FEDERAL COURT OF AUSTRALIA

National Australia Bank v Georgoulas [2013] FCA 1412

THE COURT ORDERS THAT:

1.    The application for leave to amend the notice of appeal to insert the proposed additional question of law (g) is allowed.

2.    The application for leave to amend the notice of appeal to insert the proposed additional question of law (h) is refused.

3.    The appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed with costs.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1        This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) on purported questions of law arising from the orders made by the Administrative Appeals Tribunal (“the Tribunal”) on 8 August 2013 in Georgoulas and National Australia Bank [2013] AATA 553. The Tribunal’s reasons were provided earlier on 22 July 2013 in Georgoulas and National Australia Bank Limited [2013] AATA 512.

2        The issue before the Tribunal was whether Maria Georgoulas made a “wilful and false representation” in her claim for compensation so as to attract s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) with the result that the “disease” from which she suffers is not taken to be an injury to her as an employee for the purposes of the Act. Section 7(7) of the Act provides that:

A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. (emphasis added)

3        The Tribunal found that it was not satisfied that Ms Georgoulas had made a false representation in her claim form. In the alternative, even if it were wrong on that issue, the Tribunal was not satisfied that Ms Georgoulas had made a false representation wilfully. As a result, the Tribunal set aside the decision under review and substituted a decision that the National Australia Bank Limited (“the NAB”) is liable to pay compensation to Ms Georgoulas pursuant to s 16 of the Act.

2.    THE TRIBUNAL’S DECISION

2.1    Background facts

4        The background facts found by the Tribunal are summarised below.

5        Ms Georgoulas has worked in the financial services industry since 1983. She worked with Wizard Home Loans until 4 February 2008 immediately before she commenced employment with the NAB. While at Wizard Home Loans, Ms Georgoulas went on sick leave from 29 August 2007 to 16 January 2008. According to the medical reports and clinical notes, Ms Georgoulas was receiving treatment for lower back pain, bronchitis, sinusitis, anxiety and stress at this time.

6        On 24 January 2008, Ms Georgoulas made a further claim to CommInsure under a group income protection policy provided by Wizard Home Loans for a salary continuance benefit in respect of her period of absence. In the claim form, she answered questions as follows:

“1 Nature of injury or sickness

DISC PROTRUSION, BRONCHITIS, ANXIETY AND SINUSITIS.

2 a Date of injury or first symptoms of sickness

SINUSITIS – 20 - 6 - 2007 BRONCHITIS 20 - 6 - 2007

BACK PAIN DISC PROTRUSION – 7- 8 - 2007 ANXIETY 29 - 8 - 2007

b Have you ever suffered from this condition before?

No X

Yes X     When and for how long?

DISC PROTRUSION – NO     BRONCHITIS – YES

ANXIETY – NO         SINUSITIS – YES

3 Date of first treatment by medical practitioner

SINUSITIS – 20 - 6 - 2007 BACK PAIN DISC PROTRUSION 7 - 8 - 2007 BRONCHITIS – 20 - 6 - 2007 ANXIETY 29 - 8 – 2007”

7        Ms Georgoulas commenced employment with the NAB on 5 February 2008 as an associate in the business banking unit of the Sydney head office of the NAB.

8        In about February 2009, her supervisor and employment environment at the NAB changed. Ms Georgoulas became stressed with the increased workload and the relationship with her supervisor was strained. Her supervisor was reportedly also under pressure and resigned in about July or August 2009. Ms Georgoulas had similar problems with her new supervisor and by November 2009 sought treatment for anxiety and panic attacks. She was referred to a psychiatrist for treatment in December 2009 and was certified unfit for work.

9        Ms Georgoulas returned to work in May 2010 on reduced hours under a graduated return to work programme, and recommenced full duties in June 2010. However, on 4 July 2010, she made a claim for compensation for stress and anxiety related to work. Question 8 of the workers’ compensation claim form provided as follows:

“For what injury or illness are you claiming workers compensation?

Quote the precise diagnosis as stated on a medical certificate. For example: diagnosed conditions are disc prolapse, strained cruciate ligament and anxiety disorder; they are not back pain, sore knee and stress.”

10        Ms Georgoulas responded, under the heading “Diagnosed condition”, that she had “stress & anxiety related to work”. She identified 23 February 2009 as the time of the injury or illness and stated that she first sought medical treatment on 21 May 2009 from St George Hospital, Kogarah.

11        Question 14 of the claim form was as follows:

“Have you ever had previous similar symptom, injury or illness; work-related or otherwise?”

12        In answer to this question, the claimant may cross the box for “No”, in which case the claimant is advised to proceed to Question 17. Alternatively, the claimant may cross the box for “Yes” and if so must respond to the following:

“Describe the symptom, injury or illness and the parts of the body affected. Give approximate dates.”

13        Ms Georgoulas crossed the “No” box in answer to Question 14.

14        Her claim for medical expenses was accepted on 10 September 2010 and, by notice dated 13 September 2010, liability was accepted for incapacity for the period 17 February 2010 to 11 July 2010 for a chronic adjustment disorder with mixed features of anxiety, panic and depressed mood.

15        Ms Georgoulas experienced further work related issues on her return which culminated in performance review meetings with supervisors in November 2010. She ceased work on 18 November 2010 and has not worked since.

16        On 13 December 2010 the NAB determined that there was no current liability to pay for Ms Georgoulas’ medical expenses. Ms Georgoulas sought reconsideration of this decision and on 17 February 2011 the decision was affirmed. She sought review of that decision in the Tribunal.

2.2    The issue before the Tribunal

17        In the Tribunal, the NAB did not dispute that Ms Georgoulas was suffering from a psychiatric condition or that the condition was work-related. The key issue in the Tribunal was “whether the applicant's claim for compensation should be excluded on the basis that the applicant had made a ‘wilful and false misrepresentation’ in her workers’ compensation form that she did not suffer, or had not previously suffered, from the disease in respect of which she now claims compensation” within s 7(7) of the Act thereby disentitling her from compensation under the Act. That issue was determined by the Tribunal as a preliminary separate question prior to any orders being made.

18        In this regard, there was no dispute before the Tribunal that Ms Georgoulas was asked about whether she had a previous symptom, injury and illness in the workers’ compensation claim form and that Ms Georgoulas had responded in the negative to those questions as set out above. There was also no dispute that the answers given by Ms Georgoulas were for the purposes of her employment with the respondent. However, the NAB contended that she had made a wilfully false representation in her claim within s 7(7) of the Act by failing to disclose a previous illness. The NAB contended that, if Ms Georgoulas previously suffered symptoms of anxiety that were outside the boundaries of normal mental functioning, it did not matter that there was no previous diagnosis of a recognised medical condition. The lack of a diagnosis for the condition was said to be irrelevant to the question of whether the representation was false, although counsel for the NAB conceded before the Tribunal that it may be relevant to the question of whether the representation was wilfully false.

19        Ms Georgoulas contended that, while there is evidence she suffered certain symptoms before her claim, she was not required to disclose them given the differences between her previous and current illnesses. As such, she contended that her answers in the claim form were not false, let alone wilfully so.

2.3    The expert evidence before the Tribunal

20        The Tribunal received expert reports from Ms Georgoulas’ treating psychiatrist and psychologist, and from experts retained by her lawyers and the lawyers for the NAB.

21        Ms Georgoulas’ general practitioner was not called although his medical records were relied upon. These showed that Ms Georgoulas visited him on sixteen occasions between August 2007 to January 2008. The Tribunal found that, while various medical certificates were issued over this time and all referred to anxiety and/or stress, the majority related to Ms Georgoulas’ complaints about her back and abdominal pain, and bronchitis. Only three consultations record discussions about stress and/or anxiety as opposed to physical complaints.

22        A psychologist’s medical report dated 18 April 2012 was prepared by Ms Mina Candalepas, Clinical Psychologist for Ms Georgoulas. Ms Candalepas provided eighteen sessions of counselling between 14 April 2011 and 3 April 2012. According to her report, Ms Georgoulas presented with symptoms consistent with a major depressive disorder and panic disorder with agoraphobia. In her report Ms Candalepas notes that “[h]er psychological response is characteristic of a person that has experienced such work-related stressors.”

23        Ms Georgoulas also consulted Dr Alex Pilsky, Consultant General and Forensic Psychiatrist, commencing on 17 February 2010 following a referral in December 2009. According to his report dated 13 April 2012, Ms Georgoulas told Dr Pilsky that she felt anxious “nearly all the time”, and had panic attacks at least on a weekly basis, insomnia and forgetfulness. She reported negative feelings and hopelessness. Dr Pilsky also diagnosed Ms Georgoulas with panic disorder with agoraphobia and major depression, moderate to severe, with melancholic features. The Tribunal noted in particular the opinion expressed by Dr Pilsky in his report that:

“Prior to the onset of current problems of 2009, Maria never experienced severe depression or anxiety. She did describe an episode of feeling stressed in 2007, whilst experiencing severe back pain and bronchitis which necessitated sick leave of three months duration. However at the time she did not experience panic attacks nor any depressive symptoms and her mood improved quickly as her symptoms resolved”.

24        Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist, was also retained by Ms Georgoulas’ lawyers. He examined Ms Georgoulas on 15 August 2011 and produced a report dated 15 August 2011 for the purpose of these proceedings. In his view, Ms Georgoulas had symptoms consistent with a “depressive disorder characterised by a depressed mood…”. Dr Allnutt also noted that in association with her depression, Ms Georgoulas was manifesting panic attacks consistent with a diagnosis of a panic disorder with agoraphobia. He further noted that she had first experienced symptoms of anxiety and depression in about 2007 and that he regarded her present mental condition as an aggravation of a previous psychiatric condition in 2007.

25        Finally, the NAB referred Ms Georgoulas to Dr Jeffrey Bertucen, Consultant Psychiatrist, for assessment on three occasions in August 2010 and July 2012. Dr Bertucen formed the view that Ms Georgoulas was suffering from chronic adjustment disorder with mixed feelings or features of anxiety, panic and depressed mood. He was further of the view that she had no appreciable psychiatric diagnosis prior to 2009 and that the circumstances associated with her workplace at the NAB were responsible for her subsequent psychological condition. There were, in his opinion, no non-work factors which contributed to her psychological condition.

2.4    The Tribunal’s conclusions

26        The Tribunal rejected the contention by the NAB that s 7(7) of the Act was enlivened. Its reasons can be summarised as follows.

27        As to the disease suffered by Ms Georgoulas, the Tribunal found, at [56], that:

“The diagnosis of both treating specialists and the medical experts retained by the parties is consistent. The respondent accepted liability for the applicant’s condition which was characterised as ‘chronic adjustment disorder with mixed features of anxiety, panic and depressed mood’. As noted by counsel for the applicant in his submissions, the reports of Dr Allnutt, Dr Pilsky and Ms Candalepas suggest a more serious diagnosis of a major depressive disorder and panic disorder. While anxiety is a symptom of these various disorders, all medical practitioners also refer to panic attacks, agoraphobia and depression as being prominent features of the applicant’s current condition.”

28        While the failure to disclose a symptom does not of itself amount to a representation of an illness or injury, the Tribunal found that the injury or illness referred to in Question 14 must refer to the injury or illness in Question 8 for which Ms Georgoulas claims compensation, namely, “stress and anxiety”. By answering “No” to Question 14, the Tribunal found at [59]-[60] that Ms Georgoulas represented that she did not suffer and had not previously suffered from the illness in respect of which she sought compensation, regardless of how the condition was so described.

29        For the representation to be false, the Tribunal found that it must be satisfied that Ms Georgoulas had previously suffered a pschychiatric condition which was the same or substantially the same as the chronic adjustment disorder from which she now suffers, at [61]. The Tribunal was not so satisfied for the following reasons.

(a)        The Tribunal considered that the words “that disease” in s 7(7) of the Act “includes a condition that is the same or substantially the same as the current condition diagnosed.” They do not mean “the actual condition suffered or diagnosed” as that would be unduly restrictive. Conversely, the Tribunal was of the view that to construe the words “that disease” to mean “a similar condition or, as the respondent contended, a condition with similar or the same symptoms as a current condition, would be contrary to the beneficial nature of the legislation.”

(b)        The Tribunal rejected the NAB’s submission that Ms Georgoulas had symptoms which were “apparently indistinguishable” from those suffered previously and that that was sufficient to establish that the representation was false within s 7(7) of the Act. On the basis of its analysis of the evidence, the Tribunal found at [64] that:

“We are not satisfied that the applicant suffered a psychiatric condition in respect of which anxiety is a key or dominant symptom prior to her employment with the respondent.” (Emphasis in the original)

(c)        The Tribunal also considered that, even if it had found that there was sufficient evidence to establish that Ms Georgoulas had previously suffered a psychiatric condition in respect of which anxiety was a prominent symptom, the Tribunal was not satisfied that this was the relevant test for the purposes of s 7(7). The critical question identified by the Tribunal was whether any previous or pre-existing condition suffered by Ms Georgoulas was the same or substantially the same as Ms Georgoulas' psychiatric condition, as diagnosed by Dr Bertucen, Dr Allnutt, Dr Pilsky and Ms Candalapas. On this question, the Tribunal found at [71]-[72] that:

“Even though we accept that the applicant previously sought treatment for anxiety from her general practitioner and experienced some of the symptoms she later experienced while working at the respondent (ie anxiety, chest pain, palpitations, shortness of breath and sleeplessness), there is no evidence that she previously suffered panic attacks or depression. In our view this is significant. The symptoms suffered by the applicant in 2007 and 2009, however categorised, are clearly distinguishable. They are not the same or substantially the same.

The most compelling argument in support of the applicant’s case is the fact that there is no expert evidence to support the respondent’s contention. This is the case even though the respondent’s expert, Dr Bertucen, was briefed with the applicant’s previous medical records and was asked to opine on whether these records and the report of Dr Allnutt changed his opinion. Indeed, Dr Bertucen specifically addressed the issue of whether the applicant had a pre-existing psychiatric condition in his last report and unambiguously stated that the applicant had ‘no substantial psychiatric history prior to 2009’.”

30        Finally, even if the Tribunal had found the representation to be false, contrary to its findings, the Tribunal was not satisfied on the evidence that it was wilful. Specifically the Tribunal found at [77]-[79] that:

“As already noted, Question 14 was poorly drafted and we are not satisfied that the response of the applicant is evidence of a conscious decision to mislead. Moreover, we accept the applicant’s evidence that when she completed the CommInsure claim she did not believe she had an anxiety condition which needed to be disclosed. She was cross examined extensively on this matter and we accept that the applicant adheres to this belief, with some justification given the nature and extent of the applicant’s previous illnesses as disclosed in her medical records. Furthermore, the applicant answered yes to two of the conditions identified in the claim form and having already disclosed two pre-existing conditions, there was no reason for the applicant to lie about her anxiety.

While there is evidence the applicant complained of stress and/or anxiety from time to time prior to 2009, when the extracts of the applicant's medical records that were tendered are reviewed as a whole, it is clear these episodes were not significant. There is no evidence the applicant was diagnosed with an anxiety condition or disorder, was told of such a diagnosis or was referred to mental health professionals for treatment prior to her employment with the respondent. Similarly, there is no evidence that the applicant took any significant periods of leave for anxiety, apart from one week in late 2007, and the references to stress and/or anxiety, while recurring from time to time, were infrequent over the whole of the period from 1996 to 2009.

As noted in Comcare v Porter [(1996) 70 FCR 139] the existence of a disease is ‘notoriously liable to human misapprehension’ and for the [NAB] to succeed in its claim that liability should be excluded, the Tribunal must be presented with clear and cogent evidence that any representation by the applicant about her previous medical condition was wilfully false. We are not so satisfied.”

31        In short, it is apparent that, for this appeal to succeed, the NAB must establish that each of the “cascading” or alternative bases for the decision, as counsel for Ms Georgoulas described them, is tainted by an error or errors of law, namely:

(a)    The representation was not false for the reason that:

i.    the evidence did not establish that Ms Georgoulas had suffered from any mental condition outside the boundaries of normal mental functioning before 2009; and

ii.    even if there was sufficient evidence to establish that Ms Georgoulas had previously suffered a psychiatric condition in respect of which anxiety was a prominent symptom, the Tribunal was not satisfied that the condition was the same or substantially similar.

(b)    In any event, even if the Tribunal had found the representation to be false, it was not satisfied that the misrepresentation was wilful.

3.    CONSIDERATION

3.1    The statutory scheme under the Act

32        Section 14(1) of Part II of the Act imposes liability on the Commonwealth or a licensee to pay compensation to injured employees “…in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.” An “employee” is defined in s 5 relevantly to mean a person employed by a licensed corporation, as defined in s 4. It is not in dispute that the NAB is a licensed corporation for the purposes of the Act, or that Ms Georgoulas was an employee of the NAB at the time that the injury which is the subject-matter of her claim occurred.

33        The term “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;…

34        The term “disease” in turn 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.

35        “Ailment”, in turn, is defined in s 4 of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development”.

36        I note that the requirement that there be a contribution to a significant degree to the suffering or aggravation of the ailment applies only in relation to an injury which is a disease. Otherwise, it is sufficient if the injury arose out of, or in the course of, employment. As such, liability may arise under the Act where, for example, the employee suffered from a particular ailment before commencing work with, relevantly, a licensee but the ailment was subsequently aggravated by the employee’s employment by the licensee, provided that the specific requirements of s 5B are met.

37        The central issue concerns whether the prima facie liability to compensate Ms Georgoulas for the psychological disease suffered by her is displaced by the exemption in s 7(7) of the Act which is set out earlier above at [2]. As is apparent, the only elements of s 7(7) which were disputed before the Tribunal concerned whether Ms Georgoulas had falsely represented that she had not “previously suffered from that disease”, and if so, whether she had wilfully made the false representation.

3.2    The scope of the jurisdiction conferred by s 44 of the AAT Act

38        It is necessary also to bear in mind that the proceedings comprise an appeal under s 44 of the AAT Act alone.

39        An appeal under that provision is limited to questions of law. As such, the questions of law stated in the notice of appeal constitute the subject-matter of the appeal and are of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act: Comcare v Ethridge (2006) 149 FCR 522 (“Ethridge”) at 527 [14]. The use of the word “appeal” in the provision is somewhat of a misnomer as the proceedings lie in the original jurisdiction of this Court and are in the nature of a restricted form of judicial review – albeit not necessarily limited to errors of law that are jurisdictional in nature.

40        Rule 33.12(2) of the Federal Court Rules 2011 (Cth) (the successor to O 53 r 3(2) of the Federal Court Rules 1979 (Cth)) provides that a notice of appeal under s 44 of the AAT Act must state, relevantly:

“    (b)    the precise question or questions of law to be raised on the appeal; and

    (c)    any findings of fact that the Court is asked to make; and

    …

    (e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.”

41        An appeal “on a question of law” is a narrower concept than an appeal merely involving a question of law. As Branson J (with whose reasons Spender and Nicholson JJ agreed) explained in Ethridge at 527 [16]:

“A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye [v Australian Securities and Investments Commission (2003) 38 AAR 55] (at [18]):

‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal’.”

42        Thus while s 44(7) to (10) of the AAT Act confer limited powers on the Federal Court to make findings of fact, Branson J went on to hold, at 527 [17], that:

“…this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.” (emphasis added)

43        Finally, as Branson J pointed out at 529 [27], the word “injury” in the Act bears its ordinary meaning. Accordingly, the question of whether the facts as found fall within the meaning of “injury” in the Act is, therefore, a question of fact. However, that did not rule out the possibility that the issue might be amenable to an order of review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), if a properly framed ground of review were raised. Equally, it could not preclude an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) for jurisdictional error, if one were identified.

3.3    The questions of law identified in the notice of appeal

44        By a set of complex contentions in the notice of appeal, the NAB contended that the Tribunal erred and identified the following as the ‘questions of law’ to which the appeal relates:

a)     For the purposes of determining according to law whether, under the provisions of s.7(7) of the Act, the Respondent had previously suffered from a disease (about the pre-existence of which disease a false representation is alleged):

i)    Was it a sufficient condition for such a finding that the Tribunal be satisfied that the Respondent had been suffering from a mental state satisfying the definition of an ailment, as that term is used in s.4 of the Act, at the time of, or at any time prior to, the representation?

ii)    If so, was the Tribunal bound to conclude, upon the facts found by it, that the Respondent had had such an ailment (and therefore a disease) prior to the representation alleged?

iii)    Was it necessary, as the Tribunal held, that to satisfy the description of a pre-existing disease, any such condition as was present must first have been the subject of explicit medical diagnosis as a disease?

iv)    In any event, having found that the Respondent's treating general practitioner had certified the existence of a condition answering the description of a disease prior to the representation made by the Respondent, was it open to conclude that no disease was then extant?

b)    Did the Tribunal correctly construe the term “that disease” as it is used in s.7(7) so as to conclude lawfully that, upon the facts found, whatever condition the Respondent may have had prior to the representation relied upon by the Applicant as wilful and false, it was not that disease for which she later claimed compensation?

c)    Did the Tribunal correctly construe the operation of s.7(7) according to law, in asking itself, as it did, whether or not the Respondent had previously suffered from a psychiatric condition, rather than whether or not she had previously suffered from an ailment or a disease?

d)    Did the Tribunal (at [49]) correctly conclude that because they are part of “beneficial” legislation and could “result in a harsh outcome if applied liberally the law required or authorised it to approach the construction of s.7(7) on a basis other than to apply the ordinary natural meaning of the words employed in the provision in their statutory context and give them full effect?

e)    Did the Tribunal correctly construe the proper operation of s.7(7) according to law in concluding that a failure by the Respondent to disclose the previous existence of a symptom, in answer to a question about it, was not or was not capable of being, a representation, as that term is used in s.7(7) of the Act?

f)    Did the Tribunal's conclusion that the provisions of s.7(7) had no application to the facts as found by it involve legal error?

45        At the hearing of the appeal, while not formally abandoning Question (f), the NAB made no submissions in support of it. Applying the principles referred to above, a broad inquiry into whether the Tribunal’s conclusion that s 7(7) had no application to the facts found by it involved legal error does not raise a question of law within s 44 of the AAT Act.

46        Furthermore, applying the principles earlier explained, it is clear that most of the ‘questions of law’ set out in the notice of appeal bear little resemblance to questions of law for the purposes of s 44 of the AAT Act, being either mixed questions of fact and law, such as Question (a)(ii), or simple challenges to the factual findings, such as Question (a)(iv). Moreover, as I later explain, no question of law arises where the question is whether facts as found fall within a term in a statute which bears its ordinary meaning.

47        Finally, quite apart from the difficulties from which the questions suffer in terms of compliance with s 44 of the AAT Act, I do not consider that there is ultimately any merit in the contentions sought to be raised on the appeal in any event. This includes the further proposed questions of law for which an application for leave to amend was made at the hearing. I deal with the these proposed additional questions separately below.

3.4    The submissions for the NAB

48        While the NAB’s submissions were not cross-referenced to the questions of law posed in the notice of appeal, I have endeavoured to do so below. In any event, it is apparent that the questions of law are closely inter-related. The substance of the NAB’s contentions as they emerged from submissions and the originating application can be summarised as follows.

(a)    Question of law (a), (b) and (c): The NAB contended that the Tribunal erred in holding at [51] that “that disease” in s 7(7) of the Act “includes a condition that is the same or substantially similar as the current condition diagnosed.” (emphasis added). Rather, the NAB submitted that:

(i)    The question is whether the employee suffered from a pre-existing “ailment” or “disease”, as opposed to “condition”.

(ii)    The words “that disease” should be construed to mean:

“… a mental ailment, disorder, defect or morbid condition whether it can be identified by a label of a recognised medical condition or not. What is essential is to be able to demonstrate that the condition is outside the boundaries of normal mental functioning and behaviour.”

(iii)    So construed, the question is whether:

“[Ms Georgoulas’]… previous condition [can] be properly described as a disease? If the constellation of symptoms fall within what are now the current conditions (being outside the normal mental functioning and behaviour) then they must be disclosed.”

(b)    Question of law (d): The NAB contended that this construction is preferable for the following reasons:

(i)    This construction adopts the approach in Comcare v Mooi (1996) 69 FCR 439 (“Mooi”) at 443 that the word “disease” in this context bears its ordinary meaning to refer to a condition outside the boundaries of normal mental functioning and behaviour.

(ii)        It gives effect to the purpose of s 7(7) as “a limiting provision. It disentitles otherwise deserving applicants for compensation. Accordingly, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally.” In this regard, the NAB’s submissions relied upon Victims Compensation Fund Corp v Brown (2003) 77 ALJR 1797 at 1799 [12] (Heydon J, with the Court relevantly agreeing). Where that is the purpose of the provision, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally.

(iii)    By contrast, the NAB submitted that the Tribunal’s approach “would as [a] practical matter mean that pre-existing psychological problems would almost never meet the criteria sufficient to provide any force or effect to section 7(7). It went on to say that “[t]here is no allowance for the progression or indeed the remission of the disease.”

(c)    It follows on the NAB’s submission that the Tribunal erred:

(i)    in identifying the critical question at [70] as being “whether any previous or pre-existing condition suffered by the applicant was the same or substantially the same as the applicant’s psychiatric condition, as diagnosed by Dr Bertucen, Dr Allnutt, Dr Pilsky and Ms Candalepas”; and

(ii)    in finding at [71] that they were not the same or substantially the same because the symptoms suffered by applicant in 2007 and 2009 are “clearly distinguishable” on the basis that there are different components from which Ms Georgoulas did not previously suffer such as panic attacks or depression, notwithstanding that she had previously sought treatment for anxiety from her general practitioner and experienced some of the same symptoms when later working at the NAB.

(d)    Question of law (e): The NAB submitted that the proper approach was not to require the diagnostic criteria, or specific psychiatric labels, but rather to determine as against Ms Georgoulas’ own description of her complaint in the compensation claim form “stress & anxiety related to work”, whether she had such pre-existing complaints.

49        I address these contentions in turn within the context of the questions posed in the notice of appeal.

3.5    The Tribunal’s alternative finding that even if the representation was false, it was not wilfully false

50        However, the first and fundamental difficulty that confronts the NAB on the appeal is the third of the Tribunal’s alternative findings. If no error taints this aspect of the decision, it is sufficient to sustain the decision as an independent ground for finding that s 7(7) of the Act was not engaged.

51        None of the questions of law in the notice of appeal deal directly with this alternative basis of the decision. No issue is therefore taken with the principles applied by the Tribunal by which it determined that any misrepresentation was not wilful. Ground 5 of the notice of appeal in relation to the Question of law at (f) provides only in the most general of terms that:

“In relation to the question of law at 1(f), having regard to the whole of the findings of fact made by it, the Tribunal was bound to conclude at least that:

i.     The Respondent, by no later than 2007 when she filled in the ‘Cominsure’ claim, was suffering from an ailment, and therefore a disease within the meaning of the Act;

ii.     That the answers she gave to the Applicant to questions about the ailment constituted a false representation that she had not previously suffered form it; and

iii.    The ailment so established was that disease for which she later sought compensation from the Applicant.

iv.     Having failed to so conclude, the Tribunal was not thereby able to properly determine whether any representation made about that disease was both wilful and false.” (Emphasis added)

52        No written submissions were made to develop the last of these points, or indeed Question (f) as earlier mentioned; nor was the point developed in oral submissions.

53        As the Tribunal correctly found, s 7(7) requires clear and cogent evidence that the representation was wilfully false. A representation will be wilfully false only if there is evidence that the representation was made without any belief that it was true: Comcare Australia v Porter (1996) 70 FCR 139 at 150 (Jenkinson J). The findings by the Tribunal that it was not so satisfied were made on the evidence before it, including the acceptance by the Tribunal of Ms Georgoulas’ evidence that, when she completed the claim form, she did not believe that she had an anxiety condition which needed to be disclosed and evidence that the Tribunal accepted as being consistent with her evidence. The Tribunal also took into account difficulties with the drafting of Question 14 of the claim form. In particular, the Tribunal observed at [57] of its reasons that:

“The difficulty with Question 14 is that it gives the claimant three different options, and therefore could contain three different representations, but the claimant can only answer ‘Yes’ or ‘No’ to the whole question.”

54        Moreover, as the Tribunal observed at [58] of its reasons:

“Question 14 refers to a ‘previous similar symptom’ but this part of the question is confusing because there is no earlier reference in the questionnaire to the symptoms of the current injury or illness. Question 14 presupposes the claimant has identified symptoms of the current injury or illness in response to the questionnaire and can compare the two to ascertain whether they are similar. There is no explanation about what is intended by this question and, in our opinion, there must be real doubt about whether the answer to a confusing question can be wilfully false.”

55        In short, no necessary link was demonstrated in submissions by the NAB between the strong factual findings on this issue by the Tribunal, and the alleged errors sought to be raised by the questions of law in the notice of an appeal from the Tribunal’s decision.

56        In those circumstances, I consider that the appeal must fail, subject to the question of whether there was a failure to give reasons as raised by the proposed additional Question of law (g) which I deal with below.

3.6    Questions of law (a)(i), (ii) and (iii)

3.6.1    The decision in Mooi on ‘disease’ in the context of mental illness

57        The parties were agreed that the decision of Drummond J in Mooi op cit had correctly determined the question of what constitutes a ‘disease’ in the context of mental illness.

58        In that case, the Tribunal had initially found the respondent entitled to compensation on the basis that, while he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of work related stress, the condition that those stresses contributed to produce in him had an effect on his capacity for work and was still sufficient to amount to an injury within s 14 of the Act.

59        The Court rejected that approach on the ground that it was contrary to the scheme of the Act. In particular, it would have been unnecessary for the Act to elaborately define “injury” as comprising diseases, physical or mental injuries (other than diseases) and aggravations of those conditions if s 14(1) made compensable any condition or circumstance in which the employee finds himself, so long as it arose in the course of his or her employment and interferes with his or her capacity for work: Mooi at 442-F. Rather, his Honour considered that to be entitled to compensation, the employee must show relevantly that he suffered something that can be regarded as an injury or as a disease: Mooi at 442-G. In this regard, Drummond J held at 442-443 that:

“The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition; a slight ailment’ (The Macquarie Dictionary) – that that term is intended to cover the whole range or physical and mental illnesses from major to minor ones.”

60        His Honour recognised in this regard at 443-D that these concepts do not provide precise criteria and that, “[i]n the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe.” However, his Honour reached the view at 443G-444B that, while the expressions may bear different meanings in other contexts:

“…the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which have only some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider the Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1).” (Emphasis added)

61        Drummond J went on to reason that, in determining whether there has been a work-caused aggravation of a disease, the manifestations of the disease (i.e. symptoms) are relevant rather than the disease being considered separately from its various manifestations. His Honour made the basic point that without a disease there could be no aggravation and hence no compensable injury in circumstances where compensation is sought for aggravation of a disease: Mooi at 445G-446A. Conversely, his Honour explained, at 446-F that “…work-caused physical or mental fatigue that impairs an employee’s capacity to work is no more compensable than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness.” Thus, Drummond J found that that the Tribunal had erred in finding that the respondent had suffered an injury within s 14(1) of the Act having found that the respondent was not mentally ill or suffering from any psychological disorder.

3.6.2    Questions (a) and (c)

62        First, Questions (a)(i)-(iv) raise only questions of fact. All four sub-questions are asked for the purpose of determining whether Ms Georgoulas had previously suffered from a disease and the parties accepted the correctness of the decision in Mooi which held, at 443-G, that the word “disease” bears its ordinary meaning. In those circumstances, no question of law arises. As Branson J held in Ethridge op cit at 529 [26] with respect to the construction of the word ‘injury’ in the Act:

“It is not suggested that the word ‘injury’ is used in s 4(1) in other than its ordinary or common meaning. Consequently, and notwithstanding the potential relevance of expert evidence (eg, expert evidence reflecting current medical opinion as to the aetiology of mesothelioma), the question of whether facts as found fall within the meaning of the word ‘injury’ as defined is a question of fact rather than a question of law (Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 7).”

63        Secondly, it is apparent that the Tribunal accepted that “disease” was used in its ordinary meaning in line with Mooi and, applying that construction of the term, reached the view that it was not satisfied on the evidence that Ms Georgoulas had suffered from any mental disease prior to 2009. Specifically, the Tribunal found that:

(a)    there was no evidence that Ms Georgoulas suffered from a mental condition relating to anxiety “which was outside the boundaries of normal mental functioning prior to 2007” and, in so finding, it expressly applied the construction adopted in Mooi (Tribunal reasons at [65]);

(b)    the episodes of anxiety and stress between 1996 and late 2007 were isolated, and no treatment had been sought or received from mental health professionals. There was no evidence of significant incapacity for work and the Tribunal found that these episodes of anxiety could not properly be characterised as a psychiatric condition, let alone a chronic adjustment disorder from which she now suffered (Tribunal reasons at [65]);

(c)    there was insufficient evidence that Ms Georgoulas’ complaints of anxiety from late 2007 for several months constituted a psychiatric condition, as opposed to a description of feelings of unease and apprehension, given that there was no evidence that treatment or medication had been sought or received for anxiety or stress and no diagnosis was made of any psychiatric condition (Tribunal’s reasons at [66]); and

(d)    complaints made in the period from August 2007-2008 of anxiety were made in connection with other physical illnesses, notwithstanding an earlier reference to stress from work (Tribunal’s reasons at [65-68]).

64        In effect, an analogy could be drawn between the findings of the Tribunal in this case as to Ms Georgoulas’ complaints of anxiety and unease prior to 2009, on the one hand, and those found in Mooi by the Tribunal as to work-caused stress and distress impacting on capacity to work but falling short of a disease, on the other hand.

65        In this regard, the question posed by Question (a)(i), namely, whether a finding that Ms Georgoulas had previously suffered from an “ailment” would suffice to establish that she had suffered from a “disease”, is circular. As Drummond J held in Mooi, the expression “ailment” is used in s 4 of the Act as a synonym for the term ‘disease’: at 442-G.

66        Thirdly, in asking whether, for the purposes of s 7(7) of the Act, Ms Georgoulas had previously suffered from a “psychiatric condition” as opposed to an ailment or disease, the Tribunal’s reasons do not reveal error in its understanding of the statutory inquiry required by s 7(7) of the Act: cf Question (c). The same term is used also in Mooi at 444-A and quoted above by me, in the very passage on which the parties both rely, as correctly setting out the meaning of the word “disease” in the Act.

67        Fourthly, it is apparent that the factual findings made on this issue were open to the Tribunal on the expert evidence, including the evidence of the NAB’s expert, Dr Bertucen, that Ms Georgoulas had “no substantial psychiatric history prior to 2009”: the Tribunal’s reasons at [72].

68        In the fifth place, there is nothing in the Tribunal’s process of reasoning which suggests that it confused the question of whether a mental condition had existed prior to 2009, on the one hand, with the question of whether Ms Georgoulas had in fact been diagnosed with a mental illness during that period, on the other hand. To the contrary, it is apparent that the Tribunal merely used the lack of any evidence of a diagnosis as one piece of evidence, amongst others, that weighed against a finding that she had suffered from a mental disease prior to that date. That was a purely factual line of reasoning open to the Tribunal which cannot be challenged in this Court. It follows that Question (a)(iii) must fail as it is premised upon a misunderstanding of the Tribunal’s reasoning.

69        Equally, having accepted the expert opinion evidence of Dr Bertucen, Dr Allnut, Dr Pilsky and Ms Candalepas as to the nature of the mental condition from which Ms Georgoulas suffered since the onset of problems in 2009, no error is apparent in the Tribunal’s identification of the critical question as being “…whether any previous or pre-existing condition suffered by [Ms Georgoulas] was the same or substantially the same as the applicant’s psychiatric condition, as diagnosed by” those experts (emphasis added).

70        Furthermore, it is clear from its reasons that the Tribunal decided that it would afford greater weight to the evidence of mental health professionals over the notes of Ms Georgoulas’ general practitioner. That is a finding by the Tribunal as to the weight that it may give to particular evidence which is a matter relevant only to the merits of the decision and, as such, cannot be challenged in this Court: cf Question (a)(iv).

71        Moreover, the submission by the NAB that the Tribunal should have drawn a conclusion from the failure by Ms Georgoulas’ to call her general practitioner, that his evidence would not have assisted her case, goes to the drawing of factual inferences and cannot be the subject of a challenge in this Court.

72        Finally, even if all four sub-questions in Question (a) were answered in the NAB’s favour, that would establish no more than that Ms Georgoulas had suffered from a previous unspecified psychiatric “disease” contrary to Tribunal’s findings. That possibility was expressly addressed by the Tribunal based on the alternative assumption that Ms Georgoulas’ previously reported symptoms satisfied the description of a psychiatric condition of which anxiety was a key or dominant symptom, contrary to its earlier finding. On that scenario, the Tribunal found that any such condition was not the same or substantially the same as the condition for which compensation is now claimed: the Tribunal’s reasons at [64]. That is a pure finding of fact.

3.6.3    Questions of law (b) and (d): “that disease”

73        In my view, on a plain reading of the provision, the use of the phrase “that disease” in s 7(7) of the Act refers back to the disease, or to the aggravation of the disease, mentioned at the start of the provision, being the disease or aggravation of the disease which is the subject of the claim for compensation and complies with the test in Mooi op cit. As Hayne, Heydon, Crennan and Kiefel JJ held in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 47 [47]:

“The language which has actually been employed in the text of legislation is the surest guide to legislative intention.”

74        The suggestion that the question is whether a previous condition could properly be described as “a disease”, as the NAB submits, is contradicted by the plain words of the provision. The text of the section lends no support, in my view, to the proposition that it is sufficient to establish that the representation was false because the employee had suffered from similar symptoms in the context of a different disease. The question then as to whether Ms Georgoulas had previously suffered from the same disease or a disease that was substantially similar was, as the Tribunal stated at [47] of its reasons, a question of fact.

75        Question (d) concerns the Tribunal’s alleged application of established canons of construction and does not, in my opinion, raise a question of law. The only potentially relevant question is as to the proper construction of s 7(7) of the Act in its application to the facts as found by the Tribunal, to the extent to which it may raise a question of law and not merely a question of fact.

76        More fundamentally, the submission ignores the fact that the Tribunal found that the evidence did not establish that Ms Georgoulas had suffered from any mental condition prior to 2009, applying the test in Mooi.

3.6.4    Question of law (e): is the failure to disclose a symptom capable of being a “representation” within s 7(7)?

77        Section 7(7) deals with circumstances where the employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from the “disease” which is the subject of the claim. That is a question of fact beyond the power of the Court to review. The provision does not ask whether the employee has failed to disclose that he or she had previously suffered from a “symptom”. Furthermore, in the present case, the Tribunal found that Ms Georgoulas did not suffer from any psychological condition before 2009. As such, Question (e) is, with respect, irrelevant.

3.7    The application for leave to amend the notice of appeal

78        At the hearing, an oral application was made for leave to amend the notice of appeal from a tribunal, as had been foreshadowed in a letter dated 16 October 2013 (two days before the hearing) from the NAB’s solicitors to the legal representatives for Ms Georgoulas and copied to the Court. The proposed additional questions of law and grounds were set out in that letter as follows:

“Proposed Additional Questions of Law

Additional Question of Law 1(g)

1 (g). Did the Tribunal err in law in failing to give any, or any adequate, reasons for its decision that the Respondent did not suffer a ‘pre-existing or previous condition’ which fell outside of the boundaries of normal mental functioning so as to constitute an ailment and therefore a disease prior to her employment with the Applicant?

Additional Question of Law 1(h)

1 (h). Did the Tribunal err in law in concluding, as it did [at paragraph 66 of its Reasons for Decision], that there was no psychiatric condition constituting an ailment extant prior to the Respondent’s commencement of employment with the Applicant, when there was incontrovertible evidence to which it referred that there had been, prior to that commencement, both incapacity from and resort by her to, medical treatment for her mental state or condition, as well as a diagnosis of an acute anxiety state referrable thereto, from her General Practitioner?

Proposed Additional Grounds of Appeal

Additional Ground 6

6. In relation to the question of law at 1.(g) above; the Tribunal identified failed [sic] to give any, or any adequate, reasons to explain its conclusions that neither what it described as;

    isolated episodes of anxiety and stress between 1996 and 2007, [paragraph 64 of its Reasons for Decision], and/or

    complaints of anxiety from late 2007 involving descriptions of feelings of unease and apprehension; [paragraph 66 of its Reasons for Decision]

constituted ‘a pre-existing or previous disease’ (being a ‘psychiatric condition’ falling outside of the boundaries of normal mental functioning so as to constitute an ailment and therefore a disease) when its findings on her resulting incapacity, her resort to medical treatment and the acknowledged diagnosis it referred to of an acute anxiety state the Respondent received from her treating General Practitioner for such symptoms consequent upon consulting him for treatment of them, compelled such a conclusion.

Additional Ground 7

7. In relation to the question of law at 1.(h) above; the Tribunal’s finding that there was no relevant psychiatric condition extant prior to Ms Georgoulas’ commencement of employment with the Applicant, was wholly inconsistent with, and contrary to, incontrovertible evidence [noted at paragraph 71 of the Tribunal’s Reasons] that there had been, prior to that commencement, “symptoms” which had resulted in both incapacity and resort by her to medical treatment for the state of her mental health, as well as prompting a diagnosis of an acute anxiety state by her treating General Practitioner, so as to constitute the existence of a mental state that fell outside the boundaries of normal mental functioning and thereby establish the existence of an ailment and a disease.”

79        At the hearing, no adequate explanation was given in evidence for the lateness of the application, or otherwise in support of the application. The only explanation for the delay provided in oral submissions at the hearing was that the grounds had only recently been thought of.

3.7.1    Proposed additional question of law (g)

80        It was accepted by the parties that the question of whether any or adequate reasons were given in satisfaction of the Tribunal’s obligation to provide reasons that arises from s 43(2) of the AAT Act is a question of law, relying on Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 at 561 (the Court). Where, as here, the Tribunal gives written reasons for its decision, s 43(2B) requires that the 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.” However, the question of whether reasons fail to comply with that obligation is “a question of degree. A breach of that provision is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned”: Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65 Pincus J (with whose reasons Spender and French JJ agreed). Rather, as McHugh, Gummow and Hayne JJ held in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 with respect to the equivalent provision in the Migration Act 1958 (Cth):

“A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) [of the Migration Act requiring the Tribunal to set out findings on any material questions of fact] obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.” (emphasis in the original)

81        As a result, their Honours rejected the proposition that the requirement to set out findings on material questions of fact required the Court to do more than set out the findings of fact which it made. Compliance with that requirement, as their Honours then explained, ensures that a person dissatisfied with the result, and a Court on judicial review, can identify with certainty the Tribunal’s reasons for reaching its conclusion and what facts it considered material to that conclusion: Yusuf at 346.

82        In this case, I do not consider that there is any merit in the suggestion that the Tribunal did not give any reasons for the finding in question. Nor do I consider that the reasons given for those findings were not adequate. Rather, as counsel for Ms Georgoulas submitted, the Tribunal canvassed at length the evidence concerning the question of whether the past medical evidence provided any basis for a conclusion that Ms Georgoulas had suffered from a previous or pre-existing psychiatric condition, and whether any such condition was the same or substantially the same as the condition in respect of which compensation was claimed from the NAB. The Tribunal’s conclusions were stated clearly and set out the evidence relied upon in detail, as earlier summarised. In any event, the specific grounds identified at paragraph 6 of the proposed additional grounds of appeal reveal that the challenge sought to be made is ultimately to the merits of the Tribunal’s decision.

83        In the circumstances, while I would grant leave to amend the notice of appeal to include Question (g) on the basis that it raises a question of law, I do not consider that there has been any breach of the requirement to provide reasons under s 43 of the AAT Act in respect of the findings in question.

3.7.2    Proposed additional question of law (h)

84        Finally, proposed additional Question (h) can be shortly disposed of. The question is, as Ms Georgoulas submitted, in reality a question of fact. It poses the question as to whether particular evidence said to have been accepted by the Tribunal was sufficient to sustain a finding of fact made by the Tribunal. It is correct to say that “where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only”: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 (Mason J), see, also, Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 (Latham CJ). However, as Mason J went on to explain in Hope v Bathurst City Council at 7:

“…special considerations apply when we are confronted with a statute which on examination is found to use words which according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens [[1973] A.C. 854] was just such a case. The only question raised was whether the appellant’s behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.”

85        The contention for the NAB in the proposed additional Question (h) would seem to be of the same nature as that identified by the Court as the subject of such special considerations. The NAB appears to be seeking to argue by the proposed question that the facts of the case, as accepted by the Tribunal, fall within the meaning of “disease” as defined as an “ailment”. However, in Mooi, which the parties accepted as correct, the Court held that those are words which bear in this context their ordinary meaning. As such, the question sought to be raised is in reality a question of fact.

86        Furthermore, acceptance by the Tribunal that particular matters were complained of which may, if a disease exists, be symptoms of the disease, and that a particular diagnosis was reached by Ms Georgoulas’ General Practitioner, does not amount to a finding that a ‘disease’ existed for the purposes of the Act. Not only did the Tribunal decline to make such a finding, but it made a specific finding that even if a previous psychiatric condition had existed, it was not “that disease” in respect of which compensation was now claimed.

87        In my view, the proposed Question (h) fails to raise any question of law within s 44 and has no reasonable prospects of success. It can be put no higher than an attempt to invite this Court to embark upon impermissible merits review. In the circumstances, I refuse leave to amend the notice of appeal from a tribunal to include the proposed question.

4.    CONCLUSION

88        For the reasons set out above, I have reached the conclusion that:

a)    leave should be granted to amend the notice of appeal to include proposed Question of law (g);

b)    leave should be refused to amend the notice of appeal to include proposed Question of law (h) which raises issues of fact only;

c)    the appeal under s 44(1) of the AAT Act must be dismissed for the following reasons.

i.    No effective challenge is made to an alternative ground on which the Tribunal’s decision was reached, namely, that even if Ms Georgoulas had made any false representation (contrary to the Tribunal’s findings), that representation was not wilfully false. That finding is sufficient to sustain the Tribunal’s decision that s 7(7) of the Act was not engaged and that the NAB was liable to pay compensation under s 16 of the Act.

ii.    In any event, no question of law is raised by Questions of law (a), (b), (d) and (f) from which it follows that there is no jurisdiction to entertain those questions.

iii.    Furthermore, no error is disclosed with respect to the subject-matters of Questions (a) to (g).

Associate:

Dated:    20 December 2013