FEDERAL COURT OF AUSTRALIA

Comcare v Wiggins [2019] FCA 1465

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal by Comcare under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal made on 31 May 2017. The Tribunal decided to set aside a reviewable decision made by Comcare, and decided instead that the respondent, Ms Elizabeth Wiggins, had suffered an injury and was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Ms Wiggins’ injury was described as “chronic adjustment disorder with depressed and anxious mood with features of traumatisation”.

2    Comcare relied on written submissions filed on 12 February 2018 and submissions in reply filed on 5 April 2018. Ms Wiggins relied on written submissions filed on 13 March 2018. Both parties were represented by counsel at the hearing.

Background

3    Ms Wiggins was, at all relevant times, an officer of the Australian Federal Police (AFP), deployed to serve at Port Moresby, Papua New Guinea (PNG). During her deployment, Mr Peter Withers was Ms Wiggins’ “team leader”.

4    Ms Wiggins lodged a claim for compensation under the SRC Act dated 20 March 2014 for a psychological condition, which she described as a “mental state”, that she alleged occurred as a result of bullying by Mr Withers, particularly on 21 February 2014 (counselling meeting).

5    On 22 May 2014, Comcare rejected the compensation claim. Comcare accepted that Ms Wiggins suffered from an “anxiety state” that was contributed to, to a significant degree, by her employment with the AFP. It determined, however, that her “anxiety state” was suffered as a result of reasonable administrative action taken in a reasonable manner by the AFP in a number of “one-on-one meetings” between Ms Wiggins and Mr Withers. On 24 October 2014, Comcare affirmed the decision of 22 May 2014.

6    On 29 October 2014, Ms Wiggins applied to the Tribunal for review of Comcare’s decision. As indicated, on 31 May 2017 the Tribunal set aside Comcare’s decision and decided instead that Ms Wiggins had suffered an injury and was entitled to compensation under the SRC Act.

Relevant legislation

7    To understand the questions of law raised in this appeal, it is necessary to refer briefly to the relevant statutory provisions.

8    Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9    The term “injury” is defined, relevantly, in s 5A(1)(a) of the SRC Act to mean “a disease suffered by an employee”. Section 5B(1) relevantly provides that “disease” means “(a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth …”. Section 5B(2) sets out a number of matters that “may be taken into account”. “Significant degree” is defined, in s 5B(3), to mean “a degree that is substantially more than material”. “Ailment” is, in turn, defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

10    At the same time, s 5A(1) of the SRC Act excludes from the definition of “injury” “a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The expression “reasonable administrative action” is defined in s 5A(2) to include certain kinds of reasonable administrative action, including in s 5A(2)(b),“a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment”. Nothing turns on the definition in s 5A(2) in this case.

Tribunal’s decision

11    In the following discussion relevant paragraphs of the Tribunal’s Reasons are identified by reference to the paragraph numbers used by the Tribunal, but it should be noted that on occasion the Tribunal used the same number twice.

12    The Tribunal heard evidence between 12 and 14 April 2016 and between 2 and 5 August 2016. The parties addressed submissions to the Tribunal on 7 October 2016. No medical witnesses gave evidence before the Tribunal. The parties agreed that they should not be called to attend the Tribunal hearing, presumably because there was no dispute about the issues within their expertise identified in the following paragraph.

13    There was no dispute before the Tribunal that Ms Wiggins suffered from an ailment, characterised as chronic adjustment disorder with depressed and anxious mood with features of traumatisation (the condition), to which her employment with the AFP contributed to a significant degree. Accordingly, the Tribunal found that the condition was a “disease” for the purpose of ss 5A and 5B of the SRC Act (Reasons at [7]). The Tribunal found (Reasons at [9]) (and it was not disputed) that Ms Wiggins suffered the disease on 3 March 2014. On that date, she attended her general practitioner after returning from PNG and complained of bullying and harassment while in PNG. She was certified as unfit for work and diagnosed with anxiety with depressive symptoms.

14    The issue to be determined by the Tribunal was whether the condition was excluded from the definition of “injury” in s 5A(1), because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Ms Wiggins’ employment.

15    In its reasons for its decision, the Tribunal gave a detailed account of the evidence before it, including the evidence of Ms Wiggins (at [10]-[33]), Mr Withers (at [44]-[60]) and Mr Alan Scott, Deputy Commissioner, Royal PNG Constabulary (formerly Assistant Commissioner, AFP) (at [63]-[68]).

16    The Tribunal noted that it was not controversial that the counselling meeting between Mr Withers and Ms Wiggins on 21 February 2014 was “administration action” within the meaning of the SRC Act (at [71]).

17    In considering whether the disease was suffered as a result of that administrative action, the Tribunal referred to the test set out by the High Court in Comcare v Martin [2016] HCA 43; 258 CLR 467 at [47] and to the Full Court’s decision in Lim v Comcare [2017] FCAFC 64; 250 FCR 298 at [40]-[41]. The Tribunal stated (at [70]):

Applying Lim and Martin the Tribunal takes into account Ms Wiggins’ evidence that she had consulted a doctor on 3 February 2014 suffering from stress, but was not diagnosed as suffering from a disease or injury prior to 21 February 2014 as she had no incapacity for work or impairment and had no diagnosable condition. This is supported by the medical evidence. The Tribunal finds that Ms Wiggins would not have suffered the chronic adjustment disorder with depressed and anxious mood with features of traumatisation if the counselling meeting on 21 February 2014 had not taken place.

18    The Tribunal first addressed whether the counselling meeting constituted “reasonable” administrative action. In this regard, the Tribunal accepted that “after conducting relevant inquiries Mr Withers formed the view that Ms Wiggins had been making inappropriate contact with the [PNG Sexual Offences Squad (SOS)] and that this contact was beyond her scope of responsibility”, and that “he was annoyed with Ms Wiggins’ actions and, after addressing the team meeting, decided to discuss the matter privately with Ms Wiggins” (at [71]). The Tribunal found that, in the circumstances, Mr Withers’ decision to conduct the counselling meeting with Ms Wiggins on 21 February 2014 constituted reasonable administrative action of the kind described in s 5A(2)(b) of the SRC Act (at [71]).

19    Secondly, the Tribunal addressed whether the counselling meeting on 21 February 2014 was “taken in a reasonable manner” for the purpose of s 5A(1), particularly having regard to the context of the meeting and Mr Withers’ position.

20    In this regard, the Tribunal began by noting that from the time of Ms Wiggins’ arrival in PNG there were negative attitudes towards her, even though she had been assessed as suitable for deployment overseas. The Tribunal referred to Mr Alan Scott’s evidence that almost the entire International Deployment Group described her as “difficult” and “infamous”, and to Mr Withers’ evidence that Mr Scott had told him that Ms Wiggins had “a history of being difficult in other missions and a reputation for being difficult to manage” (Reasons at [73]). The Tribunal observed that this appeared to be based on Ms Wiggins’ complaint about a colleague during her deployment to Timor Leste, which appeared to have led to ostracism by other members of her team (at [73]). The Tribunal found (at [74]) that:

This treatment of Ms Wiggins is consistent with her evidence that she felt singled out by Mr Withers for criticism over issues such as the use of her mobile phone and her wish to be addressed by her preferred name. It is also consistent with her evidence that she believed she was isolated within the team and therefore did not wish to join in team-building activities in her spare time or to socialise closely with most team members.

21    The Tribunal accepted (at [75]) that Mr Withers’ leadership position in PNG was a particularly difficult one, including because of diplomatic and policy concerns underpinning the deployment, the dangerous environment in which the team was operating, and the fact that they were operating “in effect unarmed”. The Tribunal also accepted (at [76]) that “the team was operating in circumstances which were different from domestic policing, and that therefore Mr Withers was required to view the operational integrity, discipline and communication of his team as paramount”. It accepted (at [76]) that Mr Withers may have been “required to make quick decisions and exercise a wider discretion in dealing with matters concerning his team than would normally take place”. The Tribunal stated that:

In such a context, there will be a lower threshold at which it will be reasonable to take administrative action, and a wider scope of actions that may be considered reasonable. Further, the circumstances may make it reasonable for supervisors to conduct themselves in a way that would not be reasonable in a less dangerous or less disciplined setting. The circumstances do not, however, excuse supervising and commanding officers from conducting themselves reasonably within the circumstances they were faced with.

22    As to the reasonableness of the conduct, the Tribunal’s findings included that:

•    Ms Wiggins was approached by Ms Pinder, of the PNG Police, regarding concerns about forms to be completed in respect of an external provider, and that Ms Wiggins gave the form to appropriate AFP officers for their consideration but was not otherwise involved in the matter (at [77]).

•    Ms Pinder told Ms Wiggins she had received a text message from “Michelle” regarding the Standard Operating Procedures (SOPs) for the SOS (at [77]).

•    On 18 February 2014, Ms Wiggins alerted Mr Withers about the text message from “Michelle”, because she believed that the SOPs were important documents and it was not necessarily good practice for such documents to be requested by text message from a junior officer (at [78]).

•    Ms Wiggins’ actions in alerting Mr Withers to the text message were appropriate as he was her immediate supervisor (at [78]).

•    Mr Withers appeared to have misunderstood the issues, and drew the incorrect conclusion that Ms Wiggins was interfering with the duties of another AFP officer (Ms Harris) (at [79]).

•    Before the counselling meeting, Mr Withers “had made up his mind that Ms Wiggins’ motivations and conduct were of great concern and that she needed to be dealt with accordingly, even though his inquiries were based on incorrect assumptions” (at [80]).

•    At a team meeting immediately before the counselling meeting on 21 February 2014, Mr Withers was angry about “undermining of the SOS by the [AFP] team” (at [82]).

•    Ms Wiggins was given no prior notice of the counselling meeting; was told in front of her colleagues that she was required to attend immediately; was not informed of the purpose of the meeting; and was not invited to nominate a support person. There was no agenda and no notes were taken at the meeting (at [83]).

•    Mr Withers concluded before the counselling meeting that Ms Wiggins had been deliberately undermining Ms Harris and the SOS, even though that conclusion was not soundly-based, and this alleged misconduct was the purpose of the meeting (rather than general issues of work performance, which had previously been addressed on 31 January 2014 and 4 February 2014) (at [84]).

•    Mr Withers had formed an adverse conclusion about Ms Wiggins because of his perception that she was difficult; her reputation conveyed by Mr Alan Scott and others; and a conversation with Ms Harris (at [85]).

•    The events during the counselling meeting occurred as described by Ms Wiggins (at [88]). In this regard it should be noted that the Tribunal: considered Ms Wiggins to be “a credible witness who gave evidence in a forthright and open manner, admitting her weaknesses and mistakes” (at [86]); found that “Ms Wiggins’ version of the conduct of the counselling meeting was plausible and was consistent with accounts given to medical practitioners and others” (at [88]); and preferred Ms Wiggins’ evidence about the counselling meeting to the evidence of Mr Withers (at [88]).

•    At the counselling meeting on 21 February 2014, Mr Withers addressed Ms Wiggins in a raised voice and made accusations of misconduct against her (at [89]).

•    Mr Withers had made up his mind that Ms Wiggins had engaged in misconduct in her dealings with the SOS and “was aggressive in berating her and criticising her” (at [90]).

•    Mr Withers intimidated Ms Wiggins, causing trauma that led to her psychological condition (at [91]).

23    The Tribunal found that the intimidating behaviour and demeanour exhibited by Mr Withers towards Ms Wiggins at the counselling meeting on 21 February 2014 was conduct that was not taken in a reasonable manner in respect of Ms Wiggins’ employment (at [92]).

24    The Tribunal therefore concluded that the exclusion in s 5A(1) of the SRC Act did not apply, Ms Wiggins’ condition fell within the definition of “injury” in the SRC Act, and she was entitled to compensation (at [93]).

ApPeal Under section 44 of the aat act

25    On 28 June 2017, Comcare instituted its appeal to this Court under s 44 of the AAT Act, which provides for an appeal on a question of law from a decision of the Tribunal. By its notice of appeal, Comcare raised the following questions:

1.     Whether the Tribunal failed to exercise its jurisdiction according to law in the construction and application of s 5A and s 5B of the SRC Act?

2.    Whether the Tribunal failed to exercise its jurisdiction according to law in failing to address a substantial, clearly articulated argument relying upon established facts as to the proper construction and application of s 5A and 5B of the SRC Act?

  3.     Whether the Tribunal failed to afford the Applicant procedural fairness?

4.     Whether the Tribunal failed to provide adequate reasons for its decision as required by s 43(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and which conform to the standard required by s 43(2B) of the AAT Act?

26    In its notice of appeal Comcare relied on the following 10 grounds:

1.    The Tribunal in finding that the Respondent’s supervisor, Inspector Withers, was biased against the Respondent, failed to take into account a relevant consideration namely the evidence given by Inspector Withers and Commander Scott.

2.    The Tribunal in assessing the relative merits of the evidence of the Respondent, and that of Inspector Withers, applied differentiating factors to determine the truthfulness of the Respondent’s evidence that was not afforded to Inspector Withers and thereby failed to afford the Applicant procedural fairness and which led the Tribunal into error.

3.    The Tribunal failed to take into account a relevant consideration, namely contemporaneous diary notes made by Inspector Withers concerning his counselling of the Respondent which took place on 31 January 2014 and 21 February 2014.

4.    The Tribunal failed to consider whether the ‘administrative action’ (counselling) of the Respondent on 31 January 2014, by reference to uncontradicted specialist medical evidence, was an action that, of itself, was reasonable administrative action taken in a reasonable manner in respect of the Respondent’s employment.

5.    The Tribunal failed to take into account specialist medical evidence that established that the counselling of the Respondent on 31 January 2014 was an event without which the Respondent would not have sustained her injury.

6.    The Tribunal failed to exercise its jurisdiction as it was required to determine whether the Respondent’s injury arose:

(a)    ‘as a result of’ the 31 January 2014 counselling, and did not;

(b)    ‘as a result of’ the 21 February 2014 counselling, and did;

(c)    ‘as a result of’ the 31 January 2014 and 21 February 2014 counselling, taken together, and did not.

7.    The Tribunal failed to consider a serious submission that the counselling of the Respondent on 31 January 2014 was reasonable administrative action taken in a reasonable manner in respect of the Respondent’s employment such as to exclude the payment of compensation to the Respondent.

8.    The Tribunal failed to consider a serious submission as to the proper construction of, and application of s 5A and s 5B of the SRC Act.

9.    The Tribunal’s lengthy delay in making its decision and providing the reasons for its decision failed to provide the Applicant with procedural fairness and to exercise its jurisdiction where the Applicant’s liability to pay compensation would turn on the credibility of a crucial witness or witnesses.

10.    The Tribunal failed to provide adequate reasons for its decision as required by s 43(2) of the AAT Act and which conform to the standard required by s 43(2B) of the AAT Act.

27    It is convenient to note at this point that:

(a)    Comcare abandoned ground 2 at the hearing; and it is therefore unnecessary to consider Ms Wiggins’ additional submissions on ground 2 filed on 19 June 2018 (and an affidavit of Angela Sdrinis, Ms Wiggins’ solicitor, affirmed on 18 June 2018 tendered at the hearing);

(b)    Comcare did not ultimately press ground 9. Rather, Comcare’s counsel identified its complaint as, relevantly, “really in the reasoning or inadequate reasons”;

(c)    The basis for question 3 (as set out in Comcare’s notice of appeal: see [25] above) was set out in grounds 2 and 9; and since these grounds no longer arise for consideration, nor does question 3;

(d)    At the hearing Comcare abandoned [17]-[20] of its written submissions relating to Mr Seager’s evidence; and

(e)    Ground 6(b) was not the subject of specific argument at the hearing of the appeal; and, in light of the way Comcare ran its case at the hearing, it is unnecessary to address it.

28    For the reasons that follow, the appeal should be dismissed.

Comcare’s Core complaint: A failure to consider the medical evidence and the 31 january 2014 meeting as cause of ms wiggins’ ailment

29    The parties filed detailed written submissions addressing the various grounds advanced in Comcare’s notice of appeal relating to the questions of law that Comcare had identified. At the hearing in this Court, however, Comcare’s position in relation to its various grounds and the relevant questions was far from clear. The primary issue, or what counsel for Comcare described as Comcare’s “core complaint”, was whether the Tribunal erred by failing to consider the reports of Dr Mendelson and Dr Paoletti, and Comcare’s related submissions about the 31 January 2014 meeting, in addressing the causation of Ms Wiggins’ ailment. This was the only issue agitated in any detail at the hearing.

30    Comcare characterised the alleged error in a number of different ways in grounds 4, 5, 6(a), 6(c), 7, 8 and 10, including as a failure to take into account relevant evidence, a failure to exercise jurisdiction, a failure to consider a serious submission made by Comcare, and a failure to give adequate reasons. At the hearing, counsel for Comcare made it clear that Comcare relied on these various grounds only to the extent that they supported its primary contention about the 31 January 2014 meeting as a cause of Ms Wiggins’ ailment. At the hearing counsel for Comcare confirmed that Comcare sought to “rely upon the failure to refer to Doctors Mendelson and Paoletti under whichever ground … best holds it”.

Tribunal’s reasons relevant to this issue

31    It is convenient to discuss in some detail the aspects of the Tribunal’s reasons that are relevant to Comcare’s primary argument.

32    The Tribunal set out the evidence of Ms Wiggins and Mr Withers regarding the 31 January 2014 meeting and a subsequent meeting on 4 February 2014 in some detail. The Tribunal referred to Ms Wiggins’ evidence in the following terms:

[17]    On 31 January 2014 Ms Wiggins had a one-on-one meeting with Mr Withers at his request. She stated that during the meeting he told her that some team members were playing games (in the sense of engaging in petty politics, point-scoring or banter) and that he accepted that she preferred to sit back and watch, rather than participate. She said that Mr Withers told her that prior to being deployed to PNG he and other high-ranking AFP members had received emails that described her as a trouble-maker. She told the Tribunal that she asked for a copy of the emails but he refused, saying she was not entitled to receive a copy. She also said that she was not comfortable with a discussion about her forthcoming Performance Development Assessment (PDA) being discussed at the dining room table in Mr Withers’ apartment, so he agreed to shift the subsequent meeting to a neutral setting.

[18]    During the PDA process Ms Wiggins told Mr Withers that she was feeling stressed and was attending a gymnasium to minimise the stress, although she said that she did not tell him that he was the cause of the stress because …His anger could turn quickly and in one moment he would be your best friend and the next moment he would just get angry.

…

[31]    Under cross-examination Ms Wiggins … agreed that if her team leader had ongoing concerns about her use of a mobile telephone, he had the responsibility to raise the matter with her, and had done so in a reasonable manner prior to their meeting on 31 January 2014. She said that she believed after that meeting that she was prohibited from using her mobile phone, even for work-related purposes, but she used her phone anyway because it was her means of communication and she could complete her situation reports on it.

33    As to Mr Withers’ evidence, the Tribunal recorded:

[50]    On 31 January 2014 Mr Withers met with Ms Wiggins for a one-on-one discussion about various issues prior to the six-monthly PDA assessment. He said that they discussed mobile phone use, the team environment, the nature of written reports, and the observations of her aggression and unfriendliness within the team. He stated that Ms Wiggins accepted fault in excessive mobile phone use, insufficient information in written reports and lack of engagement. He emphasised that Ms Wiggins said that initially she considered his actions constituted bullying, but that she realised that he had spoken to other team members, and not just her, about relevant issues, and she withdrew such an allegation. Mr Withers said that the conversation was beneficial and that Ms Wiggins indicated she would address any remaining issues where she needed to show improvement. He was pleasantly surprised at her positive response to the conversation.

[51]    Mr Withers stated that on 4 February 2014 he completed the PDA process with Ms Wiggins at a neutral venue at her request, and he was not overly critical of her in the PDA, believing that he would see a much-improved performance and attitude from her, and that his supportive approach was having a positive outcome. He also said he would support her request to be involved in the local netball competition as a player, coach and umpire.

…

[58]    Under cross-examination Mr Withers … agreed that the 31 January meeting had been positive in its conduct and outcome. …

34    The Tribunal subsequently made findings (at [84] and [86]) relating to that evidence:

[84]    Mr Withers had concluded before the [21 February 2014] counselling meeting that Ms Wiggins had been deliberately undermining Ms Harris and the SOS, even though that conclusion was not soundly-based and there were a number of other possibilities that did not involve any wrong-doing by Ms Wiggins. The Tribunal finds that this alleged misconduct was the purpose of the meeting, rather than general issues of Ms Wiggins’ work performance which had been addressed on 31 January 2014 and 4 February 2014.

…

[86]    The Tribunal considers Ms Wiggins to be a credible witness who gave evidence in a forthright and open manner, admitting her weaknesses and mistakes. She acknowledged that her use of the mobile phone may have been inappropriate at times, and she had endeavoured to comply more fully with her report-writing obligations. At the pre-arranged meeting on 31 January 2014 with Mr Withers, she accepted constructive advice and resolved to improve her performance. The meeting was conducted in a positive manner, and she felt more able to approach him. Mr Withers agreed in his evidence that the meeting was constructive, as was the meeting on 4 February 2014 to discuss Ms Wiggins’ PDA.

(Emphasis added)

35    Relevantly (at [16] and [32]) the Tribunal also referred to Ms Wiggins’ evidence that she consulted a doctor on 3 February 2014 (three days after the 31 January meeting) as follows:

[16]    On 3 February 2014 Ms Wiggins was feeling so stressed that she consulted a doctor at the international medical centre in PNG. She said that it was due to Mr Withers being controlling, and that it …was as if I wasn’t allowed to do anything remotely involved with policing without asking Withers first. I was in tears. I spoke to the doctor about how stressed I was. However at that stage I just wanted to keep working and I hoped that I would be able to manage the difficult work environment that I had found myself in.

…

[32]    Ms Wiggins agreed that she had reported to the doctor she consulted on 3 February 2014 in PNG that she was close to tears and having a poor appetite because she had felt isolated and bullied. However during cross-examination she could not recall any of the events that caused this, as she was now focused on the events of 21 February 2014. She conceded that on at least one occasion at the end of a shift, she was in a car driven by a colleague and was playing a computer game. She agreed that she should not have done so, but stated that it kept her mind occupied and they were on their way home, and she thought it was safe to do so. She disagreed that towards the end of January 2014 Mr Withers had not been aggressive to her in respect of her mobile phone use and had not isolated her, and said that Mr Withers had called her aggressive and told her she was not a team player.

36    As already indicated, the Tribunal went on to make a finding that Ms Wiggins would not have suffered the condition if the counselling meeting on 21 February 2014 had not taken place (at [70]). In this passage the Tribunal recorded that:

Applying Lim and Martin the Tribunal takes into account Ms Wiggins’ evidence that she had consulted a doctor on 3 February 2014 suffering from stress, but was not diagnosed as suffering from a disease or injury prior to 21 February 2014 as she had no incapacity for work or impairment and had no diagnosable condition. This is supported by the medical evidence. The Tribunal finds that Ms Wiggins would not have suffered the chronic adjustment disorder with depressed and anxious mood with features of traumatisation if the counselling meeting on 21 February 2014 had not taken place.

    (Emphasis added)

Comcare’s submissions

37    Comcare submitted that the Tribunal erred by failing to take into account the specialist medical evidence, particularly that of Dr Mendelson, in determining the application of s 5B and/or s 5A of the SRC Act. Comcare submitted that Dr Mendelson’s unchallenged evidence that the meetings between Ms Wiggins and Mr Withers “on 31 January 2014 and 21 February 2014 … had exacerbated the emotional symptoms that [Ms Wiggins] said had developed gradually during December 2013 and January 2014” was directly relevant to the question of which administrative actions were significant in causing the condition. Counsel for Comcare contended that Dr Mendelson’s evidence “established that there were two administrative actions at play”. It was not relevant, so Comcare submitted, that the 31 January 2014 meeting did not immediately result in incapacity for work; the need for immediate medical treatment; the making of a diagnosis contemporaneous with the meeting; or seeing a doctor for stress.

38    Citing Martin and Lim, Comcare submitted that the Tribunal’s failure to take into account Dr Mendelson’s opinion precluded the proper application of s 5B and/or s 5A of the SRC Act, because the 31 January 2014 meeting was an event without which Ms Wiggins would not have suffered the condition.

39    Moreover, according to Comcare, the Tribunal failed to consider whether there was “a synergy between the counselling of 31 January 2014 and 21 February 2014 and the cause of the Condition in applying s 5B and s 5A; that is both events taken together”, as required by Martin. Counsel for Comcare emphasised that the Tribunal did not deal with the prospect that there were two administrative actions, not very far apart from each other, where unchallenged expert evidence indicated that both were causative in a significant way in the development of Ms Wiggins’ condition. Counsel submitted that, in failing to consider the medical evidence, the Tribunal erred in connection with the proper application of the exclusionary provision in respect of the combination of both of those actions.

40    Comcare further submitted that absent the Tribunal identifying the medical evidence of Dr Mendelson and Dr Paoletti and dealing with that evidence in its reasoning, there was no medical basis identified by the Tribunal for finding that the 31 January 2014 meeting was not a cause of the condition. Counsel for Comcare submitted that the Tribunal was not permitted to deal only with the lay evidence that came before it and to ignore the medical experts’ opinions. Referring to Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25]-[27] (Kiefel J) Comcare submitted that the Tribunal was not in a position to make a finding of medical fact that required the identification and consideration of medical evidence to support that finding. Comcare submitted that, without considering Dr Mendelson’s report and the history provided to him by Ms Wiggins, “it could not be said that without the [31 January 2014] meeting being taken, [Ms] Wiggins would have not have suffered the ailment”.

41    Comcare also contended that the Tribunal erred in not considering its written and oral submissions about Dr Mendelson’s evidence and the 31 January 2014 meeting, and that this constituted a failure to address a “substantial, clearly articulated argument relying upon established facts”, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24] (Gummow and Callinan JJ) and Brackenreg v Comcare [2010] FCA 724; 187 FCR 209 at [69]-[91] (Mansfield J).

42    Finally, Comcare submitted that the Tribunal’s failure to refer to Dr Mendelson’s expert evidence and the written and oral submissions about whether the 31 January 2014 meeting was reasonable administrative action taken in a reasonable manner in respect of Ms Wiggins’ employment indicated that the Tribunal did not provide adequate reasons for its decision. In this regard, Comcare submitted that the Tribunal failed to meet the requirements of s 43(2) of the AAT Act and failed to provide reasons which conformed to the standard required by s 43(2B) of the AAT Act. It cited a number of cases in support of that submissions, including Dranichnikov, Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56; 136 FCR 47 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593. Counsel explained that the crux of this ground is that “not dealing with evidence that goes to the core statutory decision that has to be made is of itself inconsistent with the requirements to provide the reasoning to come to the conclusion that the tribunal [made] in the absence of that evidence”.

Ms Wiggins’ submissions

43    Senior counsel for Ms Wiggins submitted that, whatever the views expressed by the medical witnesses, the Tribunal plainly turned its mind to the 31 January 2014 meeting and made findings of fact that excluded it as a cause of Ms Wiggins’ disease, particularly at [70], [86] and [90]-[92]. Ms Wiggins submitted that having regard to the Tribunal’s references to the aftermath of the 31 January 2014 meeting and its finding as to the significance of the 21 February 2014 meeting, it was clear that the Tribunal saw the earlier meeting as not satisfying the causal connection in the s 5A(1) exclusion. Senior counsel for Ms Wiggins further submitted that the evidence of both Ms Wiggins and Mr Withers was that the 31 January 2014 meeting was positive and beneficial and that there was no suggestion by either of them that anything in that meeting was stressful or negative. Senior counsel for Ms Wiggins submitted that the Tribunal’s findings of fact about the 31 January meeting were consistent with this evidence. He submitted that it was clear that the Tribunal considered both the 31 January 2014 and the 21 February 2014 meetings and found that it was the 21 February 2014 meeting, and not the 31 January 2014 meeting, that had “caused” Ms Wiggins’ disease (in the sense her ailment was “contributed to, to a significant degree” by what occurred at the later meeting only).

44    Senior counsel for Ms Wiggins further submitted that, although the medical experts assessed Ms Wiggins based on the information that she gave them, the Tribunal had the advantage of hearing directly from numerous witnesses who gave oral evidence and were cross-examined in relation to Ms Wiggins’ interactions with Mr Withers, especially in January and February 2014. Attention was drawn to the fact that neither medical expert appeared before the Tribunal.

45    Senior counsel for Ms Wiggins submitted that, in applying ss 5A and 5B of the SRC Act in accordance with Martin, the Tribunal’s reasons showed that it had particular regard to the evidence of the witnesses attending the hearing who were able to give direct evidence about the relevant events in PNG. Senior counsel for Ms Wiggins submitted that it was therefore unnecessary for the Tribunal to refer to what the two psychiatrists had reported about those events, bearing in mind the scope of the dispute before the Tribunal and that their reports were, in this regard, dependent entirely on what Ms Wiggins had told them. Senior counsel emphasised, in particular, that the Tribunal heard a more complete history than either of the psychiatrists’ reports gave and the importance of what was common ground in the proceeding before it. In reply, senior counsel for Ms Wiggins summarised his submissions on this point as follows:

Now, so far [as] Mendelson and Paoletti are concerned, there’s nothing in their reports that called for specific reference and treatment. There’s much common ground between them, just as there was common ground between the parties that Ms Wiggins developed an ailment to which her employment made a material contribution. For Paoletti, it was the 21 February session; for Mendelson, it was two sessions, January and February, but as I said before, each of the medical experts, insofar as he expressed an opinion on causation, was entirely dependent on the history which that expert took, and if the tribunal took a more elaborate history, it was entirely appropriate for the tribunal to rely on that history, and so that’s our defence of the tribunal’s approach and its reasons.

46    Senior counsel for Ms Wiggins submitted that the Tribunal had provided its reasons in accordance with s 43 of the AAT Act, noting that the Tribunal had summarised the oral evidence it received, and made findings of fact about what had happened at both the January and February 2014 meetings. Counsel submitted that there was nothing in the medical reports that called for specific reference and treatment.

Consideration of core complaint

Medical evidence: the reports of Dr Paoletti and Dr Mendelson

47    It is convenient to outline the medical evidence at this point, since Comcare’s core complaint stemmed from the Tribunal’s treatment of this evidence.

48    Dr Paoletti, consultant psychiatrist, made a report dated 3 March 2015, which was in evidence before the Tribunal. In this report, Dr Paoletti set out what Ms Wiggins had said to him about her history at a meeting with him that day and assessed her condition on the basis of that history. Dr Paoletti’s report referred to the 31 January 2014 meeting, stating with respect to it that Ms Wiggins “thought [she and Mr Withers] had resolved the issues”. Dr Paoletti also recorded that Ms Wiggins had told him “that there was a key incident on 21 February 2014, but there had been some incidents ‘beforehand’, in which she had been ‘singled out’ by [Mr Withers], who was ‘very controlling’”. Dr Paoletti stated that, in his opinion, Ms Wiggins’ diagnosis was “precipitated by employment in the Australian Federal Police, especially the alleged events on 21 February 2014, as related”.

49    Dr Mendelson, consultant psychiatrist, also made a report, which was dated 4 December 2015 and in evidence before the Tribunal. In this report, Dr Mendelson set out what Ms Wiggins had said about her history at a meeting with him the previous month and made an assessment of her condition on the basis of that history. Dr Mendelson stated:

[I]t is my view that [Ms Wiggins’ condition] had developed in response to what Ms Wiggins experienced as bullying and harassment by her team leader … during the course of her deployment commencing in December 2013, and had been exacerbated by the incident that she said occurred on 21 February 2014.

…

[I]n my view the “interactions” between Ms Wiggins and Sergeant Withers on 31 January 2014 and 21 February 2014 … had exacerbated the emotional symptoms that she said had developed gradually during December 2013 and January 2014 and which she attributed to the way in which she had been treated from soon after she arrived in Papua New Guinea on or about 9 December 2013.

50    As already noted, by agreement between the parties, neither psychiatrist attended the Tribunal to give evidence orally, including for cross-examination.

51    Both parties referred to the psychiatrists’ evidence in their submissions to the Tribunal. Relevantly, in its written submissions, under the heading “Medical evidence and reasonable administrative action”, Comcare submitted:

10.1    It is submitted that the opinion of Prof Mendelson should be preferred. Prof Mendelson when providing his report of 4 December 2015 has referred to the history of the onset of symptoms suffered by [Ms Wiggins] as provided by her. That history is consistent with the allegations made by [Ms Wiggins] in respect of the completion of her claim for compensation, and, in the statements she has also provided.

10.2    Prof Mendelson has also considered and analysed all of the information that was provided to him in forming his opinion as to the condition and its cause. In Prof Mendelson’s opinion, he relevantly stated that the interactions between [Ms Wiggins] and Inspector Withers: “on 31 January 2014 and 21 February 2014, as described in her two statements to which I referred above, and exacerbated the emotional symptoms that she said had developed gradually during December 2013 and January 2014 and which she attributed to the way in which she had been treated from soon after she arrived in Papua New Guinea on or about 9 December 2013”.

10.3    It follows, that the counselling session undertaken on 31 January 2014 was causative in the development of [Ms Wiggins’] condition as was the office counselling. There is [sic] been no suggestion that the counselling undertaken by Inspector Withers with [Ms Wiggins]on 31 January 2014 was in any way unreasonable. The application of the decision in Hart v Comcare renders [Ms Wiggins] ineligible for compensation under the SRCA.

52    Counsel for Comcare also made oral submissions at the Tribunal hearing as to the nature of the Tribunal’s task in light of the medical evidence. Most relevantly, counsel submitted:

The next point I wanted to raise with you because my friend has spent some time in trying to convince you that you are in a position, as a matter of law, because of the absence of Ms Symons and Professor Paoletti and Professor Mendelson, you’re in a position, in my words not hers, to put on the white coat and the stethoscope and start to make decisions that are of a medical nature.

…

There is what is, at least set out in part by Professor Paoletti, in terms of other events that occurred prior to Ms Wiggins decompensating and not being able to work after 21 February, that being the most proximate operative event for the cause of her condition but it’s not the only one and it’s not correct, in my submission, to say because doctors weren’t here, you need to make these decisions yourself. That’s going a step too far in terms of your powers and functions.

These specialists, particularly Professor Paoletti and certainly Professor Mendelson, as you see from the reports we were provided with certain documentation. They had the benefit of examining the mental state and obtaining a very thorough history, as one comes to expect from Professor Mendelson. He was clearly given all the material, or what was available at the time, and I think his opinion is actually supported in some sense by what transpired on 3 February, at least on this issue, in 2014 when Ms Wiggins went to see the … medical officer ... .

Counsel for Comcare went on to state that “there is sufficient medical evidence, in particular from Professor Mendelson, to look at this matter in terms of the exclusion provision through the prism of Professor Mendelson’s report, his observations and conclusion”. In substance, the Tribunal’s failure to accept this proposition lies at the heart of Comcare’s core complaint in this Court.

Grounds 4, 5, 6(a) and (c), 7 and 8

53    Grounds 4, 5, 6(a) and (c), 7 and 8 express Comcare’s core complaint in various ways. In support of these grounds, Comcare contended that the Tribunal failed to consider the entirety of its submission that it was not liable to pay compensation under s 14 of the SRC Act in respect of Ms Wiggins’ “injury” because that “injury” (in the nature of a disease) was covered by the exclusion in s 5A(1). This was because, so Comcare’s argument ran, the Tribunal did not address its claim that Ms Wiggins would not have suffered her “ailment” (being a “disease”) without the 31 January 2014 meeting. This also led to Comcare’s overarching submission that the Tribunal misapplied ss 5A and 5B of the SRC Act.

54    Comcare’s complaint centred on what it said was the Tribunal’s failure to grapple with the medical evidence, which, according to it, meant that the Tribunal did not consider whether Ms Wiggins’ ailment “was contributed to, to a significant degree, by” the administrative action on 31 January 2014 or both administrative actions on 31 January 2014 and 21 February 2014. The result was, so Comcare said, that the Tribunal did not complete its statutory task and erred in concluding that the exclusion in s 5A(1) of the SRC Act did not apply.

55    For the following reasons, I reject Comcare’s submissions in this regard.

56    Any consideration of Comcare’s submission that the Tribunal failed to consider whether the 31 January 2014 meeting (alone or in conjunction with the 21 February 2014 meeting) attracted the “reasonable administrative action” exclusion in s 5A(1) of the SRC Act calls for consideration of the causal connection on which the exclusion depends. In Martin the High Court stated (at [44]-[45] and [47]):

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

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

…

[47]    Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.

    (Emphasis added)

57    In the present case, as in Martin and in Lim, there was no dispute that Ms Wiggins suffered from an ailment, to which her employment with the AFP contributed to, to a significant degree: see Lim at [41]. As the Full Court explained in Lim at [41]:

In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the [relevant administrative action] had not been taken.

58    Reading the Tribunal’s reasons fairly and as a whole, however, I would not infer from the Tribunal’s stated appraisal of the evidence and its findings that it failed to turn its mind to whether the 31 January 2014 meeting relevantly contributed to Ms Wiggins’ ailment. Indeed, the Tribunal made clear findings of fact that excluded the 31 January 2014 meeting as a cause of Ms Wiggins’ disease.

59    First, the Tribunal found that at the 31 January 2014 meeting Ms Wiggins “accepted constructive advice and resolved to improve her performance”; “[t]he meeting was conducted in a positive manner”, and “she felt more able to approach [Mr Withers]” (Reasons at [86]). This assessment of the 31 January 2014 meeting was consistent with the evidence given by both Ms Wiggins and Mr Withers. Ms Wiggins’ evidence in the Tribunal proceeding was that this meeting was a “good meeting”, where the discussion was “fair and reasonable”, “[a]micable and calm”. Ms Wiggins said in evidence that she felt positive about the 31 January 2014 meeting. Mr Withers’ evidence in the Tribunal proceeding was that the 31 January 2014 was “beneficial” and he was “pleasantly surprised that [Ms] Wiggins had adopted such a positive response to the conversation”.

60    Secondly, the Tribunal’s findings with respect to the 31 January 2014 meeting can be contrasted with the findings it made with respect to the 21 February 2014 counselling meeting. Its findings with respect to the 21 February 2014 meeting were very different, including that at the February meeting “Mr Withers addressed Ms Wiggins in a raised voice and made accusations of misconduct against her, leading to Ms Wiggins becoming more and more upset and distraught, with the threat of escalation to the Superintendent being particularly worrying and causing her to cry” (at [89]). The Tribunal also found (at [90]-[91]) that, at the 21 February 2014 meeting, Mr Withers was “aggressive in berating … and criticising” Ms Wiggins and that he “intimidated Ms Wiggins, causing trauma that led to her psychological condition”.

61    While the Tribunal made a number of what senior counsel for Ms Wiggins called “subsidiary findings” at this point in its reasons (including that Ms Wiggins was not given any forewarning by Mr Withers of his intention to discuss her dealings with the SOS, that she was not asked for her version of events during the meeting, that she was not invited to have a support person present, and that she was not provided with contemporaneous notes and given a chance to comment on them: see [91]), it is tolerably clear that the key reason for the Tribunal’s conclusion that the administrative action of 21 February 2014 was not taken in a reasonable manner was its finding regarding Mr Withers’ aggressive and intimidating conduct on that occasion. This is confirmed by the Tribunal’s statement (at [92] of its Reasons) that, “[e]ven if the meeting was intended to be a counselling session where prior notice and the presence of a support person were not necessary, the intimidating behaviour and demeanour exhibited by Mr Withers towards Ms Wiggins would be characterised as conduct that was not taken in a reasonable manner”.

62    Thirdly, the Tribunal expressly noted that Ms Wiggins had consulted a doctor on 3 February 2014 (some days after the 31 January meeting) suffering from stress, “but was not diagnosed as suffering from a disease … prior to 21 February 2014 as she had no incapacity for work or impairment and had no diagnosable condition” (at [70], emphasis added). Instead, in the same paragraph, the Tribunal specifically found that “Ms Wiggins would not have suffered the chronic adjustment disorder with depressed and anxious mood with features of traumatisation if the counselling meeting on 21 February 2014 had not taken place”.

63    It is clear from the Tribunal’s analysis that it considered whether the 31 January 2014 and/or the 21 February 2014 meeting had “caused” Ms Wiggins’ ailment in the sense that either alone or together one or other meeting had contributed to that ailment, to a significant degree, for the purposes of s 5B(1) (and s 5A(1)(a)); and found that it was the 21 February 2014 meeting alone, and not the 31 January 2014 meeting, that satisfied this causal requirement. In substance, the Tribunal found that, in contrast to the 21 February 2014 meeting, the 31 January 2014 meeting was not a cause of Ms Wiggins’ ailment. The finding was supported by its finding about Ms Wiggins’ and Mr Withers’ perceptions of the 31 January 2014 meeting and its contrasting findings about Mr Withers’ conduct at the 21 February 2014 meeting and Ms Wiggins’ response to that conduct.

64    In the circumstances of this case, it was, as senior counsel for Ms Wiggins submitted, unnecessary for the Tribunal to refer to what the psychiatrists had said in their reports about the critical events in PNG involving Ms Wiggins and Mr Withers. Neither of the psychiatrists whose reports were in evidence had direct knowledge of those events. Insofar as either psychiatrist expressed an opinion touching on the issue of causation, his opinion was dependent on what he understood and recorded Ms Wiggins as having said to him at the time he met with her. The psychiatrists, moreover, made relevantly different statements about the two meetings: see [48]-[49]. If the Tribunal had confined its attention to the medical reports, there would have been no apparent reason to prefer the account in one report over the account in the other. Neither medical expert attended the Tribunal hearing in order to give evidence or to be available for cross-examination, presumably because there was no ongoing dispute between the parties about the nature of Ms Wiggins’ ailment and the fact that her employment with the AFP had contributed to it, to a significant degree. The Tribunal was not required to choose between the two medical reports, though, because this was a case in which the Tribunal had the advantage of hearing directly from various witnesses, including Ms Wiggins, who gave evidence before the Tribunal about the critical events, especially in January and February 2014, and were questioned about their evidence. I accept that, as senior counsel for Ms Wiggins submitted, in applying the relevant provisions of the SRC Act in accordance with Martin and Lim, the Tribunal relied on this evidence, as it was entitled and proper to do.

65    I reject Comcare’s submission that the Tribunal was bound to address Dr Mendelson’s opinion, as recorded in his report, that “the ‘interactions’ between Ms Wiggins and Sergeant Withers on 31 January 2014 and 21 February 2014 … had exacerbated the emotional symptoms that she said had developed gradually during December 2013 and January 2014”. Nor was it bound to consider the status of Dr Mendelson’s opinion considered in light of Dr Paoletti’s earlier report. Comcare’s argument at this point depends on the proposition that the Tribunal was required to have regard to the medical evidence in ruling on the causal requirement in the exclusion in s 5A(1) and erred in making its ruling on the basis of its assessment of the non-medical evidence.

66    Contrary to Comcare’s submissions, Rodriquez is distinguishable from the present case. That case concerned a challenge to a Tribunal finding that the applicant had not discussed certain incidents with his doctor, from which the Tribunal inferred that the applicant “was no longer concerned about them and as such that they no longer explained the continuation of his condition” (at [20]). A number of medical experts had given evidence that the incidents, which were work-related, were the cause of a disorder which continued. The medical experts were questioned before the Tribunal. In addressing a submission that the Tribunal was able to find as it did because one of its members was medically qualified, Kiefel J stated (at [25]-[27]):

[25]    The Tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)) and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41; 26 ALR 247 at 256; 36 FLR 482 at 492, referring to Consolidated Edison Co v National Labour Relations Board 305 US 197 (1938) at 229; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6; 21 ALD 1 at 23–4; 94 ALR 11 at 37–8; Repatriation Commission v Maley (1991) 24ALD 43 (Full Court). Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205 at 210; 8 ALN N102; 60 ALR 717 at 722 a Full Court of this court held that it was unjustifiable, and therefore legally erroneous, for a tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter.

[26]    It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the court or tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.

[27]    Given my view as to the need for expert medical opinion on the topic, it is not necessary for me to consider the balance of the Tribunal’s reasoning. It was certainly open to the Tribunal to consider the focus of the applicant’s evidence, if it had guidance from the medical evidence as to what to make of it, given the applicant’s condition. …

    (Emphasis added)

67    By the time of the hearing, Comcare had conceded a number of issues on which Ms Wiggins’ claim depended: see [13] above. Bearing this in mind and that neither Dr Paoletti nor Dr Mendelson attended the Tribunal hearing to give evidence or be questioned, the present was clearly not a case in which the causal requirement in the exclusion in s 5A(1) had been “relegated” to the medical experts (see at [26] in the above passage). Rather, as stated already, the Tribunal in this case heard evidence from various witnesses with knowledge of the critical events, including Ms Wiggins. In contrast to Rodriquez, it was clearly open to the Tribunal on the basis of this evidence to find that Ms Wiggins would not have suffered the ailment if the 21 February 2014 counselling meeting had not taken place, and that the 31 January 2014 meeting was not a cause of her ailment.

68    In these circumstances, grounds 4, 5, 6(a) and (c), 7 and 8 are not made out. In terms of questions 1 and 2, Comcare has not shown that “the Tribunal failed to exercise its jurisdiction according to law in the construction and application of s 5A and 5B of the SRC Act”. Nor has it shown that “the Tribunal failed to exercise its jurisdiction according to law in failing to address a substantial, clearly articulated argument relying upon established facts as to the proper construction and application of s 5A and 5B of the SRC Act”.

Ground 1

69    As stated earlier in these reasons, Ground 1 alleged that the Tribunal failed to take into account the evidence given by Mr Withers and Mr Alan Scott in finding that Mr Withers was biased against Ms Wiggins.

70    In written submissions, Comcare contended as follows.

(1)    Mr Alan Scott’s evidence was that he had been appraised that other senior officers within the AFP had formed an adverse view of Ms Wiggins prior to her deployment in PNG, but he accepted that Ms Wiggins was suitable and capable for the deployment.

(2)    It was not contested that, following the counselling meeting on 21 February 2014, Mr Scott informed Ms Wiggins that she would be moved to another team in light of her indicating that she could no longer work with Mr Withers.

(3)    The Tribunal said, in essence, that Mr Scott’s alleged bias infected Mr Withers with a bias towards Ms Wiggins, notwithstanding that Mr Withers’ uncontested evidence was that he had taken steps to develop a rapport with Ms Wiggins.

(4)    The Tribunal accepted evidence that Mr Withers had a reasonable basis for thinking that Ms Wiggins was a difficult officer to manage, and that this formed part of her counselling by Mr Withers on 31 January 2014.

(5)    There was no evidence from which the Tribunal could infer that the counselling meeting on 21 February 2014 was intended to be, or developed into, disciplinary action.

71    Comcare submitted in writing that, although the Tribunal cited the unchallenged evidence of Mr Withers and Mr Alan Scott concerning Ms Wiggins’ inappropriate behaviour, the Tribunal did not take into account that evidence in any evaluative way in reaching the adverse finding made against Mr Withers concerning the manner in which the counselling meeting on 21 February 2014 was conducted. It was not to the point, so Comcare submitted, that “evidence is cited which is said to lead to a basis for a finding of bias, when evidence to the contra is not ‘taken into account’ in coming to such a conclusion”.

72    Counsel for Comcare touched upon this argument briefly at the hearing and, in the course of doing so, agreed that by this ground Comcare intended to challenge the Tribunal’s finding that, prior to the counselling meeting on 21 February 2014 “Mr Withers had already decided that Ms Wiggins was guilty of intentionally engaging in misconduct” (Reasons at [90]; also [80] and [84]).

73    Counsel for Comcare also submitted that, in relation to these matters, ground 1 overlapped to some extent with ground 10, in that, so Comcare submitted, the Tribunal provided inadequate reasons in relation Mr Alan Scott’s and Mr Withers’ evidence that they believed they had done everything possible to ensure Ms Wiggins was appropriately managed. Counsel for Comcare submitted that “unchallenged evidence from Commander Scott was [that] Inspector Withers was specifically selected for this task because he was not the sort of person who would … not be able to handle an employee who was described as troublesome or a troublemaker”.

74    Ms Wiggins submitted that ground 1 (and ground 10) should fail and, for the reasons stated below, I have reached the same conclusion.

75    I reject Comcare’s contention that the Tribunal failed to consider and evaluate the evidence of Mr Withers and Mr Scott. The Tribunal set out the evidence of these two witnesses in some detail, with respect to Mr Withers, in its Reasons at [44]-[60] and with respect to Mr Alan Scott, in its Reasons at [63]-[68]. In discussing the issues to which their evidence related, the Tribunal made clear and specific reference to the evidence they had given. The Tribunal explained that it did not accept the parts of Mr Withers’ evidence that were in conflict with Ms Wiggins’ evidence, because it found that Ms Wiggins’ evidence about the counselling meeting on 21 February 2014 was “plausible and was consistent with accounts given to medical practitioners and others”, such as Mr Seager (Reasons at [88]). It should also be borne in mind that the Tribunal accepted (at [81]-[82]) Mr Seager’s evidence that, prior to the team meeting on 21 February 2014, Mr Withers had told him that he was “extremely angry about a matter that had been brought to his attention” and found (at [88]) Mr Withers’ “demeanour at the counselling meeting followed his angry disposition during the team meeting”. Finding Ms Wiggins to be “a credible witness who gave evidence in a forthright and open manner” (at [86]) and having regard to the considerations just mentioned, the Tribunal preferred the evidence of Ms Wiggins to that of Mr Withers where there evidence was conflict.

76    In considering Mr Withers’ evidence the Tribunal expressly made allowances for the difficulties that he faced (at [75]-[76]), but nonetheless concluded that he had misunderstood the issues raised by Ms Wiggins; became suspicious of her motives; and “drew the incorrect conclusion that Ms Wiggins was interfering with the duties of Ms Harris” (Reasons at [79]). The Tribunal’s findings (about Mr Withers’ anger immediately prior to the counselling meeting on 21 February 2014; that he had formed an adverse conclusion about Ms Wiggins’ conduct prior to that meeting; and that his behaviour and demeanour at that meeting were intimidating) were open on the evidence before the Tribunal. Comcare has not identified any basis for its contention that the Tribunal failed to take into account the evidence of Mr Withers and Mr Alan Scott in making the finding it sought to impugn. In essence, by ground 1, it seems to me that Comcare was inviting the Court to re-undertake the fact-finding function of the Tribunal, which is not the Court’s function in a proceeding of this kind. Ground 1 must therefore fail. I return to ground 10 below.

Ground 3

77    By ground 3, Comcare contended that the Tribunal erred by failing to take into account Mr Withers’ contemporaneous notes of the meetings on 31 January 2014 and 21 February 2014. In support of this ground, Comcare relied on the Tribunal member’s acknowledgement at the hearing that she had not yet considered Mr Withers’ notes, and the Tribunal’s statement that “[i]t would have been a straightforward matter for Mr Withers … to have made even brief notes and presented them to [Ms Wiggins]” (at [91]). Comcare further submitted that Mr Withers’ notes made shortly after the counselling meeting of 21 February 2014 provided a basis for preferring his evidence about that meeting.

78    I reject Comcare’s submissions regarding ground 3. I accept that while Mr Withers was giving evidence and in the course of discussion with the parties’ legal representatives, the Tribunal stated that it had not been aware of the notes written by Mr Withers following the 21 February 2014 meeting. The Tribunal member also stated that “I obviously will have to have a look at them”. There is no reason to believe that, once having been made aware of the documents, the member did not refer to them, as she indicated she would do. The fact that Mr Withers made notes of the counselling meeting after the meeting had taken place does not impinge on the Tribunal’s criticism (at [91]) that “Mr Withers should have afforded [Ms Wiggins] fairness by informing her of the matters to be discussed; allowing her a proper opportunity to respond to the allegations; taking notes of the meeting and presenting them to her afterwards; and conducting the meeting in a calm and non-threatening manner”. There is no indication that that any notes made by Mr Withers at the counselling meeting or shortly afterwards were thereafter shown to Ms Wiggins. In sum, Comcare has not identified any basis for its assertion that the Tribunal failed to have regard to the notes made by Mr Withers after the counselling meeting of 21 February 2014 and the meeting with Ms Wiggins on 31 January 2014. Ground 3 is not made out.

Ground 10

79    Ground 10 alleged that the Tribunal failed to provide adequate reasons for its decision as required by s 43(2) of the AAT Act and which conformed to the standard required by s 43(2B) of the AAT Act. Comcare’s focus here was on the Tribunal’s failure to refer to Dr Mendelson’s report and its submissions to the effect that the 31 January 2014 meeting met the causal requirement in the exclusion in s 5A(1), although it also relied on the asserted inadequacy of the Tribunal’s reasons with respect to the evidence of Mr Alan Scott and Mr Withers that they believed that they had done everything possible to ensure that Ms Wiggins was appropriately managed.

80    Section 43(2) provides that, subject to certain provisions in the AAT Act, the Tribunal shall give reasons either orally or in writing for its decision. The specifics of the Tribunal’s duty to provide reasons for its decision are contained in s 43(2B) of the AAT Act. This provision relevantly states:

Where the Tribunal gives in writing the reasons for its decision, those 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.

81    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court considered the adequacy of the Refugee Review Tribunal’s reasons in the context of s 430 of the Migration Act 1958 (Cth). This provision is analogous to s 43(2B) of the AAT Act. The plurality (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed) stated (at [68]) that the Tribunal would have discharged its obligation under s 430 if it “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 original). Their Honours observed that the “requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker”.

82    In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55] the High Court adopted much the same approach when considering the duty of a medical panel to provide a written statement of reasons for its decision under s 68(2) of the Accident Compensation Act 1985 (Vic). 

83    As already stated, the Tribunal’s reasons in this case provided a relatively detailed summary of the witnesses’ evidence; gave thorough consideration to Ms Wiggins’ and Mr Withers’ evidence, especially regarding the 31 January 2014 meeting and the counselling meeting of 21 February 2014; referred to the evidence of other witnesses (for example, Mr Alan Scott and Mr Seager) where their evidence related to a particular issue; made findings of fact based on the evidence, including findings that excluded the 31 January 2014 meeting as a cause of Ms Wiggins’ disease; and provided its reasons, based on its findings, for its decision.

84    In this case, the Tribunal has clearly included in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (emphasis added): see s 43(2B). Perhaps the Tribunal could have said more about the reports of the two psychiatrists and Comcare’s submissions about the 31 January 2014 meeting, but the possibility that there might have been “fuller and more detailed discussion” is not sufficient to establish a breach of the Tribunal’s obligation under s 43(2B) of the AAT Act: see Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65; 95 ALR 654 at 656. In this case the Tribunal has clearly 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” (Yusuf at [68]) and explained “the actual path of reasoning” by which it in fact arrived at its decision “in sufficient detail” to allow a court to see whether or not the decision involved a relevant error (Wingfoot at [55]).

85    Ground 10 is not therefore made out.

86    As indicated in [69]-[85] above, in terms of questions 3 and 4 (see [25] above), Comcare has not shown either that the Tribunal failed to afford it procedural fairness or that the Tribunal failed to provide adequate reasons for its decisions.

Disposition

87    For the foregoing reasons, none of the grounds on which Comcare ultimately relied were made out, and Comcare’s appeal under s 44 of the AAT Act should be dismissed, with costs.

Associate:

Dated:    6 September 2019