FEDERAL COURT OF AUSTRALIA

Wonson v Comcare [2020] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    The objection to the competency of the appeal be dismissed.

2.    The appeal be allowed in part.

3.    The decision of the Tribunal be set aside.

4.    The application for review be remitted to the Administrative Appeals Tribunal to hear and determine according to law the question whether the applicant would not have suffered an adjustment disorder had it not been for her employer’s refusal to agree to her request to reclassify her leave in September 2015 and any further questions that may arise from the redetermination.

5.    The parties confer on the appropriate costs order.

6.    In the event that the parties are unable to agree:

(a)    within 14 days of these orders, the applicant file and serve submissions on costs, not exceeding five (5) pages;

(b)    the respondent file and serve submissions in response within 14 days thereafter, not exceeding five (5) pages;

(c)    the applicant file and serve submissions in reply within 7 days thereafter, not exceeding three (3) pages; and

(d)    the question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant, Sue Wonson, is employed by the Commonwealth of Australia as a case officer in the Child Support Agency, an agency operated by the Department of Human Services. She is aggrieved by a decision of the respondent, Comcare, to affirm its determination to decline to pay her workers’ compensation under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act) with respect to an injury she claims to have sustained as a result of five years of “bullying and harassment” by her supervisors. This proceeding is an appeal from a decision by the Administrative Appeals Tribunal to affirm Comcare’s determination. The Tribunal, in this case constituted by one of its Deputy Presidents, found that Ms Wonson suffered from “an adjustment disorder with depressed and anxious mood” and accepted that her employment with the Department made a significant contribution to it, but determined that the disorder was not an injury within the meaning of the SRC Act because it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

2    Appeals from the Tribunal are limited by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to questions of law. Several questions are identified in the notice of appeal. In substance, however, the appeal is concerned with three matters: first, whether the Tribunal’s decision that the adjustment disorder was a result of reasonable administrative action was reached as a result of a failure to make a critical factual finding about the time the adjustment disorder first developed; second, whether the Tribunal misinterpreted the relevant provisions of the SRC Act; and third, whether certain of the Tribunal’s findings were unsupported by sufficient reasons.

The legislative framework

3    With certain exceptions that are not presently relevant, Comcare is liable to pay compensation in accordance with the SRC Act in respect of any injury suffered by an employee if it results in death, incapacity for work, or impairment: SRC Act, s 14(1).

4    “Injury” is defined in s 5A(1) to mean:

(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.

5    “Disease” is defined in s 5B(1) to mean:

(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.

6    “Ailment” is broadly defined in s 4 to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. “Significant degree” is defined in s 5B(3) to mean “a degree that is substantially more than material”.

7    An “ailment” may be a condition which “cannot be identified with the label of a recognised medical condition”, but it must be one which, having regard to the employee’s circumstances, is “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 439 at 444.

8    Subsections 5B(2) provides that:

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.

9    Section 7(4) relevantly provides that, for the purposes of the Act, an employee shall be taken to have sustained a disease on the day the employee first sought medical treatment for the disease, or the disease first resulted in the incapacity for work or the impairment of the employee, whichever occurs first. But s 7(7) relevantly provides that a disease is taken not to be an injury for the purposes of the SRC Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by, relevantly, the Commonwealth, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

10    The scope of “reasonable administrative action” for the purposes of s 5A(1) is defined in s 5A(2) to include the following matters:

(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.

Background facts

11    Ms Wonson began working as a case officer in the Child Support Agency in October 2004. After a meeting in November 2010 with Mark Cartledge, the manager of the Wollongong office of the Agency, she experienced difficulties at work which led to her making a complaint of “bullying and harassment” to the People Advisory Centre within the Department in January 2012. In mid-July 2012 she was absent from work for two days. A general practitioner, Dr Jayanthi Rao, certified that her absence was “due to work-related stress”. During the following three years a number of incidents took place at work which Ms Wonson believes caused her to become depressed. In September 2014 Dr N Rao diagnosed her with depression.

12    From 14 to 17 September 2015 Ms Wonson was absent from work. She informed her Acting Team Leader, Elissa Fourtounas, that her absence was due to pain associated with fibromyalgia. Ms Fourtounas classified her leave as “personal leave with evidence”. The Tribunal noted that “personal leave” is also known as “sick leave”. When Ms Wonson returned to work on 18 September 2015 she discovered that her pay had been “docked by 2 to 3 hours”. When she asked Ms Fourtounas why, she was told that she had no sick leave available. Ms Wonson said that she asked if her leave could be “put as flex taken rec leave or out of [her] long service leave”. Ms Fourtounas’s evidence, upon which she was not cross-examined, was that Ms Wonson had asked that her leave be reclassified as annual leave. Nothing turns on the difference in the evidence, however. Ms Fourtounas informed Ms Wonson that before she made a decision she would need to speak to Jodie Bonney from Human Resources. After consulting with Ms Bonney, Ms Fourtounas decided not to change the classification. Her reasons, which the Tribunal accepted, were as follows. As Ms Wonson had reported that she was sick, personal (sick) leave was the appropriate classification. She was aware that Ms Wonson was often absent from work as a result of her fibromyalgia. She was concerned to support Ms Wonson to manage the effects of that condition and considered that it was in Ms Wonson’s interests that she maintain her other leave credits to allow her a sufficient opportunity for rest and recreation.

13    Ms Wonson said she contacted her union representative to see whether the Team Leader could make a decision to approve flex leave when sick leave had been exhausted and was told that the Team Leader could do this. On 28 September 2015 Ms Wonson communicated this information to both her Acting Team Leaders, Ms Fourtounas and Lisa Dodd. Ms Dodd told her she needed to “escalate [her] concern to Mark Cartledge”.

14    A meeting was arranged to discuss the matter on 30 September 2015. It did not go well for Ms Wonson. She became extremely upset. After work she went to see her GP, Dr N Rao, and has not returned. It was not in dispute that she has been incapacitated for work since that time.

15    On 7 December 2015, Dr J Rao diagnosed Ms Wonson with “reactive depression and anxiety”, the depression “moderate to severe” in intensity, and the anxiety “severe”.

16    Dr Frank (Kai Tai) Chow, a consultant psychiatrist who examined Ms Wonson on behalf of Comcare on 16 December 2015, diagnosed her with an adjustment disorder with anxiety. He expressed the opinion that it was “likely that clinically identifiable symptoms occurred since 2012 due to ongoing workplace difficulties” and that in September 2015 “there was a trigger of work cessation after a meeting with her HR and managers which led to development of more emotional distress”. In August 2017, after reading some medical records relating to Ms Wonson which revealed a long history of depression predating her employment with the Department and which had been largely undisclosed, he revised his opinions. He concluded that she suffered from a major depressive disorder, being an aggravation of an underlying condition suffered in 2003, 2008 and 2011, that her then psychiatric condition was the result of “the escalated dynamic difficulties at work over the last few years”, but that “her employment factors did not significantly contribute to [her] claimed condition”.

17    Dr Geoff McDonald, a consultant psychiatrist to whom the Department referred Ms Wonson in December 2015, also initially diagnosed her with an adjustment disorder with depressed and anxious mood, which he said was chronic and which had been recently exacerbated. He was of the same opinion when he reviewed Ms Wonson in August 2016. He said that “her adjustment disorder appears to reflect a breakdown in her professional relationship with all the team leaders with whom she has worked in Child Support and also the executive level 2 manager, Mark Cartledge”. After he was provided with Ms Wonson’s medical records and various other documents, however, Dr McDonald also changed his mind. In his supplementary report dated 8 August 2017, he expressed the opinion that it was likely Ms Wonson had experienced “chronic adjustment disorder with depressed and anxious mood, of fluctuating severity, lifelong” and that her employment with the Department had not been “a significant causative factor”. Indeed, he went further, saying that, on the balance of probabilities, her disorder was not related to her employment with the Commonwealth. He also considered that she had a lifelong borderline personality disorder.

18    Dr Selwyn Smith, another consultant psychiatrist, to whom Ms Wonson was referred by her solicitors in May 2016 and May 2017, was of the opinion that Ms Wonson was suffering from an adjustment disorder with mixed depressed and anxious mood to which her employment made a significant contribution. His view, after both consultations, was that her prior history of depression was unrelated to her current clinical presentation, which was caused by “adverse work related events” over a number of years. He adhered to this view after reviewing the records considered by Drs Chow and McDonald and their reports.

The issues identified by the Tribunal

19    The Tribunal identified five issues for resolution:

(1)    whether Ms Wonson suffered an “ailment” or an aggravation of an ailment within the meaning of the SRC Act;

(2)    if so, whether the ailment or aggravation was “contributed to, to a significant degree” by her employment with the Department and therefore a “disease” within the meaning of the SRC Act;

(3)    if so, whether, at any time, for the purposes connected with her employment or proposed employment, Ms Wonson made a wilful and false representation that she did not suffer, or had not previously suffered, from that disease;

(4)    if not, whether the disease was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment”; and

(5)    if so, and Ms Wonson suffered “an injury” within the meaning of the SRC Act, whether she had given notice of the injury in accordance with s 53 of the SRC Act.

The Tribunal’s findings on the issues

20    The Tribunal found in Ms Wonson’s favour on issues 1, 2 and 3. Moreover, despite her apparent lack of candour in both her application for employment and the history she gave to the medical specialists about her background and psychiatric history before 2010, the Tribunal made no adverse findings about her credibility.

21    The Tribunal observed that Ms Wonson was claiming compensation for a “psychological and physical injury” but, on the basis of her evidence, it was satisfied that her claim was “for a psychological injury of which there are some physical signs and symptoms”. Based on the medical evidence adduced at the hearing, the Tribunal found she suffered from an ailment, which it defined as “an adjustment disorder with depressed and anxious mood”. It also found that she had been suffering from the adjustment disorder “by no later than 11 November 2015”, which was the date of a medical certificate signed by Dr J Rao stating that Ms Wonson was suffering “severe anxiety/Depression/stress”.

22    The Tribunal also found that the adjustment disorder was “contributed to, to a significant degree” by Ms Wonson’s employment with the Department. In so doing, it preferred the opinion of Dr Smith to the revised opinions of Drs Chow and McDonald. It also rejected Comcare’s contention that the disorder should not be taken to be an injury for which compensation was payable because of the operation of s 7(7) of the SRC Act.

23    The Tribunal affirmed the decision under review, however, because it was satisfied that the adjustment disorder resulted from reasonable administrative action taken in a reasonable manner in respect of Ms Wonson’s employment. Comcare had contended that each of four separate events, the first in 2010, met this description, so that Ms Wonson’s claimed condition was excluded from the definition of “injury” in s 5A(1) of the SRC Act. At Comcare’s invitation, the Tribunal considered the last event first. It described that action as “the process of making a decision in relation to Ms Wonson’s request [to reclassify her leave] and the conveying of that decision”. That was the process that commenced on 18 September 2015 and concluded on 30 September 2015.

24    Having found that the action fell within the exclusion in s 5A(1), the Tribunal considered it unnecessary to consider the other three events upon which Comcare had relied or to resolve the issue concerning the notice of injury (issue 5).

The scope of the appeal

25    Ms Wonson does not contest the Tribunal’s finding that the Department’s action with respect to her request amounted to “reasonable administrative action taken reasonably”. The appeal is limited to the Tribunal’s decision that the adjustment disorder resulted from that action.

26    The notice of appeal pleads that the following “questions of law” arise:

(1)    On the proper approach to causation in matters involving the “reasonable administrative action” exclusion in subs 5A(1) of the SRC Act, as set out by the High Court of Australia in Comcare v Martin (2016) 258 CLR 467, did the Tribunal fail to properly exercise the jurisdiction conferred upon it by the SRC Act in finding that Ms Wonson was not entitled to compensation under s 14 of that Act for her claimed psychological condition?

(2)    In making the finding that Ms Wonson was suffering from an ailment by “no later than 11 November 2015”, being an adjustment disorder with depressed and anxious mood, did the Tribunal fail to make a factual finding it was obliged to make in the circumstances of the case, namely what, on the balance of probabilities, was the earliest date on which Ms Wonson’s psychological condition was first diagnosable on the evidence, or failing that, on what date sub-section 7(4) applied?

(3)    Did the Tribunal base its finding as to the date of onset of Ms Wonson’s psychological condition on a consideration that was not in law determinative of the date of onset of the condition, namely that Ms Wonson would have been able to continue working in the position she held at the Department, but for the Department’s refusal to reclassify the leave she had requested?

(4)    Having identified one instance of reasonable administrative action taken in a reasonable manner, which the Tribunal found to have contributed to “the claimed ailment” to a significant degree, was the Tribunal also obliged to consider:

(a)    whether the other three actions upon which Comcare relied were “reasonable administrative actions”;

(b)    whether these actions were “taken in a reasonable manner in respect of [Ms Wonson’s] employment”;

(c)    whether the actions “contributed to the causation of the claimed ailment”; and

(d)    if the answer to the above is “yes”, whether, without that action or those actions Ms Wonson would not have suffered the psychological condition contributed to, to a significant degree, by her employment?

(5)    Did the reasons given by the Tribunal for finding that subs 5A(1) operated so as to disentitle Ms Wonson to compensation in respect of her claimed ailment comply with the requirements of ss 43(2) and (2B) of the AAT Act?

27    Five grounds of appeal are pleaded. In truth, however, there are only four, since ground 1 is merely conclusory. Ms Wonson claims that the Tribunal made a number of errors of law, set out in grounds 2 to 5, each of which was a jurisdictional error invalidating its decision.

28    Ground 2 relates to the Tribunal’s finding that Ms Wonson was suffering from an adjustment disorder with depressed and anxious mood (her “ailment”) by no later than 11 November 2015. Ms Wonson alleges that, in making that finding, the Tribunal erred in law for the following reasons:

(1)    The Tribunal failed to determine “the earliest date on which [Ms Wonson’s ailment] was first capable of being diagnosed on the evidence, or failing that, deciding when sub-section 7(4) applied”.

(2)    The Tribunal failed to take into account the following considerations relevant to the fixing of that date:

(a)    the fact that Ms Wonson’s claim for compensation referred to “bullying and harassment from 2010 to current”;

(b)    evidence given by Ms Wonson of such bullying and harassment;

(c)    Ms Wonson’s medical records which revealed consultations between 2010 and 2015 at which she complained of work-related anxiety and depression and was prescribed anti-depressants;

(d)    the evidence of Dr Smith that Ms Wonson had recovered from the bouts of depressive illnesses from which she had suffered before joining the Department and its own finding that the toxic environment to which she was exposed at work “was a substantial contributor that caused her to decompensate …”.

29    Ground 3 challenges the Tribunal’s finding on causation. Ms Wonson alleges that the Tribunal erred in basing that finding in part on its conclusion that Ms Wonson would have been able to continue working in the position she held in the Department had it not been for the Department’s refusal to reclassify her request for leave. Ms Wonson contends that that was an error because the finding was not determinative of whether she suffered from the ailment. Rather, she alleges, it was only relevant to the severity of her condition, given that she already had a psychological impairment, “namely the need to obtain treatment from a medical practitioner, including the prescription of antidepressant drugs”.

30    Ground 4 alleges that the Tribunal erred in failing to determine whether all four of the alleged instances of reasonable administrative action were reasonable and “contributed collectively to a significant degree to the causation of [her ailment]”.

31    Ground 5 alleges that the Tribunal failed to comply with the Tribunal’s statutory obligation to give reasons because it did not include findings on certain material questions of fact and refer to the evidence or other material on which those findings were based.

Is the appeal competent?

32    Comcare filed an objection to the competency of the appeal, contending that the appeal only raises questions of fact and calls on the Court to engage in a review of the merits of the compensation claim. Alternatively, Comcare contended that any error of law by the Tribunal “was immaterial and did not affect, or would not have affected, the ultimate decision”. Finally, Comcare contended that Ms Wonson did not submit to the Tribunal that it was obliged to deal with her case in the manner it now asserts in the notice of appeal and, in these circumstances, no question of law arises, relying on Comcare v Davies [2008] FCA 393; 48 AAR 291; 173 IR 294 at [21] (Flick J); Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448 at [61] (Keane CJ, Sundberg and Kenny JJ); and Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24; 126 ALD 48 at [26] (Flick and Jagot JJ).

33    Save with respect to the last ground, Comcare advanced no submissions in support of its objection to competency. Nevertheless, the Court was given to understand that the objection was pressed and Ms Wonson accepted that she carries the burden of establishing that the appeal is competent: see Federal Court Rules 2011 (Cth), r 33.30(2).

34    In Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315, the Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) explored the scope of an appeal from the Tribunal on a question of law. Their Honours held that:

(1)    The Court’s jurisdiction under s 44 is confined to a question or questions of law, so the ambit of the appeal is confined to such a question or questions (at [62]).

(2)    “The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal” (at [62]). But the question is to be approached as a matter of substance, not form (at [62], [94], [105]–[106]).

(3)    Where, as a matter of substance, the notice of appeal raises a question of law, the Court has “a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal”, even if the primary judge has not done so (at [107]).

(4)    A factual conclusion removed from any question of law is outside the scope of s 44 (at [167]);

(5)    A contention that the Tribunal’s treatment of the evidence lacked a logical basis would be a question of law, even if that involved evaluating the evidence (at [168]);

(6)    A question which can only be answered by determining both the facts of the case and the meaning of the relevant law does not fall within s 44 (at [169]), but an appeal on a question of law is not confined to a pure question of law and may extend to questions of mixed fact and law (at [193]).

Do the grounds only raise questions of fact and/or only call on the Court to review the merits of the claim? If so, does this mean that the appeal is not competent?

35    In our opinion, the appeal is competent. The determinative question is not whether the grounds raise only questions of fact, but whether the notice of appeal raises a question of law. Properly construed, the notice of appeal does not raise for determination pure questions of fact or call on the Court to review the merits of Ms Wonson’s claim, but is limited to questions of law.

36    The first question raised in the notice of appeal is whether the Tribunal’s decision was affected by jurisdictional error. That is most definitely a question of law: Haritos at [202]; and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at [181]. As the Full Court explained in Haritos at [202]:

Although … s 44 extends to non-jurisdictional error, one of the functions of s 44 is to ensure that the Tribunal stays within its jurisdiction. It follows that jurisdictional error would found a question of law under s 44. An appeal on the question whether the Tribunal made a jurisdictional error in a specified respect, such as denying a party procedural fairness … would be, in our opinion, an appeal on a question of law … No textual aspect of s 44 denies the conclusion that, as a contextually understood judicial review provision, it encompasses the authority in this Court to undertake any relevant process to assess the answer to a question of law such as whether a person was denied procedural fairness by the Tribunal. Any answer to that legal question of jurisdiction may require factual evaluation and determination of what occurred before the Tribunal. Such is not to usurp the function of the Tribunal of fact finding, but to ensure that the Tribunal acts lawfully and with authority.

37    Question 2 also raises a question of law, in substance, if not in form. If, as alleged, the Tribunal failed to determine the date and it was bound to do so, it would have fallen into jurisdictional error. Such an omission would amount to a constructive failure to exercise its jurisdiction or a failure to complete the jurisdictional task.

38    It also involves a matter of statutory construction.

39    In Haritos at [123], the Full Court cited with apparent approval the statement by Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 that “[t]he words ‘question of law’ in s 44 encompass matters concerning not only the interpretation of a federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision …”. In May at [191] the Full Court agreed with Beazley ACJ in Norrie v Registrar of Births, Deaths and Marriages (NSW) (2013) 84 NSWLR 697 at [62] that the task of statutory construction involves a question of law and held that the correct construction of “injury” in s 4(1) of the SRC Act is a question of law.

40    The gravamen of question 3 is whether the Tribunal conflated incapacity to work and impairment in determining that Ms Wonson’s injury was not an injury within the meaning of the SRC Act. While Comcare denied that the Tribunal had acted in this way, its counsel acknowledged in argument that the Tribunal was not entitled to do so. Whether the acknowledgment was intended as a concession that this question was a question of law, it surely was, for it would necessarily have proceeded from a misconstruction of the SRC Act.

41    Although it is not apparent from its terms, question 4 raises a question about the effect of the High Court’s judgment in Comcare v Martin. That question is whether, in order to determine whether the Department’s refusal to reclassify Ms Wonson’s leave was an event without which her ailment would not have been a disease (and therefore an injury within the meaning of the SRC Act), the Tribunal was bound to consider each of the instances of administrative action upon which Comcare relied and determine whether it was reasonable, taken in a reasonable manner, made a contribution to her ailment, and without which she would not have suffered from it. That, too, raises a question of law.

42    As for question 5, as Perram J explained in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; 253 ALR 263; 108 ALD 329 (CASA v Central Aviation) at [30], while the question of whether a failure to provide adequate reasons is an error of law has been the subject of debate in the Court, the prevailing view is that it is. The leading authority is Dornan v Riordan (1990) 24 FCR 564 in which Sweeney, Davies and Burchett JJ said at 573 that “the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law”. In any case, “the task of determining the content of the duty to give reasons and of deciding whether the duty has been discharged will involve questions of law”: Westrupp v BIS Industries Limited (2015) 238 FCR 354 at [17] (Buchanan, McKerracher and Katzmann JJ). The question posed in the present case is whether the Tribunal complied with its statutory duty under ss 43(2) and (2B) of the AAT Act. That question, like the similar question raised in CASA v Central Aviation is undoubtedly a question of law, even if a failure to provide adequate reasons might not involve an error of law: CASA v Central Aviation at [34]. See also Tuite at 484. In our opinion, however, the better view is that the failure to meet the standard of reasons required by the statute is an error of law: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ). In Karabolovska v Comcare [2019] FCA 2153, Comcare accepted that a failure to give adequate reasons in compliance with s 43(2B) constituted an error of law: see [36]. In Comcare v Wiggins [2019] FCA 1465, one of the questions of law identified by Comcare itself in its notice of appeal was whether the Tribunal failed to provide adequate reasons for its decision as required by s 43(2) and which conform to the standard required by s 43(2B).

Were the Tribunal’s reasons immaterial to the ultimate decision in that the Tribunal was compelled or permitted to find that Ms Wonson did not suffer an injury as defined in s 5A of the SRC Act?

43    So far as we can tell from the notice of objection to competency, and in the absence of any assistance from Comcare, it appears that Comcare contends that, regardless of any inadequacy in the reasons, no other outcome was open to the Tribunal on the evidence. We reject the contention for reasons that will become clear when we deal with the final question raised on the appeal. In any event, while a conclusion that a decision involves a lack of reason or logic sufficient to amount to an error of law is not lightly to be drawn and not every lapse in logic will be sufficient, “it is not a precondition for relief that it be established that the decision would have been different but for the lack of reason or logic in the relevant sense”: Haritos at [213].

Did no question of law arise because Ms Wonson failed to submit to the Tribunal that it was obliged to deal with her case in the manner it now asserts in the notice of appeal?

44    The answer to this question is no. The authorities to which Comcare referred in its objection involved factual contentions which were not raised in the Tribunal and of which the Tribunal was not otherwise seized.

45    In Comcare v Davies, Comcare alleged that the Tribunal misconstrued s 19(2) of the SRC Act, which relates to the manner in which the liability to pay compensation is calculated. One of the integers of the formula prescribed by the subsection is the weekly amount, if any, that the employee is able to earn in suitable employment. Comcare submitted that the Tribunal failed to take into account Ms Davies’ capacity to engage in certain forms of suitable employment. Flick J said at [18] that the issue was not raised in Comcare’s Statement of Facts and Contentions or at least not in a way that required Ms Davies to address it either in evidence or submissions. It was in this context that his Honour held at [21] that no question of law arose.

46    In Tuitaalili, the issue before the court was whether the Tribunal made a jurisdictional error by failing to consider the interests of two children when their interests were not raised before the Tribunal.

47    Roy Morgan Research concerned a decision of the Tribunal that interviewers engaged by Roy Morgan to conduct surveys of members of the public for market research were employees with the result that Roy Morgan was liable to pay a superannuation guarantee charge. The relevant question (at [52] and [58]) was whether the Tribunal erred in failing to have regard to the disturbance that would be caused to the existing business arrangements Roy Morgan and the interviewers had put in place by a finding that the interviewers were employees. The Full Court held at [58] that this was not a mandatory consideration and therefore there was no error of law in failing to take it into account and observed at [59] that there was, in any event, no factual basis for the allegation. The Full Court also observed at [61] that the contention underlying the question was not propounded before the Tribunal and so the Tribunal did not err in law in failing to address it.

48    In each of these cases the Tribunal was not alive to the question raised on appeal.

49    Here, however, the Tribunal recognised that it had to determine the time Ms Wonson suffered the adjustment disorder, which was the subject of question/ground 2 because it asked itself that very question. Further, although he ultimately did not do so, the Deputy President believed (rightly or wrongly) that he was required to consider each of the actions taken by the Department which Comcare alleged fell within s 5A(1) of the SRC Act, which was the subject of question 4/ground 4. He said as much in [92] of his reasons.

50    In any case, a distinction is drawn in the authorities between factual matters not canvassed before the Tribunal and issues of statutory construction or validity. In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343; 35 ALR 186 at 195, Bowen CJ explained that “the conduct of the party’s case before the Tribunal goes to this Court’s discretion as to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error”. His Honour observed that, even where a matter is conceded below, a party is not necessarily precluded from arguing the point on appeal. In that case, where “there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions”, his Honour said it was an error of law not to consider and decide it.

51    If Ms Wonson’s allegations are correct, the Tribunal would have misconstrued the SRC Act and failed to fulfil a core obligation under the AAT Act. The Tribunal was bound to proceed according to law regardless of what submissions were made to it. A question of law squarely arises.

52    For all these reasons the objection to competency must be dismissed.

Did the Tribunal err in failing to fix the earliest date that the applicant’s ailment was diagnosable (grounds 1 and 2)?

53    As Ms Wonson’s submissions made clear, ground 2 rests on the assertion that the Tribunal failed to determine whether she suffered from an ailment before the administrative action taken in late September 2015, ground 1 on the notion that the omission amounts to a jurisdictional error.

54    When the direct question of when Ms Wonson suffered an adjustment disorder was asked and answered by the Tribunal, the Tribunal merely referred to its earlier finding that she did so “no later than 11 November 2015”. Ms Wonson described this as “the central finding of fact relevant to the timing issue”. On that date her GP, Dr J Rao, signed a medical certificate in the form provided by the NSW WorkCover Authority. In that certificate Dr Rao did not mention an adjustment disorder. She stated that the diagnosis was “severe anxiety/Depression/stress secondary to severe psychological injury at work” and that Ms Wonson was totally incapacitated for work for a month. She did not indicate when, in her opinion, the injury occurred. Rather, she recorded “2012” as the date of injury given by the patient. She did, however, attribute Ms Wonson’s “current aggravation of symptoms” to “alleged bullying and harassment” at the workplace, which she reported on 30 September 2015.

55    Ms Wonson submitted that:

The Tribunal’s finding on timing, taking into account the Applicant’s history, and the medical evidence, does not decide whether the Applicant was, or was not, suffering from a psychological disorder characterised by depression and anxiety, which was contributed to, to a significant degree, by her employment, before the events which took place in late September 2015 (which the Tribunal considered to be disqualifying “reasonable administrative action”). However, it was necessary for the Tribunal to analyse the evidence and determine the earliest date when an appropriate diagnosis could be made, and whether the Applicant had suffered “impairment” or “incapacity” at that time, such that compensation was payable under s.14. The prior prescription of psychotropic medication would be sufficient to indicate an “impairment”, if it were prescribed for the treatment of anxiety/depression. If those questions were answered favourably to the Applicant, then the claimed “ailment” could not be said to be suffered “as a result of” the “administrative action” of late September 2015, although that action may potentially have been capable of causing a further aggravation of that condition. Further, it is not clear at all whether the Tribunal was drawing a factual conclusion … or was invoking s.7(4) based upon the consultation with Dr J. Rao on 11 November 2015 in order to establish the date of the ailment. If it was doing the latter, then that was an incorrect approach. A factual analysis of both the lay and medical evidence was required to determine the date of injury.

(Original emphasis.)

56    Ms Wonson submitted that the Tribunal’s decision was “fatally flawed” because it did not make a positive finding on the evidence that the adjustment disorder was not already present before the administrative action was taken in late September 2015.

57    These submissions must be rejected.

58    It will be recalled that at [137]–[138] the Deputy President made the following findings:

137    … I find that had the Department not refused to reclassify the leave as requested by Ms Wonson, she would have been able to continue working in the position she held at the Agency and would not have suffered the ailment which she did …

138    The causal connection between the reasonable administrative action and the condition suffered by Ms Wonson is established. Consequently, the condition suffered by Ms Wonson is not an “injury” within the meaning of the Act and she is not entitled to compensation in respect of that condition.

(Emphasis added.)

59    That ailment was an adjustment disorder with depression and anxiety. Since the Tribunal determined that Ms Wonson would not have suffered the ailment but for the Department’s refusal to reclassify her leave and that decision was “reasonable administrative action taken in a reasonable manner in respect of [her] employment”, the date that ailment occurred was immaterial. It was not an injury within the meaning of the Act. Accordingly, the Tribunal was not required to make a finding, as the relevant inquiry ended there. See Peters v Comcare [2013] FCA 1361; 137 ALD 375 at [23]–[24] (Tracey J).

60    In Peters v Comcare, the applicant argued that the Tribunal erred in finding that the date of injury was not a significant issue when s 5A(1) “requires a temporal relationship between the date of injury and the ‘reasonable administrative action’ whereby the relevant administrative action must precede the injury”. Tracey J held at [23] that, when determining if the exclusionary provisions of s 5A of the SRC Act apply, the Tribunal is not required to determine, as a preliminary issue, the date of injury in accordance with s 7(4) of the SRC Act. His Honour explained at [24]:

Section 7(4) of the SRC [Act] is a provision which deems an employee to have sustained “an injury” on a particular day. It has no work to do unless an “injury” has been suffered by an employee. Section 5A defines the term “injury” subject to the exclusionary rider that the term “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.” The antecedent question must, therefore, be whether or not the exclusionary rider has been engaged. If it has been there will be no injury for the purposes of s 7(4).

61    Similarly, in Gaffey v Comcare (2015) 239 FCR 76 at [46], Wigney J could not understand why the Tribunal considering Ms Gaffey’s psychiatric illness considered that the date of the injury was an issue it was required to decide, “given that the Tribunal ultimately found Ms Gaffey’s injury fell within the exclusion in s 5A(1) of the Act”.

62    In any event, the effect of the Tribunal’s finding that the adjustment disorder was suffered as a result of the administrative action taken with respect to Ms Wonson’s request for the reclassification of her leave is that the ailment did not arise until 18 September 2015 at the earliest. As counsel for Comcare put it in oral argument, if Ms Wonson would not have suffered the ailment which she did if that action had not been taken, she cannot have suffered it before the time the action was taken. In other words, it is abundantly clear from the Tribunal’s reasons that the Tribunal found that the ailment occurred between 18 September 2015 and 11 November 2015. Provided that it satisfied its obligations under s 43(2) of the AAT Act, a question to which we will come in due course, the Tribunal did not need to go further.

63    Ground 2 must therefore be dismissed.

Did the Tribunal err in law by conflating incapacity with impairment (ground 3)?

64    In ground 3, Ms Wonson alleges that the Tribunal erred in law by conflating incapacity with impairment, treating the former as determinative of the latter. The suggestion in the pleading that incapacity for work is irrelevant to the question of whether or when injury occurred was withdrawn during argument and is plainly wrong. Incapacity for work is an indication of impairment, although it may not be the only or the first indication.

65    The basis of the allegation is the Tribunal’s finding at [137].

66    It is common ground that the Tribunal would have erred if it had treated incapacity as determinative of impairment. As Wigney J observed in Gaffey v Comcare at [48], it is wrong to conflate incapacity for work with impairment; it is clear from the terms of s 14 of the SRC Act that each is “a separate and alternative concept”. There is no doubt that the Tribunal regarded incapacity for work as significant. Moreover, as we explain below, the reasons for the Tribunal’s finding at [137] are deficient. For the following reasons, however, we reject Ms Wonson’s contention that the Tribunal conflated impairment with incapacity.

67    The finding at [137] should not be read in isolation. The Tribunal’s reasons must be read as a whole. When its reasons are read as a whole, it is clear that the Tribunal had regard to matters in addition to incapacity. It extracted verbatim at [94] Ms Wonson’s account of those events in which she said, amongst other things, that on the day before the meeting her “depression ha[d] now escalated” and at the meeting the “nerves in [her] body were extreme”, she “started to shake inside”, she “broke” and “started to cry”, and her voice was “shaking”. After the meeting, she said she went into an empty room, where she was “shaking and crying”. Although she tried to settle herself, she could not stop crying. She felt “belittled”.

68    At [95] the Deputy President quoted the following exchange in the cross-examination of Ms Wonson:

And that what this was imposing upon you, that you expressed, was an inability for you to make ends meet? --- Yes.

Yes. So, the difficulty that arose for you in those circumstances was that if the financial pressure continued, that you expected that you won't likely to continue with your work? --- Yes.

So, once that decision is made for you, did you then feel this is a road that I can't pursue, I can't continue to come to work, it's all too much for me now? --- No, what I said in the meeting, I asked them all if they knew what fibromyalgia was. All of them had not looked it up. I asked them if they were doctors because you know with fibromyalgia you can't just save your leave and then go on four weeks holiday once a year. It doesn't work that way. So, to hear that they never even Googled what I had, how can they then come to that conclusion not knowing my illness? That's what stressed me out. There is no support if they didn't even bother looking at what fibromyalgia was.

Sure? --- That's what hurt me and then it scared me that they don't listen to me. They're not concerned about the welfare of the worker, the employee. Jodie knew of all the history of bullying and then adding this on top.

This was the straw that broke the camel's back, I think, you said to Dr McDonald? --- Yes

And before the laying of that straw, you felt if they accommodated you that you could continue to do your work? --- Yes, because they would have supported my illness. They would understand what it was.

Yes. You agree, don't you, that through your own experience, and I presume you have Googled it on many occasion[s], that it’s a complex condition? --- Yes.

And I take it that the position you found yourself in, immediately prior to these meetings in or about 29/30 September was that if they could accommodate you, there was no impediment to you continuing to do your work? --- Yes.

…

I’m just saying that from your own perspective your belief was that they would have to support you to see you through this? --- I thought, as an employer, and look after their employees and know the illness. So, yes, I did expect that of them.

Yes? --- I was very shocked when they didn’t even know what I had

…

And, as I understand it, that it was during those meetings that you formed that view? --- They told me they didn’t look it up. They told me they only knew the name.

…

And after those meetings you left work, never to return again? --- Yes.

But before those meetings, and the issue about the reallocation, [you] felt that if they had accommodated you, being your fibromyalgia and the unknown condition, that you could have continued on with work without any difficulties at all? --- I was hoping so because I just got in that team.

That was your expectation, wasn’t it? --- Yes.

… So, in the absence of whatever took place in those meetings and what you came to understand, you believe that you could have soldiered on? --- I could have went back to work, yes.

69    The Deputy President referred to the extracts from the evidence at [131]. At [132] he said:

On the basis of this evidence, I am satisfied that the refusal to reclassify her leave and the subsequent meeting caused Ms Wonson very significant distress. I have accepted that, in fact, the action was taken in a reasonable manner. Nevertheless I am satisfied, on the basis of Ms Wonson’s evidence, that she perceived she was being treated most unfairly and that this had a lasting effect upon her.

70    At [133]–[137], the Deputy President said that he had also taken into account the fact that Ms Wonson consulted Dr J Rao on the day of the meeting, and the evidence of Drs J Rao, McDonald and Chow. Most, but not all, of the evidence referred to in those paragraphs is focussed on Ms Wonson’s capacity to work. The Deputy President also referred to the fact of the consultation with Dr Rao on the day of the meeting, the history recorded by Dr McDonald and Dr Chow, and their diagnosis of an adjustment disorder when they saw Ms Wonson in December 2015.

71    Despite the paucity of the reasons, discussed below, we are not persuaded that the Tribunal conflated incapacity with impairment. Accordingly, ground 3 should be dismissed.

Was the Tribunal obliged to determine whether all four of the alleged instances of reasonable administrative action were reasonable and collectively made a significant contribution to the ailment (ground 4)?

72    It will be recalled that Ms Wonson alleges that the Tribunal erred because, if any one of these “factors” or the combination of them significantly contributed to the development of her ailment but was not found to be reasonable administrative actions taken in a reasonable manner in respect of her employment, then the Tribunal would have been bound to find that the causation test in Comcare v Martin had not been satisfied.

73    Ms Wonson argued that the “critical point” the High Court was making was that, notwithstanding a significant contribution to a psychological condition by reasonable administrative action taken reasonably, the claimant may have been rendered psychologically ill from other employment-related causes which also make a significant contribution to the illness. Consequently, she submitted, the exclusion in s 5A(1) only applies “where the total employment contribution cannot reach the ‘significant degree’ threshold without the inclusion of one or more [administrative actions of the relevant character]”. She submitted that the judgment in Comcare v Martin recognises that there is no policy reason consistent with the overall objectives of the SRC Act why compensation should be withheld “if non-exclusionary employment factors have contributed overall ‘to a significant degree’ to the causation of the claimed condition”. In these circumstances, she argued, where Comcare had identified four instances of what it claimed amounted to “reasonable administrative action taken reasonably”, the Tribunal failed, in effect, to complete its statutory task by considering the “interaction” of the administrative action taken in September 2015 with any other employment-related contributions. Ms Wonson’s case was that this exercise was mandated by Comcare v Martin and was the very error identified by the Full Court in Lim v Comcare (2017) 250 FCR 298 at 306–308 (Kenny, Tracey and Bromberg J), when it allowed an appeal from the Tribunal, and reflected the pre-Martin state of the law derived from Hart v Comcare (2005) 145 FCR 29 at 33 (Branson, Conti and Allsop JJ).

74    These submissions cannot be accepted.

75    In Ms Hart’s case, the Tribunal had found that there were two concurrent employment-related causes of Ms Hart’s injury, which also happened to be an adjustment disorder, and that one — her failure to obtain a promotion — materially contributed to her disorder, material contribution being the causal connection required by the SRC Act at the time. In Hart at [19]–[23], the Full Court upheld Comcare’s notice of contention, summarised at [15], that if, as in that case, there were findings sufficient to establish that the disease or injury suffered by Ms Hart was as a result of her failure to obtain a promotion, there was no injury within the meaning of the SRC Act, regardless of whether her adjustment disorder was the result of other employment-related factors.

76    Contrary to Ms Wonson’s argument, in Lim at [29] the Full Court said that “Comcare v Martin does not cast doubt on the extension of the analysis in [Hart] to the exclusion as presently expressed in s 5A(1) of the [SRC] Act”, citing Comcare v Martin at [45].

77    To understand the decision in Comcare v Martin, it is useful to have an appreciation of the facts.

78    Ms Martin was employed by the Australian Broadcasting Corporation in Renmark, South Australia as a producer of a radio program. She had a poor working relationship with her direct supervisor, Bruce Mellett, who presented the program, and she felt he was bullying and harassing her. She described their working relationship as “toxic”. She applied for a number of positions outside Renmark without success in an attempt to remove herself from Mr Mellett’s supervision. She was appointed to act temporarily in the higher position of cross-media reporter in which she was supervised by another person, who was based in Hobart. When the permanent position was advertised, Ms Martin applied for it and was interviewed by a selection panel, which included Mr Mellett. After she was informed that she had been unsuccessful and that she would have to return to her substantive position under Mr Mellett’s supervision, she broke down uncontrollably, immediately stopped work, and sought medical treatment the following day.

79    The Tribunal found that Ms Martin suffered from an adjustment disorder, that she was probably suffering from it during the period when she was acting in the position of cross-media reporter, but that her mental condition deteriorated significantly when she was notified that she had not been appointed to the permanent position. There was no dispute that the deterioration in the adjustment disorder was contributed to, to a significant degree, by Ms Martin’s employment. The dispute concerned whether the disorder was excluded from the definition of injury in s 5A(1). Comcare contended that the deterioration in her mental condition was suffered as a result of the decision not to appoint her to the permanent position of cross-media reporter and that that decision was reasonable administrative action taken in a reasonable manner. Ms Martin, on the other hand, contended that the deterioration in her mental condition was caused by her realisation that she would be returning to the supervision of Mr Mellett, which she dreaded, and any contribution caused by her disappointment at the lost opportunity of advancing her career was immaterial. She argued that that was sufficient in law for the Tribunal to conclude that the deterioration in her mental condition was not suffered as a result of the relevant administrative action. The Tribunal accepted her factual contention but rejected her legal argument. Consequently, it determined that “one of the operative causes of [the deterioration in her] adjustment disorder was her failure to obtain the position of cross media reporter” and concluded that her condition was a result of the decision not to appoint her. But it also held that that decision was not taken in a reasonable manner so that the exclusion did not apply.

80    Comcare appealed to this Court, challenging the Tribunal’s finding that the decision had not been taken in a reasonable manner. Ms Martin filed a notice of contention challenging the Tribunal’s conclusion that she suffered her disease as a result of that decision.

81    The primary judge allowed Comcare’s appeal, finding that the Tribunal’s conclusion that the decision not to appoint Ms Martin to the position of cross-media reporter was not taken in a reasonable manner was affected by error of law, but dismissed Ms Martin’s notice of contention, holding that the conclusion that she suffered her disease as a result of that decision was not affected by legal error. Ms Martin appealed to the Full Court. The Full Court unanimously rejected her challenge to the decision of the primary judge, allowing Comcare’s appeal, but divided on the outcome of her challenge to the dismissal of the notice of contention, the majority upholding the challenge. The Full Court’s reasons are summarised in Comcare v Martin at [30]–[31] and need not be repeated here.

82    The High Court identified a single issue of principle to be resolved on the facts as found by the Tribunal. That was whether the Tribunal was correct in law to conclude that the deterioration of Ms Martin’s mental condition triggered by her contemplation of a perceived consequence of the decision was a disease which she suffered as a result of that decision within the meaning of s 5A(1). The High Court held that it was. In so doing, the High Court was critical of the Full Court for importing a “common sense” notion of causation into the interpretation of the phrase “as a result of” and stressed the importance of applying “a causal term in a statutory provision” by reference to the text of the statute “construed and applied in its statutory context in a manner which best effects its statutory purpose”. In the following paragraphs, it set out the manner in which it considered the phrase was to be construed:

44    The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers that description of reasonable administrative action.

45    When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.

(Emphasis added.)

83    This was the construction the Tribunal applied in the present case. In Comcare v Martin the High Court did not say or even imply that it was necessary to consider the contribution made by all possible causes before the taking of the administrative action could be found to have contributed to the employee’s ailment to a significant degree. Neither did the Full Court in Lim.

84    Contrary to Ms Wonson’s submission, in Lim at [29] the Full Court was at pains to emphasise that Comcare v Martin “involves no substantial departure from the approach to the statutory text adopted in [Hart], and re-iterated in Drenth v Comcare [[2012] FCAFC 86; 128 ALD 1]”. In Drenth at [29], after referring to Hart, another Full Court (Rares, McKerracher and Murphy JJ) held that “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 …”. In Lim the Tribunal noted that the relevant administrative action (an adverse performance appraisal) contributed to the development of Dr Lim’s adjustment disorder and was a cause of it. The Full Court held that the Tribunal erred in law because it did not address the question whether Dr Lim would have suffered the adjustment disorder if the performance appraisal had not been made. The Full Court in Lim did not hold that, in order to determine that question, it was necessary for the Tribunal to consider the relative contributions of all other potential contributors. It is true that the Full Court remarked on the fact that Comcare had identified two other employment-related events that contributed significantly to the development of Dr Lim’s adjustment disorder. The Full Court in Lim also observed that the only causal factors identified in Dr Lim’s case were employment-related factors. But the Full Court did not say that that it was necessary for the Tribunal to consider all the other causes, let alone assess their relative contributions, before it was open to the Tribunal to determine that the adjustment disorder would not have developed had it not been for the adverse performance appraisal. If that were its view, no doubt it would have said so.

85    It follows that ground 4 must be dismissed.

Did the Tribunal fail to give adequate reasons (ground 5)?

86    Section 43(2) of the AAT Act imposes a duty on the Tribunal to give reasons for its decision. Where, as here, the Tribunal gives its reasons in writing s 43(2B) provides that:

[T]hose reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

87    Ground 5 reads as follows (without alteration):

The reasons given by the Tribunal for finding that sub-section 5A(1), on its proper construction, operated to exclude the Applicant's entitlement to compensation In respect of the claimed psychological condition, did not comply with the requirements of ss.43(2) and (2B) of the AAT Act, because, having given reasons in writing, those reasons did not include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based, In particular in relation to

(a)    the finding that the Applicant was suffering from the claimed ailment by “no later than 11 November 2015”, rather than at a date prior to 30 September 2015, having regard to the Applicant's evidence, the Applicant's medical treatment records, and the evidence of Dr Smith;

(b)    the finding that the Applicant would not have suffered from the claimed psychological condition but for the refusal of the Applicant's employer to reclassify certain leave as requested by the Applicant, having regard to the Applicant’s evidence, the Applicant's medical treatment records, and the evidence of Dr Smith;

(c)    the finding that it was unnecessary to consider all four of the factors alleged to have been covered by the reasonable administrative action exclusion, having regard to the causation test formulated by the High Court in Comcare v Martin.

88    Without complaint from Comcare, however, the argument strayed beyond the terms of ground 5, although no application was made to amend the notice of appeal. The argument largely turned on the paucity of the reasoning to support the Tribunal’s finding in [137] that the adjustment disorder would not have occurred had it not been for the Department’s conduct in September 2015 relating to the refusal to reclassify Ms Wonson’s leave.

89    As pleaded, ground 5 makes little sense. It is well-established that the obligation imposed by s 43(2B) only extends to the findings the Tribunal has actually made and not to findings the Court considers it ought to have made. In V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8], for example, Hill and Allsop JJ made the following observations:

The terms of the provision are clear. It is necessary for the Tribunal to record its findings of the facts that it considers to be material. That proposition was also made plain by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in considering the similarly worded s 430 of the Migration Act. There are differences between s 430 and s 43(2B), but these differences only reinforce the proposition that s 43(2B) only requires that it is the findings of fact which, in the opinion of the Tribunal, are material that need to be set out in the reasons. Merely because the Court is of the view that the matter should have been approached in a different way or that important factual questions have not been addressed does not lead to the conclusion that there has been a failure to comply with s 43(2B). Nevertheless, as was pointed out in Yusuf at [31], [74], [75] and [82], the absence of findings by the Tribunal on certain matters or the nature of the findings actually made may disclose that the Tribunal has failed to attend to the task given to it by the statute. The findings, including the absence of findings, may, in that way, disclose jurisdictional error.

90    The Tribunal’s duty to give reasons, however, is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved “an unwarranted finding of fact, or an error of law, which is worth challenging”: Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 at 507 (Woodward J). Woodward J said in Wraith that the decision-maker must set out his or her understanding of the relevant law, the findings of fact on which his or her conclusions depend, especially if the facts were disputed, and the reasoning processes which led to those conclusions. His Honour also said that that should be done “in clear and unambiguous language, not in vague generalities or the formal language of legislation”. That case was concerned with a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 13 of which requires a relevant decision-maker to furnish on request to a person aggrieved by a decision to which the Act applies “a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision”. The use of the conjunction “and” in s 13(1) of the ADJR Act instead of the enunciation of the duties in separate subsections is an immaterial difference. The Tribunal, no less than a decision-maker whose decisions are covered by the ADJR Act, is required to set out its findings on material questions of fact, the evidence or other material on which those findings are based, and the reasons it had for reaching its decision: Comcare Australia v Mathieson [2004] FCA 212; 39 AAR 450; 79 ALD 518 at [63] (Weinberg J).

91    As French J explained in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD 103 at [40]:

The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. There will always be some legal rule or principle or discretion to apply. It may be that a rule or principle, like the major premise of a syllogism, will embody the factual circumstance necessary to give rise to a right or liability. Then it may be sufficient to state that rule or principle in the reasons, the facts found as the minor premise, the evidence on which they are based and, the result which follows. Not all, and perhaps not many results are so easily explained. Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.

92    Speaking of the duty imposed by s 68(2) of the Accident Compensation Act 1985 (Vic) on a medical panel to provide a written statement of reasons for its opinion on a medical question referred to it, the High Court said in Wingfoot at [55] that the statement must set out “the actual path of reasoning” by which the panel arrived at its opinion and explain that path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. The Court went on to say that “[i]f a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion ....”.

93    The Tribunal’s duty to give reasons in conformity with s 43(2) similarly requires the Tribunal to disclose its path or process of reasoning in sufficient detail to enable a court to see whether it has made an error of law. That will necessarily involve making reference to the findings on material questions of fact and the evidence or other material on which those findings were based, but the duty is not discharged merely by including those references.

94    Ms Wonson alleges that the reasons given for three of the Tribunal’s findings were inadequate. Those findings were:

(1)    the finding (at [31]) that Ms Wonson was suffering from an ailment, namely an adjustment disorder with depressed and anxious mood, by no later than 11 November 2015, “having regard to [Ms Wonson’s] evidence, Ms Wonson’s medical treatment records, and the evidence of Dr Smith”;

(2)    the finding (at [137]) that Ms Wonson would not have suffered from the ailment had it not been for the refusal of her employer to accede to her request to reclassify her sick leave, “having regard to [Ms Wonson’s] evidence, [Ms Wonson’s] medical treatment records, and the evidence of Dr Smith”; and

(3)    the finding at [139] that it was unnecessary to consider all four of the factors alleged to have been covered by the reasonable administrative action exclusion, having regard to the causation test formulated by the High Court in Comcare v Martin.

95    In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 McHugh JA stated:

In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.

96    As we explained above, the challenge to the finding at [139] is based on a misunderstanding of the High Court’s decision in Comcare v Martin. We see no reason why it was incumbent on the Tribunal to explain why it was unnecessary to consider the other three matters upon which Comcare relied in the light of its conclusion that Ms Wonson would not have suffered from the adjustment disorder but for the administrative action taken by the Department in September 2015.

97    The challenge to the adequacy of the reasons for the finding at [31] has no merit.

98    The issue the Tribunal was addressing in [31] was whether Ms Wonson suffered an ailment or an aggravation of an ailment within the meaning of the SRC Act.

99    Before stating its finding at [31], the Tribunal referred to the medical evidence, noting the various diagnoses. As we mentioned earlier, all three psychiatrists from whom evidence was elicited initially diagnosed Ms Wonson with an adjustment disorder, although at this point in its reasons, the Tribunal only referred to Dr Chow’s revised diagnosis of a major depressive disorder. The Tribunal then briefly summarised the opinions of Dr Smith and Dr McDonald, each of whom diagnosed Ms Wonson with an adjustment disorder. It will be recalled that Dr McDonald’s diagnosis, following his examination 8 December 2015, was of an adjustment disorder with a depressed and anxious mood. Dr Smith’s was of an adjustment disorder with mixed depression and anxious mood. Dr Smith’s diagnosis is not appreciably different from the Tribunal’s finding. It is readily apparent from the Tribunal’s reasons that the finding was based on Dr McDonald’s diagnosis, with which Dr Smith agreed. The progress notes from the Rao practice do not indicate that Ms Wonson had been diagnosed with an adjustment disorder before December 2015 when she was seen by Dr McDonald but that she had had episodes of depression and anxiety. But it is clear from what the Tribunal said at [70] of its reasons that it regarded the condition described in Dr Rao’s certificate of 11 November 2015 to be the same condition later diagnosed as an adjustment disorder.

100    That leaves the complaint about the alleged inadequacy of the reasons for the finding at [137].

101    The reasons for the finding commence at [129] with a reference to Comcare v Martin, followed by an extract from [47] of the judgment before moving on in [131] to Ms Wonson’s evidence set out at [94]–[95], the assessment of that evidence at [132], and references to select parts of certain medical reports.

102    Ms Wonson submitted that the Tribunal’s reasons at [129]–[136], supported by other evidence she gave, as well as the evidence of the GPs and Dr Smith, were “consistent with a person who is suffering a psychological ‘impairment’, but not yet completely incapacitated for work”. She argued that the reasons do not expose “the logical process by which [the Tribunal] moved from those findings to the result in the case” and that “reasoning relating to the ‘logical process’ is missing in this instance”. In particular, Ms Wonson submitted:

[T]he Tribunal has failed to provide any reasoning for ruling out the explanation that the Applicant was already psychologically ill, but not yet totally incapacitated for work, towards the end of September 2015. Indeed, the very subject matter of the meeting in September 2015 which was said to give rise to the "last straw" (in relation to capacity to continue at work) requires consideration of an alternative scenario that (a) the Applicant was already struggling to stay at work, and (b) was already exhibiting psychological symptomatology involving worsening depression on top of her fibromyalgia, before the meeting of 30 September 2015. The Tribunal had nothing to say about that. The Tribunal also failed to provide any reasoning that reconciled its apparent acceptance of the opinions of Dr Selwyn Smith, concerning the history of the Applicant's psychological condition, with the conclusion that the Applicant did not suffer from a psychological condition until possibly as late as 11 November 2015, six weeks after the meeting on 30 September. Further, the Tribunal said it was relying, inter alia, on the opinions of Dr Chow and Dr McDonald, doctors qualified by the Respondent, but it is submitted that those reports do not illuminate the logical process leading to the Tribunal’s conclusion either. The same comment can be made about the reports of Dr J. Rao, also relied on by the Tribunal. While the Applicant accepts that the law requires only that the Tribunal set out the reasons it had for reaching its decision, there must be a logical process which leads from the evidence the Tribunal accepted to the conclusion it reached about causation.

103    There are some problems with this submission. The Tribunal did not rule out the notion that Ms Wonson was “psychologically ill” towards the end of September 2015, before the meeting on 30 September. The Tribunal decided that she would not have suffered from the adjustment disorder if the Department had not refused to reclassify her leave, a decision first made and conveyed to her on 18 September 2015. Nor did the Tribunal conclude that Ms Wonson did not suffer from a psychological condition “until possibly as late as 11 November 2015”. It is obvious from the Tribunal’s remarks at [131]–[132] that it accepted that Ms Wonson was suffering “very significant distress” at least by late September 2015.

104    Moreover, as Comcare submitted, on a fair reading of the Tribunal’s reasons, the evidence of Drs J Rao, McDonald and Chow to which the Tribunal referred at [137] is a reference to the evidence cited in the preceding four paragraphs. That evidence included the fact that Ms Wonson consulted Dr Rao on the day of the meeting; Dr McDonald’s evidence about her condition on 8 December 2015 and the history he recorded in his first report; Dr Chow’s assessment of Ms Wonson on 16 December 2015; Ms Wonson’s statements to him about the effect of the meeting; and the diagnoses made by Drs McDonald and Chow at their consultations in December 2015.

105    There is, however, force in the argument that the reasons are inadequate. The reasons explain why Ms Wonson stopped work on 30 September 2015 and refer to evidence to support the conclusion that she was incapacitated for work from that time. But they do not explain why she would not have suffered from an adjustment disorder had the Department not refused to reclassify her leave. Counsel for Ms Wonson correctly described the Tribunal’s finding as amounting to nothing more than an ipse dixit. When one asks oneself how the Tribunal came to the conclusion that Ms Wonson would not have suffered from the adjustment disorder had it not been for the Department’s refusal to reclassify her leave, one struggles to come up with an answer. The evidence to which the Tribunal referred in the preceding paragraphs does not provide it. For the most part that evidence consists of Ms Wonson’s own account of the events of September 2015 and her response to them, whether given in her statement to the Tribunal, under cross-examination, or in histories to some of the doctors and ignores her other evidence.

106    The Tribunal made scant reference to the medical opinions. None of the references it made to the medical reports was to an opinion concerning the effect of the Department’s refusal to reclassify her leave. In fact, none of the reports of any of the medical practitioners included an opinion that the adjustment disorder would not have arisen but for the Department’s refusal to reclassify Ms Wonson’s leave. And the Court was not taken to any oral evidence to that effect. One is driven to speculate about what might have been in the Deputy President’s mind.

107    This is a matter of particular significance in a case such as this where a clearly articulated argument to the contrary had been put.

108    In her Statement of Facts, Issues and Contentions dated 14 September 2017 signed by her solicitor, Ms Wonson contended that:

If the items of alleged “administrative action” in paragraph 4.12 had not occurred, the Applicant would (on the balance of probabilities) still have suffered her psychological condition, as a result of work-related stress, and the Applicant's perceptions of being bullied and harassed in the workplace over a period of years.

A submission to like effect was made during oral argument before the Tribunal (ts 468/40–45).

109    The Tribunal did not refer to this contention and its reasons were inadequate to dispose of it.

110    Ms Wonson gave an account of psychological ill-health which she attributed to certain conduct at her workplace over a number of years and there was evidence of psychological ill-health before 17 September 2015 which had been attributed by experts to that conduct.

111    It might have been open to the Tribunal to come to the conclusion it did. It was no part of Ms Wonson’s appeal that it was not. But the Tribunal was in breach of s 43(2) of the AAT Act to do so without explaining whether and, if so why, it rejected Ms Wonson’s contention. While the Tribunal was not required to provide a line-by-line refutation of Ms Wonson’s case or her evidence, it was required to do that. As Jagot J observed in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; 62 AAR 77; 138 ALD 600 at [42], “[t]he duty to give adequate reasons, even in the context of the limits on the duty of the Tribunal under s 43(2B) of the Administrative Appeals Tribunal Act, is shaped by the contentions which the parties put”. While conclusions on primary facts which were not in dispute are unlikely to require explanation, since a person aggrieved by the decision would readily understand how they were reached, “[c]onclusions as to significant facts in dispute are likely to require explanation, if persons affected by the decision are to be given an understanding of the basis for the decision” for, without one, they are unlikely to understand why they lost: Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 at [78] (Bromberg J).

112    In oral argument, Comcare sought to justify the Tribunal’s decision by the Tribunal’s reference 50 paragraphs earlier (at [87]) and in a different context (that part of its reasons in which it determined the nature of Ms Wonson’s ailment) to one diagnostic criterion for an adjustment disorder listed in the 5th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders:

The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).

113    But this reference takes the matter no further. First, it was not a reason the Tribunal gave for concluding that the adjustment disorder would not have developed had it not been for the Department’s refusal to reclassify Ms Wonson’s leave. Second, Ms Wonson had a history of developing emotional or behavioural symptoms in response to identifiable stressors during her employment in the Department within three months of the onset of the stressor.

114    In her report to Comcare on 7 December 2015, Dr J Rao said that Ms Wonson first presented to her regarding her work injuries on 12 July 2012 at which time she gave a history of “severe work related stress since 6/7/2012”. The progress notes disclose that on examination she was noted to be “weepy” with “anxious effect”. In her 7 December 2015 report Dr Rao expressed the view that “alleged bullying and harassment” was the cause of “her current aggravation of symptoms” (emphasis added). In her subsequent report, dated 4 April 2016, Dr Rao said that at her consultations on 12 July 2012 and 30 September 2015 she appeared to be extremely distressed, weeping throughout, with an anxious affect and that assessment of her psychological state revealed that she had severe anxiety, stress and depression. She also disclosed that, “at several unrelated consultations over the years” Ms Wonson had complained of feeling “anxious and panicky”, especially at the thought of going to work, and that over this period of time her symptoms of anxiety persisted “all day”, affecting her ability to take care of her family and disturbing her sleep. To the question whether Ms Wonson’s employment with the Department of Human Services was a substantial contributing factor to her injury, Dr Rao replied (without alteration):

Mrs Wonson gives a history of allegedly being bullied at work place which is said to have been going on for several years. Her current symptoms are consistent with psychological injuries suffered as a result of this. It would appear that her employment with department of human services is a substantial contributing factor for this psychological injury.

115    It is true that Dr Rao did not diagnose Ms Wonson with an adjustment disorder in 2012, but neither did she in 2015.

116    At [137] the Tribunal said that it based its decision on the evidence of Ms Wonson recounted at [94] and [95] and the evidence of Drs J Rao, McDonald and Chow. Yet none of these doctors or, for that matter, Dr Smith (to whose evidence the Tribunal did not refer in this context) expressed the opinion that Ms Wonson would not have suffered from the adjustment disorder they diagnosed had it not been for the Department’s refusal to reclassify her leave. Dr McDonald and Dr Chow, who appear to be the only doctors who were directly asked the question, both ruled it out. If Ms Wonson’s evidence of five years of bullying and harassment were accepted, the development of the adjustment disorder might well have been inevitable. In his first report, Dr Chow said that it was likely that clinically identifiable symptoms of her condition, which he diagnosed as an adjustment disorder with anxiety, “occurred since 2012 due to ongoing workplace difficulties ...”. In his second report, Dr Chow wrote that the decision not to reclassify Ms Wonson’s leave was “the main trigger that led to her leaving work” but said that “without that incident, she would have developed her claimed condition anyway”. The Tribunal said that Ms Wonson told Dr Chow that the meeting on 30 September 2015 was the “trigger for her ceasing work”, which broadly reflects the first part of Dr Chow’s opinion. But it made no reference to the second part of the opinion, which was completely at odds with its finding. The Tribunal did not accept the evidence of Dr Chow and Dr McDonald about the relationship between Ms Wonson’s psychological ill-health at the time of their examinations and her history of depression before 2010, but it accepted their initial diagnoses and did not reject their initial opinions.

117    A summary of Dr Smith’s evidence on the cause of Ms Wonson’s adjustment disorder, taken from his second report, appears at [61]–[62] of the Tribunal’s reasons:

61    On 19 May 2017, Dr Smith reported, in part:

In regard to the notations made by Dr Rao related to the stressors she had experienced in her personal life these are in my opinion quite separate from the untoward events she experienced at her place of work. Having experienced a pre-existent Postnatal Depression, that had fully resolved as well as multiple psychosocial stressors, she was coping quite well and was free of a psychiatric disorder up until she experienced the untoward events at her place of work. While she may have been rendered more likely to have experienced a psychiatric disorder in response to significant psychosocial stressors given her history it is my opinion that the substantial contributor to the development of her Adjustment Disorder with mixed Depressed and Anxious Mood was the untoward events she experienced at her place of work.

I respectfully disagree with the conclusion that there is “a high probability that Ms Wonson had continued to suffer from situational stressors at various levels and the incidents/situations at work and her perceptions of being bullied and harassed, caused a reaction effect to her underlying condition”. The history in my opinion is not consistent with such a conclusion.

62    In his report, Dr Smith also expressed his opinion that:

•    Ms Wonson has remained under the care of a competent clinical psychiatrist and has received appropriate pharmacotherapy;

•    in many ways her mood had deteriorated since his earlier examination;

•    Ms Wonson had substantially recovered from any pre-existent psychopathology by the time she commenced work at the Agency;

•    she had fully recovered from any untoward events prior to 2010;

•    the condition from which Ms Wonson was suffering at the time she claimed compensation was not a continuation of the conditions from which she suffered before 2010;

•    the symptoms suffered by Ms Wonson from the beginning of 2010 are a completely new psychological condition that is not an aggravation of her earlier condition;

•    there was no competing cause for the emergence of her psychiatric disorder between 2010 and 2015;

•    “it is significant to note that there is consistency across the board in regard to the diagnosis made by [Ms Wonson’s] treating clinicians as well as independent examiners Dr Chow and Dr McDonald”.

(Emphasis added.)

118    The reference to the “untoward events” Ms Wonson experienced at her place of work in the passage from Dr Smith’s 2017 report (extracted by the Tribunal at [61]) was not, or at least not exclusively, a reference to the events of September 2015. That is plain from Dr Smith’s reports. It is also clear from what the Tribunal said (without alteration) at [68]:

When cross-examined at the hearing, Dr Smith expressed the view that the real difficulties Ms Wonson began to experience in her work environment started when she was working with Mr Cartledge. This was in 2008 [scil. 2010]. Dr Smith stated:

... I got a different perspective that irrespective of her untoward background history she had commenced working and was coping well up until the appointment of a superior to whom she felt quite intimidated and had difficulty relating to. She also had difficulty in relating to other superiors and against that background she also developed depressive symptoms of significance of these depressive symptoms, in my view, were quite significant to the point that she decompensated.

    (Emphasis added.)

119    At [70] the Tribunal appears to have accepted Dr Smith’s opinion that “the toxic environment” to which Ms Wonson was exposed while working for the Department was “a substantial contributor that caused her to decompensate” in 2015. On the history, her psychological reaction to that environment did not begin in September 2015 and the Tribunal did not find that the history was untruthful or otherwise unreliable.

120    The effect of the evidence of Dr Smith mentioned in the third last dot point of [62] of the Tribunal’s reasons is that the symptoms of Ms Wonson’s adjustment disorder first appeared in 2010, not 2015. It appears from the reasons that the Tribunal accepted this evidence. It certainly did not reject it. Nor did it reject Ms Wonson’s evidence about the effect of the alleged bullying and harassment that preceded the events of September 2015. Indeed, it made no findings one way or another as to what occurred at that time. It merely summarised Ms Wonson’s evidence.

121    It is difficult to reconcile those parts of Dr Smith’s evidence, which the Tribunal apparently accepted earlier in its reasons, with its finding at [137] that Ms Wonson would not have suffered from the adjustment disorder had it not been for the Department’s refusal to reclassify her leave in September 2015. Again, while it might have been open to the Tribunal to so find, the decision does not disclose its reasoning process. Having regard to the substantial contention, clearly advanced by Ms Wonson, that she would still have suffered her psychological condition regardless of any of the administrative actions upon which Comcare relied (“as a result of work-related stress” and her “perceptions of being bullied and harassed in the workplace over a period of years”), the Tribunal should have provided an “explanation of the basis upon which it was satisfied as to the ultimate fact, with particular emphasis on the significant issues which were raised”: Alexander at [82].

122    For all these reasons we uphold Ms Wonson’s complaint that the Tribunal erred in law by failing to give adequate reasons for its finding at [137] that she would not have suffered from the ailment she did had it not been for the Department’s refusal to reclassify her leave, but not otherwise.

Conclusion

123    Questions 2, 3, and 4 should be answered in the negative and the corresponding grounds of appeal are not made out. Question 5 should be answered in the affirmative with respect only to the finding in [137] of the Tribunal’s reasons that Ms Wonson would not have suffered from her ailment had it not been for the Department’s refusal to reclassify her sick leave. The reasons given for this finding were insufficient to discharge the Tribunal’s duty under s 43(2) of the AAT Act. Ground 5 of the appeal is upheld to this extent. It is unnecessary to answer question 1 and decide the corresponding ground of appeal because the error was an error of law and it is unnecessary for Ms Wonson to establish that the error was also jurisdictional.

124    It follows that the appeal should be allowed in part.

Orders

125    The next question is what other orders should be made.

126    Subsection 44(4) provides that the Court may make such order as it thinks appropriate by reason of its decision. That may include an order affirming or setting aside the Tribunal’s decision and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court (s 44(5)). Subsection 44(6) provides that, if an order is made remitting the case to be heard and decided again, the Tribunal need not be constituted for the hearing by the same person or persons who made the original decision and, regardless of whether it is, the Tribunal may have regard to any record of the proceeding before the appeal, including a record of evidence taken in the proceeding, as long as doing so is not inconsistent with the directions of the Court.

127    In CASA v Central Aviation, where the sole basis upon which the appeal was allowed was the inadequacy of its reasons, Perram J set aside the Tribunal’s statement of reasons and ordered that the Tribunal, as originally constituted, provide reasons in accordance with s 43(2). His Honour was of the view that the inadequacy of the reasons could be addressed by s 43AA, which enables the Tribunal to direct the Registrar to alter the text of the decision or the written statement of reasons for the decision if it is satisfied that there is an obvious error in it. CASA appealed, amongst other things, against his Honour’s finding that the Tribunal had not complied with its obligation under s 43(2) to provide adequate reasons and against the remittal order. Only the appeal against the remittal order succeeded and his Honour’s order was set aside: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 (Bennett, Flick and McKerracher JJ). The Full Court at [57]–[62] held that s 43AA does not confer the power to rectify the deficiencies in the reasons his Honour identified.

128    Central Aviation argued that the appeal should be allowed but no order should be made remitting the matter to the Tribunal since the Tribunal member was no longer available and the deficiency in the reasons could not be rectified. Central Aviation was keen to retain the benefit of a finding in its favour, and argued that any future default could be left to CASA to deal with under one of its numerous powers and that any remittal would inevitably expose the company to future legal costs. But the Full Court decided that an order should be made remitting the matter to the Tribunal according to law, explaining (at [67]):

A party to proceedings before the Tribunal has a statutory entitlement to reasons and such reasons … have not been provided. The provision of reasons by the Tribunal as previously constituted may or may not have led it to a different conclusion. However, the failure of the Tribunal to comply with this obligation, and the obvious inability of any other Tribunal member now to provide reasons for the conclusion of a former member, cannot deny to CASA a decision according to law, including an explanation for the result reached.

129    The Full Court also considered that it was not appropriate to impose any terms or conditions on the remittal of the proceeding and that it should be left to the Tribunal to determine how it should be reconstituted and how it should proceed.

130    In the present case, we consider that the decision of the Tribunal should be set aside and remitted to the Tribunal to hear and determine according to law the single question of whether Ms Wonson would not have suffered her adjustment disorder had it not been for the Department’s refusal to reclassify her leave in September 2015 and any consequential issues that may arise. The manner in which the new hearing is to be conducted is a matter for the Tribunal.

131    The last remaining question concerns costs.

132    We note that in the CASA v Central Aviation appeal, the Full Court held (at [72]) that the parties could not be held accountable by way of an adverse costs order because of the inadequacy of the Tribunal’s reasons. The Full Court decided (at [75]) that there should be no order as to the costs of the appeal and recorded (at [74]) that CASA undertook to pay $5,000 towards Central Aviation’s legal costs of the future hearing, an undertaking the Full Court said was consistent with the conduct of litigation by a “model litigant”.

133    We will hear from the parties on the question of costs. Ms Wonson should file submissions within 14 days. Comcare should respond within 14 days thereafter and Ms Wonson should have seven days in which to reply. The question will be determined on the papers.

Associate:

Dated:    5 May 2020