FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2012] FCA 166

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The interlocutory applications filed on 30 June 2011, 2 November 2011 and 23 November 2011 each be dismissed.

3.    The applicant pay the respondent’s costs of the appeal and each of the interlocutory applications, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE APPEAL

1    This is an appeal from orders of the Administrative Appeals Tribunal (the AAT) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in the matter of Clement and Comcare [2010] AATA 296.

2    The AAT affirmed eleven decisions of Comcare rejecting the applicant’s claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Compensation Act). In short, the AAT was satisfied that the applicant’s incapacity and requirement for medical treatment did not arise from a compensable injury under the Compensation Act.

3    Under s 44(1) of the AAT Act this appeal may be brought only on a question of law. The applicant’s notice of appeal identified some sixteen matters said to be questions of law and numerous associated grounds (most comprising a number of sub-grounds) contending, in various ways, that the AAT: - (i)  lacked jurisdiction or power to make the decisions or otherwise erred in making the decisions in all of the circumstances, (ii) made such serious erroneous findings of fact as to amount to errors of law, and (iii) denied the applicant procedural fairness in numerous ways said to evidence bias by the AAT against the applicant. The notice of appeal also contends that the AAT erred by reason of insufficient evidence.

4    The applicant also filed three interlocutory applications. In the first, filed on 30 June 2011, the applicant sought determination of two questions as follows: - (i) has the applicant’s employment in the Australian Public Service ceased, and (ii) has the onus to rehabilitate the applicant been discharged? In the second, filed on 2 November 2011, the applicant sought that the Court determine the causes of death of her former husband and partner and the extent to which their deaths invalidate certain unspecified laws of the ACT. In the third, filed on 23 November 2011, the applicant sought a sealed copy of orders by which the hearing on 20 February 2012 was fixed and associated procedural directions made.

5    In order to understand the questions which the applicant seeks to raise it is necessary to identify the reasoning process of the AAT.

The AAT’s reasoning

6    The AAT noted (at [1]) that Comcare had originally accepted liability for the applicant’s injury under the Compensation Act (s 14) and this acceptance remained operative and in force. On the basis of Telstra Corporation Limited v Hannaford (2006) 151 FCR 253; [2006] FCAFC 87 (Hannaford) the AAT concluded that “this did not preclude [the AAT] from making factual findings for the purposes of section 16 or Part II Division 3 of the Act that may be inconsistent with or ‘undercut’ the factual findings that led to the earlier section 14 determination” (at [14]). Section 16(1) of the Compensation Act provides that:

Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

7    The AAT (at [2]) correctly identified that its task was to determine whether, as claimed, the applicant was incapacitated for work as a result of a psychological injury during any relevant period and whether she incurred costs for medical treatment during any such period in relation to the injury.

8    The AAT also correctly identified this task as involving asking whether it was reasonably satisfied that Ms Clement “suffered a compensable injury of the kind or in the manner alleged and previously accepted by Comcare” (at [15]). If so, the AAT continued, it would then be necessary to determine whether the incapacity for work Ms Clement claimed was “as a result of” that injury. The AAT noted (also at [15]) that the phrase “as a result of” refers to “an operative cause that is not confined to the immediate proximate cause of incapacity and imports a test of causal connection that requires a commonsense evaluation of the causal chain between the claimed incapacity and the injury”. The AAT observed further that the words ‘in relation to’ in s 16 of the Compensation Act imply a relational rather than a causal test. The relational connection to be established was “between the medical treatment Ms Clement obtained and the injury for which Comcare accepted liability”. This relationship is to be determined as a matter of probability, applying the reasonable satisfaction civil standard; mere possibility is not sufficient, even if the possibility is real rather than fanciful (at [16]).

9    The applicant challenged the AAT’s reasoning as set out at [14] – [17]. The reasoning, however, is consistent with the approach in Hannaford at [57] – [59] and gives effect to the statutory scheme. The balance of the AAT’s reasoning in these paragraphs is also consistent with the statutory provisions. No question of law capable of invalidating the AAT’s decision arises from these aspects of the AAT’s reasoning. It follows that the grounds of appeal challenging these aspects of the AAT’s decision cannot be sustained (grounds 4.9 and 4.11).

10    Applying this approach, the AAT concluded that the applicant suffers from a delusional disorder and had done so since before September 1991. However, the aetiology and causes of this delusional disorder are unknown; the condition was not materially contributed to in a material degree by the applicant’s employment (at [18]).

11    In reaching this conclusion, the AAT made clear that it preferred the evidence of three medical experts over others (at [19]). It explained this preference at [19] – [28] of its reasons for decision.

12    The AAT also considered (at [34]) that the applicant’s interpretation of events in 1991 was “not supported by probative evidence and…not substantiated”. For the reasons given in its decision at [19] – [33] the AAT concluded that the applicant’s interpretation of events was and remains delusional.

13    At [35] – [37] the AAT explained its conclusions on causation. For the reasons it gave in these paragraphs the AAT was not satisfied that events in the workplace contributed in a material degree to the onset or progress of the applicant’s delusional disorder which, in the AAT’s view, existed before the workplace events in question and on which the applicant relied. The AAT considered that, rather than materially contributing to the onset or progress of the applicant’s disorder, the workplace events became the subject of delusional beliefs held by the applicant by reason of the existing disorder.

the APPLICANT’s CASE

14    The applicant’s case ranged over numerous claims and contentions.

15    In addition to the groups of claims identified in the notice of appeal (and/or in support of some of them), the applicant submitted that: - (i) the legal requirements for closure of her rehabilitation plan had not been met, and therefore the medical reports obtained by Comcare (and relied on by the AAT) were obtained unlawfully, (ii) the AAT unfairly excluded all the medical evidence on which the applicant relied, and (iii) it was a breach of procedural fairness for the AAT to rely on the three illegally obtained medical reports.

16    The applicant further submitted that other breaches of procedural fairness, demonstrating an overall bias of the AAT against the applicant, arose from: - (i) questioning from AAT members to try to show she was deluded, (ii) the alleged fact that the AAT did not consider her evidence, (iii) the alleged failure of the AAT to make factual findings in relation to points the applicant raised, (iv) the AAT’s erroneous references to her “perceptions and beliefs” as these were not “perceptions and beliefs” but statements about what actually happened, and (v) the failure of the AAT to take account of the evidence it heard.

17    The applicant also relied on submissions to the effect that: - (i) the finding of delusional disorder was wrong and, in any event, the disorder involves non-bizarre beliefs and, as such, is nothing more than the “medicalisation” of normal people, (ii) the AAT misunderstood the criteria for delusional disorder as it relied on so-called bizarre beliefs of the applicant when the criteria for the disorder is non-bizarre beliefs, (iii) the AAT showed its bias in numerous ways including by acting in concert with Comcare and her employer, refusing to take notice of what the applicant said, and refusing to consider the question whether the applicant was still employed and thus that the termination of her rehabilitation plan was unlawful and invalid, (iv) the applicant’s fears for her safety and that of her family were not delusional but based on the actual circumstances existing in 1991 and thereafter, (v) the AAT wrongly gave weight to false reports or forgeries attached to her personnel file, (vi) the AAT made unfair findings about the applicant being a whistleblower when other people called her a whistleblower and her fears being grandiose when they were soundly based in fact, especially given the risks to people in the ACT under Mental Health (Treatment and Care) Act 1994 (ACT), all of which demonstrated that the AAT needed expert assistance to understand what was happening in the Australian Bureau of Statistics (ABS) where the applicant was employed at the time, (vii) the AAT got its dates wrong as nothing was happening in early 1991 and ignored the applicant’s explanation of a letter being incorrectly dated, (viii) the AAT acted outside its proper functions by trying to prove the applicant was delusional rather than determining what had actually happened in the ABS at the time, (ix) the AAT’s attention was focused substantially on events that occurred around 1991 and not on the relevant periods for which the applicant’s claims were made, (x) the AAT did not give proper weight to the report of the Merit Protection and Review Agency (MPRA) from the time which supported the applicant’s case, (xi) the AAT unfairly made the applicant justify inclusion of the T documents in evidence when this was a matter for the respondent to justify and unfairly called on the applicant to explain what crimes had been committed again demonstrating the fact that the AAT needed expert help, (xii) the AAT’s reasons contain numerous footnotes which are difficult to follow and often incorrect, and (xiii) the failure of the ABS to rectify the security problems identified by the applicant caused her anxiety and depression as she knew it to be an indictable offence pursuant to s 19 of the Census and Statistics Act 1905 (Cth) and therefore the AAT could have concluded only that the applicant’s injury arose out of workplace events.

18    The applicant also submitted she was not given a reasonable opportunity to submit to the AAT all the material she considered relevant. Instead, she was repeatedly interrupted about the T documents and her time for giving evidence was reduced. The applicant submitted further that Doctors Skinner, Saboisky and Tym were provided with inaccurate transcripts of her evidence before they gave evidence.

19    The applicant said that the AAT had no evidence before it on which to base its findings that: - (i) she suffers from a delusional disorder; (ii) she suffered from the delusional disorder prior to 1991; and (iii) her interpretation of events was the product of illness. She strongly objected to these findings and their publication which exposed her to the serious deprivation of human rights possible in the ACT by reason of its mental health legislation.

20    The applicant otherwise submitted that: - (i) at the time of her husband’s death in 1991 the “ACT authorities” were subsequently involved in numerous breaches of the law and (ii) she was misled by Comcare, the AAT and ABS when they informed her that she would not be entitled to compensation or ongoing rehabilitation after accepting redundancy.

21    The applicant also claimed that the AAT made an error of law in refusing to refer questions of law to the Federal Court of Australia under s 45 of the AAT Act.

DISCUSSION

22    As a general observation it may be said that the respondent’s submissions correctly identified the main problems confronting the applicant in this appeal. First, most of the questions said to be questions of law in the notice of appeal or submissions are not questions of law at all. Second, insofar as any question might be characterised as one of law (such as those alleged errors concerning jurisdiction of the AAT, procedural fairness and bias), the question does not involve any error by the AAT which would have the effect of invalidating its decision. Third, the complaints of bias and denial of procedural unfairness, on objective analysis, are wholly unfounded.

23    Another problem confronting the applicant is that the AAT’s reasons for decision disclose that it correctly identified the task it was required to perform, identified the principles applying to that task in orthodox terms, weighed up the competing material it had available to it, and drew its conclusions based on its own weighing of that material. On analysis, many of the applicant’s challenges in the appeal, in truth, are complaints about the fact that the AAT preferred the respondent’s evidence and characterisation of the facts based on that evidence to that of the applicant. For example, in respect of all challenges which involve an alleged failure of the AAT to consider or accept the applicant’s case or aspects of the applicant’s case (said by the applicant to be beyond any tolerable margin for error in fact finding), the AAT’s reasons disclose that it understood the applicant’s claims and evidence in support (discussed at [1]-[11] of the reasons) but simply did not accept them (at [12]) for the reasons which the AAT then set out. These challenges, however described, do not involve questions of law. They are an impermissible attempt to have this Court review the merits of the applicant’s claim. By reason of s 44(1) of the AAT Act this Court cannot do so.

24    These general observations answer most of the remaining aspects of the applicant’s appeal. Nevertheless, in the circumstances, it is appropriate to give more detailed consideration to the claims which the applicant made. Before doing so, however, it is also appropriate to observe that I share the concern of the AAT (expressed at [39]) that this is a “very sad and difficult case”. As the MPRA report disclosed, the applicant did experience problems at work which were not dealt with fairly or in accordance with the required procedures at that time. The AAT, however, took this into account at [37] of its reasons for decision and, having weighed all of the available material, came to the view that while these events may have played some role in the applicant’s beliefs they were not material factors in the acceleration or aggravation of the applicant’s disease.

25    First, the issues going to jurisdiction or power of the AAT to hear and determine the applications for review (grounds 4.1 and 4.2 of the notice of appeal) may readily be dismissed. In Clement v Comcare [2007] FCA 2039 Emmett J declined to consider the applicant’s application under s 10 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Stone J declined to grant an extension of time or leave to appeal against this decision: see Clement v Comcare [2008] FCA 1780 and Clement v Comcare [2008] FCA 1779. The applicant cannot purport to challenge those decisions in this appeal. Insofar as her submissions did so, they are immaterial to the appeal (and, in any event, are based on an incorrect understanding of this Court’s jurisdiction and procedures). Otherwise, these decisions do not prevent the AAT from hearing a merits review of the respondent’s decisions. It is also apparent that nothing in these decisions supports any suggestion that the AAT had before it the question of the rehabilitation plan. And as the AAT said at [40], the question of alleged termination of the rehabilitation plan prematurely and illegally cannot assist the applicant; in the absence of relevant injury there can be no entitlement to rehabilitation. Be that as it may, the AAT was correct to find at [40] that the question of the rehabilitation plan was not before it for review and it thus had no jurisdiction to answer the question. Given the circumscribed nature of this appeal under s 44(1) of the AAT Act it also follows that the applicant’s first interlocutory application cannot be entertained as part of this appeal and must be dismissed. This conclusion undermines the assumptions inherent in the applicant’s case about medical reports being illegally obtained. So too, the terms of s 57 of the Compensation Act do not support the conclusion that the history of this matter precluded Comcare from obtaining further medical reports. Nothing in the available material supports the conclusion of illegality irrespective of the status of the applicant’s employment and rehabilitation plan. The AAT was entitled to act on the material before it and properly did so (which answers a number of the other grounds of the notice of appeal including grounds 4.4 in part, 4.9 in part and 4.10).

26    Insofar as the applicant’s case otherwise traversed any issue related to jurisdiction (grounds 4.3 and 4.4 of the notice of appeal): - (i) as the respondent submitted, the status or alleged inadequacy of Comcare’s decisions does not remove the AAT’s jurisdiction (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1), and (ii) Comcare’s initial decision to accept liability for the applicant’s injury in November 1992 also was not before the AAT for review and, consistent with the reasoning in Hannaford, did not need to be before the AAT could review the eleven decisions on compensation which Comcare subsequently made.

27    Second, and as noted, much of the applicant’s case involved alleged errors of fact which were said to be beyond acceptable “margins of error” or otherwise so serious as to invalidate the AAT’s decision. This approach is impermissible. It seeks review of the merits under the guise of questions of law. The same conclusion applies to each of the propositions the applicant says the AAT should have found, but omitted to find. In short, each of the propositions the applicant said the AAT should have found in ground 4.6 of the notice of appeal involved a matter which the AAT considered but declined, rather than omitted, to find. In other words, these so-called omissions are simply part and parcel of the fact finding process which the AAT Act entrusts to the AAT and which are not amenable to review by this Court in this appeal. The same reasoning answers all of the matters in grounds 4.7 and 4.8 of the notice of appeal. It also answers the claims in grounds 4.12 and 4.13. While framed as the AAT overlooking significant and probative material and applying the wrong law to the facts these claims, in truth, are complaints about the merits of the AAT’s decision.

28    Third, the numerous claims of bias and procedural unfairness find no support in the available material. It may be accepted that the applicant perceives bias against her and that she was unfairly treated by the AAT. The material simply provides no foundation for either conclusion. The AAT was bound to consider all relevant material and entitled to proceed as it did and to reach the conclusions it reached.

29    Fourth, and insofar as a range of points was made not dealt with above, the following answers may be given:

(1)    The AAT did not unfairly exclude the applicant’s medical evidence. As the reasons at [19] and thereafter make clear, the AAT considered that evidence but preferred other medical evidence.

(2)    The AAT did not breach the requirements of procedural fairness by relying on the three medical reports it preferred. The reports were in evidence and the AAT was bound to take them into consideration.

(3)    The AAT was entitled to ask the applicant questions in order to understand the bases of her claims. Nothing in the general course of questions apparent from the transcript provides any basis for the allegations of denial of procedural fairness or bias by the AAT. The applicant gave extensive evidence both in chief and in cross-examination over three days.

(4)    The AAT considered the applicant’s claims and evidence. The AAT did not omit to make findings in the applicant’s favour. It simply preferred the respondent’s case to that of the applicant.

(5)    The AAT was aware that the applicant’s case was that nothing which occurred at the ABS was a mere matter of her perception or belief but, rather, happened in fact. Nevertheless, the AAT was entitled to make the findings it did which were reasonably open on the evidence before it.

(6)    Equally, the AAT was entitled to prefer the evidence of some of the medical experts to others. It was also entitled to act on the basis of that evidence it preferred in terms of its findings about delusional disorder.

(7)    Nothing in the available material, as referred to by the applicant or otherwise, supports the submission of bias on the part of the AAT either in the immediate case or over a lengthier period in its dealings with the applicant. The conduct on which the applicant relied, which extended back many years, viewed objectively, did not support the contentions in any way.

(8)    The AAT was entitled to act on the material before it. It was a matter for the AAT to determine the reliability of that material and the weight which should be given to components of it.

(9)    The submission about the AAT being confused or incorrect about the dates of events is not supported by the AAT’s reasons. In particular, the evidentiary basis for the AAT’s finding that the applicant was suffering from delusional beliefs by May 1991 is set out at [30] of the AAT’s reasons. Insofar as the AAT referred to correspondence which was incorrectly dated at [31], it appears that the AAT found this material “opaque” which indicates that it did not rely on it as material. Even if it did, at worst, the AAT has made an incorrect factual finding which does not give rise to any question of law in all of the circumstances; the finding was patently immaterial to the AAT’s conclusions.

(10)    The AAT considered the report of the MPRA (see at [37]). The weight which it gave to that report was a matter for the AAT to decide.

(11)    Given the evidence before it the AAT was bound to consider the question whether the applicant was suffering from a delusional disorder and its connection, if any, to the events surrounding the applicant’s employment. This did not involve the AAT in any act beyond its statutory remit.

(12)    The AAT’s approach to the T documents was reasonable given the nature of the case before it. As the respondent noted, the applicant was given numerous opportunities to identify the documents on which she relied. Similarly, the AAT was entitled to ask questions to clarify its understanding of the applicant’s evidence. Neither circumstance involved any denial of procedural fairness or bias.

(13)    The submission about incorrect transcripts of part of the applicant’s evidence being given to medical experts is not supported by the evidence.

(14)    The AAT’s choice to include footnotes to the material, whether the footnotes be difficult to follow or incorrect, cannot have the effect of vitiating its decision and involves no question of law.

(15)    Section 45 of the AAT Act involves a discretion on the part of the AAT. The AAT was not bound to refer any questions of law to this Court and made no error in not doing so.

(16)    The circumstances surrounding the deaths of her ex-husband and partner are matters which the applicant considers relevant to her case. The AAT dealt with these concerns at [38] on the basis that they were further manifestations of the applicant’s delusional disorder. For present purposes it is sufficient to note that irrespective of the strengths of the applicant’s beliefs, these matters are outside the scope of the review the AAT conducted and of this appeal, which is limited to questions of law from the AAT’s decision. For these reasons the second interlocutory application must also be dismissed.

(17)    The applicant’s concerns about her privacy are genuinely held. The difficulty is that the applicant chose to pursue her claims in the AAT (as was her right by reason of the statutory scheme for compensation). In carrying out its functions the AAT, however, was bound by the AAT Act. The provisions of that Act limit the circumstances in which a hearing may be other than in public (s 35) and generally requires the AAT to give reasons for its decision (s 43), which 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” (s 43(2B)). The making of an application for review to the AAT in respect of a claim for compensation under the Compensation Act, as a matter of course, will involve the public disclosure of medical details about the applicant which, but for the claim and review, otherwise would ordinarily remain confidential between the applicant and her treating physicians.

(18)    The third interlocutory application relates to procedural matters and has been overtaken by the event of the hearing. Accordingly, it too must be dismissed.

30    For these reasons it is apparent that the notice of appeal and three interlocutory applications should be dismissed with costs.

Associate:

Dated:    2 March 2012