FEDERAL COURT OF AUSTRALIA

Dunstan v Comcare [2011] FCAFC 108

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    The decision of the Administrative Appeals Tribunal, made on 17 June 2010, be set aside, to the extent that the Administrative Appeals Tribunal:

(a)    affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and

(b)    affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 30 January 1996, in respect of the period 1 November 1998 to 2 December 1999 and the period since 3 January 2008.

3.    The case be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and decided again, in respect of:

(a)    the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and

(b)    the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 30 January 1996 in respect of the period 1 November 1998 to 2 December 1999 and the period since 3 January 2008.

4.    Otherwise, the appeal be dismissed.

5.    The Respondent pay the Applicant's costs of the appeal.

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

REASONS FOR JUDGMENT

GRAY AND COWDROY JJ:

1    This appeal from the Administrative Appeals Tribunal (“the Tribunal”) concerns two claims for compensation, made by the applicant in respect of different periods of alleged incapacity. Questions arise as to whether the Tribunal erred in law: in determining that the applicant’s employment made no material contribution to his depressive disorder, which manifested itself during two specified periods in the early 1990s; in determining that a further period of incapacity was caused by his failure to obtain a transfer he was seeking; and in failing to determine the claim in respect of periods after December 1996. The applicant claimed that his disorder was the result of his involvement in a sexual relationship with a fellow employee, which gave rise to stress. He said that this stress was caused or aggravated by the circumstances in which the presence of the other employee in the workplace brought them together.

2    The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which limits such appeals to questions of law. The Tribunal’s decision was made on 17 June 2010 and is published as Colin Dunstan and Comcare [2010] AATA 449.

3    The applicant is a former public servant. On 26 May 1994, he made a claim pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), alleging that Comcare was liable to compensate him for his depression in the periods 11 to 16 July 1991 and 3 to 10 April 1992 (“the first claim”). On 30 January 1996, he made a second claim for compensation in respect of the “exacerbation of recurrent depressive disorder” for the period 16 May to 1 June 1994 and the period from 1 January 1996 and continuing (“the second claim”).

4    On 12 July 1994, Comcare refused the first claim on the ground that the applicant’s employment had not contributed materially to his condition. On 7 June 1995 a Comcare review officer affirmed this decision. The applicant applied to the Tribunal for review of that decision. On 28 June 1996, the Tribunal affirmed the decision of Comcare on the ground that the applicant’s employment with the Australian Taxation Office (“the ATO”) had not contributed materially to his depression: see Colin George Dunstan and Comcare Compensation [1996] AATA 213.

5    The applicant then appealed to this Court. Mansfield J found that the Tribunal had made an error of law by failing to determine whether the state of affairs to which the applicant claimed to have been exposed in his employment contributed materially to his condition: see Dunstan v Comcare (2006) 93 ALD 390. His Honour remitted the first claim to the Tribunal for reconsideration. The first issue dealt with by the Tribunal in its decision now under review was whether the applicant was entitled to be compensated for the periods that are the subject of the first claim.

6    Comcare refused the second claim on 16 April 1996 on the ground that the applicant’s employment had not contributed to his condition in a material degree. This decision was affirmed on review by Comcare on 3 September 1996. On 16 October 1996 the applicant applied to the Tribunal for a review of that decision. The Tribunal refrained from dealing with this application for review until the judgment of Mansfield J had been delivered. The Tribunal then dealt with the review of the decisions in both the first claim and the second claim in its decision the subject of this proceeding.

7    In its decision from which this appeal is brought, the Tribunal affirmed Comcare’s decision of 7 June 1995 in respect of the first claim. In respect of the second claim, the Tribunal varied Comcare’s decision by determining that Comcare was liable to pay the applicant compensation for incapacity for the period commencing 2 January 1996 and ending on his return to work in December 1996. The Tribunal rejected the applicant’s claim for compensation for the period 16 May to 1 June 1994.

8    It should also be observed that, in 2008, the Tribunal (constituted by Senior Member Constance) separately considered a jurisdictional question, namely whether the Tribunal had power to determine the applicant’s entitlement to compensation for his alleged incapacity during the period 1 November 1998 to 3 January 2008: see Dunstan and Comcare (2008) 106 ALD 206. For part of that period, namely 3 December 1999 to 3 January 2008 inclusive, the applicant had been imprisoned. The Tribunal found that s 23(2) of the SRC Act precluded payment of compensation under s 19 to a person whilst that person was “imprisoned in connection with his or her conviction of an offence”.

9    In this appeal, the applicant initially relied on a notice of appeal filed on 12 July 2010, which canvassed a large number of issues, many of which appeared to be attempts to overturn findings of fact made by the Tribunal. He was then unrepresented. Shortly before the hearing of the appeal, the applicant secured legal representation and notified the Court that he wished to seek leave to rely on an amended notice of appeal dated 2 May 2011. Counsel for Comcare did not oppose the application for leave. As the amended notice of appeal encapsulated and refined the questions sought to be agitated in the original notice of appeal, leave was granted to the applicant to rely upon the amended notice of appeal.

THE APPEAL

10    The appeal raises three issues. First, the applicant claims, that in determining the first claim, the Tribunal failed to take into consideration the observations of Mansfield J. In allowing the appeal from the Tribunal’s decision in respect of the first claim, Mansfield J observed at [31]:

In my view, the AAT – having in essence assumed the factual picture to be as Mr Dunstan asserted – directed itself that the harassing conduct of the female employee which caused Mr Dunstan’s depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression.

At [35] his Honour concluded:

As I have found that the AAT did not regard the state of affairs to which Mr Dunstan claimed to have been exposed in employment, and to which on his evidence he would not otherwise have been exposed, as capable in law of materially contributing to his condition, in my view its conclusion reflects an error of law in its approach. It did not, by reason of that error, assess whether his exposure to that state of affairs in fact materially contributed to that condition. The question of whether that claimed state of affairs in fact materially contributed to his condition involved the AAT making findings about the state of affairs. Also, the question of whether that state of affairs in fact materially contributed to his condition may have been informed by medical evidence supporting the necessary link, but as I have observed such evidence was not considered.

11    The second issue for determination in this appeal raises the question whether the exclusionary provision in the definition of “injury” in s 4(1) of the SRC Act applied in respect of the period 16 May to 1 June 1994 when the applicant was actively seeking a transfer.

12    The third issue on this appeal raises the question whether the Tribunal erred by failing to make any determination concerning the liability of Comcare for the period from 1 November 1998 to 2 December 1999 (being the date before the commencement of the applicant’s imprisonment) and from 3 January 2008 (being the day of the applicant’s release from imprisonment) and ongoing.

FACTS

13    The applicant joined the Commonwealth Public Service in 1975. From 1987, he was employed in the ATO as a Computer Systems Officer. He met a female employee, designated as Ms X, in August 1982 whilst working in the Department of Housing and Construction (“the DHC”). They worked together from time to time until March 1986 when Ms X transferred to the Department of Administrative Services. Despite the transfer, the applicant claimed that Ms X tried to maintain an ongoing relationship by telephoning the applicant and visiting him. By March 1989, a sexual relationship had developed between them.

14    In March 1990, Ms X transferred to the ATO where she was assigned to work in the Database Administration subsection (“the DBA subsection”). The applicant was a supervisor in the DBA subsection, and he and Ms X worked closely together. The applicant claimed that, as a result of difficulties in their ongoing personal and sexual relationship, he became depressed and at times suicidal. He first sought medical advice in June 1991 for his depressive condition and commenced taking medication prescribed by his general practitioner. The applicant was referred to a psychiatrist, Dr Robert Tym, who commenced treating the applicant in July 1991.

15    It was in this context that the first claim was made. The applicant claimed that his employment contributed in a material way to his depression and incapacity in the period 11 to 16 July 1991 and materially contributed to the aggravation of his condition in the period 3 to 10 April 1992. The second claim is also based in part on the contribution of the applicant’s employment during 1990 and 1991 to his subsequent condition.

RELEVANT STATUTORY PROVISIONS

16    Section 19 of the SRC Act entitles an “employee” (as defined in s 5 of such Act) to claim compensation in respect of injury where that injury results in, inter alia, incapacity for work. There is no dispute that the applicant was an employee of the Commonwealth within the definition s 5 of the SRC Act or that he is entitled to make a claim for compensation under the SRC Act.

17     At the times relevant to this appeal, the definitions of the terms “injury” and “disease” in s 4(1) of the SRC Act were in a form different from the present definitions. Section 4(1) of the SRC Act relevantly provided:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

…

disease means:

(a)    any ailment suffered by an employee; of

(b)    the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

…

injury means:

(a)    a disease suffered by an employee; or

(b)    an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

18    The effect of s 19(1) and (2) of the SRC Act is to create an obligation on Comcare to pay, and an entitlement to an employee who is incapacitated for work as a result of an injury to receive, compensation. Section 54(1) of the SRC Act provides:

Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

19    The definitions of “injury” and “disease” were amended in 2007 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), which added to the SRC Act s 5A, which contains the current definition of “injury”, and s 5B, which contains the current definition of “disease”. The amendments have clarified the meaning of the exclusionary provision in the definition of “injury” and changed the “material degree” test in the definition of “disease” by substituting a requirement that the disease be “contributed to, to a significant degree, by the employee’s employment”. “Significant degree” is defined in s 5B(3) of the SRC Act to mean “a degree that is substantially more than material”. Both the first claim and the second claim preceded the amendments. The unamended definitions were applied by the Tribunal and it was not contended that the amended definitions should be applied in this appeal.

THE FIRST CLAIM

The Tribunal’s findings

20    The Tribunal found that the applicant suffered from chronic major depression which was an “ailment” in accordance with the definition in s 4(1) of the SRC Act and was therefore a “disease”. The Tribunal said that Comcare did not dispute that finding. The Tribunal found that the clinical onset of that ailment was in 1991, when he was first treated for his depression.

21    The Tribunal made various findings of fact at [118]-[123] of its reasons for decision, which may be summarised as follows. The applicant had first met Ms X in August 1982, while both were working at the DHC and before the applicant commenced employment at the ATO. There was the escalation of contact in March 1986, when Ms X transferred to the Department of Administrative Services, which continued after the applicant transferred to the ATO in February 1987. Following the transfer of Ms X to the Australian Bureau of Statistics (“the ABS”) in March 1989, the relationship continued when the applicant commenced part time teaching for a computer programming course at Belconnen TAFE. At this stage, Ms X threatened to tell the applicant’s wife of their relationship. From April 1990, the relationship continued, and their relationship became more intense from April to October 1991.

22    As to whether the applicant’s employment contributed to the ailment in a material degree, the Tribunal made the following finding at [118] of its reasons for decision:

Having found that the clinical onset of Mr Dunstan’s major depression was in 1991, the Tribunal must determine whether his employment contributed to that ‘ailment’ in a material degree. If it did so contribute, the ailment will fall within the definition of a ‘disease’ in s 4(1) of the Act. The Tribunal finds that the clinical onset of Mr Dunstan’s depression in 1991 was associated with his relationship with Ms X. Mr Dunstan first met Ms X in August 1982 while both were working at the Department of Housing and Construction. Mr Dunstan’s evidence is that Ms X’s “escalating and obsessive pattern of contact with him” commenced in about March 1986 when she transferred to the Department of Administrative Services and continued after Mr Dunstan transferred to the ATO in about February 1987.

23    The Tribunal also found at [120] that the friendship between the applicant and Ms X changed between April 1991 and October 1991, when Ms X’s behaviour became aggressive and provocative until the applicant sought medical assistance in July 1991. Critically the Tribunal made the following finding at [123]:

The Tribunal finds that the relationship between Mr Dunstan and Ms X developed outside Mr Dunstan’s work environment in the ATO and was established well before Ms X transferred to the ATO in about April 1990. The relationship appears to have intensified in the period 1986 to 1989 described above. In the period between March and December 1989, any physical contact took place largely outside the workplace as did many subsequent meetings, including when they had sexual contact in Mr Dunstan’s car or, on three occasions, in hotel rooms. The harassing telephone calls from Ms X which Mr Dunstan described took place both in the workplace and when Mr Dunstan was at home, and he described how Ms X parked across the road from his house, followed him when he was taking his children to school and drove past his house at weekends.

24    The Tribunal concluded at [124] that the applicant’s employment was no more “than part of the setting” in which the relationship developed and that it was not satisfied that his employment contributed in a “material degree to the clinical onset of his ailment”. Accordingly the Tribunal found that Comcare was not liable to pay compensation in the period 11 to 16 July 1991.

25    In respect of the period 3 to 10 April 1992 the Tribunal found that it was at this time that the applicant’s wife became aware of the relationship between the applicant and Ms X which the Tribunal considered would have caused the applicant “significant stress”. The Tribunal found that the cause of the aggravation of the applicant’s depression was his relationship with Ms X, rather than the applicant’s employment. Accordingly, the Tribunal concluded at [126] that Comcare was not liable to pay compensation to the applicant under the SRC Act.

The applicant’s submissions

26    The applicant submitted that the Tribunal failed to give proper weight to the contribution of his employment to his depressive illness. The applicant submits that the Tribunal placed undue weight on the aspects of the applicant’s relationship with Ms X that took place outside of the workplace, which led it to its conclusion that the applicant’s employment merely provided the setting in which the relationship took place.

27    The applicant relied on the observations of Kitto J in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626, in which his Honour considered similar provisions of the Workers’ Compensation Act 1926-1960 (NSW). His Honour said at 632-633:

Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.

28    The applicant also referred to the observations of the Full Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 which considered the above extract and then stated at 323:

In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.

29    The applicant submitted that the above principle was not applied by the Tribunal. The applicant submitted that the word “material” must be interpreted as it was by the Full Court in Treloar, which found that there must be a “causal connection” between the employment and the incapacity. At 323, the Court said:

The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.

30    The applicant submitted that the Tribunal should have taken into account all of the circumstances pertaining to his employment. The applicant submitted that, had the Tribunal applied the correct principle, it would have found that there was a causal connection between his employment and his incapacity, and that the employment constituted more than the mere “setting” for his relationship.

The respondent’s submissions

31    Comcare submitted that the Tribunal was correct in concluding that the applicant’s employment did not contribute materially to the onset of his major depression. It submitted that the conclusion was justified by the Tribunal’s finding that the clinical onset of the applicant’s depression in 1991 was “associated” with his relationship with Ms X. It submitted that, in view of the Tribunal’s findings of fact summarised in [21] above, the Tribunal was entitled to find that the relationship took place outside of the employment of the applicant, and that the ATO was only the setting in which it took place: see Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240 per Davies J. In consequence, the Tribunal was correct to find that the applicant’s employment did not contribute materially to his depression but instead, his depression resulted from his relationship with Ms X.

Consideration

32    At [35] of his reasons for judgment Mansfield J concluded that the Tribunal had failed to regard the state of affairs to which the applicant claimed to have been exposed in his employment as capable in law of contributing materially to his condition. The question is whether the Tribunal has now remedied that omission.

33    The applicant claimed, and the Tribunal appears to have accepted, that Ms X became more angry and jealous over time, resulting in the applicant’s need to consult his general practitioner who referred him to Dr Tym.

34    As the Full Court said in Treloar, “material” emphasises the need for evidence that “features of the employment did in fact and in truth contribute to the condition complained of” (at 323). Treloar involved a claim brought under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which was repealed and replaced by the SRC Act in December 1988.

35    It was easier for an applicant under the former Act than for an applicant under the SRC Act to obtain an award of compensation: see Kowalski v The Military Rehabilitation and Compensation Commission (2011) 191 FCR 345 at [47]. In Comcare v Sahu-Khan (2007) 156 FCR 536 at [16], Finn J observed that the definition of “disease” in s 4 of the SRC Act required a much stronger causal relationship between the employment and the ailment than that prescribed by the 1971 Act. His Honour said that the words “in a material degree” required “an evaluation of all relevant contributing factors”, making each case a matter of fact and degree.

36    Similarly, it should be observed that the legislation considered in Federal Broom did not contain any requirement of a “material” contribution. Rather, an injured employee was entitled to compensation where it could be shown that the employment was a “contributing factor to” the disease. The terminology was similar to the provisions of the 1971 Act considered in Treloar.

37    The suggestion of the Full Court in Treloar at 323 that the word “material” in the definition of “disease” in the SRC Act was not intended to add any significance to the words already used appears difficult to reconcile with the Second Reading Speech to the Bill which became the SRC Act. The relevant text of the speech is reproduced in Comcare v Canute (2005) 148 FCR 232 at [66] per French and Stone JJ:

It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.

In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. [Emphasis added]

38    At [67], their Honours said:

On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a “but for” test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor” and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word “material” contained in the definition of “disease” in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of “material” and nothing more need to [sic] said about this issue.

39    Canute must be regarded as authority for the proposition that the intention of Parliament was to impose a more stringent test of the causal relationship between employment and disease than the Full Court in Treloar had thought. In addition, as the Full Court had done in Treloar, French and Stone JJ in Canute rejected the notion that the “but for” test is an appropriate test of the causal relationship.

40    It follows that the Tribunal was required to consider whether the applicant’s employment was “more than a mere contributing factor” to his incapacity. It is unnecessary, however, for a person claiming compensation to demonstrate that it was his or her daily duties, or specific aspects of the workplace environment, that resulted in his or her disease. Such an approach would constitute too narrow a focus. The requirement of a material contribution of the employment to the disease is a requirement that the claimant be able to point to his or her employment as a factor that operated actively to bring about the condition.

41    In the present circumstances, the Tribunal found that the employment was no more than part of “the setting” in which the relationship between the applicant and Ms X led to the applicant’s depression. In reaching that conclusion, however, the Tribunal adopted too narrow an approach, since it was required to consider whether the proximity of the applicant to Ms X in the workplace facilitated the development of their relationship. According to the applicant’s evidence, Ms X began to harass the applicant in February 1987, whilst the applicant was working with the DHC and such conduct continued when the applicant transferred to the ATO. The relationship appears to have strengthened when Ms X transferred to the ABS in March 1989. It continued to intensify when Ms X transferred in April 1990 to the Data Products Unit of the ATO and, within a month, was assigned to work in the DBA subsection, supervised by the applicant. The Tribunal needed to consider whether this evidence should be accepted, and therefore whether it made the employment itself an operative factor in the onset of the applicant’s depression.

42    There was evidence that the relationship between the applicant and Ms X led to jokes circulating amongst fellow employees by mid-1990. At least as a result of those jokes, the employer appears to have become aware of the relationship. The applicant’s supervisor, Mr Don Bartley, delegated Ms Betty Hand to speak to Ms X concerning the jokes. When Ms Hand did so, Ms X became upset. At [70] of its reasons for decision, the Tribunal referred to evidence that, after he learned of her meeting with Ms X, the applicant became angry and aggressive towards Ms Hand. The Tribunal was required to consider whether the actions of the employer in attempting to deal with the relationship in this way played any part in bringing about the applicant’s depression.

43    In his report dated 15 February 1995 Dr Tym expressed the following opinion:

In summary, when I first saw him on 17.07.91, and on every occasion since then, I have treated him for a depressive illness that was, in my clinical judgement, engendered solely by the psychological stress experienced by him initially at work from sexual harassment by a colleague at work, initially restricted to the work environment in which he was trapped.

44    The Tribunal needed to consider whether this evidence bore on the question of causation, whether there was contrary expert evidence provided by Comcare and whether it accepted this evidence of Dr Tym.

45    The evidence referred to in [41]-[43] above was enough to make it open to the Tribunal to find that the applicant’s employment was an operative factor in bringing about the applicant’s depression, and therefore contributed in a material degree to his disease. It was not necessary for the applicant to establish that it was sole cause of his incapacity. The fact that the relationship with Ms X was a cause of the depression did not require the Tribunal to disregard the contribution of the applicant’s employment to the relationship, and the opportunities that the employment gave to Ms X to harass him. Nor was it necessary for the applicant to establish fault on the part of his employer. The Tribunal misdirected itself by focussing on a false distinction between a cause and the setting for the relationship. The evidence was capable of disclosing a stronger connection between the employment and the relationship that led to applicant’s disease than simply regarding the employment as background to the relationship. The Tribunal needed to explore that evidence. As Mansfield J said, the Tribunal needed to assess whether his employment exposed the applicant to a state of affairs that materially contributed to his condition. The Tribunal did not do that.

46    If the Tribunal had accepted that the applicant’s employment did contribute in a material degree to the onset of his condition, and therefore to his incapacity during the period 11 to 16 July 1991, the Tribunal would then have had to consider the second period of the first claim, 3 to 10 April 1992. This would have involved the Tribunal dealing with different issues of causation. It would have to have considered whether it was the same disease that led to incapacity during that period, in which case the same causes would have continued to be operative. It would have had to consider whether the onset of another, unrelated disease, due to different factors not associated with the applicant’s employment, caused the incapacity in that period. It would have had to consider whether the original disease had been aggravated and, if so, whether the requisite causal relationship between the employment and the aggravation existed. Because of its approach to the first claim, the Tribunal did not consider any of these issues.

47    For these reasons we consider that the Tribunal’s decision on the first claim must be set aside. The part of the Tribunal’s decision relating to the first claim must be remitted to the Tribunal to be heard and decided again.

THE SECOND CLAIM

The Tribunal’s findings

48    With regard to the second claim, the Tribunal found that, in respect of the period 16 May to 1 June 1994 and the period 1 January 1996 to December 1996, the applicant’s perception of work-related events, including his inability to obtain compensation, contributed to the applicant’s ailment. The Tribunal, referred at [128] to Wiegand v Comcare Australia (2002) 72 ALD 795 at [31], in which von Doussa J held that the perception in the mind of an employee can contribute to an aggravation of a condition. Such aggravation was found by the Tribunal in Weigand to fall within the extant definition of “disease” in s 4(1) of the SRC Act.

49    The Tribunal found that both the applicant and Ms X had been moved from the DBA subsection in February 1993 to different sections in the ATO, as the result of a managerial decision. From May 1993, the applicant sought to be transferred back to the DBA subsection. He was successful in obtaining a transfer away from his then working environment in June 1994 (to a section described as the CCS Team). The Tribunal concluded that, in respect of the period from 16 May to 1 June 1994, the applicant’s incapacity arose from his application to be transferred back to the DBA subsection. Accordingly, his claim was excluded by virtue of the exclusionary provision in the definition of “injury” in s 4(1) of the SRC Act which excluded a disease, injury or aggravation suffered as a result of failure by the employee to obtain a promotion, transfer or benefit.

50    In respect of the period 1 January 1996 to December 1996, the Tribunal accepted that the applicant’s employment contributed in a material degree to his incapacity, and determined that he was entitled to compensation.

The applicant’s submissions

51    The applicant submitted that, as he ultimately succeeded in obtaining a transfer, his failure to do so could not have been the cause of his incapacity in the period 16 May to 1 June 1994. He also claimed that his objective in seeking a transfer to the DBA subsection was to escape from his existing working environment. It was that environment, rather than his failure to obtain a transfer away from it, that contributed to his depression. The applicant pointed to other facts that he said were contributing factors to his condition in May 1994. These included his pursuit of a workplace sexual harassment claim and a personal grievance claim against Ms X.

52    Alternatively the applicant submitted that his failure to secure the transfer to the DBA section was of such limited significance as to fall short of the “material contribution” as contemplated in Wiegand.

Consideration

53    The Tribunal found that it was the applicant’s failure to obtain a transfer back to the DBA subsection that contributed materially to the aggravation of the applicant’s depression. The other issues raised by the applicant were considered by the Tribunal, but it did not regard them as having contributed materially to the applicant’s incapacity for the period of 16 May to 1 June 1994.

54    The applicant eventually obtained a transfer, after he had returned to work, however his success could not have been regarded as negating the exclusionary provision. The Tribunal’s finding was one of fact. There is no error of law arising from the determination that any aggravation of the applicant’s depression resulted from his failure to obtain a transfer back to the DBA subsection. It follows that the applicant’s challenge to the Tribunal’s decision in respect of this period fails.

THE SUBSEQUENT PERIODS

The Tribunal’s findings

55    At [11] of its reasons for decision, the Tribunal said:

In 2008, a preliminary issue arose as to whether Mr Dunstan could claim compensation for ongoing incapacity for work for the period from 1 November 1998: Dunstan v Comcare [2008] AATA 1064. After hearing submissions from the parties, Senior Member Constance held, at [9], that the clear words of s 23(2) of the Safety, Rehabilitation and Compensation 1988 (the Act) precluded the payment of compensation to a person under s 19 (in respect of incapacity for work) “in respect of any period during which the employee is imprisoned in connection with his or her conviction of an offence”, in Mr Dunstan’s case in respect of the period following his conviction on 3 December 1999 and until his release from prison on 3 January 2008. However, because the subsection specifically refers to a period of imprisonment “in connection with his or her conviction of an offence”, a person cannot be imprisoned in connection with a conviction of an offence prior to the conviction taking place. Thus, the Tribunal has jurisdiction to consider a claim only in respect of the period 1 November 1998 to 2 December 1999.

56    At [141], the Tribunal found in relation to the period of incapacity ending in December 1996 that the applicant returned to work “when he was no longer incapacitated”. The Tribunal did not consider any claimed incapacity of the applicant subsequent to 2 December 1996 and made no finding that the applicant suffered any incapacity after December 1996.

The applicant’s submissions

57    The applicant claimed that the Tribunal should have awarded compensation for the period 1 November 1998 to 3 December 1999 and on an ongoing basis from 3 January 2008.

The respondent’s submissions

58    Comcare submitted that the applicant had not invited the Tribunal to consider compensation in respect of those periods.

59     The respondent submitted that the finding of fact expressed at [141] of the Tribunal’s reasons for decision determined the issue of any ongoing incapacity, after December 1996, against the applicant. Counsel for the respondent referred to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47] in support of this proposition.

60    The respondent also submitted that, in the absence of a determination and a reviewable decision by Comcare in relation to any further alleged injury or aggravation of an injury after December 1996, the Tribunal had no jurisdiction to consider events subsequent to December 1996.

Consideration

61    The second claim was expressed to be on a continuing basis after 1 January 1996. Because of the lengthy delay in the Tribunal dealing with the applicant’s application for review of Comcare’s decision rejecting that claim, some years elapsed between the making of the claim and Tribunal’s decision. The Tribunal was bound to deal with the application for review on the basis of the material before it. It was not restricted to material, or to events, that Comcare had available to it at the time of its rejection of the second claim.

62    The Tribunal had before it medical reports of Dr Tym dated 4 February 2010 and 11 March 2010. In the former, Dr Tym stated:

It is my opinion that [the applicant] is psychologically vulnerable by virtue of difficulties associated with his ADD-type brain in the context of contending with the adverse life events and adverse circumstances persisting for the past 20 or more years.

In his later report, Dr Tym said that continuing antidepressant treatment was required and concluded:

He is currently being treated for the Dysthmymic Disorder as before but treatment can only be palliative and not curative. The disorder continues to cause psychological distress and incapacity.

63    The Tribunal also had before it a report of Dr Rose dated 7 July 2009. His conclusion included the following statement:

At the same time, undoubtedly during the early 1990s and thereafter, Mr Dunstan was suffering from a major depression. He continues to suffer from this condition and he will continue to need treatment for this condition indefinitely.

64    The Tribunal did not consider medical evidence relating to the applicant’s condition after December 1996 in its reasons for decision. Importantly, it did not reject expressly such evidence as existed. Having determined that it had jurisdiction to deal with a claim for compensation in respect of the period prior to the applicant’s imprisonment, the Tribunal did not then reject such a claim, except implicitly by its decision to vary the decision of Comcare in relation to the second claim only by determining that Comcare was liable to pay compensation for the period 2 January to December 1996.

65    In the course of argument on the appeal, reference was made to a passage in the transcript of the hearing in the Tribunal. The applicant, who was unrepresented at that hearing, was attempting to tender documents relating to the period 1 November 1998 to December 1999. After some discussion between the Deputy President who presided in the Tribunal and the applicant, the Deputy President is recorded at pp 87-88 of the transcript as saying:

…whilst evidence in relation to the ongoing incapacity that you may have which relates to the injuries from, I think, 1993-96, that period, if it’s in relation to an ongoing incapacity then that evidence would appear to me to be relevant to the matter that the tribunal needs to deal with.

If the evidence is in relation to other events which have happened after the time of the reviewable decision then, in my view, the tribunal does not have jurisdiction to deal with that evidence because it has not been the subject of a claim made by you by [sic] Comcare which in turn has been the subject of a reviewable decision. And that is where the tribunal gets its jurisdiction. So if we were to consider that evidence, in my view, we would be acting beyond the power and any decision on that would be invalid.

66    The Deputy President was no doubt seeking to draw a distinction between the ongoing effect of the applicant’s injury as it stood prior to December 1996, with which the Tribunal could deal because of the ongoing nature of the second claim, and any aggravation of that injury by reason of subsequent events, with which the Tribunal could not deal because s 54(1) of the SRC Act prohibited the payment of compensation unless a claim was made. In the light of this statement, it is strange that the Tribunal did not refer directly to the medical evidence about the applicant’s condition after December 1996, and did not make any attempt to determine whether the applicant remained incapacitated due to events the subject of the first and second claims during the period in respect of which it did have jurisdiction to deal with the claim, 1 November 1998 to 3 December 1999.

67    There is no reasoning disclosed by the Tribunal’s reasons for decision to support the supposed finding, expressed at [141], that the incapacity ended when the applicant returned to work in December 1996. It would be strange if such a crucial finding were to be made without any expressed reasoning. This Court should draw the inference that, in fact, the Tribunal did not deal with the issue of any ongoing claim after December 1996: see Applicant WAEE at [47].

68    By failing to deal with that matter, the Tribunal erred in law. To the extent to which it relates to any period or periods of claimed incapacity after December 1996, the second claim should be remitted to the Tribunal to be heard and decided again. To the extent to which any such periods of incapacity are said to be due to an aggravation of the applicant’s condition by reason of events subsequent to December 1996, it is open to the applicant to make a further claim to Comcare.

CONCLUSION

69    For the reasons set out above, the appeal should be allowed in part. The decision of the Tribunal should be set aside in part. The first claim of the applicant should be remitted to the Tribunal differently constituted to be heard and decided again. So much of the applicant’s second claim as relates to alleged ongoing incapacity after December 1996 should also be remitted to the Tribunal differently constituted to be heard and decided again. As the applicant has been substantially successful in the appeal, the respondent should be ordered to pay his costs of the appeal.

Associate:

Dated: 24 August 2011

REASONS FOR JUDGMENT

REEVES J:

70    I agree with the other members of the Court on the substantive disposition of this appeal. However, I must respectfully disagree with them on an aspect of the orders they propose. I refer to that part of Order 3 that requires the Tribunal that is rehearing the applicant’s applications to be “differently constituted”. The President of the Administrative Appeals Tribunal is a judge of this Court and, in my view, judicial comity dictates that this Court should be slow to interfere with a fellow judicial officer’s discretion exercisable in another judicial role. This respect for judicial comity is consistent with observations made by two judges of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [4] per Gleeson CJ and [107] per Kirby J.

71    Furthermore, from my reading of the decision, this was the approach adopted by the Full Court in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42–3 as follows:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member’s views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, “... subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted”.

72    I am unable to find any decision of a Full Court since this decision that expresses a different view.

73    This is not to say that this Court does not have the power to order reconstitution of the Tribunal if the circumstances justify that course. Clearly it has that power under s 44(6) of the Administrative Appeals Tribunal Act 1975 (Cth) and various judges of this Court have used that power in the past: see, eg White v Repatriation Commission (1995) 39 ALD 42 at 48–9 per Moore J, Commissioner of Taxation v Service (1999) 42 ATR 725; [1999] FCA 1304 at [39] per Sackville J and Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [34]–[40] per Nicholson J and the authorities referred to.

74    It follows that, unless there is some particular circumstance that requires or justifies this Court to express a view on the constitution of the Tribunal, it should be left to the President of the Tribunal to determine that matter acting under s 20B of the Administrative Appeals Tribunal Act 1975 (Cth). No such circumstance arose in this case. Indeed, neither counsel mentioned the constitution of the Tribunal in his submissions on the appeal. In my view, there is therefore no justification for interfering with the discretion the President has to determine the constitution of the Tribunal.

75    For these reasons, I would delete the words “differently constituted” from Order 3. Otherwise I agree with the form of the orders proposed.

Associate:

Dated: 24 August 2011