FEDERAL COURT OF AUSTRALIA

Kennedy v Comcare [2014] FCA 82

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The application be treated as a notice of appeal.

2.    Compliance with r 36.01 of the Federal Court Rules 2011 (Cth) be dispensed with.

3.    The appeal be allowed in part.

4.    The question of whether the applicant suffered an injury in mid to late 2009, which entitles the applicant to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), be remitted to the Administrative Appeals Tribunal for consideration according to law.

5.    Costs be reserved.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1    At all relevant times Julie Kennedy was a Commonwealth employee. She suffers from a psychiatric disorder, which she contends is work-related. She lodged a claim for workers’ compensation with Comcare, a body established under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), amongst other things, to receive and make determinations in relation to such claims. Comcare refused her claim in two separate determinations. Ms Kennedy sought review of Comcare’s determinations without success. Her application for internal review (“reconsideration”) was rejected, as was her application for merits review in the Administrative Appeals Tribunal (“tribunal”). In this proceeding Ms Kennedy contends that the tribunal fell into error. Although she had a right to appeal from the tribunal’s decision on a question of law, she chose instead to file an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).

2    In her application Ms Kennedy complained that the tribunal made two errors:

(1)    failing to deal with a submission concerning one of the bases upon which Comcare was liable to pay compensation; and

(2)    misconstruing the phrase “reasonable administrative action taken in a reasonable manner” in s 5A(2) of the SRC Act.

3    At the close of oral argument, however, the second point was not pressed.

The legislative framework

4    Before going any further, it is useful to refer to the relevant legislation.

5    The SRC Act renders Comcare liable to pay compensation for an “injury” suffered by an employee if it results in death, incapacity for work or impairment (s 14). Comcare is also liable to pay compensation in respect of the cost of medical treatment reasonably obtained in relation to an injury, regardless of whether death, incapacity or impairment ensues (s 16). The Act provides for other entitlements, too, many of which are predicated on the employee suffering an injury.

6    “Injury” is defined in s 5A(1) of the Act to include a disease, a physical or mental injury arising out of or in the course of the employee’s employment, or an aggravation of a physical or mental injury arising out of or in the course of the employee’s employment (irrespective of whether the injury itself arose out of or in the course of the employee’s employment). “Disease” is defined to mean either an ailment, or an aggravation of an ailment “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee” (s 5B(1)). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).

7    In the case of a disease or the aggravation of a disease, the Act also provides for a deemed date of injury. A disease or an aggravation is taken to be an injury on the day the employee first sought medical treatment for it or the day it first resulted in the employee’s incapacity for work or impairment, whichever occurs first (s 7(4)).

8    Section 5A(1) relevantly excludes from the definition of “injury” “a disease … or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” (s 5A(1)). “Reasonable administrative action” is defined in s 5A(2) in an inclusive, but not exhaustive, way. Having regard to the abandonment of the point involving s 5A, it is unnecessary to refer to the definition.

9    Generally speaking, the Act does not apply in relation to an injury unless notice in writing is given of the injury as soon as practicable after the employee becomes aware of it (s 53). Nor is compensation payable unless a claim for compensation is made by or on behalf of the employee under s 54. Section 54 requires that the claim be made in writing in accordance with the approved form although only substantial, not strict, compliance is necessary. Part VI of the Act establishes “a three tiered decision-making process” (Lees v Comcare (1999) 56 ALD 84, [1999] FCA 753 (“Lees”) at [32]): determination (s 61), reconsideration (s 62) and review of “reviewable decision[s]” by the tribunal (s 64). A “reviewable decision” is relevantly defined in s 60(1) to include a decision made under s 62. The reconsiderations in the present case were made under s 62.

10    The tribunal has power to review any decision in respect of which an application is made to it under an enactment: Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 25(4).

Facts

11    Ms Kennedy worked as a customer service adviser in a Centrelink call centre. She lodged her claim with Comcare on 25 June 2010. The claim was for mental injury, hearing loss and alopecia said to have resulted from “ongoing harassment/bullying”. She also complained of “dental trauma” and migraines. In support of her claim, Ms Kennedy submitted a lengthy statement “regarding harassment/bullying during [her] employment at the Illawarra Call Centre from 2005–2010”. I will return to this statement later. The claim was made with respect to injuries which Comcare deemed to have occurred on 12 July 2007 and 3 May 2010, although the date Ms Kennedy gave in the claim form was August 2005 – about three months after she had started work at the call centre. The tribunal described Ms Kennedy’s claimed injury in 2007 as “an adjustment disorder with consequential alopecia and a dental condition”. Ms Kennedy attributed the disorder to intimidating and threatening behaviour in which she alleged her team leader, Sean Golden, had engaged. She was transferred out of that work group and apparently reported no significant work stressors until mid to late 2009, when she claimed that she was bullied by her then team leader, Belinda Oostendorp.

12    On 9 April 2010 Ms Oostendorp and the acting manager of the call centre, Trent Newton, visited Ms Kennedy at her home after a prolonged absence from work (apparently due to a viral illness). Ms Kennedy claimed she was bullied on this occasion, too. On 30 April 2010, after she had returned to work, she was called to a meeting with Mr Newton about an allegedly inappropriate email that she had circulated around the office. After the meeting Ms Kennedy stopped work altogether and has not worked since. She claimed (and it appears to have been accepted) that at about that time her condition was much worse and that she was diagnosed with a major depressive disorder and associated physical conditions.

13    In two separate determinations (which were assigned two different claim numbers) Comcare decided that Ms Kennedy suffered an adjustment disorder in 2007 (determination in respect of claim 1108633/1, which I shall call the “first determination”) and a panic disorder with agoraphobia and a concomitant adjustment disorder in 2010 (determination in respect of claim 1108633/2, which I shall call the “second determination”). But the decision-maker said that she was not satisfied that either condition was significantly contributed to by Ms Kennedy’s employment with Centrelink and that, if it were, it was contributed to by reasonable administrative actions undertaken in a reasonable manner. The decision-maker also found that Ms Kennedy’s employment did not make a significant contribution to any of the other conditions of which she complained.

14    The review officer who conducted the reconsideration affirmed the earlier determinations. The review officer’s reasons did not mention any bullying or harassment by anyone in 2009. The reasons in support of the first determination referred to Mr Golden’s behaviour in 2007, the reasons in support of the second determination to the two events in 2010. In his reasons for the first determination, the officer acknowledged that Ms Kennedy had identified “numerous other workplace incidents” but, without specifying what they were, said that as the majority of these occurred after 12 July 2007, he considered they related to her other claim.

The tribunal hearing

15    There is no dispute that, at all relevant times, Ms Kennedy has suffered from a psychiatric disorder, and that her disorder is a “disease” within the meaning of the SRC Act. Comcare’s case was that Ms Kennedy’s employment did not make a significant contribution to her condition in either 2007 or 2010 but that if the tribunal found otherwise, then, in both 2007 and 2010 her condition was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

16    There were conflicts in the evidence, which the tribunal resolved against Ms Kennedy. Contemporaneous notes supported Comcare’s version of events. With respect to the events in 2007, the tribunal did not find Ms Kennedy to be dishonest. Rather, it considered she was unreliable. It therefore rejected her account of the workplace events to which she (and the medical practitioners to whom she related it) attributed her condition.

17    The tribunal noted that the medical practitioners, whose opinions supported Ms Kennedy’s claim, had relied on her accounts of what was happening at work, which the tribunal had found to be unreliable. Accordingly, the tribunal was not satisfied that her employment contributed, to a significant degree, to her condition. In any case, the tribunal said that her claim was excluded because the events of which she complained were “reasonable administrative action taken in a reasonable manner in respect of her employment” (s 5A(1)). It accepted Comcare’s submission that Mr Golden’s conduct fell squarely within the meaning of s 5A(1) because it was concerned with the mutual obligation between Ms Kennedy and her employer.

18    The medical witnesses generally agreed that the two events in April 2010 (the home visit and the meeting about the email) contributed, to a significant degree, to an aggravation of Ms Kennedy’s psychiatric disorder in 2010. Ultimately, Comcare did not argue to the contrary. Accordingly, the tribunal was satisfied that there was the requisite causal connection between Ms Kennedy’s employment and her illness at that time. But the tribunal was also satisfied that both the visit to Ms Kennedy’s home and the later meeting with the assistant operations manager constituted “reasonable administrative action taken in a reasonable manner in respect of her employment”.

19    It was for these reasons that the tribunal affirmed the decision under review.

Issues

20    The issues in this case relate only to an alleged injury in 2009. No challenge is made to the decision concerning the 2007 injury.

21    The first substantive issue concerns the tribunal’s failure to deal with a submission advanced on Ms Kennedy’s behalf that there was an aggravation of her psychiatric disorder in the latter half of 2009 for which Comcare was liable to pay compensation under s 14 of the SRC Act (“the submission”). The tribunal referred to some of the evidence touching upon this matter but, at [91], stated that Ms Kennedy did not claim that the events to which it referred “of themselves” had led to an injury. Rather, it said that her claim was that those events formed “the background” to events in April 2010. Ms Kennedy contended that this observation misstated her case. She argued that the submission had been seriously advanced and warranted serious consideration and it was an error of law for the tribunal to misapprehend (and therefore, not address) it.

22    Comcare accepted that the submission had been made and that the tribunal had failed to deal with it. But Comcare contended that there was no error in doing so, as the tribunal had no jurisdiction to deal with the submission.

23    Comcare also contended that the proceeding was not properly constituted. It submitted that the Court should not entertain the application as Ms Kennedy was entitled to appeal the tribunal’s decision under s 44 of the AAT Act. Nevertheless, Comcare consented to Ms Kennedy being granted an extension of time to bring an appeal on the same grounds, provided that Comcare was granted leave to file a notice of contention, raising the question of whether the tribunal had jurisdiction to deal with the claimed 2009 injury.

24    There are therefore two issues:

(1)    whether the tribunal erred in law by failing to deal with the submission concerning injury in 2009; and

(2)    whether the proceeding is properly constituted.

Is the proceeding properly constituted?

25    It is convenient to deal with this question first.

26    There is no doubt that an applicant may appeal from a decision of the tribunal and/or seek judicial review under the ADJR Act. There is certainly no prohibition on an aggrieved person seeking judicial review together with, or in the alternative to, an appeal. Section 10(1)(a) of the ADJR Act provides that the right of an aggrieved person to seek a review of a decision is in addition to any other rights that the person may enjoy. But relief under the ADJR Act is discretionary. Section 10(2)(b) of that Act relevantly provides that the Court may, in its discretion, refuse to grant an application in respect of a decision if adequate provision is made by any other law, under which the applicant is entitled to seek a review. “Review” is defined in sub-s (3) to include an appeal or a reconsideration. The exercise of the discretion to refuse relief does not depend on whether another proceeding is pending. It is enough that the applicant has an entitlement to seek a review or had such an entitlement at the time the decision in question was made: see Kimberly Clark Ltd v Commissioner of Patents (1988) 83 ALR 714 at 718–719; ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [191].

27    The tribunal’s decision in the present case was published on 27 September 2013. The application for judicial review was filed on 25 October 2013, which is within the 28 day time limit within which the appeal was required to be brought: AAT Act, s 44(2A). The application complained only of errors of law. The decision being challenged is a final decision: cf. Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877 (FCAFC) at [19]. It is therefore difficult to see why the AAT Act does not make adequate provision for a review.

28    In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 (“Tuite”), where the applicant challenged the tribunal’s decision under the ADJR Act on the ground that there had been a denial of natural justice, Davies J held that the application was misconceived. His Honour said at 484:

As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course. See F J Bloemen Ply Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 360; Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483-484, 488-489, 505.

29    His Honour noted that in David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, Morling and French JJ considered that, in special circumstances, an application could be made for judicial review, whether under the ADJR Act or the Judiciary Act 1903 (Cth). But he said that no such circumstances were raised in the case before him. And so it is here.

30    Counsel for Ms Kennedy, Mr Vincent, sought to defend the decision not to file a notice of appeal on the ground that “to the extent that [the first ground of the application] is to be characterised as an error amounting to a failure to afford natural justice”, it was doubtful whether it raised a “question of law” within the meaning of s 44 of the AAT Act. He relied on a passage in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 (“Birdseye”) at [18]. In Birdseye the Full Court expressly refrained from commenting on the point; it merely referred to the discussion of this question in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) at [3]-[8], [58]-[67]. In some cases there might be reason to doubt whether a claim that procedural fairness was denied raises a question of law. Much will depend on the way the question is cast. Whether there has been a denial of procedural fairness may raise a mixed question of fact and law, and a mixed question of fact and law is not a question of law within the meaning of s 44 of the AAT Act: Birdseye at [18]; Comcare v Etheridge (2006) 227 ALR 75; [2006] FCAFC 27 at [16]. In Clements, however, in conformity with Davies J’s decision in Tuite, the majority of the Court held that an appeal from a decision of the tribunal on the ground of a denial of procedural fairness will raise a question of law. In this case, though, the question is a red herring. Ms Kennedy did not complain of a denial of procedural fairness. That suggestion was first made in her written submissions in reply. Properly understood, Ms Kennedy’s complaint was one of jurisdictional error – a failure by the tribunal to complete its statutory task. On any view, that raises a question of law. Even if it might also be said that a question of procedural fairness is involved, in the absence of any dispute as to the facts, there appears to be no reason to doubt in this case that the point raises a pure question of law.

31    The next question is: what follows?

32    In Tuite, despite the emphatic nature of his remarks at 484 (above at [28]), Davies J did not dismiss the application or require the applicant to file a notice of appeal. Rather, he considered the application on its merits. Having regard to the considerations in s 37M of the Federal Court of Australia Act 1976 (Cth), I propose to dispense with compliance with the relevant rules and treat the current application as an appeal. This causes no disadvantage to Comcare. Strictly, it means that the tribunal is an unnecessary party but, as the tribunal filed a submitting notice, there is no need to make a formal order removing it from the proceeding.

33    Section 46(1) of the AAT Act relevantly provides that when an appeal is instituted in this Court in accordance with s 44, the tribunal shall cause to be sent to the Court all documents that were before the tribunal in connexion with the proceeding to which the appeal relates. For obvious reasons, that did not take place. The parties relied on a limited set of documents. Neither party submitted, however, that it was necessary for the Court to receive any other documents in order to resolve the sole remaining issue or to dispose of the proceeding.

Did the tribunal err in law by failing to deal with the submission concerning an injury in 2009?

34    At the outset, I would observe that the tribunal’s admitted error is readily understandable. It appears that the first reference to the argument was in Ms Kennedy’s outline of submissions, which were handed to the tribunal at the beginning of closing addresses. The reference was rather oblique. The document listed the issues that the tribunal was called upon to determine, but the issues were framed generally and did not mention a 2009 injury. Mr Vincent relied on some passages under the heading “Clinical Onset & Aggravation/Exacerbation” where he submitted:

50    The Applicant submits the clinical onset of the applicant’s disorder was in 2007. There were personal stresses that led the Applicant to seek medical assistance in May 2007. In 2007 work stressors became contributors to the development of the disorder by way of the Applicant’s interaction with Mr Golden.

51    The Applicant was able to deal with the personal stresses and there was a favourable change in work arrangements. Consequently, in the period from late 2007 to mid to late 2009 the disorder did not give rise to significant impairment in functioning. The various medical opinions do not say that the disorder resolved.

52    However, the Applicant again began to manifest symptoms of the disorder and resulting impairment in functioning once the Applicant was moved to Ms Oostendorp’s team in 2009.

35    These paragraphs do not contain submissions that there was an injury in 2009, but an inference that there was merely a recurrence of symptoms of the 2007 injury at that time. There is only a hint that those symptoms were attributable to anything that occurred at work in 2009.

36    During oral argument before the tribunal, however, Mr Vincent submitted that “the experts do place significance on stressors giving rise to an exacerbation of the condition in that window”, which, from its context, I take to be a reference to a period which includes the period from mid to late 2009. Later, he submitted that “if the tribunal accepts the view that those work stresses were actually giving rise to the problems, as the experts are telling us, well, there is a compensable condition at that point because it has been contributed to by work and there is nothing of an exclusionary nature operating at that time”. Ironically, the issue was really crystallised by Comcare’s legal representative who submitted:

It’s said, I think that – and perhaps for good forensic reason on my friend’s part – that [events with Ms Oostendorp taking place in the latter part of 2009] must have been provocative of some level of psychological injury which pre-dated the two remaining events [in April 2010] that I’m yet to traverse in the submissions.

37    I therefore accept that a submission was made to the tribunal that Ms Kennedy had suffered an injury in the latter part of 2009 for which she should have been compensated and which the tribunal did not address. I also accept the submission made on Ms Kennedy’s behalf that the reason for the tribunal’s omission was not inadvertence, but a misapprehension on the tribunal’s part about what was being put to it. While the tribunal may determine the scope of the review by limiting (amongst other things) the issues that it considers (AAT Act, s 25(4A)), neither party suggested that that is what occurred here.

38    The tribunal was required to give reasons for its decision and where, as here, those reasons were given in writing, they had to include its findings on material questions of fact: AAT Act, s 43. Not every failure to refer to a submission will amount to a contravention of s 43(2) or necessarily indicate that the submission was not considered: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 (“Dennis Willcox”) at 276. But a failure to advert to a submission on a matter “worthy of serious consideration and [which] was seriously advanced” may give rise to an inference that the tribunal overlooked the submission and thereby amount to an error of law: Dennis Willcox at 276-7.

39    Although I have some concerns about the vigour with which the submission was put, and on the (admittedly incomplete) material included in the appeal books it may be doubted whether there is medical evidence to support it, I accept that the submission was seriously advanced, that it was worthy of serious consideration and that, in effect, it was overlooked. The question of whether in the present case it was an error of law to do so turns on the extent of the tribunal’s jurisdiction. The answer lies in the ambit of the reviewable decision. That is because the powers of the tribunal are conferred for the purpose of reviewing a reviewable decision; they are “not powers that may be exercised at large”: Lees at [39].

40    Comcare submitted that the reviewable decision did not refer to an injury in 2009, and that neither did the request for reconsideration, so the tribunal had no jurisdiction to entertain the submission. Mr Howe QC, who appeared for Comcare, said that it remained open to Ms Kennedy to make such a claim on his client. This point was not taken in the tribunal, where the submission was answered on its merits – perhaps for good reason.

41    Mr Howe placed particular reliance on Lees where, at [39], the Full Court said:

In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large… [t]he AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

42    In Lees the Full Court dealt with two appeals in which the question was whether the tribunal could review issues relating to a claim for compensation when those issues had not been the subject of Comcare’s reconsideration. In both cases the employees sought to agitate in the tribunal a claim for permanent impairment compensation under s 24 of the SRC Act when no such claim had been made to Comcare on the reconsideration. The Full Court said (at [50]) in relation to one of those cases:

The only issues under s 24 of the Act which required determination in Ms Lees’ case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees’ application to the AAT was the determination of the independent review officer concerning Ms Lees’ entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination.

43    The Court came to a similar conclusion in relation to the other case.

44    In Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129 (“Szabo”), upon which Comcare also relied, the tribunal decided that it had no jurisdiction to consider a claim that the employee’s back injury was due to the nature and conditions of his employment. The primary judge held that the tribunal did not err in law in making this decision and the Full Court dismissed the appeal, Emmett and Greenwood JJ holding (at [41]) that it was not possible to find in the documents submitted by Mr Szabo to Comcare a claim in respect of some injury or disease arising out of the nature and conditions of his employment. Their Honours held (at [42]) that “until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal”.

45    In a case of psychiatric injury, however, it is not always easy to discern the nature of a claim. Neither the original decision-maker nor the review officer referred to a claim for compensation for injury in 2009. But the tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, “the tribunal must assess for itself the true scope of the claim” and conduct the review on that basis: Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136; [2011] AATA 802 (“Durham”) (Jagot J, sitting as a presidential member of the tribunal) at [51]. The question of whether the tribunal lacked jurisdiction to deal with the submission depends on the scope of the applicant’s claim for compensation: Durham at [53].

46    The claim form Ms Kennedy submitted described her injury as:

Anxiety disorder, stress & panic attacks, headache migraines, hair loss, prolonged illness due to stress, hearing loss, trauma, dental.

47    She said she was injured or first noticed she was ill in August 2005 and that what actually injured her was “ongoing harassment/bullying” by four named supervisors, one of whom was Ms Oostendorp. There was no specific reference to anything occurring in 2009 but, by the same token, there was no reference to an injury in 2007 or 2010. However, in a lengthy statement she made to Comcare in support of her compensation claim, Ms Kennedy wrote:

From July 2009 [Ms Oostendorp’s] erratic behavior and the comments in front of others began to make me more uncomfortable and on edge… I saw my doctor throughout this time and sought support by using the reference material, cognitive therapy methods and other learned assistance provided to me by my Psychologist previously to help me cope.

…

Later in 2009 … with the focus on new metrics, the inappropriate comments to me in front of other staff increased. With ongoing pressure to be involved in external team social events and this new queue being applied to me again I started to feel the effects of this and my health again began to suffer with more frequent headaches/migraines and an increase in time off work for same.

…

I was having trouble coping with the treatment at work and it was becoming more frequent. I saw Nesa Burns at Mentor Services on 19th September 2009 with follow up on 31st October 2009. Nesa is a registered Psych who offers support services.

…

[A]nother colleague … continued to witness the harassment/bullying I was receiving … During the last lot of desk moves … I was told I would be sitting right beside Belinda and … the thought of that move made me feel ill, very uncomfortable and very stressed…

48    I accept that a claim of feeling uncomfortable or on edge, without more, would be insufficient to establish that there was an injury. But that complaint must be read in context. It strikes me that in these passages Ms Kennedy is complaining that Ms Oostendorp’s treatment of her in 2009 made her worse – that it caused or exacerbated a pre-existing psychiatric disorder (a disorder that had apparently settled down after the 2007 events) and caused her to suffer more frequent headaches, even migraines. This was a discrete allegation separate from the allegations relating to the effect of the home visit and the meeting in April 2010.

49    Yet, that is not how the delegate who made the original determination treated it.

50    In her statement of reasons in support of the second determination Comcare’s delegate noted that Ms Kennedy had provided “extensive statements to Comcare” in which she claimed to have been “bullied and harassed by a succession of team leaders”. Relevantly, she wrote:

You stated that in June 2009 Ms Oostendorp began making more frequent comments about your performance metrics in front of other staff. You stated that from July 2009 her erratic behaviour and comments in front of others began to make you more uncomfortable and on edge …

You stated that you were questioned about time off work, and felt increasingly ostracised …

You explained that the lighting at the assigned workstation affected your migraines, which was the reason you wished to move. A workstation assessment was conducted, which found that there was no difference in the lighting at the two workstations, and you were then moved back to the workstation next to Ms Oostendorp. You stated that from that time you were bullied daily …

51    The delegate did not take Ms Kennedy to have made any suggestion that these events in 2009 resulted in an injury discrete from that in 2010. Earlier in her statement of reasons, she wrote:

You provided a statement to Comcare (discussed below) in which you state that you were first off work due to your ‘current illness’ in March 2010. I note that you were off work due to a severe viral illness, and have claimed that you were subjected to bullying and harassment in relation to returning to work, which in turn, led to the development of a significant psychological condition.

[Emphasis added]

52    The reference to “bullying and harassment in relation to returning to work” is plainly a reference to the home visit in April 2010. Without doubt, the delegate’s characterisation of Ms Kennedy’s claim was “unduly restrictive” and “inconsistent with both the terms of the claim and the beneficial character of the Act”: Durham at [60].

53    Similarly, in his summary of Ms Kennedy’s compensation claim the review officer did not refer to an allegation of bullying and harassment by Ms Oostendorp that preceded the home visit. Comcare explained this omission by arguing that in her request for reconsideration Ms Kennedy had resiled from making the allegation. I am persuaded, however, that she did not. The contention could certainly have been put with greater precision in the request for reconsideration, but “a broad, generous and practical interpretation” is called for: Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 at [18]; Szabo at [50]. Construed broadly, generously and practically Ms Kennedy was asking Comcare to reconsider several aspects of her case. One of them was her claim that bullying and harassment at the workplace from June/July 2009 caused her injury.

54    In her request for reconsideration Ms Kennedy set out “the reasons for reconsideration that [she] would like considered”. While these reasons are not always easy to understand, at one point Ms Kennedy wrote:

The conditions stated to be adjusted on the claim form as well as the claim reconsideration I am requesting would be as they have been officially classified by the specialists in their reports to you being an Adjustment Disorder with Depressed Mood and Anxiety in 2007 and then in 2010 that the condition evolved into a Major Depressive Episode and I would like this considered and adjusted in the appeal.

55    It is not clear from this statement what precisely she wanted “considered and adjusted”. In the preceding paragraph, however, she referred to someone witnessing “poor treatment” of her “during the time of the harassment/bullying by Ms Oostendorp and Mr Newton”. That could not have been a reference to the home visit and Ms Oostendorp was not said to have been involved in the meeting with Mr Newton. In any case, the passage extracted at [54] above cannot be taken as an exhaustive statement of the nature of her request. Ms Kennedy later wrote:

It is perceivable that my conditions are directly related to the harassment/bullying in my workplace as the illness/conditions were at their worst directly at the times of the unreasonable/inappropriate behaviors towards me by the individuals mentioned in my workplace.

…

Standing over a person, repeated requests after being told no for information, the belittling comments at my workstation in front of other staff, coming to a persons’ home unannounced and attempting to bully them into signing documents whilst unwell and considering the request was previously declined, management cornering people and belittling them directly after a psych appointment and other behaviors discussed in my statement are all forms of unreasonable and inappropriate direct bullying that I was subjected to in my workplace and I would like this considered.

[Emphasis added]

56    The “standing over a person” obviously relates to the complaints about Mr Golden’s behaviour in 2007, the “coming to a person’s home unannounced …” to the events in early April 2010, but the belittling comments at Ms Kennedy’s workstation are likely to relate to her complaints about the behaviour of both Mr Golden and Ms Oostendorp. This was one of the matters Ms Kennedy was asking Comcare to reconsider. It is possible, too, that other features of Ms Oostendorp’s conduct mentioned in the letter also relate to this period of time. Ms Kennedy does not abandon her earlier claim that Ms Oostendorp’s behaviour in 2009 caused her injury well before the home visit in 2010.

57    In his statement of reasons in support of the first determination, the review officer observed that Ms Kennedy had identified “numerous other workplace incidents in [her] statements”. This description doubtless includes the conduct of Ms Oostendorp outlined at length in the documents Ms Kennedy submitted to Comcare. The review officer stated that, as most of the workplace incidents had occurred “after the date of injury 12 July 2007”, he considered that they related to her other claim number and would be addressed in connection with it. In his reasons in support of the second determination the review officer did not advert, at least expressly, to Ms Kennedy’s claim that Ms Oostendorp’s conduct caused her injury in 2009. On the other hand, he did say that he had had regard to all of the material in the file. That material must have included both Ms Kennedy’s request for reconsideration and her original statement in support of her claim.

58    If the review officer did not make a decision on the matter of the 2009 injury, it is at least arguable that this amounted to a refusal to make a decision: see the discussion by Finn J in Comcare v Burton (1998) 50 ALD 846; [1998] FCA 1144 at 852. A refusal to make a decision is a “decision” for the purposes of both the AAT Act and the SRC Act: AAT Act, s 3(3)(a); SRC Act, s 60. No such argument was advanced in the present case and it is unnecessary to consider the matter further. That is because I am persuaded that the review officer did make a decision.

59    If an issue is before a review officer on an application for reconsideration and the officer does not deal with it expressly, (s)he might be taken to have implicitly rejected it: Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 at [26]; Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558 at [52], [56]. Here, in the light of the evidence before him and the statement that he had had regard to all of it, as well as his assertion that the “numerous other workplace incidents” would be addressed in his reasons, the review officer should be taken to have implicitly rejected Ms Kennedy’s contention that she suffered injury as a result of Ms Oostendorp’s behaviour towards her during 2009.

60    I am therefore satisfied that the preconditions to the exercise of the tribunal’s jurisdiction to consider the submission have been made out. Ms Kennedy had given notice to Comcare of an injury in 2009 and had made a claim that she be compensated for it. In the original determination Comcare did not allow it. Ms Kennedy sought to have Comcare’s determination reconsidered. The reconsideration was unfavourable. It follows that the tribunal had jurisdiction to consider the submission relating to the alleged injury and it erred in law in neglecting to do so.

Conclusion

61    The application is to be treated as a notice of appeal. The appeal should be allowed on the single ground which was pressed. The tribunal should be directed to review Comcare’s determination not to award compensation for an injury in 2009. Ms Kennedy asked for a declaration that the decision was contrary to law and an order setting the decision aside. Both these orders seem to me to be inappropriate. The declaration is unnecessary and there is no justification for setting the decision aside as, ultimately at least, Ms Kennedy did not challenge any part of what the tribunal actually decided. Her only quarrel was with something which the tribunal neglected to decide.

62    As requested, I will hear argument from the parties on the question of costs.

Associate:

Dated:    18 February 2014