459 per Keane CJ, Sundberg and Kenny JJ.

38    But it matters not how these reservations may ultimately have been resolved.

39    Even if it be assumed that the correct construction of the phrase “as a result of” may give rise to a “question of law”, it is concluded that:

    the findings of fact as made by the Tribunal necessarily dictated the conclusion that Ms Martin’s condition was “as a result of” the failure to obtain a promotion; and that

    the Tribunal did not err in its application of the phrase “as a result of” to the facts as found.

40    With respect to the former of these two matters, the Tribunal relevantly made a number of findings of fact, namely:

    that Ms Martin’s reason for applying for promotion was not a “recent invention” and that “what caused her to ‘decompensate’ was the realisation that the decision meant she would be returning to Mr Mellett’s supervision and her belief that the alleged bullying would continue” (at paras [57] and [58]);

    that Ms Martin’s “dread of returning to work under Mr Mellett” was “in her mind” a “direct and foreseeable consequence of the decision” not to promote her (at para [61]); and

    “on balance … one of the operative causes of Ms Martin’s adjustment disorder was her failure to obtain the position of cross media reporter” (at para [62]).

It followed, according to the Tribunal, that “Ms Martin’s condition was ‘a result of’ that action” (at para [62]).

41    There can be no cavilling with these findings of fact. Any prospect of identifying a “question of law” is to be found in an error in the construction of the phrase “as a result of”. So much is accepted on behalf of Ms Martin.

42    Given these findings of fact, if attention is directed to the latter of the above two matters, and if the question is asked: was Ms Martin’s condition “a result of” her failure to obtain a promotion? That question has been answered by the Tribunal “yes” – her condition was “a direct and foreseeable consequence”. No subtlety in language or any more confined operation of the natural meaning of the words employed by the Legislature is necessary.

43    As was the conclusion of the primary Judge, the submission advanced on behalf of Ms Martin can only prevail if there is read into the language of s 5A – either into the words of s 5A(1) or s 5A(2)(f) – words such as those suggested by the primary Judge or similar: [2015] FCA 4 at [106] to [108]. The submission can only prevail if read into the language of s 5A(1) are words confining the natural and ordinary meaning of the phrase “as a result of” to exclude “a direct and foreseeable consequence”.

44    As is the case with many submissions, the manner in which a submission is expressed may well dictate the conclusion to be reached. To employ the language used by Ms Martin in her written submissions, “clearly, a balancing act is involved”. Expressed differently, findings of fact clearly have to be made – and that task is entrusted to the Tribunal. Any “balancing act” is to be resolved by the findings of fact. There is also, perhaps, inherent ambiguity in the term “balancing” – presumably, the submission on Ms Martin’s behalf was intended to refer to a “balancing” of competing constructions of an otherwise ambiguous statutory phrase or a statutory phrase permitting of two different results. There is, however, in the language of s 5A no ambiguity of meaning and a simple task is entrusted to the Tribunal – the task of making a finding of fact as to whether an injury is suffered “as a result of” nominated action. To the extent that the Legislature contemplates a task to be undertaken, that task is the task of making a finding of fact. Once that finding of fact has been undertaken, s 5A has effect according to its terms. Equally, even if the submission were to be accepted that “it could not have been the intention of Parliament to exclude every indirect and unintended flow-on from the action taken by the employer…”, the Tribunal in the present case has concluded that in Ms Martin’s mind, her condition “was a direct and foreseeable consequence” of the decision not to promote her.

45    However the present submission is to be construed, it is rejected.

46    In so concluding, it must be recognised that the greater the ambit of operation of the phrase in s 5A(1), namely “as a result of reasonable administrative action”, the greater is the reduction in the right to compensation for an “injury”. Such a consequence is a recognition by the Commonwealth Legislature of the need to balance the statutory right to compensation against the right for an employer to take “reasonable administrative action”. If that balance is perceived to work unfairness, that is a matter that should be addressed by the Legislature – not the Courts.

47    The primary Judge, with respect, was correct in his construction of s 5A(1), and its application to the facts of the present case.

48    The final argument advanced of behalf of Ms Martin is also rejected.

Findings of fact

49    Even had error been discerned in the construction and application of s 5A(1) to the facts, no finding would have been made as to “causation”.

50    Counsel for Ms Martin wisely refrained from inviting this Court to make its own finding of fact.

51    Had error on the part of the primary Judge been discerned, the order that would have been made would be for the matter to be remitted to the Tribunal for reconsideration.

52    Neither Siopis J nor Murphy J suggests any different course.

53    For this Court to be invited to make its own finding as to “causation”, it may nevertheless be noted, would propel the Court beyond the limited role entrusted to it by s 44 of the Administrative Appeals Tribunal Act to entertain and resolve an appeal “on a question of law”. With limited exceptions, it is not the role of this Court to make findings of fact. Limited power is conferred on this Court when entertaining an appeal from a decision of the Tribunal by s 44(7) of the Administrative Appeals Tribunal Act. But such power as is there conferred is confined to making findings of fact “not inconsistent with findings of fact made by the Tribunal”: s 44(7)(a). See: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 at [115], (2008) 168 FCR 272 at 299 per Greenwood J (Weinberg J agreeing). Exempted from s 44(7)(a) are findings “made by the Tribunal as the result of an error of law”. If reference is made to the Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 2004 (Cth) the legislative purpose in amending the Act to include s 44(7) was expressed as follows:

Paragraph 44(7)(a) places a significant limitation on the Court’s power to make findings of fact by providing that it can only do so if they are consistent with those made by the Tribunal. This limitation is intended to ensure that the Court does not re-open factual matters that have already been settled by the Tribunal. However, the Court can make findings of fact overriding those of the Tribunal where the Tribunal’s findings are the result of an error of law. Moreover, the Court will be able to make findings of fact where the Tribunal did not make any findings in relation to relevant facts. It is also important to note that these amendments do not in any way alter the grounds on which an appeal may be made to the Court from a Tribunal decision. Appeals will continue to lie to the Court on questions of law only.

Any finding of fact made by this Court as to “causation” would either have been a finding of fact perilously close to being a finding ‘inconsistent” with the findings made by the Tribunal or a finding which would not sit comfortably with those findings.

54    Section 44(7), moreover, is a discretionary power – the sub-section provides that “the Court may make findings of fact…”. If circumstances be assumed where all of the evidence or even an overwhelming balance of evidence supports the making of a finding of fact, there nevertheless remains unto the Court a discretion as to whether that finding of fact should be made. The power conferred by s 44(7) should not be exercised “so as to usurp the function of the tribunal”: Spaul v Comcare [2012] FCA 741 at [23], (2012) 57 AAR 352 at 360 per Gray J. Most recently, in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 at [233], (2015) 322 ALR 330 at 379 to 380, the Full Court concluded that it was preferable for the Tribunal – and not the Court pursuant to s 44(7) – to make a finding of fact. Even though the “matter comes close to a case where there may be only one answer”, the Tribunal “may take a different approach to significant aspects of the evidence, including the appellant’s account of what he experienced”.

55    Even if the Court were otherwise empowered to make the finding sought by Ms Martin, the discretion conferred by s 44(7) would have been exercised against making that finding.

CONCLUSIONS

56    None of the three arguments advanced in support of the Grounds of Appeal have been made out. The orders as made by the primary Judge should remain undisturbed.

Associate:

Dated:    30 November 2015

REASONS FOR JUDGMENT

MURPHY J

INTRODUCTION

57    In this proceeding the appellant, Peta Martin, appeals from the judgment of a single judge of this Court which set aside a decision of the Administrative Appeals Tribunal allowing her claim for workers compensation and remitted the matter to the Tribunal for rehearing (Comcare v Martin [2015] FCA 4). The appeal concerns the meaning of the exclusion of “a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” from the definition of “injury” in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).

58    Ms Martin was employed by the Australian Broadcasting Corporation (“ABC”) at its Renmark station in South Australia. From January 2010 until August 2011 she worked as producer of an ABC local morning radio program under the direct supervision of Bruce Mellett, the Station Manager. In this period she developed a psychological condition, namely an adjustment disorder, caused by bullying and harassment she claimed to have suffered at the hands of Mr Mellett.

59    Then, from August 2011 and 16 March 2012, Ms Martin was appointed to act on a temporary basis in the role of cross media reporter, under a different supervisor. Her psychological condition improved in this period but did not resolve. In early 2012 Ms Martin applied to be permanently appointed to the cross media reporter position and she went through a competitive selection process in that regard.

60    On 16 March 2012 she was informed by telephone that she was unsuccessful in that application and she took that news reasonably well. Later, in the same telephone conversation she was told that she would be returning to her position as a producer under the supervision of Mr Mellett. At that point in the telephone conversation she broke down uncontrollably. She consulted a doctor next day, was certified unfit for work and was diagnosed with a psychiatric illness which was later described as an “adjustment disorder”. In June 2012 Ms Martin made a claim for workers’ compensation for her incapacity for work from the adjustment disorder. The respondent, Comcare, refused the claim.

61    There is no dispute between the parties that Ms Martin suffered from an adjustment disorder at the time she made her compensation claim, or that her psychological condition was contributed to, to a significant degree, by her employment with the ABC.

62    The appeal, like the Tribunal decision and the judgment below, revolved around two main issues. For the reasons I set out below, I consider that the Tribunal erred in its approach to both issues and the matter must be remitted to the Tribunal to be reheard and determined according to law, including the law in these reasons.

63    The first issue in the appeal is focussed on the words “suffered as a result of” in the exclusion in s 5A(1). The issue is whether the Tribunal erred in deciding that Ms Martin suffered her adjustment disorder as a result of the administrative decision not to appoint her to the permanent position of cross media reporter.

64    This is a question of causation, which fell to be determined on the evidence and on a proper construction and application of the exclusion in s 5A(1) of the SRC Act. The Tribunal accepted lay and medical evidence that Ms Martin suffered the adjustment disorder because of her realisation that she was to be returned to a workplace where she feared being bullied and harassed and it made factual findings in those terms. However, the Tribunal decided that Ms Martin’s adjustment disorder was suffered as a result of the administrative decision not to promote her, reaching that view essentially because her returning to the position where she was under Mr Mellett’s supervision was, in her mind, a “direct and foreseeable consequence” of the decision not to promote her.

65    In my view the Tribunal’s decision is inconsistent with its factual findings, it misconstrued s 5A(1) and it did not take a proper approach to causation. I respectfully disagree with the judgment of the learned primary judge in upholding the Tribunal’s decision in this regard. I would allow the appeal on this ground.

66    The second issue in the appeal focussed on the words “taken in a reasonable manner” in the exclusion in s 5A(1). The issue is whether the Tribunal erred in its approach to the question of whether the administrative action surrounding the decision not to appoint Ms Martin to the cross media reporter position was taken in a reasonable manner. In my view the Tribunal erred in its approach to this question. I respectfully agree with the comprehensive reasons of the primary judge in that regard and there is little I would add to his Honour’s careful approach. I would dismiss these grounds of appeal.

THE LEGISLATIVE FRAMEWORK

67    Section 14 is the central provision in the SRC Act. It provides Comcare’s liability to pay workers’ compensation in accordance with the Act in respect of “injury” within the meaning of the Act, where that injury results in death, incapacity for work or impairment. It relevantly provides:

14     Compensation for injuries

(1)     Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

….

68    Section 5A relevantly provides:

5A    Definition of injury

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

(2)    For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

…

(f)    anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

(Emphasis added.)

The emphasised words operate to exclude from the definition of “injury” an injury, disease or aggravation that would otherwise meet the definition.

69    It is common ground that Ms Martin’s adjustment disorder is a disease pursuant to s 5A(1). Section 5B provides:

5B    Definition of disease

(1)    In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

70    There are five limbs to the enquiry as to whether a compensable injury, disease or aggravation suffered by an employee which is contributed to, to a significant degree, by the employee’s employment is caught by the exclusion in s 5A, namely:

(a)    whether the relevant action is administrative action;

(b)    whether the administrative action was taken in respect of the employee’s employment: see Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463 (“Reeve”) at [33] (Gray J) and [60] (Rares and Tracey JJ);

(c)    whether the disease, injury or aggravation is suffered as a result of the administrative action;

(d)    whether the action is reasonable administrative action; and

(e)    whether the reasonable administrative action is taken in a reasonable manner.

There is no dispute in the appeal in relation to the first, second and fourth limbs of the enquiry. The appeal concerns only the third and the fifth limbs.

THE FACTS

71    The following account of the facts is derived from the Tribunal’s reasons (Martin v Comcare [2014] AATA 553, (2014) 64 AAR 224).

72    Ms Martin worked at the ABC station in Renmark, South Australia, from January 2010 until 20 March 2012. From January 2010 until August 2011 she worked as a radio producer under the direct supervision of Mr Mellett, who was also the presenter of a local ABC breakfast programme.

73    Ms Martin alleged 11 incidents of bullying and harassment by Mr Mellett and, on one occasion, by another employee. Ms Martin’s account was corroborated to an extent by another employee at the Renmark station, Susan Rooney-Harding. She testified that Mr Mellett’s behaviour towards Ms Martin was very different to his behaviour towards other members of staff, and that Mr Mellett ignored Ms Martin’s greetings, excluded her from conversations and on several occasions swore at her in editorial meetings.

74    Ms Rooney-Harding lodged a formal complaint with the ABC about her own treatment at the hands of Mr Mellett and another employee. She left the ABC because, in her opinion, her position had become untenable after two years of “constant bullying and harassment”. Her complaint was investigated by the ABC and found to be not proven, but in her view it was not properly investigated.

75    On 27 May 2011, 2 June 2011, 16 June 2011 and 29 July 2011, Ms Martin sought counselling by counsellors at Davidson Trahire, a counselling service. The case management notes of the counsellors were produced to the Tribunal.

76    The notes record that Ms Martin said that the work environment at the Renmark station was “quite toxic”, that there was “bullying” and “manipulation”, and that it had “a passive /aggressive culture”. The notes also record Ms Martin as saying she felt scared at the station and that she felt like a better person when she was away from it. The notes state that the counsellors discussed “interventions” with Ms Martin including self-care and strategies to deal with the stress she said she was experiencing at the workplace. A case management note on 27 May 2011 recorded Ms Martin’s symptoms as relating to “appetite, sleep, energy levels, judgement and mood” and noted:

Lose confidence; anxious; put on a lot of weight; eat through stress; goes to the gym; sleeps ok unless the bully goes on leave and when they come back doesn’t sleep; previously physically ill due to bullying; paranoia.

77    On 25 June 2011, Ms Martin consulted a general practitioner, Dr Kulatunga, about her psychological condition. His consultation notes were produced to the Tribunal. They record that Ms Martin reported:

sleep problems, disturbed and early wakening, in the morning she feels nauseated and some time[s] diarrhoea

chest tightness on and off.

Under the heading “management”, Dr Kulatunga wrote:

Seems she is under stress, explained 2 options

Change environment or change the way she thinks

Talk to a friend

Advised regarding re-enforcing positive lifestyle modifications (exercise, healthy diet and maintaining a range of interests).

78    The case management notes from the counselling service for 29 July 2011 record Ms Martin as saying that “things weren’t great but have improved since [Ms Martin] made [her appointment]”, that she had decided that she “needs to be happy”, and that “as long as there is hope [she] can cope”. The notes record her as saying that she “will hold onto the remaining counselling sessions until she feels she needs them and will call at this point”.

79    In August 2011 Ms Martin was appointed temporarily to the role of acting cross media reporter. While she continued to work out of the Renmark station she came under the supervision of a different supervisor, Carol Raabus. The Tribunal found that Ms Martin’s psychological condition improved over the period from August 2011 until March 2012 but that it did not resolve.

80    There was still some interaction between Ms Martin and Mr Mellett between August 2011 and March 2011 as they worked in the same station. She claimed that his bullying continued. The Tribunal found that Mr Mellett’s contemporaneous notes showed that he held Ms Martin in “very low regard” through this period including holding the view that she knowingly and repeatedly made allegations against another employee that she knew to be false, that her conduct was malicious, and that she was guilty of a breach of workplace behaviour standards and potentially misconduct.

81    In early 2012 Ms Martin sought appointment to the permanent cross media reporter position, which would have been a promotion. The Tribunal found that she did so primarily in order to escape the claimed bullying and harassment.

82    A three person selection panel, which included Mr Mellett and Ms Raabus, was convened to make a recommendation in relation to the appointment. The Tribunal extracted that part of the ABC Recruitment and Selection Guidelines (“the Guidelines”) which deals with the “Merit Principle”. It provides that the best person for a vacancy should be selected “without patronage, favouritism or discrimination on any of the recognised grounds of unlawful discrimination” and “through the application of a selection process that is “fair and objective”. The Tribunal also extracted part of the Guidelines dealing with the composition of the selection panel, which provides that:

If a Selection Panel member…believes their personal relationship with an applicant could affect an applicant’s selection prospects, they should raise this with the convenor, or a People & Learning representative, and withdraw from the Selection Panel. All reasonable steps should be taken to ensure that the Selection Panel does not include persons who could reasonably be perceived to have a conflict of interest in the selection decision (refer to the ABC Conflict of Interest Policy). It is the responsibility of all panel members to raise any concerns they may have regarding a potential conflict of interest of other panel members.

83    Mr Mellett did not advise the other members of the selection panel of his strong adverse views about Ms Martin and he did not alert Ms Martin to the detail of those views in order that she could have an opportunity to respond. While the other members of the panel thought the recruitment process was unremarkable, each believed that Mr Mellett should have disclosed his views about Ms Martin to them. Both of the other panel members gave evidence that it was probably inappropriate for a person with strong negative views of the competence or integrity of a particular candidate to be a member of a panel.

84    Ms Martin gave unchallenged evidence that she was extremely anxious during the interview, knowing Mr Mellett’s poor opinion of her abilities as a journalist. She said that she felt tense in the interview as a result and felt that the interview did not go well. Ms Raabus said that she and the other members of the panel were of the opinion that Ms Martin did not answer questions that required a detailed understanding of the issues affecting the local audience as well as could be expected from someone with experience in the region, and did not sufficiently address two other selection criteria.

85    There was, however, little difference between the scores that each member of the selection panel gave Ms Martin, and Mr Mellett in fact awarded her slightly higher scores on some criteria than the other panel members. The selection panel recommended that Ms Martin be offered the position if the successful candidate did not accept the offer.

86    However, the decision not to appoint Ms Martin was not made by the panel. Its role was only to make a recommendation.

87    On 16 March 2012 Ms Raabus telephoned Ms Martin to advise her that she had been unsuccessful in her application for appointment. Both of them gave evidence about Ms Martin’s reactions in that conversation. Reading the decision as a whole, the Tribunal did more than merely recount the unchallenged evidence of Ms Raabus and Ms Martin regarding Ms Martin’s reactions in that telephone conversation. I consider that the Tribunal implicitly accepted that evidence.

88    Ms Raabus testified that:

(a)    while Ms Martin was disappointed that she was not to be promoted, she appeared to take that news in her stride; and

(b)    it was not until the conversation progressed, and Ms Raabus raised the issue of Ms Martin returning to work in her substantive position as a producer under Mr Mellett’s supervision, that Ms Martin became very upset and emotional, and told Ms Raabus that she had problems with Mr Mellett and did not want to return to work under his supervision.

89    Ms Martin agreed with Ms Raabus’ account and said that it was not until she realised she would be returning to work with Mr Mellett that she became “devastated”, “broke down uncontrollably”, could not stop crying and became overwhelmed by the hopelessness of her situation.

90    Immediately after the telephone conversation, Ms Martin went home and suffered what she described as “a breakdown”. The following day she consulted her GP who diagnosed her as suffering from a psychiatric illness, referred her to a psychologist and certified her as unfit for work.

91    The parties each engaged a consultant psychiatrist to provide an expert medical opinion as to the cause of Ms Martin’s adjustment disorder. Somewhat unusually in a workers’ compensation case, the medical experts gave broadly the same evidence. The Tribunal accepted their evidence that:

(a)    Ms Martin was suffering an adjustment disorder when she saw Dr Kulatunga in July 2011 (at [34] and [39]);

(b)    Ms Martin was still suffering from the adjustment disorder during the period she was the acting cross media reporter from August 2011 until 16 March 2012 and that she “probably ‘limped along’ mentally and physically during this period” (at [35], [36] and 42]); and

(c)    what caused Ms Martin to “decompensate” on 16 March 2012 was the realisation that she would be required to return to work under the direct supervision of Mr Mellett, her belief that the alleged bullying would continue, and her view that her position had become hopeless (at [56] and [58]).

THE FIRST ISSUE: WHETHER THE ADJUSTMENT DISORDER WAS “SUFFERED AS A RESULT OF” THE RELEVANT ADMINISTRATIVE ACTION

The Tribunal’s approach

92    As I have said, the Tribunal made the following findings:

(a)    it rejected Comcare’s contention that Ms Martin’s claim that the primary reason she applied for the role of cross media reporter was to remove herself from the supervision of Mr Mellett was a recent invention, designed to avoid the operation of s 5A of the SRC Act. It found that there was “powerful evidence to corroborate Ms Martin’s claim that her belief she had been mistreated by Mr Mellett pre-dated the decision not to promote her to the position of cross media reporter” (at [57]);

(b)    it accepted Ms Martin’s claim “that the cross media reporter position was not her preferred option, and the primary reason she applied for that position was to remove herself from Mr Mellett’s direct supervision” (at [58]);

(c)    it agreed with the expert psychiatric evidence “that what caused her to ‘decompensate’ was the realisation that the decision meant she would be returning to Mr Mellett’s supervision, and her belief that the alleged bullying would continue” (at [58]); and

(d)    it found that Ms Martin’s reaction to the relevant decision was primarily attributable to her dread of returning to work under Mr Mellett and not disappointment with the decision not to promote her (at [61]).

93    Had the Tribunal’s deliberations stopped at that point, in my view, there could be no real question that it decided that Ms Martin did not suffer the adjustment disorder “as a result of” the failure of her application for promotion, but because she had been informed that she would be returning to a workplace where she feared being bullied and harassed. However, at [60] to [62] the Tribunal proceeded to, in my view erroneously, construe and apply the exclusion in s 5A in the following way.

94    The Tribunal said:

[60]    A number of consequences flowed from Ms Martin’s failure to obtain the promotion to the position of cross media producer. These included:

•    Ms Martin would be required to return to her substantive position and work under the direct supervision of Mr Mellett; and

•    Ms Martin would be denied a small pay increase and the opportunity to further develop her skills in cross media production.

[61]    The question posed by s 5A(1) is whether the claimed ailment was suffered as a result of the nominated action, in this case the failure to obtain the promotion. It matters not which of the anticipated consequences of the offending decision was most likely to have troubled Ms Martin. That her reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant. In her mind the former was a direct and foreseeable consequence of the decision.

[62]    I am satisfied on balance that one of the operative causes of Mr Martin’s adjustment disorder was her failure to obtain the position of cross media reporter. I find that Ms Martin’s condition was “a result of” that action.

(Emphasis added.)

By this reasoning process the Tribunal decided that Ms Martin’s adjustment disorder was as a result of the decision not to promote her, and her injury therefore fell within the exclusion.

95    The Tribunal then moved to deal with the second issue in the appeal, namely whether the relevant administrative action was taken in a reasonable manner. I deal with that issue later.

The primary judge’s approach to the first issue

96    Ms Martin filed a Notice of Contention that sought to have the Tribunal’s decision affirmed on the basis that, on the proper construction of s 5A(1) and on the facts found by the Tribunal, she did not suffer the adjustment disorder as a result of the decision not to promote her.

97    The primary judge dealt with the Notice of Contention at [101] to [109] of the judgment. His Honour recounted the Tribunal findings and then said (at [106]–[109]):

[106] In my view, the Tribunal’s approach did not involve any misconstruction of s 5A(1) as submitted by Ms Martin. As is evident from [57]–[62] of the Tribunal’s reasons for decision, the Tribunal considered that Ms Martin’s anxiety at the prospect of returning to work under Mr Mellett’s supervision arose from the decision not to promote her to the permanent position of cross media reporter. Indeed, the Tribunal expressly found at [61] that, in Ms Martin’s mind, the prospect of returning to work under Mr Mellett’s supervision was “a direct and foreseeable consequence” of the promotion decision. That was a finding of fact, which was plainly open to be made on the evidence.

[107] In my opinion, such reasoning did not involve any misconstruction of s 5A(1). It may be accepted that, consistently with Hart (at [26]), matters concerned with the process of evaluating a promotion application may themselves contribute to an injury and give rise to liability under s 14 of the SRC Act, as opposed to the promotion decision itself. That is a valid distinction to be drawn under both the SRC Act as in force and applied in Hart, as well as the SRC Act as in force at the time of the Tribunal’s decision here. However, the distinction which was drawn in Hart reflected a different fact situation to that here. In Hart, the Tribunal had found that there were two concurrent causes of the injury: one was the failure to obtain promotion which was excluded under the relevant provision. The other related to events connected with the process of promotion which was not excluded. The Full Court’s remarks in [26] need to be read in that context. But that passage from Hart provides no support for s 5A(1) and the particular relevant exclusion in s 5A(2)(f) being construed and applied so as to deny the exclusion from liability having any operation where Ms Martin’s adjustment disorder was the result of indirect and unintended consequences of the decision not to promote her, as opposed to the promotion decision itself.

[108] The text and context of s 5A, including para (2)(f) thereof, do not support such a construction. I accept Comcare’s submission that acceptance of Ms Martin’s contention would require additional words to be read into paragraph (f). In my view, there is no warrant for that approach. The remedial or beneficial nature of the legislation provides an insufficient basis for effectively rewriting the relevant exclusion in the manner sought by Ms Martin. As Mason, Brennan, Deane and Dawson JJ observed in Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638: “the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of ‘the actual language employed’ and what is ‘fairly open’ on the words used”.

[109] Furthermore, and importantly by way of emphasis, the distinction which Ms Martin seeks to draw between direct [sic]or unintended consequences of the decision not to promote her, and the decision itself, sits uncomfortably with the Tribunal’s findings of fact which indicate that the Tribunal saw these matters as being inextricably linked. The Tribunal considered that there were concurrent operative causes of Ms Martin’s adjustment disorder. The first related to the alleged bullying and harassment, noting that the Tribunal found at [42] of its reasons for decision that “Ms Martin was probably suffering from an adjustment disorder during the period she acted in the role of cross media reporter”. The second related to her reaction at being told the outcome of the promotion decision and the dread she felt at the prospect of returning to work under Mr Mellett. The two matters were regarded by the Tribunal as linked, as is reflected in the express finding in [61] that, in Ms Martin’s mind, the dread of that prospect “was a direct and foreseeable consequence” of the promotion decision. In those circumstances the Tribunal was correct to proceed and consider whether or not the relevant exclusion applied.

98    His Honour dismissed the Notice of Contention.

Consideration regarding the first issue

99    It is worth noting that a decision that an injury, disease or aggravation is suffered as a result of administrative action has a significant consequence in terms of rights to compensation under the SRC Act. The broader the construction of the exclusion, the more is removed from the field of compensation. This is especially so in light of the principle taken to have been established in Hart v Comcare [2005] FCAFC 16; (2005) 87 ALD 34 (“Hart”) (at [21]-[23]) that, however many separate causes of an injury may have arisen out of or in the course of an employee’s employment, if any one of those causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury (see also Reeve at [54]-[56] and [24]).

100    Ms Martin submitted that the Tribunal erred in its approach to whether her adjustment disorder was suffered as a result of the failure of her application for promotion and that the primary judge erred in dismissing the Notice of Contention. She contended that on the correct construction of s 5A(1) of the SRC Act, and on the factual findings made by the Tribunal, her adjustment disorder was not suffered as a result of the failure to be promoted.

101    She argued that her being required to return to her substantive position was an “indirect or unintended” consequence of the decision not to promote her, and that the exclusion should be construed so that it does not relate to indirect or unintended consequences of an administrative decision. On Ms Martin’s argument, construing the exclusion in that way would be contrary to the beneficial nature of the SRC Act.

102    Comcare contended that there is no warrant for reading down the exclusion so that it does not include “indirect or unintended” consequences. It noted that the definition of “injury” in s 5A(1) was introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). The previous definition of “injury” contained an exclusion in similar, but more limited, terms to the present exclusion. Comcare contended, and I accept, that the purpose of the amendment was to broaden the operation of the exclusion in s 5A.

103    As Rares and Tracey JJ said in Reeve at [72], and I respectfully agree:

…the purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).

There is, however, nothing in the legislative history or extrinsic materials which provides a clear statement of intention as to the limits of the breadth of the exclusion: Reeve at [25] (Gray J).

104    Comcare argued that the consequences of an employee’s failure to obtain a promotion (such as being sent back to the employee’s substantive position) are “necessarily bound up” with the decision not to promote the person. It contended that Ms Martin’s adjustment disorder was inextricably linked to the decision not to appoint her to the position of cross media reporter, and that her concern about returning to work under Mr Mellett was (as the Tribunal found) “a direct and foreseeable consequence of the decision” not to promote her.

105    I do not accept Ms Martin’s contention that the exclusion should be read so that it does not include “indirect or unintended” consequences of administrative action. In my view that construction seeks to put an unjustified gloss on the statutory test as to whether the relevant injury, disease or aggravation is suffered as a result of the administrative action. The enquiry is one of causation and it does not include a requirement that the condition be a direct or intended result of such action. I respectfully agree with the primary judge that acceptance of this contention would require additional words to be read into s 5A(2)(f) and that there is no proper basis to do so. While the SRC Act is remedial and it should be construed beneficially, that approach must be kept within the confines of the actual language employed: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ).

106    Having said this, I consider the Tribunal erred in its construction of the exclusion, and in my respectful view the learned primary judge erred in dismissing the Notice of Contention.

107    First, the task of construing s 5A must begin with a consideration of the text itself as those words are the surest guide to the intention of the legislature. The expression “suffered as a result of” requires that, for the exclusion to apply, a causal relationship must be established between the relevant administrative action and the claimed injury, disease or aggravation.

108    Second, it is important to keep in mind that in cases such as this causation is a matter of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 (Mason CJ); Fitzgerald v Penn (1954) 91 CLR 268 at 277 (Dixon CJ, Fullagar and Kitto JJ). While those cases dealt with causation in the context of negligence claims the test for causation is the same in a workers’ compensation context. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) explained:

…causation in tort does not differ from causation under the workers’ compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.

His Honour’s view was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236.

109    As Rares and Tracey JJ said in Reeve at [65]:

The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1) involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.

110    The Tribunal’s task was to decide, by the application of common sense to the facts as it found them, whether Ms Martin’s adjustment disorder was suffered as a result of the failure to promote her to the permanent cross media reporter position.

111    Third, it is clear from the Tribunal’s reasons that it did not accept Comcare’s contention that Ms Martin’s psychological injury arose from disappointment, distress or resentment about not being appointed to the position she sought. It concluded that she became incapacitated by the adjustment disorder when she was informed that she would be returning to work under the supervision of Mr Mellett, where she feared a continuation of the claimed bullying. The Tribunal:

(a)    found that Ms Martin was already suffering an adjustment disorder prior to the 16 March 2012 telephone conversation. It accepted that Ms Martin was probably suffering an adjustment disorder when she saw Dr Kulatunga in July 2011 (at [39]), that she continued to suffer the adjustment disorder throughout the period from August 2011 to March 2012 and was just “limping along mentally and physically during this period” (at [36] and [42]);

(b)    found there was powerful evidence to corroborate Ms Martin’s claim that her belief she had been mistreated by Mr Mellett predated the decision not to appoint her to that position (at [57]);

(c)    accepted Ms Raabus’ and Ms Martin’s evidence about Ms Martin’s reactions in their 16 March 2012 telephone conversation (at [53]), including:

(i)    Ms Raabus’ account that when Ms Martin was told that she had been unsuccessful in obtaining the position, while she was disappointed she initially appeared to take that news in her stride;

(ii)    Ms Raabus’ account that it was not until later in the conversation, when Ms Martin was told that she would be returning to work under the supervision of Mr Mellett, that she became very upset and emotional, said she had problems with Mr Mellett and said that she did not want to return to work under his management; and

(iii)    Ms Martin’s account that it was not until she realised she be returning to work with Mr Mellett that she felt devastated and overwhelmed by hopelessness;

(d)    accepted (at [56] and [58]) the expert psychiatrists’ evidence that:

(i)    the history they had been given by Ms Martin did not suggest that she had any particular interest in the cross media reporter position or a “yen for career advancement” but rather saw the position as a way to remove herself from Mr Mellett’s supervision;

(ii)    the deterioration in Ms Martin’s condition was caused by her realisation that she would be required to return to work under Mr Mellett’s supervision and, as she saw it, her position had become hopeless; and

(iii)    her “yen” for the position was so minor its contribution to her adjustment disorder was immaterial.

112    Most importantly, the Tribunal made a finding of causation (at [58]) which is, in my view, critical. It found that what caused Ms Martin to “decompensate” on 16 March 2012 was the realisation that she would be required to return to her substantive position under the direct supervision of Mr Mellett and her belief that the claimed bullying would continue.

113    This causation finding is entirely congruent with the factual findings the Tribunal made on the lay and medical evidence relevant to causation. It is at odds with the Tribunal’s later (in my view erroneous) conclusion (at [62]) that one of the causes of Ms Martin’s adjustment disorder was her failure to obtain the position of cross media reporter and that she suffered that condition as a result of that administrative action.

114    Fourth, I do not accept Comcare’s contention that, as a matter of construction of s 5A, a consequence of an employee’s failure to obtain a promotion (such as being informed about being sent back to his or her substantive position) is necessarily bound up with the decision not to promote the person. For this argument Comcare relied on obiter remarks of the Full Court in Hart at [26] (Branson, Conti and Allsop JJ) where the Court said:

As to the way the primary judge approached the matter, we are of the view that as a matter of construction of the definition the distinction drawn by the Tribunal was not necessarily inappropriate.  The events which surround a promotion process may, conceivably, be such as to cause serious injury, mental or physical.  Injury as a result thereof could be quite distinct from any injury suffered as a result of a failure to obtain a promotion.  However, equally, distress at or with the process of assessing the candidates for promotion may, as a matter of fact, be suffered as a result of failure to obtain the promotion.  It is possible to envisage circumstances where someone who would have had no, or limited, criticism of the events surrounding a promotion process had he or she achieved the promotion, becomes aggrieved by those processes to the extent of suffering psychological harm following a failure to obtain the promotion.  In such circumstances, there may be factual issues, including medical issues, as to what was the role of the events in the procedure and of the failure to obtain the promotion.  However, we do not think that it can be concluded, as a matter of construction of the definition, that events concerned with the process of evaluation of the promotion application are necessarily bound up with the decision as to the promotion and any failure to obtain the promotion.

(Emphasis added.)

115    I consider Comcare’s reliance on these remarks is misplaced. In Hart the applicant was unsuccessful in various promotion attempts and her compensation claim centred on events connected with procedures employed in the process leading up to the decisions. The Tribunal identified two concurrent causes for Ms Hart’s psychological condition. The first was incidents associated with the application, interview and promotion process which contributed materially to Ms Hart’s disease but which, in the Tribunal’s view, did not fall within the exclusion in the equivalent provision to s 5A(1). The second was the failure to obtain promotion which did fall within the exclusion.

116    The Tribunal found that because some causes of Ms Hart’s condition were excluded she should succeed in her claim. On appeal Whitlam J held that the distinction between a failure to obtain a promotion occasioning disappointment and distress and an application, promotion and interview process causing upset and emotional disturbance was spurious: Comcare v Hart [2004] FCA 1144 at [11].

117    While the Full Court found that the Tribunal erred in excluding those causes which were not a result of the failure by the employee to obtain a promotion, the Court did not accept Whitlam J’s view. As the emphasised passage in the extract above shows, the Full Court considered that, as a matter of construction, events concerned with a promotion application are not necessarily bound up with the decision as to the promotion and any failure to obtain the promotion. Whether they are or not will depend upon factual issues, including medical issues, as to the role of the events in the promotion procedure and the failure to obtain the promotion.

118    In the present case, the Tribunal’s findings on the lay and medical evidence strongly indicate that it concluded that Ms Martin’s adjustment disorder was not inextricably bound up with the decision not to appoint her. Amongst other findings, the Tribunal accepted the expert psychiatric evidence that separated the effects of the failure to promote Ms Martin from the effects of her realisation that she would be returned to a workplace where she feared bullying.

119    Comcare contended that the close temporal connection between the decision not to promote Ms Martin and her severe psychological reaction showed that the two matters were necessarily bound up. I do not agree. The same close temporal connection existed between her being informed that she would be returning to Mr Mellett’s supervision and her psychological reaction. Whether either (or both) of those events was the, or a, cause of the adjustment disorder was to be determined on the evidence, including the expert medical evidence. The pertinent expert evidence from both sides, accepted by the Tribunal, was the same and it went against Comcare’s contention.

120    Fifth, I consider the Tribunal’s conclusion, seen in light of its factual findings at [42], [53], [56], [57] and [58], shows that it misconstrued the meaning of the expression “suffered as a result of” in s 5A(1) and it took an erroneous approach to causation. This can be seen in the Tribunal’s statements:

(a)    (at [61]) that the fact that Ms Martin’s “reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant”. Contrary to the Tribunal’s statement, that Ms Martin’s psychological reaction was primarily attributable to her dread in relation to Mr Mellett was plainly relevant, perhaps central, in a proper approach to deciding whether her psychological injury was suffered as a result of the failure to promote her;

(b)    (at [60]) that one of the consequences of Ms Martin’s failure to obtain the promotion was that she would be denied a small pay increase and the opportunity to further develop her skills in cross media production. Comcare was unable to point to any foundation in the evidence for the proposition that Ms Martin’s adjustment disorder was caused by the denial of a small pay increase and/or the opportunity to improve her cross media production skills. There is no basis for treating that particular consequence as causative of the claimed disease. It is a statement about something that followed from the decision to refuse her promotion but which, on the evidence, did not cause her psychological condition. The Tribunal’s error was to confuse consequence with causation, when they may not be coincident in this statutory context; and

(c)    (at [61]) that, in Ms Martin’s mind, the prospect of returning to work under Mr Mellett was “a direct and foreseeable consequence” of the decision not to appoint her to the position she sought. As Mason CJ noted in March v Stramare at 510 (citing Chapman v Hearse (1961) 106 CLR 112 at 122) “the term ‘reasonably foreseeable’ is not in itself a test of causation”. Mason CJ rejected reasonable foresight as a test of causation (at 515) noting that the cause of a particular occurrence must be determined by applying common sense to the facts of each particular case. It may also be noted that this finding is inconsistent with the evidence, accepted by the Tribunal, that Ms Martin took the news that she would not be promoted “in her stride”. There is nothing in the decision to indicate that there was evidence before the Tribunal to support a finding that Ms Martin saw it as a “direct and foreseeable consequence” of the failure to promote her that she would be returned to her former position.

121    I consider the Tribunal wrongly construed the expression “suffered as a result of” as permitting it to treat as causative an event which was no more than chronologically precedent to the event which was - on the lay and expert evidence accepted by the Tribunal - the cause of the adjustment disorder. The question of whether she suffered the adjustment disorder as a result of the failure to promote her was not a matter to be determined by using metaphysical concepts of cause and effect and instead required a common sense approach to the facts as it had found them.

122    Sixth, although this is not central to my view (and keeping in mind that it was not argued before the Tribunal) it was wrong for the Tribunal to approach the issue of causation on the assumption that Ms Martin being returned to her substantive position was an inevitable consequence of the failure to promote her. It is likely that there was an intervening administrative action (such as making the further decision that she was to revert to working under the supervision of Mr Mellett, informing her of that decision or maintaining the decision to return Ms Martin to Mr Mellett’s supervision when Ms Raabus was made aware of Ms Martin’s concerns regarding him). It is unlikely with a large employer such as the ABC that, upon the failure of an application for promotion, it is inevitable that an employee will be forced to return to a position where he or she claimed to be bullied.

123    Logically, any decision to return Ms Martin to her substantive position was subsequent to the decision not to promote her, and on the medical evidence and the Tribunal’s findings it was the later decision which was the cause of the adjustment disorder. Before us, Comcare appeared to accept that if Ms Martin was not to be sent back to a workplace where she feared bullying and instead, for example, she was left temporarily in the acting position or appointed to another position then the adjustment disorder was unlikely to have resulted.

124    Seventh, Comcare submitted that to allow the appeal on this issue would wreak havoc on the ability of the Commonwealth to make promotion decisions. It argued that, in a practical way, it was impossible for Commonwealth employers to know what consequences might flow from administrative decisions refusing promotion. This submission was a serious overstatement. The exclusion in s 5A plainly operates to exclude compensation where the cause of an employee’s psychological injury is disappointment, distress or resentment regarding a decision to refuse promotion. Nothing I have said undercuts that proposition. The question whether injury is suffered as a result of a failure to be promoted is one of causation, to be determined on the facts of each case. In the present case the Tribunal found that the ABC’s failure to promote Ms Martin was “immaterial” in causing her condition.

125    The Tribunal’s error of construction and its erroneous approach to causation led it to subvert its earlier factual findings as to the cause of Ms Martin’s adjustment disorder. It did not apply common sense to the facts, as found by it, that the cause of Ms Martin’s condition was not the failure to promote her. In my respectful view the learned primary judge erred in upholding the Tribunal’s decision on this issue.

126    Finally, I note in passing that Comcare relied on parts of the Tribunal’s reasons to argue the Tribunal did not find that the only cause of Ms Martin’s adjustment disorder was her realisation that she would be required to return to her substantive position and her belief that the claimed bullying would continue. It contended that these passages indicated that the Tribunal decided that there was more than one operative cause of Ms Martin suffering the adjustment disorder, thereby attracting the operation of the principle stated in Hart at [21]-[23]. Comcare pointed, amongst others, to the Tribunal’s statements that:

(a)    the primary reason why Ms Martin applied for the cross media reporter position was to remove herself from Mr Mellett’s direct supervision (at [58]). However, the Tribunal’s use of “primary” (at [58]) relates to the reason why Ms Martin applied for the permanent position rather than to the reason that she suffered her psychological condition. This statement does not assist Comcare; and

(b)    Ms Martin’s reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement (at [61]). However, the Tribunal expressly found (at [56]) that Ms Martin's desire for the cross media reporter position was “so minor its contribution to [her] adjustment disorder was immaterial”. Seen in that light the statement at [61] provides little support for Comcare’s contention.

Remittal to the Tribunal

127    Given the Tribunal’s findings of fact, a question arises as to whether the Court should make a finding under s 44(7) of the AAT Act, to the effect that Ms Martin’s adjustment disorder was not suffered as a result of the administrative decision not to appoint her to the cross media reporter position.

128    While in my view the evidence is clear, in all the circumstances it is best to remit the matter to the Tribunal to be reheard and determined according to law. I say this largely because the Tribunal’s reasons contain some contradictory statements and Comcare argued that more than one conclusion is open: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] and [27] (Gleeson CJ, Gummow and Callinan JJ). It is relevant too that Ms Martin did not seek such a finding of fact in the Notice of Appeal and Comcare had no notice that such a course might be taken.

129    While the matter comes close to a case where there may only be one answer, it may be that the Tribunal, properly instructed about the operation of the exclusion in s 5A(1) and taking a proper approach to causation, may reach a different view on important aspects of the evidence. It is best for the Tribunal rather than this Court, under s 44(7) of the AAT Act, to determine those factual questions: see May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 322 ALR 330 at [233] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

130    In my view there is no imperative for this matter to be determined by a differently constituted Tribunal, and there are likely to be some efficiencies in it being heard by the same Senior Member. However, I prefer to leave the constitution of the Tribunal on remittal to the President of the Tribunal, for his direction pursuant to s 20B of the AAT Act. I do so for similar reasons to those expressed in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; (2011) 282 ALR 24 at [130] (Robertson J) and by reference to the considerations referred to in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 at [29]-[34] (Downes J) and [90]-[95] (Tracey and Flick JJ).

THE SECOND ISSUE - WHETHER THE ADMINISTRATIVE ACTION WAS TAKEN IN A REASONABLE MANNER

131    The second issue is whether the administrative action surrounding the decision not to appoint Ms Martin to the cross media reporter position was taken in a reasonable manner.

132    Ms Martin contended that the selection process was not undertaken in a reasonable manner. She relied on the fact that Mr Mellett was a member of the selection panel when he held strong adverse views about her, that she was extremely anxious in her interview by the panel because of Mr Mellett’s presence, that he did not inform the other members of the panel of those views, and that the other members of the panel thought that he should have done so. She argued that the selection process was inconsistent with the Guidelines and that the decision not to appoint her was therefore not taken in a reasonable manner.

133    Comcare argued that that there was no evidence that Mr Mellett did not bring an open mind to the selection process, that he quarantined his views from the other panel members, that all of the panel members gave similar scores to Ms Martin, that he gave Ms Martin a higher score on some criteria than the other members of the panel, and that the panel did not make the appointment decision as its role was only to make a recommendation. It contended that the ABC complied with the Guidelines. In the alternative it submitted that non-compliance with the Guidelines did not mean that the ABC had failed to take administrative action in a reasonable manner.

134    In Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 Lander J said, and I respectfully agree:

Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.

135    It is common ground that the selection process was implemented in a context where the ABC had set Guidelines for the conduct of such procedures. However, while a consideration of the Guidelines is relevant to understanding whether action was taken in a reasonable manner, it would have been wrong for the Tribunal to be distracted by the Guidelines from the real question in s 5A, namely whether the action was reasonable administrative action taken in a reasonable manner: see Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [77] (Robertson J). In any event, the Tribunal did not plainly decide whether the administrative action complied with the Guidelines or not.

136    While I have some concerns as to whether the selection process was undertaken in a reasonable manner, in my view the Tribunal erroneously approached the question on the basis that a fair-minded observer would probably apprehend that Mr Mellett might not bring an impartial mind to his role in the selection panel, and therefore found that the decision not to promote Ms Martin was not taken in a reasonable manner. I respectfully concur with the primary judge’s careful reasons in this regard. In particular, I agree with his Honour that:

(a)    there was no warrant for the Tribunal treating the words “taken in a reasonable manner” in s 5A as being synonymous with the doctrine of apprehended bias in administrative law (at [72]);

(b)    it is not clear that paragraphs [103] and [104] of the Tribunal’s decision should be regarded as being directed to the concept of the selection process being “fair and objective” as referred to in the Guidelines (at [74]);

(c)    the Tribunal appears to have misunderstood or misapplied the doctrine of apprehended bias (whether that doctrine was applied directly, or indirectly via the Guidelines) (at [76] and following);

(d)    the fact that the selection panel was an advisory body and did not make the ultimate selection decision was an important matter to be considered in assessing whether or not the relevant administrative action was taken in a reasonable manner, and the Tribunal gave no attention to it (at [90]); and

(e)        the Tribunal’s reasons for its conclusion that the decision was not taken in a reasonable manner left distinctly unclear whether that was because the selection process did not comply with the Guidelines (at [97]).

137    This issue should be remitted to the Tribunal to determined according to law.

CONCLUSION

138    The primary judge found that the Tribunal erred on the second issue, but not on the first, and on that basis his Honour ordered that the matter be remitted to the Tribunal. I consider the Tribunal erred in its approach to both issues. In my view the matter must be remitted to the Tribunal on both issues, to be reheard and determined according to law including the law as explained in these reasons for judgment. The respondent should be ordered to pay the appellant’s costs of and incidental to the appeal including the hearing before the primary judge.

139    By proposing that the matter be remitted to the Tribunal I propose the same result as the orders of the primary judge, but even where no change to the overall result is ordered the Court has power to make orders and declarations so that, upon remittal, the Court may set out the law for the decision-maker below: Commonwealth Superannuation Scheme Board of Trustees v Kitching [2004] FCAFC 299; (2004) 139 FCR 272 at [3] (Nicholson, Jacobson and Bennett JJ); Australian Competition and Consumer Commission v Telstra Corporation Ltd ACN 051 775 556 [2009] FCAFC 68; (2009) 176 FCR 203 at [66] (Ryan, Jacobson and Foster JJ).

Associate:

Dated:    30 November 2015