FEDERAL COURT OF AUSTRALIA

Drenth v Comcare [2012] FCAFC 86

FEDERAL COURT OF AUSTRALIA

Drenth v Comcare [2012] FCAFC 86

CORRIGENDUM

1    The heading above [27] to be amended by deleting the word “discourse” and inserting “condition” so that Question 3 reads as follows:

“Question 3: Could the Tribunal find the 30 January decision caused an aggravation of a pre-existing condition?”

Associate:

Dated:    13 June 2012

THE COURT ORDERS THAT:

1.    The applicant file and serve an amended notice of appeal that identifies each question of law for the purposes of s 44 of the Administrative Appeals Act 1975 (Cth) by 5:00 pm on 21 May 2012.

2.    The appeal be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    This is an appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975. On 29 November 2011, the Chief Justice directed under s 44(3)(b) of that Act that the appeal be heard by a Full Court. The issue that arises on such an appeal is determined by s 44(1), which provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

2    Until this morning, the applicant had failed to identify any question of law in a number of her notices of appeal. As long as ago as Brown v Repatriation Commission (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ said:

“The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it, and it alone, is the subject matter of the appeal, and the ambit of the appeal is confined to it.”

3    Their Honours remarks have been echoed in a number of subsequent decisions of this Court that have also insisted upon the question raised actually identifying a question of law: see e.g. Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 323-325 [10]-[18] per Branson and Stone JJ, 332 [61] per Marshall J; Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40 at 41 [5] per Flick, Jagot and Barker JJ. At the hearing three questions of law were identified orally as being raised in this appeal. The Court directed the applicant, Sarah Drenth, to file an amended notice of appeal to reflect those questions. In substance, these questions were:

(1)    whether the Tribunal correctly construed and applied s 5A of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in finding that the decision recorded in a letter dated 30 January 2008 to Ms Drenth from her employer, the Australian Taxation Office (ATO), was “administrative action” within the meaning of s 5A (the 30 January decision);

(2)    whether it was legally open to the Tribunal to find that the 30 January decision was reasonable within the meaning of s 5A;

(3)    whether it was legally open to the Tribunal to find that the 30 January decision was causative of an aggravation of Ms Drenth’s pre-existing psychiatric conditions (i.e. in substance whether there was any evidence before the Tribunal to support its conclusion).

Background

4    We will explain the circumstances of the 30 January decision later in these reasons. Suffice to say that the ATO’s letter of that date told Ms Drenth that a psychiatrist considered that she was not fit for work and, accordingly, could not return to work until further medical evidence was made available on which the ATO could decide the question of her fitness to return to work .

5    Relevantly, s 5A provided:

“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 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.”

6    The Tribunal set out in its reasons a detailed history of the circumstances of Ms Drenth’s claim for compensation. We have taken much of the following from the Tribunal’s reasons but have added references to the evidence before it, so as to deal later with the “no evidence” contention raised in the third question of law.

7    Ms Drenth had worked for the ATO while she was completing her degree at university until 1989. She ceased working there and commenced working for a private accounting firm. In 2005, she moved back to Adelaide. She applied to rejoin the ATO and was accepted into its Adelaide office. In 2006 and 2007 she worked there but continued to suffer from a psychiatric illness or illnesses that she had had for most of her life. The Tribunal found, using her own self description, that she had had a sense of depression and futility for most of her adult life and on a number of occasions, first, had, experienced episodes of depression, secondly, had attempted self-harm, including suicide, and, thirdly, had overdosed on medication with increasing frequency.

8    There was medical evidence, which the Tribunal accepted, that Ms Drenth suffered from borderline personality disorder. That evidence was to the effect that a person suffering from borderline personality disorder is extremely sensitive to rejection and to being alone. Such persons make frantic efforts to avoid such circumstances, often to the point where the behaviours can be self-injurious and sabotage relationships and work environments. One of the doctors, on whose evidence Comcare relied before the Tribunal, Dr Jules Begg, opined that the condition should be appreciated as not being akin to the normal avoidance of loneliness which most people desire, but rather the experience of aloneness or rejection for a person with the disorder is akin to him or her being placed in a situation of imminent death. Dr Begg opined that the condition resulted in psychotic breakdown in which reality testing is significantly impaired and during such a crisis the individual may undertake self-injurious actions such as overdosing, cutting or other maladaptive and socially inappropriate behaviours.

9    By late 2007, Ms Drenth had experienced a number of health issues. In late November 2007, the ATO became aware that she was experiencing significant psychological stress and that she had been recently hospitalised following an overdose of medication. Understandably, the employer identified her as being an at risk employee and considered ways in which it could assist her, including allowing her fully paid leave on compassionate grounds, in circumstances where, by then, she had exhausted her other leave entitlements. She started working reduced hours and returned to work on 2 January 2008 when the ATO reopened. Then she only worked for two part days until she returned to work again on 16 January 2008 after being cleared to do so by her treating psychiatrist, Dr Barrow, for 3.5 hours per day. A new return to work plan been prepared for her for the ensuing month in which her hours were initially to remain at that level and later would increase. She worked from 16 to 29 January 2008, but only for restricted hours and took two days off work during that period. In letter dated 29 January 2008, Dr Barrow advised the ATO that, in her opinion, Ms Drenth was able to work four hours a day and if she was coping well that could be increased to five hours as soon as possible.

The circumstances of the 30 January decision

10    Ms Drenth had been referred to see Dr Graham George, a consultant psychiatrist engaged by the ATO in April 2007. Following her being seen as an at risk employee, he had examined her again at the ATO’s request on 18 January 2008. In his report, dated 19 January 2008, that was only received by the ATO on 29 January, Dr George said he did not believe that Ms Drenth was capable of working 3.5 hours a day, five days a week. He said it was impossible to estimate when she would be ready to return to work. He reported she had been using excessive doses of medication in the period prior to her seeing him on 18 January and it appeared that she had overdosed on about 9 January 2008.

11    The Tribunal found that Ms Drenth was very distressed when she was advised in the letter from the ATO conveying the 30 January decision that she was not to return to work as from 31 January 2008 in consequence of Dr George’s opinion. That letter advised her that she would need to obtain a medical certificate from her treating practitioner, Dr Barrow, as to her capacity to return to work and that a decision would be made by the ATO after such a certificate was provided and when Dr George had been able to clarify or assess her capacity.

12    Importantly, on 6 February 2008, Ms Drenth had written a detailed submission to the ATO complaining of the communication of the 30 January decision that she was not to return to work saying:

“To deny me the right to work in a situation where my treating psychiatrist considers me well enough to work is in fact exacerbating my condition. I am experiencing very high anxiety levels. My depression is deepening. I have insomnia and I am very frightened of my immediate financial and employment future.”

13    She repeated similar statements later in that letter, including a complaint that the decision to deem her unfit for work had been:

“… an extremely distressing experience for me particularly in light of all of the above … These are trigger experiences and feelings for me and I have been very upset and distressed. … Work is an extremely important, indeed essential, part of managing my illness and getting better. I love the work I am and I am doing very well despite all the issues in my personal life. It is highly therapeutic for me.”

14    Ms Drenth attached to that submission a letter dated 2 February 2008 from her general practitioner, Dr Susan Hughes. Dr Hughes confirmed that Ms Drenth had been very stressed since the ATO’s release of Dr George’s report that she was unfit for work. Dr Hughes reported that Ms Drenth presented on that day as very distressed with symptoms of insomnia, nausea, diarrhoea, vomiting and splitting headaches concluding: “She is very fearful for her future both financially and career-wise.” Subsequently, Ms Drenth was considered sufficiently fit to return to part time work at the ATO on 18 February 2008, working five hours a day in accordance with a recommendation from Dr George.

15    The Tribunal heard evidence from Dr Ford, one of Ms Drenth’s treating doctors, that Ms Drenth had complained to him that the issue as she saw it, was not the loss of a particular person as her supervisor, whom she missed, but her need to continue working. Dr Ford also gave evidence that in late January 2008 Dr George had certified her as being unfit and he (Dr Ford) agreed that that was a particularly destabilising thing for her because:

“she was losing her capacity to work which was the issue […] or the important thing in her life. She wanted to work . And she wanted to be productive, because that was her habitual way of getting along well with the world.”

16    In order to amount to an aggravation of an existing disease, s 5B(1) required that the decision-maker determine whether the aggravation was contributed to, to a significant degree, by the employee’s employment. Importantly, s 5B(3) provided that “significant degree” meant a degree that was substantially more than material. In her claim for compensation, Ms Drenth relied on a number of incidents that occurred on and after 18 February 2008, but not before, as amounting to an injury, being an aggravation of her existing mental condition and borderline personality disorder within the meaning of s 5A(1) of the SRC Act.

17    During the proceedings before the Tribunal, one issue that was raised by the Tribunal and Comcare was whether Ms Drenth’s existing medical condition had been aggravated by reason of the 30 January decision. The Tribunal recognised that this was not how Ms Drenth had put her own case. It said that this issue had not been referred to in her statement or in her counsel’s address. But, the Tribunal considered that the 30 January decision, that she was not fit to work on 30 January 2008, was a work related stressor. Comcare had made submissions to that effect to the Tribunal.

The Tribunal’s decision

18     The tribunal made findings that a number of the stressors or aggravating factors, on which Ms Drenth relied as having occurred on and after 18 February 2008, had aggravated her existing borderline personality disorder within the meaning of s 5B of the SRC Act. However, it also found that the 30 January decision had also had the same effect. The Tribunal concluded that all of the factors that it found had aggravated Ms Drenth’s pre-existing disease, including the 30 January decision, were “reasonable administrative action” within the meaning of s 5A(1).

19    The Tribunal gave its decision before the judgment of another Full Court, Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, identified the way in which the exception to s 5A(1) should be construed. As a result, in the course of this appeal, Comcare conceded that the Tribunal had erred in finding that all stressors that it found had aggravated Ms Drenth’s pre-existing condition were administrative action, other than the 30 January decision in relation to which Comcare maintained its position. Thus the focus on this appeal has been on whether the Tribunal made errors of law in any of the three respects now complained of in its treatment of the 30 January decision.

Question 1: Was the 30 January decision “administrative action”?

20    Ms Drenth argued that the 30 January decision was not “administrative action” because it did not amount to disciplinary, counselling or appraisal action or other forms of administrative action referred to in s 5A(2). She contended that decision did not concern the specific nature of her employment. She also submitted that the 30 January decision was not a determination or action that had been taken under the Public Service Act 1999 (Cth) or associated regulations.

21    Those submissions must fail. First, in Reeve 199 FCR at 483-484 [62], Rares and Tracey JJ explained the construction of the expression “administrative action” in s 5A. They said that the action referred to in the exclusion in s 5A(1) was not qualified by the non-exhaustive list of examples of “reasonable administrative action” in s 5A(2). They held that the exclusion in s 5A(1) could not be confined by the words that followed in s 5A(2).

22    Secondly, a decision that an employer is not prepared to allow an employee to return to work because of a medical opinion that the employee is then not fit and to require the employee to provide further evidence that he or she is fit, is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather, it is a decision about the employment relationship itself. Here, the 30 January decision took Ms Drenth’s employment as a factum and it operated in respect of whatever the duties, incidents, nature and tasks of her employment might have been: Reeve 199 FCR 482-484 [57]-[65], 486 [74].

23    Thirdly, it was not relevant whether the ATO’s decision to tell Ms Drenth that the ATO was been not prepared to have her come back to work at that time had been taken under the Public Service Act. In the circumstances, the 30 January decision was clearly administrative action within the meaning of s 5A, whatever its source, because it was directed squarely towards, and taken in respect of, her employment: Reeve 199 FCR at 482 [57].

Question 2: Was the 30 January decision “reasonable” administrative action?

24    Ms Drenth argued that the 30 January decision was not reasonable because she was a vulnerable person whom the ATO, as her employer, knew suffered, and at the time was suffering, from her psychiatric disorder. Ms Drenth expressly refused to make a submission to the Tribunal or on appeal that the 30 January decision affected her pre-existing condition at all. She argued that the ATO had acted unreasonably by sending her the letter conveying the 30 January decision in the way it did and not taking some other steps to inform her of its decision or to work with her on her potential to return to work. She argued that it was unreasonable of the ATO to impose on her the economic impact of not being allowed to earn her livelihood, in circumstances where she had exhausted all her leave and compassionate leave entitlements.

25    We reject this ground. The Tribunal made the following finding of fact:

“[78]    As to the determination of unfitness for work made by the ATO on 30 January 2008, it is relevant that Ms Drenth had been absent from work for significant periods immediately prior to 30 January 2008 and that there had been a history of recent overdoses, and we are satisfied that it was reasonable, after Ms Turner had informed Dr George of the then most recent assessment by Dr Barrow, for the ATO to act on Dr George’s advice of 29 January 2008, in which he said that he had spoken to Dr Barrow, and confirmed that his earlier conclusions as to Ms Drenth’s fitness for work had not changed.”

26    Whether something is reasonable or not is ordinarily a question of fact. A decision-maker does not make an error of law simply in making a wrong finding of fact: Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. No error of law in what the Tribunal found has been established. Indeed, its finding quoted above has a ring of common sense.

Question 3: Could the Tribunal find the 30 January decision caused an aggravation of a pre-existing discourse?

27    Ms Drenth argued that it was not open to the Tribunal to attribute the 30 January decision as being a cause of the aggravation of her condition.

28    In Reeve 199 FCR 484 at [65], Rares and Tracey JJ said:

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.”

29    The significance of identifying whether “reasonable administration action” was “a cause” of the compensation complainant’s condition follows from the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29. The Court held that if any factor that had been excluded as a cause of an injury or aggravation for which compensation was payable under the SRC Act, then even though there may have been one or several other operative causes at work, no compensation was payable at all. Thus, if any “reasonable administrative action” were found to be an operative cause of the aggravation of Ms Drenth’s pre-existing condition, she was not entitled to compensation as explained in Reeve 199 FCR at 481-482 [54]-[56].

30    The Tribunal accepted Ms Drenth’s evidence that her symptoms of depression and anxiety had become worse due to work related stresses. It found that her evidence was consistent with her significantly reduced hours and absences from work and with contemporaneous records of her concerns and difficulties over the period from 30 January 2008 to 5 June 2008 when she went on extended sick leave because of her condition. The Tribunal found:

“[59]    We are satisfied that from and after 30 January 2008, when she was told that the ATO regarded her as unfit for work, her then pre-existing psychological conditions were aggravated. We further find that her perception of certain work-related stressors contributed, in varying degrees, to increased symptoms of depression and anxiety after that date.”

31    Those findings recognised, or could be seen to have been based, at least in part, on some of the evidence to which we referred earlier in these reasons, including Ms Drenth’s submission to the ATO of 6 February 2008 that enclosed the report of Dr Hughes. That was corroborative of the impact on Ms Drenth of the 30 January decision.

32    Ms Drenth argued that there was no evidence to support the finding quoted above from [59] of the Tribunal’s reasons. That submission cannot stand in the face of the evidence to which we have referred. Ms Drenth also argued that because she was subsequently found by her treating doctor and Dr George to be fit to return to work on 18 February 2008, her condition had improved. She contended that, as a result, it could not be said that the 30 January decision had any permanent or ongoing effect or could otherwise have amounted to an aggravation that was contributed to a significant degree by her employment within the meaning of s 5B(2) and (3).

33    The Tribunal had the function of assessing, in light of all of the evidence before it, what it regarded as causative of an aggravation of Ms Drenth’s pre-existing condition. It was entitled to have regard to the circumstances that operated on Ms Drenth at a time before any of the subsequent stressors on which Ms Drenth relied for the purposed of determining as a fact, whether only those later stressors caused the aggravation of the condition for which she claimed compensation.

34    In our opinion, it was open to the Tribunal to have had regard to the effect on Ms Drenth of the 30 January decision and to assess, in light of all of the evidence, the effect that decision had on the development of the aggravation of her pre-existing condition for which she claimed compensation. Whether other decision makers would have come to the same view is not to the point. There was evidence before the Tribunal on which it could act to justify its finding and we are not satisfied that Ms Drenth has established any error of law in how the Tribunal found that the 30 January decision was a cause of the aggravation of her pre-existing condition.

Comcare’s notice of contention

35    Comcare filed a notice of contention in which it raised an argument that the Tribunal’s decision could be upheld on a basis that it had rejected. That was that the aggravation of Ms Drenth’s disease should not be taken to be an injury to her because of s 7(7) of the SRC Act. That would have excluded her entitlement if she had, at any time for purposes connected with her employment or proposed employment by the Commonwealth, made a wilful and false representation that she did not suffer or had not previously suffered from that disease.

36    The Tribunal found that when she applied for her employment with the ATO in November 2005, Ms Drenth had answered “yes” to questions about whether she had had a nervous or mental condition or anxiety or stress reaction or depression, but she had answered “no” to two further questions. The latter were whether she had required prolonged periods of time off work for illness in the previous two years and whether there was any other health issue relevant to her ability to work in either an office environment or call centre. The Tribunal found that in light of those answers Ms Drenth had been examined by a medical adviser on behalf of the ATO and that she had disclosed to the doctor only that she had had post-natal depression for three months after the birth of her second child many years previously. The Tribunal found her answers did not refer to her extensive history of psychiatric illness and treatment or the fact that she had been certified unfit for work for periods totalling nine months in the two years that concluded in December 2005. The Tribunal considered that Ms Drenth’s responses were misleading and deceptive, but did not find that they amounted to a wilful and false representation within the meaning of s 7(7).

37    While we see considerable force in Comcare’s written submissions that the Tribunal’s decision was erroneous in this respect, and that on this alternative ground, its ultimate conclusion to affirm the decision under review to refuse compensation to Ms Drenth could be supported, it is not necessary for us to consider this point.

Conclusion

38    For these reasons the appeal must be dismissed with costs.

Associate:

Dated:    5 June 2012