FEDERAL COURT OF AUSTRALIA

Lim v Comcare [2019] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to 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

THE COURT:

1    The appellant (“Dr Lim”) is a former employee of a Commonwealth authority, the Australian Communications and Media Authority (the “ACMA”). The respondent (“Comcare”) is a statutory body established by s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (hereafter, the “SRC Act”). Amongst other things, its function is to receive claims and administer payments relating to the compensation of Commonwealth employees (and employees of Commonwealth authorities) who sustain certain types of injuries or diseases.

2    On 24 March 2011, Dr Lim submitted a claim to Comcare for compensation arising from a psychological condition that she said she sustained during her employment with the ACMA. She attributed her condition—an “adjustment reaction with depressant anxiety” (hereafter, the “Condition”)—to a number of aspects of her employment, most in the nature of what might conveniently (if imprecisely) be described as workplace bullying.

3    Dr Lim’s right to compensation was and remains governed by the terms of the SRC Act. In simplified terms, the SRC Act entitles qualifying employees to compensation in respect of certain injuries and diseases that result in their incapacity for work. Dr Lim maintains that her Condition qualifies as such a disease.

4    Comcare disagrees. On 12 July 2011, it declined Dr Lim’s claim for compensation. It accepted that Dr Lim suffered from the Condition and that it arose in connection with her work. However, it considered that the Condition was a product of “reasonable administrative action”, in respect of which an entitlement to compensation under the SRC Act did not arise. Specifically, Comcare considered that the condition arose, in part, because of a performance appraisal that the ACMA conducted of Dr Lim on 31 January 2011. By that appraisal (hereafter, the “Performance Appraisal”), Dr Lim was assessed as an under-performing employee. Comcare considered that the Performance Appraisal was one of a number of circumstances that led to Dr Lim’s Condition and that, therefore, her claim for compensation should not be allowed.

5    On 17 June 2013, Dr Lim requested that Comcare reconsider its determination of her claim. That occurred and, on 14 August 2013, Comcare affirmed its determination. On 3 September 2013, Dr Lim applied to the Administrative Appeals Tribunal (hereafter, the “Tribunal”) for a review of that decision. Her right to do so was a function of s 64 of the SRC Act and is not presently in question.

6    On 27 March 2015, the Tribunal affirmed Comcare’s decision of 14 August 2013 to disallow Dr Lim’s claim for compensation: Re Lim and Comcare [2015] AATA 189 (Popple SM). Central to that rejection was the Tribunal’s finding that Dr Lim’s condition arose, in part, because of the Performance Appraisal. Just as Comcare had, the Tribunal as then constituted (hereafter, the “Popple Tribunal”) considered that the Performance Appraisal was one of a number of circumstances that led to Dr Lim’s Condition and that that was sufficient to disqualify her from any entitlement to compensation under the SRC Act.

7    Dr Lim appealed that decision to this court. That appeal failed: Lim v Comcare (2016) 69 AAR 420 (Flick J). On 5 July 2016, Dr Lim appealed further to a full court of this court. That appeal was heard on 9 March 2017.

8    A few months before that hearing, the High Court handed down its decision in Comcare v Martin (2016) 258 CLR 467 (“Martin”—French CJ, Bell, Gageler, Keane and Nettle JJ). That judgment is the subject of further analysis below; but, in short, it had the effect of requiring that Dr Lim’s appeal succeed. Accordingly, on 24 April 2017, the full court (hereafter, the “previous full court”) remitted “the matter”—a concept that is also the subject of analysis below—back to the Tribunal: Lim v Comcare (2017) 250 FCR 298 (Kenny, Tracey and Bromberg JJ).

9    On 21 November 2018, the Tribunal again affirmed Comcare’s decision to decline Dr Lim’s application for compensation: Re Lim and Comcare (Compensation) [2018] AATA 4354 (Humphries DP—hereafter, the “Tribunal Decision”). It is from that decision that the present appeal arises.

Legislative framework

10    Dr Lim’s appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Pursuant to s 44(3), the appeal proceeded before a full court of this court.

11    As summarised above, Dr Lim seeks to overturn the rejection of her claim for compensation under the SRC Act. Section 14(1) of that Act relevantly provides:

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.

12    Section 5(1) of the SRC Act defines “employee” to include “a person who is employed by the Commonwealth or by a Commonwealth authority…” Section 4(1) defines “impairment” as, “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

13    Section 5A(1) defines what is meant by “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.

14    Section 5B of the SRC Act defines what is meant by “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.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

(3) In this Act:

"significant degree" means a degree that is substantially more than material.

15    “[A]ilment” is defined to mean, “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”: SRC Act, s 4(1). Section 7(4) of the SRC Act stipulates when a disease is taken to have been sustained:

(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

16    There is no dispute in the present case that Dr Lim was an employee, nor that her Condition qualified as a disease that resulted in her impairment and that was contributed to, to a significant degree, by her employment by the ACMA. Her entitlement to compensation in respect of the Condition turns upon whether or not it was suffered as a result of reasonable administrative action taken in a reasonable manner.

The full court’s remittal

17    Both the Popple Tribunal and Flick J on appeal considered what was meant by the phrase “suffered as a result of” in the definition of “injury” in s 5A(1) of the SRC Act. In each case, it was held that Dr Lim’s Condition was “suffered as a result of” the Performance Appraisal because the Performance Appraisal was one of the circumstances that caused it. It was sufficient, so the Popple Tribunal and Flick J reasoned, that the Performance Appraisal be a material cause of the Condition: provided that it contributed to its existence to a significant degree, it was a circumstance of which the Condition could properly be seen to have been a result, regardless of whether there were other, more substantial employment-related causes.

18    Prior to the High Court’s decision in Martin, that reasoning was consistent with the way that s 5A(1) had been construed both in this court and in the Tribunal: Hart v Comcare (2005) 145 FCR 29, 33 (Branson, Conti & Allsop JJ); Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, 472 (Gray J), 481-482, 484 (Rares and Tracey JJ); Drenth v Comcare (2012) 128 ALD 1, 7 (Rares, McKerracher and Murphy JJ). In Martin, the High Court made clear that, in order that an injury might be said to have been suffered as a result of some circumstance, it was not sufficient for that circumstance merely to have contributed to it (even in a material or operative sense): Martin, 479-480 (French CJ, Bell, Gageler, Keane and Nettle JJ). What needed to be shown was that, but for that circumstance, the injury would not have arisen.

19    The Popple Tribunal did not consider that “but for” question. Its failure to do so was an error of law. In its reasons for allowing Dr Lim’s appeal, the previous full court of this court said (at [44]):

The appeal should therefore be allowed and the matter remitted to the Tribunal in order that it might address the statutory question, whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. It is for the Tribunal to make the findings of fact that answer this question. In so doing the Tribunal will need to assess the evidence before it. This is not a case in which the Court should exercise the power to make findings of fact conferred by s 44(7) of the AAT Act. The conclusion that the Tribunal reaches after it has considered the evidence is a matter for it, and not for this Court.

20    It then pronounced orders consistent with that observation. Those orders were (relevantly) that:

[The] orders of Justice Flick made on 15 June 2016 be set aside and in their place [it be ordered] that:

(a)    [t]he decision of the Administrative Appeals Tribunal dated 27 March 2015 be set aside in so far as it affirmed the decision under review[; and]

(b)    [t]he matter be remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein upon the evidence already given in the proceeding before the Tribunal, unless the Tribunal considers it appropriate to receive further evidence limited to the question set out in paragraph [44] of these reasons…

The Tribunal decision

21    Upon remittal, the Tribunal first considered the scope of what the previous full court had remitted to it. It proceeded on the basis that the remittal was limited to consideration of the statutory question to which the previous full court referred at [44] of its reasons. It held that questions about the nature of the Condition or the factors held previously to have contributed to it were beyond the scope of what the previous full court had remitted. That being so, the Tribunal considered that it could not disturb several of the Popple Tribunal’s findings, including that:

(1)    Dr Lim’s Condition arose, in part, from the Performance Appraisal;

(2)    the Performance Appraisal amounted to reasonable administrative action for the purposes of the definition of “injury” in s 5A(1) of the SRC Act; and

(3)    the Performance Appraisal was taken in a reasonable manner.

22    Each of those findings was contrary to contentions that Dr Lim advanced, both initially and on remittal. She maintained that she suffered her Condition prior to the Performance Appraisal, that the Performance Appraisal (or aspects of it) did not constitute “reasonable administrative action” and that the Performance Appraisal was, in any event, not taken in a reasonable manner.

23    Notwithstanding its conclusion about the scope of the matter remitted to it, the Tribunal nonetheless considered the entirety of the evidence, including that which the Popple Tribunal had much earlier received. The Deputy President found (Tribunal Decision, [78] (Humphries DP)):

Even if I have misapprehended this task, and the entirety of the matter considered by the original Tribunal has in fact been remitted to me, I would regard the performance appraisal of 31 January 2011 as having significantly contributed to the onset of [Dr Lim’s] condition. I have read the decision of the original Tribunal, and examined the evidence which it considered. Notwithstanding Dr Lim’s submissions, I have discerned no reasonable argument to set aside any of its findings of fact. Pursuant to the discretion conferred on me by the Federal Court with respect to the taking of additional evidence, I do not consider that that is necessary in light of the way in which the original Tribunal reached its conclusions (save, of course, with respect to the issue addressed at paragraph [44] of their Honours’ judgement).

24    On the single question that it considered was within the scope of what the previous full court remitted—that is, the “statutory question” to which the previous full court referred at [44] of its reasons (namely, whether the Condition would have been suffered had the Performance Appraisal not occurred)—the Tribunal received additional evidence in the form of a medical report from a doctor, Dr Wasim Shaikh. Dr Shaikh also gave oral evidence and was cross-examined at the hearing before the Tribunal. His evidence was to the effect that, had the Performance Appraisal not occurred, Dr Lim would not have suffered her Condition. The Tribunal accepted that evidence, albeit over Dr Lim’s objections.

25    The Tribunal concluded that Dr Lim’s Condition would not have been suffered had the Performance Appraisal not occurred. It went on to conclude that the Condition was suffered as a result of reasonable administrative action taken in a reasonable manner and that it was not an “injury” in respect of which Comcare was liable to pay compensation under s 14(1) of the SRC Act.

The appeal to this court

26    Without intending criticism of Dr Lim—who, save for the presence at the hearing before us of her “McKenzie friend”, Dr Read, was self-represented, as she was in all but one of her previous hearings—the grounds upon which the appeal proceeds are difficult to discern, if not at least partially unintelligible. They were as follows (with original emphasis, and without correction of typographical and other errors):

1. Whether the ACT Tribunal erred in failing to accept that its quasi-judicial powers were limited to making decisions "according to law" but rather proceeded on the basis that it was only bound by Australian statute to the extent that it determined appropriate or convenient in the matter at hand. i.e. in the Lim v Comcare matter, the Full Federal Court had set aside the ACT Tribunal's original 2015 decision and in reaffirming that decision the Tribunal, while able to accept and rely on the original evidence, failed to assure itself that its reaffirmation was according to prevailing statute:

2. Whether the ACT Tribunal failed to ensure that its quasi-judicial powers were strictly exercised "according to law" in that it failed to take proper cognisance of recent case law of direct relevance to the Lim v Comcare matter, including specifically, the High Court judgement in the Martin v Comcare case (Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29) and the Tribunal's own most recent judgement in that same matter (Martin v Comcare (Compensation) [2018] AATA 2870 (3 August 2018).

3. Whether the ACT Tribunal misunderstood its statutory task and unnecessarily confined the ambit and operation of s7(4) of the Safety, Rehabilitation and Compensation (Cth) 1998 (SRC Act).

4. Did the ACT Tribunal constituted by Deputy President Humphries err at law by basing its decision on an unreserved acceptance of a March 2018 Comcare-commissioned medico legal assessment of the Applicant by a Dr Wasim Shaikh notwithstanding that it failed to identify the process of inference by which Dr Shaikh formed such opinion some 8-years subsequent to the event in question (31 Jan 2011) or require that Dr Shaikh's opinion be expressed in a manner which permitted the conclusion to be scrutinised and judgment made as to its reliability?

5. Whether the ACT Tribunal failed to provide reasons in breach of its obligation under s43(2B) of the AAT Act in respect of implicit dismissal of its 2015 finding that the performance appraisal having "contributed to [Dr Lim's] psychological condition " "was not the only cause. It may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim’s position being declared excess”.

27    More is said of each of the five grounds below.

Preliminary issue: the scope of the remittal

28    It is apparent, at least from her submissions to the court (if not the appeal grounds recited above), that Dr Lim seeks to challenge findings that the Tribunal considered (and that Comcare maintains) were outside of the scope of the matter that the previous full court remitted to it. She contends that the previous full court did not limit the scope of the matter that it remitted to the Tribunal and that the Tribunal ought to have made fresh findings on each of the matters upon which her application turned. In doing so, she argues, it ought to have found that she suffered her Condition prior to the Performance Appraisal, that the Performance Appraisal was not reasonable administrative action for the purposes of the definition of “injury” in s 5A(1) of the SRC Act, and/or that the Performance Appraisal was not taken reasonably.

29    Any one of those findings, had they been made, would have been sufficient to qualify her for compensation under s 14(1) of the SRC Act. Instead, the Popple Tribunal, on all three fronts, found contrary to what Dr Lim contended. As outlined above, the Tribunal (as most recently constituted) did not consider that it could disturb any of those findings; and, in any event, was not minded to.

30    Respectfully, it is not obvious which of the appeal grounds turns upon the scope of the previous full court’s remittal. The most likely candidate is the first of the five grounds of appeal: we comprehend Dr Lim to assert that the Tribunal ought to have made its own findings about the nature of her Condition and the circumstances that gave rise to it; and that, had it done so correctly, it would have accepted her contention that the exception inherent in the definition of “injury” in s 5A(1) of the SRC Act was not, in this case, enlivened.

31    We do not accept Dr Lim’s contention about the scope of what the previous full court remitted to the Tribunal. Respectfully, Comcare’s contention is correct: the previous full court should be understood to have remitted to the Tribunal only the question as to whether the Condition would have arisen but for the Performance Appraisal. The Tribunal did not err by discharging its task in that way.

32    The powers conferred upon this court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)—the provision pursuant to which the appeal from the Popple Tribunal was instituted—are very broad. The court may make any order that it feels is appropriate. If it concludes that a decision is the product of legal error, it can make an order remitting it, or part of it, for re-hearing according to law. If it considers it appropriate, it can make orders dictating the manner in which any rehearing is to be conducted: for example, it can make orders about how the Tribunal should be constituted (Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 521 (Gleeson CJ), 530-532 (McHugh J), 555-556 (Kirby J); Northern NSW FM Pty Limited v Australian Broadcasting Tribunal and Another (1990) 26 FCR 39, 43 (Davies and Foster JJ, with whom Burchett J agreed)) and about how the Tribunal ought to deal with existing or fresh evidence (Repatriation Commission v Nation (1995) 57 FCR 25, 33-34 (Beaumont J, with whom Black CJ and Jenkinson J agreed); Administrative Appeals Tribunal Act 1975 (Cth), s 44(6)(b)).

33    If, in any given case, the court (including on appeal to a full court, as was the case here) were minded to remit a matter for rehearing, the scope of the remittal would depend upon what “matter” was thought to warrant rehearing. In most cases, the “matter” remitted to the Tribunal for rehearing would be the whole of the controversy dividing the parties: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 522 (Gleeson CJ), 533 (McHugh J), 539-540 (Gummow and Hayne JJ), 557 (Kirby J); Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374, 387 (Black CJ, Burchett and Tamberlin JJ).

34    That, however, is not necessarily so. Identifying the “matter” that is the subject of a remittal is not always straightforward. The court may, by order, remit only so much of an existing controversy as it considers is appropriate: Kaluza v Repatriation Commission (2011) 122 ALD 448, 451-452 (McKerracher, Perram and Robertson JJ). Such a limitation will usually be evident from the terms of the court’s remittal order; but, at least in some circumstances, it might be inferred from the reasons to which such an order gives effect: Peacock v Repatriation Commission (2007) 161 FCR 256, 260 (Downes, Lander and Buchanan JJ).

35    At issue in the present case is whether the previous full court should be understood to have remitted to the Tribunal only so much of the parties’ dispute as concerned the proper construction of the phrase “suffered as a result of” in the definition of “injury” in s 5A(1) of the SRC Act. To answer that question, the starting point must be the court’s orders (see [20] above). At first glance, those orders might appear to contemplate remittal of the entire controversy, factual and legal, that was the subject of the Popple Tribunal’s decision: what was remitted to the Tribunal was “[t]he matter”.

36    However, two aspects of the court’s orders bear noting. The first is that the decision of the Popple Tribunal was set aside “…insofar as it affirmed the decision under review”. The second is that the Tribunal was directed, upon remittal, to decide “[t]he matter” by reference to the existing evidence and any further evidence limited to what it considered was necessary to determine the “statutory question” to which the previous full court referred at [44] of its reasons.

37    The former suggests—we think clearly but, at the very least, potentially—that the previous full court intended some limitation upon the extent to which its orders might interfere with the Popple Tribunal’s reasoning. The words “…insofar as it affirmed the decision under review” would otherwise be redundant. The Popple Tribunal did not do anything other than affirm Comcare’s decision not to award Dr Lim compensation for her Condition under the SRC Act. To set it aside would be to set it aside insofar as it affirmed that decision; and to set it aside insofar as it affirmed that decision would be to set it aside in full. It is unlikely that the court decided to add those otherwise superfluous words for no reason.

38    Likewise, the limitation upon the receipt of further evidence is, we think, reflective of what the court must be assumed to have intended to remit. A procedural direction to a decision maker to which a “matter” is remitted—for example, about its constitution on remittal or the extent to which it might use or not use existing evidence—is not, in and of itself, a limitation upon the scope of that “matter”. But it might, nonetheless, provide context by which the scope of a remitted matter can be identified. At the very least, it might cast some doubt on that question, such that recourse should be had to other sources in construing what was ordered.

39    The previous full court’s reasons for judgment shed light on the scope of the matter that it remitted to the Tribunal. Those reasons focus almost exclusively upon the “statutory question” that, on the strength of Martin, the Tribunal failed to address. At [44] (extracted at [19] above), the previous full court was careful to identify what the Tribunal was to address on remittal: namely, “…the statutory question, whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made…”

40    There is no doubt that a court charged with construing orders may, to the extent of any ambiguity that attends them, have regard to the reasons to which the orders are intended to give effect: Repatriation Commission v Nation (1995) 57 FCR 25, 33-34 (Beaumont J, with whom Black CJ and Jenkinson J agreed). It is likely the case that it may do so whether the orders are ambiguous or not. In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA (with whom Hodgson JA and Tobias JJA agreed) observed (at 78):

To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of the interpretation of the order.

41    This court found to similar effect in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 (Drummond, Sundberg and Finkelstein JJ). There, Drummond J (with whom Sundberg and Finkelstein JJ agreed), said (at 78-79):

It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.

Other judges of this court have expressed similar views: Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385, 399 (Weinberg J); Smith v Comcare (2014) 64 AAR 205, 218 (Robertson J); Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129, [13] (Moshinsky J); Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441, [53] (Moshinsky J).

42    In the present case, there is sufficient doubt about what is contemplated by “the matter” in order 2(b) of the previous full court’s orders that regard may be had to the reasons for which they were made. Those reasons, in our view, make clear that the previous full court intended to remit only the question of whether or not Dr Lim’s Condition would have arisen but for the Performance Appraisal.

43    We are fortified in that view by the manner in which the appeal to the previous full court was conducted. At the hearing of this appeal, counsel for Comcare, Mr Berger, provided (without objection from Dr Lim) a copy of the transcript of the hearing before the previous full court. That transcript, though not determinative of anything, is nonetheless instructive. It records the following exchanges:

MR BERGER: …So there’s only two things operating here. One of those has found to have contributed to and been a cause and we submit that in combination, that is enough. But if your Honours are against us, we accept that it should be clarified. But if the matter is to be sent back, we would strongly urge that this court, in light of the history that this matter has generated – it be dealt with on the papers in accordance with the court’s reasoning, rather than for a full rehearing or a freshly constituted matter. Because - - -

BROMBERG J: You want limited remittal?

MR BERGER: We do, your Honour. Because, if in truth, the only error that emerges is that because of a subsequent decision of the High Court it’s uncertain whether the tribunal asked itself the right question, in light of this matter, it would be appropriate exercise of the court’s discretion to send it back on the basis that the tribunal ask itself that question and then answer it. And then, if need be, we can go from there. But it would be an awfully inefficient use of resources, both the parties’ and the court’s, to have another five-day hearing or something when really it just comes down to, “Ask yourself this question and answer it.”

…

MR BERGER: …The case really focused on the applicant’s contention that she had suffered her ailment before the performance appraisal and, therefore, her condition couldn’t have been as a result of that performance appraisal or the subsequent administrative action. In my submission, the evidence that is before the tribunal is more than sufficient to enable the tribunal to determine whether the second of those three nominated factors, or perhaps the second and third of those factors combined, render the condition as a result of reasonable administrative action.

BROMERG J: Another way of doing this might be that the remittal be limited to the evidence before the tribunal unless the tribunal otherwise determines.

MR BERGER: That would be certainly better than a general remittal.

KENNY J: It has the advantage of leaving it to the tribunal to determine whether evidence was led on a mistaken basis.

MR BERGER: That’s so, your Honour. We would ask the court to, if possible, make clear to the tribunal the basis that it has been sent back, so that there’s no confusion at the tribunal level as to what discretion there may be to reopen the whole matter.

KENNY J: Yes. In other words, indicate to the tribunal that it shouldn’t regard itself as at liberty to hear all evidence generally on all questions, but simply further evidence, if it became necessary to do so, in light of the new understanding of the appropriate test to be applied.

…

KENNY J: Dr Lim, you have heard what has been said and you will understand that the court is minded to consider that the tribunal failed to consider the correct question in relation to one type of its inquiry. And, at this point, the court would be minded to send your matter back to the tribunal to address the correct question and make findings accordingly. This is your opportunity to be heard on the question, should the court remit it back to the tribunal and, importantly, on what conditions should it remit it back to the tribunal.

Mr Berger has said we should remit it back to the tribunal to decide the facts on the basis of the evidence that is already before the tribunal. Subject, perhaps, to leaving the tribunal with the discretion to allow further evidence to be adduced, if necessary, because the proper question wasn’t addressed. So there would be a very small window for receiving further evidence. Do you understand the significance?

DR LIM: Yes, your Honour.

44    Later, in granting leave to Dr Lim’s McKenzie friend, Dr Read, to address the court on the scope of what should be remitted, Kenny J made the following observation (emphasis added):

KENNY J: All right. Well, for these purposes the court will give leave to Dr Read to address the question of the remitter and the conditions of the remitter. You understand, you are effectively successful in your appeal. It’s what happens as a result. Successful on one ground. All right. Please be seated.

45    In its reasons for allowing the appeal, the previous full court observed (at [12]) that (underlining added):

The amended notice of appeal asserted, amongst other grounds, that the primary judge erred in failing to find that the Tribunal misconstrued the expression “suffered as a result of” in the exclusion in the definition of injury in s 5A(1) of the [SRC Act] (referred to below as the exclusion). For the reasons set out below, we would allow Dr Lim’s appeal on the basis that the Tribunal did not address the whole of the correct statutory question when it came to apply the exclusion.

46    It is clear that the “one ground” upon which Dr Lim’s appeal succeeded was her contention that the Popple Tribunal did not properly consider whether her Condition “was suffered as a result of” the Performance Appraisal.

47    These exchanges offer additional context within which the court’s orders should properly be construed. Together with the court’s reasons for judgment and the terms in which the court’s orders were expressed, they make clear that the court did not envisage a wholesale remittal of the broader dispute (that is, the dispute about whether or not Dr Lim’s Condition was one that entitled her to compensation under the SRC Act). Rather, what was envisaged was consideration of a discrete and, until that juncture, overlooked point upon which the answer to that question depended.

48    The consequence of that limitation is that Dr Lim cannot now seek to impugn findings of the Popple Tribunal. Those findings were not disturbed, neither at first instance by Flick J nor on appeal by the previous full court. The only issue that the Tribunal was permitted to answer—and that this appeal is competent to challenge—is the Tribunal’s answer to the “statutory question” as to whether or not Dr Lim’s Condition would have been suffered had the Performance Appraisal not taken place.

49    Even were we to find otherwise, the practical value to Dr Lim of our doing so is academic. By [78] of its reasons (reproduced at [23] above)—and despite its conclusion about the narrow scope of what was remitted to it—the Tribunal made clear that it had given its own consideration to what should be made of the evidence that was before the Popple Tribunal. It came to the same end conclusion: namely, that Dr Lim’s Condition was not one that attracted an entitlement to compensation under the SRC Act. Nonetheless, it is apparent that the Tribunal turned its mind to—and agreed with—each of the constituent findings upon which the Popple Tribunal came to that same conclusion. Key amongst those were that Dr Lim’s Condition arose in March 2011 (not, as she contended, prior to the Performance Appraisal), that the Performance Appraisal constituted reasonable administrative action, and that the Performance Appraisal was reasonably taken.

50    None of the grounds advanced in the present appeal alleges (at least not obviously) that, by undertaking that alternative analysis, the Tribunal committed legal error. Dr Lim’s complaint is with the Tribunal’s findings rather than the method by which it arrived at them.

51    It is under the light of the above conclusions that we turn to consider Dr Lim’s individual appeal grounds.

The grounds of appeal

Ground one: failure to assure that power was exercised according to law

52    Insofar as it is expressed in Dr Lim’s amended notice of appeal dated 5 April 2019, the first ground of appeal is difficult to make sense of. At its heart, it charges the Tribunal with not deciding Dr Lim’s application “according to prevailing statute”. How or why that is said to be so is left unstated. Some clarification, however, is apparent from Dr Lim’s written submissions of 12 April 2019, [4] and [5] of which read as follows:

4. Dr Lim's first Ground of Appeal contends that the 2018 Humphries Tribunal failed to address the legal basis of its core [82 (a)] conclusion according to law. In particular, that the Tribunal failed to establish whether, for the purposes of the SRC Act 1988 ("SRCA"), "the mid-cycle performance appraisal of 31 January 2011" constituted an "administrative action", and, if so, was a "reasonable administrative action" and, further, whether it was an action "taken in a reasonable manner in respect of her (i.e. Dr Lim's) employment".

5. Dr Lim further contends that, in one or more of these respects, the Tribunal made errors of law and that, accordingly, its reaffirmation of the 2013 Comcare decision was not "according to law".

53    The reference to [82(a)] of the Tribunal’s conclusion is, obviously enough, a reference to the Tribunal’s finding (recorded in that paragraph) that Dr Lim’s Condition “…was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment (specifically, the [Performance Appraisal])”. Elsewhere in her written submissions, Dr Lim contends that the Performance Appraisal was not administrative action (as that phrase should be understood for the purposes of the SRC Act), was not reasonable and was not reasonably taken. In each respect, she charges the Tribunal with having committed an error of law insofar as it concluded otherwise.

Was the Performance Appraisal administrative action?

54    On the question of whether the Performance Appraisal was an administrative (as opposed to operational) action, Dr Lim points to the fact that the discussion that transpired on 31 January 2011 had both administrative and operational elements to it: in her words, that “…the 31 January 2011 meeting and consequent written appraisal of Dr Lim’s performance comprised an entanglement of operational and administrative matters”. Insofar as that meeting was operational by nature, it comprised a discussion between Dr Lim and her supervisor about how Dr Lim should perform some aspects of her work.

55    The Tribunal addressed that contention in its written reasons. At [79]-[80], it said:

79. A related argument advanced by Dr Lim is that the performance appraisal of 31 January 2011comprised not one but two distinct actions, both occurring in the course of the same meeting: her supervisor’ s appraisal of her performance and an operational direction by the supervisor relating to powers Dr Lim was required to exercise as an ACMA delegate under the telecommunications legislation. Dr Lim characterised this operational direction as one which invited conspiracy to systematically engage in the improper exercise of power. She contended that the performance review should be uncoupled from the operational direction. The argument, as I comprehend it, is that if the operational direction was the event which in fact contributed significantly to the onset of her condition, and the direction, being illegal, cannot by definition constitute reasonable administrative action, then Comcare cannot avail itself of the exclusion in s5A(1) to avoid liability for Dr Lim’s condition.

80. The provenance of this argument is unclear. In particular, it is unclear as to whether, and if so how, it was articulated to the Full Court. If it was so articulated, it throws into some doubt what their Honours meant in paragraph [44] of their decision by the words the performance appraisal on 31 January 2011, that is, the subject matter of the remittal. Ultimately, however, I’m not persuaded that anything turns on this question. If by the expression the performance appraisal on 31 January 2011 the court was making a shorthand reference to the events which transpired at the meeting on that day between Dr Lim and her supervisor, then I am not inclined to subdivide what the court has evidently aggregated. If, alternatively, the phrase is a reference only to that part of the meeting in which the supervisor gave Dr Lim a performance appraisal, then that is the matter on which the Tribunal has taken evidence and on which it has now reached a conclusion with respect to the application of the Martin test. On that interpretation the operational direction is outside the Tribunal’s remit.

56    Dr Lim accepts that there was at least an administrative component to the discussion that took place on 31 January 2011 between her and her supervisor. However, she maintains that it was not the administrative component of that encounter—that is to say, the Performance Appraisal—that triggered the onset of her Condition. Rather, she says that it was the operational component: comprised principally of a direction given to her by her supervisor about how certain of her tasks were, in future, to be completed.

57    The obvious and fatal flaw in that contention is that it does not disclose any error of law. As the passages extracted above make clear, the Tribunal found that it was “as a result of” the administrative component of what transpired on 31 January 2011 that Dr Lim’s Condition was “suffered”. That was a factual finding that was open to be made on the evidence. This court has no jurisdiction to sustain a challenge to a finding of that nature.

Was the Performance Appraisal reasonable?

58    In order to invoke the exception for which the definition of “injury” in s 5A(1) of the SRC Act provides, Comcare needed to establish that the relevant administrative action (in this case, the Performance Appraisal) was both reasonable and reasonably taken. Dr Lim contends that it was neither: first, because of the “entanglement” of the operational and administrative elements of the discussion that she had with her supervisor on 31 January 2011; and, second, because, so she maintains, the operational element therein involved a direction that she break the law.

59    As to the first of those contentions, we see no reason to conclude that a performance appraisal might be impugned as unreasonable merely because of its proximity to—or “entanglement” with—other, operational discussions. It is neither surprising nor significant that, in the course of discussing an employee’s performance, discussion might ensue about, for example, how tasks might better be performed in future. There is nothing about the present “entanglement” (if it can fairly be described as such) that warrants a finding that the Performance Appraisal was unreasonable.

60    The second contention is based upon Dr Lim’s construction of s 34A of the Acts Interpretation Act 1901 (Cth), which, in January 2011, provided as follows:

Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.

Dr Lim’s contention is that her employment with the ACMA required that she perform certain statutory tasks based upon opinions, beliefs or states of mind that she formed. The direction that Dr Lim says her supervisor gave on 31 January 2011 was to discuss with her discrete instances of how those tasks might be undertaken before Dr Lim proceeded to undertake them. That, so Dr Lim contends, amounted to an impermissible fetter on the discretion that s 34A of the Acts Interpretation Act 1901 (Cth) conferred upon her. In her words: that section “…require[d that] ‘delegates must exercise their own discretion’”; the direction of her supervisor “…invited conspiracy to systematically engage in the improper exercise of power within the meaning of s5(2) of the ADJR Act 1977 (Cth)”; and compliance with that direction would “…require that [Dr Lim] systematically breach her obligations under s13 of the Public Service Act 1999 which required, inter alia, that An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws” (original emphasis).

61    Dr Lim’s contention is plainly wrong. Section 34A of the Acts Interpretation Act 1901 (Cth) did not (and still does not) serve to preclude discussion between an employee and employer about the performance of statutory functions. There was nothing unreasonable about Dr Lim’s supervisor requesting that Dr Lim discuss with her the performance of her tasks before she undertook them. It is apparent that she felt that Dr Lim’s performance was below where it ought to have been. There is no suggestion that that view was anything other than genuinely held. Dr Lim’s supervisor was entitled, if not bound, to discuss with her how she went about her tasks and to insist upon measures that might improve her discharge of them.

62    In any event, Dr Lim’s supervisor’s direction as to how Dr Lim should, in future, attend to her tasks was not administrative action: Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, 473-474 (Gray J), 483-484 (Rares and Tracey JJ); Drenth v Comcare (2012) 128 ALD 1, 6 (Rares, McKerracher and Murphy JJ). Even if, contrary to our conclusion, there was something unreasonable about it, it was not something that somehow infected the Performance Appraisal. The ACMA was entitled to make an appraisal of Dr Lim’s performance. It did so. There is no reason to doubt that its appraisal was genuinely conducted. It was reasonable and reasonably taken.

Conclusion

63    Dr Lim’s first ground of appeal discloses no appellable error of law.

Ground two: failure to take proper cognisance of recent case law

64    Like the first, Dr Lim’s second ground of appeal is difficult to construe. Again, some clarification is provided by her written submissions of 12 April 2019, [6] and [7] of which read as follows:

6. The Appellant's second Ground of Appeal contends that the Humphries Tribunal further failed to address the legal basis of its [82 (a)] conclusion in that it failed to give proper cognisance to recent case law of direct relevance to the Lim v Comcare matter, including specifically, the High Court judgement in the Martin v Comcare case (Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29) and the AAT's own most recent judgement in that same matter (Martin v Comcare [2018] AATA 2870 (3 August 2018).

7. The Appellant contends that even where the performance appraisal legally constituted a "reasonable administrative action" there was need for the Humphries Tribunal to address the question whether any purported contribution to Dr Lim's psychological condition arose from the appraisal action or, alternatively, whether it arose from purported unlawful operational direction issued explicitly within that appraisal.

65    At [23], under the heading “Martin v Comcare legal precedents”, Dr Lim states (with original emphasis):

To the extent that the Performance Appraisal action taken on 31 January 2011 triggered any deterioration of Dr Lim's psychological condition, the Appellant maintains that it was the 'unlawful' operational direction issued by her Supervisor within the performance appraisal rather than the "requires development" sub-standard appraisal of her performance that contributed to any such deterioration[.]

66    It is apparent that, by her second ground of appeal, Dr Lim seeks to impugn at a factual level the Tribunal’s finding that her Condition was suffered as a result of reasonable administrative action that was taken reasonably. She contends that it was more a function of the operational direction given to her on 31 January 2011 than the assessment of her performance.

67    The immediate and decisive flaw in that contention is that the error, if there is one, is not an error of law. The Tribunal found, as fact, that Dr Lim’s Condition was suffered as a result of the Performance Appraisal. That finding was plainly open on the evidence (as to which, see [74] below). Even if it were wrong—and it is by no means apparent that it was—it is not a finding that this court can set aside in an appeal commenced under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

68    Dr Lim’s second ground of appeal is not made out.

Ground three: incorrect finding about when the Condition arose

69    Dr Lim’s third ground of appeal, insofar as it is to be ascertained from her amended notice of appeal of 5 April 2019, is also unintelligible. It asserts that the Tribunal misunderstood its task and unnecessarily confined the ambit and operation of s 7(4) of the SRC Act. The amended notice of appeal leaves unexplored what aspects of the Tribunal’s task are thought to have been misunderstood and the manner in which the “ambit and operation” of s 7(4) is thought to have been improperly confined.

70    Again, Dr Lim’s written submissions of 12 April 2019 offer some clarification. At [9], she states:

9. The fourth Ground of Appeal contends that the Humphries Tribunal erred at law in failing to identify the process of inference by which the 2018 Comcare commissioned medico legal assessment purported to form a reliable retrospective opinion in March 2018 as to how and when Dr Lim sustained the subject psychological condition some 8-years earlier. In particular, the Appellant contends that the 2018 Comcare commissioned medico legal assessment was predicated on unquestioning acceptance of Comcare issued instructions without addressing the circumstances whereby Dr Lim's psychological condition first resulted in her sustaining the incapacity for work affirmed by her Supervisor within the 31 January 2011 performance appraisal[.]

71    At [30], under the heading “Error of Law in determination of Appellant’s Date of Disease”, Dr Lim states (with original emphasis):

30. The SRC Act 1988 at s7(4) deems that an injury being a disease is sustained on the earlier of the day when the employee first sought medical treatment or on the day when the employee first suffered the incapacity for work or impairment:

i. on Monday 31 Jan 2011 Dr Lim's Supervisor formally confirmed that "by Oct/Nov 2010", say about 15 Oct 2010, Dr Lim had sustained an incapacity for work being incapacity to engage in work at the same level at which she had been engaged in the period immediately before that time and going back over 4-years [38,41]; and

ii. in respect to sub-para (b) of s7(4), and pursuant to s7(6) of the SRC Act, the Appellant's evidenced incapacity for work by 31 Jan 2011 is taken for the purposes of the Act "to have resulted" from the disease that she was suffering at that time i.e. the psychological condition identified by the Popple Tribunal as arising out of her ACMA employment [27].

72    This appeal ground suffers from the same deficiency as the second ground: it amounts to nothing more than an attempt to impugn a finding of fact, in this case one that the Popple Tribunal made (namely, that Dr Lim’s Condition was sustained in March 2011 and not, as she contended, prior to the Performance Appraisal). That finding was not disturbed on appeal and was beyond the scope of what the previous full court remitted. In any event, the Tribunal accepted that that finding was correct and adopted it as its own. It was plainly open on the evidence. If, contrary to what we have expressed above, it was proper for the Tribunal to revisit that question, it did so. Its conclusion, even if wrong—and it is not, by any means, clear that it is—is beyond what this court can correct in an appeal instituted under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

Ground four: reliance upon Dr Shaikh’s evidence

73    Dr Lim’s fourth ground of appeal is clearer than those that precede it. It criticises the Tribunal insofar as its decision was based upon evidence received from Dr Shaikh. His evidence was that, absent the Performance Appraisal, Dr Lim would not have sustained her Condition. Dr Lim is critical of the Tribunal’s acceptance of that evidence, which she says did not “identify the process of inference by which Dr Shaikh formed such opinion some 8-years subsequent to the event in question…” (original emphasis).

74    As with Dr Lim’s second ground of appeal, this ground can be swiftly dismissed. It does no more than seek to impugn the Tribunal’s factual finding that Dr Lim’s condition was suffered as a result of the Performance Appraisal. The criticisms that Dr Lim levels at Dr Shaikh’s evidence reflect her submission to the Tribunal that it ought not to be accepted: Tribunal Decision, [73] (Humphries DP). Those submissions were not accepted. It was open to the Tribunal to receive Dr Shaikh’s evidence and to give to it the weight that it was given. Even if it is wrong, the resultant factual finding—namely, that Dr Lim’s condition was suffered as a result of the Performance Appraisal—is not an error of law that this court can correct on appeal.

75    Dr Lim’s fourth ground of appeal is, respectfully, without merit.

Ground five: failure to explain implicit rejection of 2015 finding

76    Dr Lim’s fifth ground of appeal charges the Tribunal with a failure to provide reasons for its implicit dismissal of a finding that the Popple Tribunal made in 2015. On that occasion, the Popple Tribunal considered the extent to which the Performance Appraisal had contributed to Dr Lim’s Condition. It concluded (Re Lim and Comcare [2015] AATA 189, [42] (Popple SM)):

[The Performance Appraisal] was not the only cause [of the Condition]. It may not have contributed to the same extent as did the difference of opinion about the use of template letters, or the events leading up to and following Dr Lim’s position being declared excess. But Dr Lim suffered the psychological condition as a result of the performance appraisal for the purposes of s 5A [of the SRC Act].

77    That finding was the subject of the previous full court’s attention. On the strength of Martin, the previous full court accepted that the Popple Tribunal had not properly applied the test for which s 5A(1) of the SRC Act provides: it had considered whether the Performance Appraisal had contributed to Dr Lim’s Condition, rather than whether or not the Condition would have been sustained had the Performance Appraisal not occurred (the latter being the correct test).

78    On remittal, the Tribunal considered the proper test and concluded that Dr Lim’s Condition would not have been suffered had the Performance Appraisal not occurred. By the fifth ground of appeal, Dr Lim complains that that conclusion is inconsistent with the Popple Tribunal’s finding above, and that the Tribunal was obliged to explain in its reasons why it departed from the latter.

79    Dr Lim’s contention is wrong. There is no inconsistency. It has never been doubted that the Condition had multiple significant causes. At issue was (and is) whether one of them—the Performance Appraisal—contributed in such a way that, without it, the Condition would not have been suffered. To find that it did is not to find that it contributed to the Condition to a greater extent than did the other causes.

80    The Tribunal did not implicitly dismiss (or otherwise decline to follow) the Popple Tribunal’s finding that the Performance Appraisal might not have contributed to Dr Lim’s Condition to the same extent as did other significant factors. To the contrary, it must be understood to have accepted it: Tribunal Decision, [78] (Humphries DP). The inconsistency that Dr Lim complains was left unexplained in the Tribunal’s reasons does not exist.

81    Even if it did, the Tribunal was not under any obligation to explain how or why it came to prefer one conclusion over another. The Tribunal was required, instead, to identify why it was that it came to the conclusion that it did: Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635, 640 (Sackville J); Ascic v Comcare [2019] FCA 819, [81]-[82] (McKerracher J); Dornan v Riordan (1990) 24 FCR 564, 567-568 (Sweeney, Davies and Burchett JJ). In doing so, it was obliged to provide in its written reasons its findings on material questions of fact and references to the evidence or other material on which those findings were based: Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B). It was not required to delve into the correctness of other (even related) decisions. The Tribunal’s reasons in the present case were adequate to explain why it came to the conclusions that it did.

82    Dr Lim’s fifth and final ground of appeal is not made out.

Disposition

83    It follows that none of the grounds that Dr Lim advances in this appeal should succeed. The appeal will be dismissed with costs.

Associate:

Dated:    25 June 2019