FEDERAL COURT OF AUSTRALIA

Leach v Comcare [2019] FCA 1698

Appeal from:

Leach v Comcare [2018] AATA 1632

File number:

QUD 464 of 2018

Judge:

REEVES J

Date of judgment:

16 October 2019

Catchwords:

WORKERS’ COMPENSATION – appeal of a decision of the Administrative Appeals Tribunal (the Tribunal) with respect to the operation of s 53(3)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where the Tribunal found that the appellant had not advised Comcare of his injury “as soon as practicable” after becoming aware of said injury – where the Tribunal was not satisfied that the appellant’s failure to comply with s 53 of the SRC Act was due to ignorance within the meaning of s 53(3)(c) – whether the Tribunal’s conclusion about the plausibility of the appellant being aware of a Comcare claim was legally unreasonable – whether the Tribunal complied with its statutory obligations to provide reasons for its conclusion – where the appellant sought to rely on two new affidavits in this appeal – appeal dismissed

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases cited:

Chugg v Pacific Dunlop Limited (1990) 170 CLR 249

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Leach v Comcare [2018] AATA 1632

Leach v Ross [2013] QSC 333

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Date of hearing:

16 July 2019

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the Respondent:

Ms K Slack

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

QUD 464 of 2018

BETWEEN:

CRAIG LEACH

Appellant

AND:

COMCARE

Respondent

JUDGE:

REEVES J

DATE OF ORDER:

16 October 2019

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal filed 9 July 2018 is dismissed.

2.    The appellant is to pay the respondent’s costs of and incidental to the appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    Section 53(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) prevents an employee from pursuing a claim in respect of an injury under that Act unless he or she has given notice in writing of that injury as soon as practicable after the employee becomes aware of the injury. However, s 53(3) provides a number of exceptions to an employees failure to comply with this notice requirement as follows:

(3)    Where:

(a)    a notice purporting to be a notice referred to in this section has been given to the relevant authority;

(b)    the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

(c)    the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

the notice shall be taken to have been given under this section.

2    The present appeal, brought by Mr Leach, concerns a decision of the Administrative Appeals Tribunal (the Tribunal) (see Leach v Comcare [2018] AATA 1632) relating to the operation of the exception described in s 53(3)(c) above.

FACTUAL AND PROCEDURAL CONTEXT

3    The factual context to this appeal was aptly summarised in the opening paragraphs to the Tribunals decision in the following terms:

1.    [Mr Leach] was employed by the Australian Federal Police (AFP) between 3 February 1986 and 21 November 1997. The majority of [Mr Leachs] work was as a detective in organised crime and drug related areas. In 1989, an AFP Assistant Commissioner was murdered; [Mr Leach] was involved in investigating the Calabrian Mafia aspect of this murder. Later in 1995, it was alleged [Mr Leach] had been associated with the organised crime aspect of this murder and an investigation was launched by AFPs Internal Security and Auditing Division (ISA).

2.    As part of this investigation process, [Mr Leach] became aware in 1996 that he was the subject of surveillance and special projects, which included telephone intercepts, hidden cameras and listening devices.

3.    On 23 May 1997 [Mr Leachs] employment was suspended based on suspicions that he had committed a disciplinary offence, being threats of physical violence against members of ISA and other members of the AFP during a security interview on 8 April 1997. On 21 November 1997, [Mr Leachs] employment was formally terminated.

4.    [Mr Leach] lodged a workers compensation claim on 8 March 2016 with respect to a mental injury caused as a result of his employment with the AFP.

(Footnotes omitted)

4    The Tribunal also provided the following convenient summary of the procedural history to Mr Leachs compensation claim mentioned above:

6.    On 6 May 2016, [Comcare] made a determination that [Mr Leachs] claim for compensation was excluded by operation of section 53(1)(a) of the SRC Act, as [Mr Leach] had not given notice of the injury as soon as practicable after he had become aware of the injury. For completeness, it was also determined that on the balance of probabilities there was insufficient medical evidence to support [Mr Leachs] claim that his employment with the AFP was more than a mere contributing factor to his condition.

7.    [Mr Leach] requested a review of the determination of 6 May 2016. On 1 July 2016 the original determination was affirmed. [Mr Leach] then lodged an application for review with this Tribunal.

(Footnotes omitted)

THE QUESTIONS OF LAW AND GROUNDS OF APPEAL

5    The central issue in this appeal was raised as a preliminary issue before the Tribunal. That issue was whether [Comcare] is entitled to rely on the defence outlined in [s] 53(3) (see the Tribunals reasons at [5]).

6    Since it was made under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), this appeal from the Tribunals decision is limited to a question of law. In Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92, the Full Court summarised the pertinent principles as to what constitutes a question of law for the purposes of that section as follows (at [62]):

(1)    The subject matter of the Courts jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in s 44 should not be read as if the words pure or only qualified question of law. Not all so-called mixed questions of fact and law stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Courts discretion will be affected not only by Coulton v Holcombe (1986) 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 that there is difficulty in finding an error of law in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Etheridge; HBF Health Funds and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

7    Mr Leachs notice of appeal advanced the following three questions of law:

1.    Whether the Tribunal failed to comply with the statutory requirement to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based in accordance with s 43(2B) of the Administrative Appeals Tribunal Act;

2.    Whether the Tribunal afforded [Mr Leach] procedural fairness by:

a.    admitting, against objection, irrelevant, inadmissible and prejudicial evidence of Dr Duke;

b.    admitting, against objection, the AMP material as evidence without regard to the prejudicial, or potentially prejudicial, nature of untested hearsay material;

c.    failing to control the conduct of [Comcare] (a model litigant), in particular by:

i.    allowing it to adduce inadmissible and prejudicial evidence by improperly instructing its expert witness (Dr Duke) with the AMP material and soliciting from him an opinion as to [Mr Leachs] credibility;

ii.    allowing it to urge the use made of Dalton Js comments in Leach v Ross (2013) QSC 333 to determine[d] issues of the applicants credibility;

iii.    accepting any of the its submissions, assuming it did so, referred to at par 55 of the decision, all of which are made without any proper evidential basis;

iv.    allowing improper and confusing questions by [Comcares] counsel in her cross-examination of [Mr Leach];

d.    not allowing [Mr Leach] the opportunity at the hearing to present his case in respect of the issue concerning when [he] first became aware of his symptoms and then ignoring the explanation provided in respect of that issue in [his] submissions;

e.    refusing to make available to [Mr Leach] a copy of the Transcript for the purposes of preparing written submissions.

3.    Erred by making findings for which there was no evidence, that were illogical, irrational or not based on findings or inferences supported by logical grounds, or so unreasonable that no reasonable decision maker could have made them, including but not limited to the following:

a.    later in 1995, it was alleged [Mr Leach] had been associated with the organised crime aspect of this murder and an investigation was launched by AFPs Internal Security and Auditing Division (ISA): par 1;

b.    referring to inconsistencies in [Mr Leachs] evidence in respect of his knowledge of, or participation in, a telephone conference, and what might have been discussed at that telephone conference: par 72; and from that:

i.    finding, in the absence of any evidence, that I consider that it is entirely plausible that Ms Jacobs [sic – Jacob] had informed [Mr Leach] of his right to make a claim: par 72;

c.    rejecting (which impliedly it did) [Mr Leachs] evidence that he first became aware of his injury in 2016; and subsequently:

i.    I do not find that there is any cogent evidence that the failure to comply with section 53 of the SRC Act is from ignorance or from a mistake within the meaning of section 53(3)(c) of the SRC Act; par 70;

ii.    It is certainly not plausible that [Mr Leach] was unaware by ignorance or mistake of his rights to claim compensation until he gave his notice in 2016; par 70.

d.    accepting [Comcares] submission (made without evidence) that [Mr Leach] was aware of his right to claim workers compensation and (for a reason not explained) declined to seek it; pars 50, 55, 60 & 76;

e.    failing to consider at all (or rejecting without explanation) [Mr Leachs] clarification in respect of the inconsistency … with the answer provided by [Mr Leach] in his claim form that he first noticed the symptoms/injury in 1996 and wrongly treating as a concession made in cross-examination that [Mr Leach] first noticed the symptoms/injury in 1996, and it was likely that he discussed his stress condition with AFP doctors in 1997: pars 60, 62 [[Mr Leach] contends that whilst he was aware of symptoms in 1996, he was ignorant that those symptoms were indicative of a compensable injury];

(Errors in original; emphasis in original)

8    In support of these questions of law, Mr Leach provided the following grounds of appeal:

1.    The Tribunals written reasons for decision fails to make clear findings and, to the extent that it may be inferred that findings were made, it has not set out the evidence on which any such findings were made, or its reasons for assessing the evidence in the manner it did.

2.    It has merely provided an incomplete summary of the evidence and failed to give reasons for rejecting [Mr Leachs] sworn testimony in favour of what can only be its own speculations, unexplained inferences or, alternatively, material that was adduced which should not have been.

For example, [Mr Leach] is left to speculate as to what weight, if any, the Tribunal gave to:

a.    the adverse comments made by Dalton J in Leach v Ross;

b.    the (inadmissible) comments of Dr Duke in his second report;

c.    the diagnosis of Dr Lotz;

d.    the diagnosis of Cameron Brown (psychologist);

e.    the material obtained from the AMP material all of which was untested hearsay evidence.

3.    Moreover, [Mr Leach] contends that the Tribunals rejection of his claims and evidence was unjust and made in circumstances in which it should have been slow to do so: Re Tierney and Reserve Bank of Australia (1988)15 ALD 534 at 535. Although it is not expressly stated, the Tribunal must have found that the AFP itself was aware of [Mr Leachs] injury and that he was in a position to make a Comcare claim. This is so since the key basis of its rejection of [Mr Leachs] contention that he was ignorant of his right to lodge a claim until 2016 appears to be because it consider[ed] that it is entirely plausible that Ms Jacobs [sic – Jacob] had informed [Mr Leach] of his right to make a claim: par 72.

4.    Although not expressed as a firm finding of fact, it is evident that the Tribunal has formed the conclusion that Ms Jacobs [sic – Jacob] did in fact inform [Mr Leach] of his right in 1997, thus countering [Mr Leachs] contention that he was ignorant of that right until 2016. The Tribunal could only have reached this conclusion on the basis of an inference that was not open to it to make, and in circumstances where it gave greater weight to this inference than to [Mr Leachs] direct sworn evidence that Ms Jacobs [sic – Jacob] did not so inform him and, further, that he was ignorant of his right to make a claim until 2016. As noted above, the Tribunal has not given any reasons for rejecting [Mr Leachs] evidence.

5.    [Mr Leach] intends to provide written submissions addressing in detail the above points.

9    At the hearing of this appeal, Mr Leach focused exclusively on question three above and the conclusion the Tribunal reached at [72] of its reasons. He stated that the other two questions should be taken to be directed to the same conclusion. That conclusion concerned the ignorance exception stated in s 53(3)(c) of the SRC Act above.

THE TRIBUNALS DECISION

10    Paragraph [72] is contained in the Consideration section of the Tribunals reasons. It appears in a subsection headed Ignorance, mistake. It should be noted that, before the Tribunal, Mr Leach did not seek to rely on the mistake exception (Tribunals reasons at [46]). The following summary of the surrounding sections of the Tribunals reasons will provide some context:

(a)    at [57], the Tribunal identified the preliminary issue it had to decide as whether [Mr Leach] gave notice of his injury as soon as practicable after he became aware of the injury;

(b)    at [59], the Tribunal concluded that Comcare had not waived its entitlement to rely on that defence;

(c)    at [60]–[62], the Tribunal concluded that Mr Leach had not complied with s 53(1) of the SRC Act, that is, he had not given notice of his injury as soon as practicable after he became aware of it;

(d)    at [63]–[67], the Tribunal concluded that Comcare had been prejudiced by Mr Leachs failure to give the notice under s 53(1). Its main reason for this conclusion was that Comcare would not have access to the records of Ms Jacob and Dr Jones;

(e)    at [69]–[75], the Tribunal considered each of the exceptions mentioned in s 53(3) in turn: death and absence from Australia (at [69]), ignorance, mistake (at [70]–[72], see further below) and reasonable cause (at [73]–[75]);

(f)    At [76], the Tribunal concluded as follows, following which (at [77]) it affirmed the decision under review:

76.    I have decided that the correct and preferable decision is to affirm the decision under review because [Comcare] is prejudiced by [Mr Leach] not having given notice to [Comcare] after he became aware of the injury, and there is no cogent evidence that the exceptions in section 53(c) of the SRC Act are satisfied.

11    The Ignorance, mistake section of the Tribunals reasons mentioned above contained three paragraphs as follows ([70]–[72]):

70.    I do not find that there is any cogent evidence that the failure to comply with section 53 of the SRC Act is from ignorance or from a mistake within the meaning of section 53(3)(c) of the SRC Act. It is certainly not plausible that [Mr Leach] was unaware by ignorance or mistake of his rights to claim compensation until he gave his notice in 2016.

71.    [Mr Leach] asserts that he had learnt of Comcare in 2008 when a work colleague was given income support payments from Comcare. At that time he had met a Comcare investigator on a number of occasions and had gained a good rapport with him. By 2008 on the account of [Mr Leach] he was made aware of his right to make a claim with Comcare. [Mr Leach] had made a claim with AMP for his depression condition some 18 months previously in 2014. [Mr Leach] asserts that he only appreciated that a psychological injury was a valid injury in 2014 when he made a claim with AMP.

72.    I have to consider whether [Mr Leach] knew of Comcare before 2008. In evidence is a file note by Ms Jacobs [sic – Jacob] bearing the date 15 May 1997 which was made after [Mr Leach] had been subject to a probe by the ISA. [Mr Leach] was asked if he had been told of his right to make a claim to Comcare as early as 1997. The file note of Ms Jacobs [sic – Jacob] referred to Comcare. In cross-examination [Mr Leach] was asked if it was possible that Ms Jacobs [sic – Jacob] had then told him that he was able to lodge a Comcare claim. [Mr Leach] answered: Its possible that she could have done that, but she didnt. It was put to [Mr Leach] that after the telephone conference recorded in the file note that Ms Jacobs [sic – Jacob] had then said to him that he was experiencing symptoms and that he is able to lodge a Comcare claim; [Mr Leach] answered: Im saying definitely not. The answers that were given in cross-examination by [Mr Leach] are not consistent and do not satisfy me that [Mr Leach] was not advised by Ms Jacobs [sic – Jacob] of his right to then make a claim. At that time [Mr Leach] was in regular contact by telephone and personal visits with the AFP psychologist over a period of some six months. I consider that it is entirely plausible that Ms Jacobs [sic – Jacob] had informed [Mr Leach] of his right to make a claim. I do not consider that this is a case of either ignorance or mistake.

(Emphasis added)

SOME FURTHER FACTUAL CONTEXT

12    To properly understand the conclusion at [72] above it is necessary to set out some further aspects of the factual context to this appeal. It should be noted that Mr Leach has represented himself throughout the various stages of his compensation claim, including at the Tribunal hearing and throughout this appeal.

13    Ms Jacob (who is mentioned at [72] of the Tribunals reasons above) is a psychologist who Mr Leach consulted for approximately six months in 1996 and 1997. In its reasons, the Tribunal recorded the following details of Ms Jacobs involvement (at [16]–[17]):

16.    [Mr Leach] states that around October 1996, after attending a VIP close protection training course in Canberra, he began to feel the first signs of suffering a psychological injury, however he considered that a psychological injury would ruin his career so he remained in denial. As part of the course, the applicant underwent a mental state evaluation by Ms Sonja Jacob, psychologist, who voiced concerns regarding [Mr Leach’s] results. [Mr Leach] informed Ms Jacob that there was nothing wrong although told Ms Jacob at another meeting that he was the subject of an unwarranted and lengthy investigation process. [Mr Leach] submits he asked Ms Jacob to keep their discussions confidential as he was concerned about an adverse mental assessment finding which could negatively affect his career. [Mr Leach] submits that Ms Jacob continued to check in on [him] over the next six months but was always reserved in their discussions.

17.    Ms Jacobs [sic – Jacob] referred [Mr Leach] for specialist treatment to Dr Peter Jones of Davidson Trahaire Psychorp. [Mr Leach] stated that he interpreted this referral as being for anger management treatment and as such he was resistant to the treatment.

(Footnote omitted)

14    I interpose to record that, during the hearing before the Tribunal, Mr Leach submitted a letter of support from Ms Jacob dated 27 April 2016.

15    As is mentioned at [72] of the Tribunal’s reasons, on 15 May 1997, Ms Jacob made a file note of a teleconference in which she was involved with a number of Australian Federal Police (AFP) personnel concerning Mr Leachs situation. Those persons and the positions they filled at that time were identified during the hearing before the Tribunal by reference to Ms Jacobs file note as: Assistant Commissioner Bob McDonald, who was in charge of the Eastern Region Sydney; Mr Wayne Morrison, an AFP administration officer; Ms Vicky Bendle, the National Staff Welfare Officer; Mr Ray Tinker, who was Mr Leachs supervisor; Mr Rodd Leffers, the National Officer in Charge of Personnel; Mr Paul Jackson, the Officer in Charge of the AFPs Internal Security and Auditing Division (ISA) nationally; and Mr Steve Jackson, the Officer in Charge of the ISA in the Eastern Region Sydney.

16    In his evidence-in-chief before the Tribunal, Mr Leach did not mention Ms Jacobs file note. However, he must have been aware that Comcare placed particular reliance on that document because, in its pre-hearing submissions before the Tribunal, Comcare contended:

27.    Accordingly, [Mr Leachs] contention properly falls for consideration by reference to the ignorance exception. However, it cannot be said that [Mr Leach] was ignorant of his right to claim compensation because:

b.    Ms Jacob, in her file note of 15 May 1997 referred to Comcare and so, it can be inferred that Comcare was discussed by her with [Mr Leach].

(Footnote omitted)

17    Ms Jacobs file note was introduced during Mr Leachs cross-examination before the Tribunal. The cross-examination in respect of that file note occupied approximately five pages of the hearing transcript. The following is a summary of, and excerpts from, the pertinent parts of that transcript:

(a)    at T24, Mr Leach was asked the following questions about his recollection of the events of 20 years ago and gave the following responses:

[Q.]    Do [you] accept that it would be difficult for you to recall precisely what was discussed with Ms Jacob 20 years ago?

[A.]    Yes, precisely it would be, yes.

[Q.]    And it would also be difficult to recall what even happened in some of those, or in all of those sessions?

[A.]    I have a good memory of that, because it was something I never wanted to ever be in a situation where I had to see a psychologist.

(b)    at T25–T28, Mr Leach was asked to decipher Ms Jacobs file note. In that process, among other things, he described who was in attendance during the teleconference (see above at [15]); he said that the file note recorded that he had spoken with a Mr Gerald Fletcher, a work mate, for advice; and he said that the file note also included the statement symptoms for Comcare claim. Mr Leach also said that he was not present during that teleconference;

(c)    at T28, Mr Leach was asked the following questions about whether he was advised to lodge a Comcare claim and he gave the following responses:

[Q.]    And this note also might indicate that she had discussed with you after this telephone conference that you were able to lodge a Comcare claim?

[A.]    Are you saying thats possible? Is that what you said?

[Q.]    Possible, yes?

[A.]    Its possible that she could have done that, but she didnt.

[Q.]    Well, youve already accepted that your recollection of things that happened 20 years ago is not concise?

[A.]    No, what I said was precise conversation.

[Q.]    She had a telephone conference with these people and then she says to you afterwards, You are experiencing symptoms, you are able to lodge a Comcare claim. She may have discussed that with you, mightnt she?

[A.]    Im saying definitely not.

[Q.]    Yet, you have also agreed that your recollection is imprecise from 20 years ago?

[A.]    I can assure you that I would remember that, and it didnt happen. I have a good recollection of all the conversations I had with Sonia [sic – Sonja] Jacob and Peter Jones outside, and I can assure you - and I can assure the Deputy President - that that was never mentioned, so I am going to say it didnt happen, and you are saying its possible it happened, but it didnt happen.

(d)    at T29, Mr Leach claimed that if he had known about Comcare at that time, seven days before his retirement, he would have taken the Comcare parachute. He added: I didnt know anything about Comcare back then, so the thought of lodging a Comcare claim never entered my head at all.

It should be noted that Mr Leach’s reference in (d) above to “seven days before his retirement” would appear to relate to his suspension from duty on 23 May 1997 (see at [3(3)] above).

THE CONTENTIONS

18    As is already noted above, Mr Leach focused exclusively on question 3 above and the conclusions the Tribunal reached at [72] of its reasons. He contended that the conclusion in that paragraph was “unreasonable and illogical” and therefore wrong in law because there was no logical connection between it and the evidence before the Tribunal. He claimed that the Tribunal’s conclusion at [72] that Ms Jacob told him about his right to make a claim to Comcare was mere speculation and it was just one of many possibilities. In his written submissions, he set out a series of matters which he claimed supported those contentions. They included:

(a)    [t]here is no logical connection between [that conclusion at [72]] and the evidence before the Tribunal;

(b)    [t]here were no inconsistencies in my answers [during cross-examination];

(c)    [t]he Tribunal appears to have elevated [Comcares] counsels [cross-examination] on this point [the supposed inconsistency] into a positive factual case made by it and impermissibly imposing an onus on me to rebut it;

(d)    [t]he word Comcare appearing on a file note does not mean the person then advised me to lodge a claim;

(e)    [i]t was not the role of [Ms] Jacob to advise on Comcare;

(f)    “I was never advised, by [Ms] Jacob or the Injury Management Team, and there is no evidence to say I was;

(g)    [t]he only direct evidence available to the Tribunal was my sworn oral and written testimony, which was rejected without reason;

(h)    [t]here was no evidence before the Tribunal to rebut my sworn testimony;

(i)    [n]one of Ms Jacobs file notes mention advising me to lodge a claim;

(j)    “I was sacked 7 days after the Symptoms for Comcare claim teleconference occurred. So If [sic – if] plausibility outweighs direct evidence, then its [sic – it’s] far more plausible that if someone told me to lodge a Comcare claim, I would have taken that parachute; and

(k)    [t]he danger of making findings based on mere possibility or plausibility are well illustrated in this case by the fact that Ms Jacob expressly rejects the conduct attributed to her.

19    In response, Comcare pointed to the five matters set out below and contended that the Tribunals conclusion (at [72]) was such that it could be reached by a logical or rational person and, accordingly, Mr Leachs submissions invited the Court to review the Tribunals findings of fact. It contended that those findings were not open to challenge in this appeal and, in any event, there was no error in the Tribunal making a wrong finding of fact:

(a)    Ms Jacob had written a file note dated 15 May 1997 which bore the word Comcare;

(b)    that file note was prepared after the ISA probe (which Mr Leach contends is the cause of his psychological condition);

(c)    at that time, Mr Leach was in regular contact by telephone and personal visits with Ms Jacob over a six month period;

(d)     Ms Jacobs [sic – Jacob’s] records of her dealings with Mr Leach were no longer available; and,

(e)    when it was put to Mr Leach in cross examination that Ms Jacob told him about Comcare and his ability to claim compensation in 1997, Mr Leachs responses were not consistent and did not persuade the Tribunal that Mr Leach was not advised by Ms Jacob of his right to make a claim.

(Footnote omitted)

RELEVANT PRINCIPLES

20    In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 (Eden), the Full Court (Allsop CJ, Griffiths and Wigney JJ) set out the following seven point summary of the principles bearing on the concept of legal unreasonableness (at [58]–[60] and [62]–[65]). Points 2 and 6 of this summary have particular resonance in this matter:

58    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

59    Second, the Courts task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decisions reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an outcome focused conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

62    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of decisional freedom within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).

63    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J) …

CONSIDERATION

Mr Leachs application to rely on affidavit evidence

21    It is convenient, first, to deal with Mr Leach’s application to rely upon two affidavits in this appeal which, he claimed, had a bearing on the legal reasonableness of the Tribunal’s conclusion at [72] of its reasons. The first affidavit was made by Mr Leach himself. It sought to respond to various comments made by Dalton J in a judgment in the Supreme Court of Queensland (Leach v Ross [2013] QSC 333). That affidavit can be disposed of immediately. Mr Leach’s explanation concerning those comments is entirely irrelevant to the legal reasonableness issue he has sought to raise in this appeal.

22    Ms Jacob was the deponent to the second affidavit. In it, she summarised her qualifications as a psychologist, the details of her employment with the AFP as a Clinical Psychologist between 1990 and 2002 and, in that capacity, her involvement in treating Mr Leach. She also identified the personnel involved in the teleconference held on 15 May 1997 and expressed the difficulties she had in deciphering her file note concerning that teleconference. Then, in the concluding paragraphs of her affidavit, she made the following statements:

Craig Leach recently advised me he had a decision handed down by the Tribunal. I have not read the judgement, however Mr Leach tells me one of the findings was:

I consider that it is entirely plausible that Ms Jacobs [sic – Jacob] had informed [Mr Leach] of his right to make a claim. I do not consider that this is a case of either ignorance or mistake.

This finding is purely speculative and incorrect. As stated earlier it was not the role of members [of] the Psychological Services team to advise employees on matters of rehabilitation nor on applications to Comcare. Rather, the role was to help them through the impacts of the process, (which was managed by a rehabilitation case manager) manage any ongoing mental health problems and facilitate a safe and healthy return to the workplace. As I referred Mr Leach to the [Employee Assistance Program] for psychological support they would have had primary responsibility for his psychotherapeutic management and ongoing support.

23    This affidavit is similarly irrelevant to the legal reasonableness issue that Mr Leach has sought to raise with respect to the Tribunal’s conclusion at [72] of its reasons. Instead of providing any evidence relating to that issue, Ms Jacob’s affidavit makes a direct challenge to the Tribunal’s findings of fact in that paragraph. As such, it constitutes a thinly veiled, if not plainly overt, attempt at merits review of the kind which is rejected by the second principle in Eden above. It is not the role of this Court in this appeal to review the factual issues that may have arisen from Ms Jacob’s file note. If Mr Leach wished to adduce evidence from Ms Jacob of the kind contained in this affidavit, he should have done so at the hearing before the Tribunal. In this respect, Mr Leach’s claim that he was not aware of the significance of Ms Jacob’s file note is immaterial. Even if it were, I would have had difficulty accepting it because, as is already noted above, Comcare clearly signalled its reliance on Ms Jacob’s file note in its pre-hearing submissions to the Tribunal. For these reasons, I do not propose to have regard to either of these two affidavits.

Question 3 legal unreasonableness

24    As the Full Court pointed out in the sixth principle in Eden, where reasons are available for a decision, as they are in this matter, they will be the most likely focus of any assessment whether the decision concerned is legally unreasonable. Both parties appear to have accepted this approach because the Tribunal’s reasons in this matter, and particularly the conclusion it reached at [72], have been the central focus of this appeal.

25    It can be seen from Mr Leach’s contentions summarised at [18] above that the essence of his attack on the Tribunal’s conclusion at [72] is that there was no evidence to support that conclusion and, consequently, it was founded on legally unreasonable speculation. The other matters set out at [18] above are all rejected because they involve the kind of impermissible merits review referred to in the second principle in Eden above.

26    For the following reasons, Mr Leach’s legal unreasonableness contentions are also rejected. There are, in my view, at least four features of the Tribunal’s reasoning at [72] which explain why it came to its ultimate conclusion about Mr Leach’s awareness of his right to make a Comcare claim, as highlighted at [11] above. First, there is the Tribunal’s mention of Ms Jacob’s file note and the fact that it referred to Comcare. Secondly, there is the Tribunal’s reference to the timing of Ms Jacob’s file note vis-à-vis the ISA probe. As Comcare pointed out in its submissions, Mr Leach claimed that probe was the initial cause of his psychological condition. Thirdly, and perhaps most importantly, there is the Tribunal’s recorded view that the answers Mr Leach gave in cross-examination were not consistent and [did] not satisfy [it] that [Mr Leach] was not advised by Ms Jacobs [sic – Jacob] of his right to then make a claim”.

27    There are two aspects of this view that bear highlighting. First, it is to be noted that the two answers to which the Tribunal referred were, in fact, consistent with each other. That is to say, in both, Mr Leach completely excluded the possibility that he was told in 1997 that he was able to make a Comcare claim. That being so, when the Tribunal said that those answers were “not consistent”, I consider it meant that both answers were inconsistent with common experience of the limits to human memory. Put differently, I consider the Tribunal was saying that it did not accept Mr Leach’s claims that Ms Jacob definitely did not tell him in 1997 (some 20 years earlier) that he was able to lodge a Comcare claim.

28    The second aspect of this view that bears highlighting is that, in expressing it in the terms that it did, I do not consider that the Tribunal was, as Mr Leach contended, reversing the onus of proof. That is so because s 53(3)(c) of the SRC Act provides an exception to the requirement for a person making a claim to give notice of an injury “as soon as practicable” after that person becomes aware of the injury concerned. Hence, the person relying on that exception bears the onus of proving the facts necessary to establish that the exception exists (see Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 at 258). In this matter, that meant Mr Leach bore the onus of establishing that his failure to provide the notice of his injury “as soon as practicable” after becoming aware of it resulted from ignorance.

29    Fourthly, and finally, there is the Tribunal’s reference to the fact that Mr Leach and Ms Jacob were, at this time in 1997, in regular contact by telephone and personal visits over a period of some six months.

30    When one takes account of these four features of the reasoning which immediately preceded the Tribunal’s conclusion at [72] of its reasons and applies a fair reading to those reasons, that is, not reading them overzealously with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), I consider that the Tribunal demonstrated an “evident and intelligible justification” for its conclusion at [72] (see the sixth principle in Eden above). I therefore reject Mr Leach’s contentions that the Tribunal’s conclusion at [72] was legally unreasonable.

Questions 1 and 2

31    As mentioned above, Mr Leach did not make any submissions in support of questions 1 and 2. Instead, he claimed they raised the same issues as question 3. To that extent, those questions are therefore rejected for the same reasons as above. Specifically, with respect to question 1, for the reasons given above, I consider that the Tribunal did comply with its statutory obligations to provide reasons for its conclusions at [72] of its reasons.

32    As for question 2, I do not consider it raises a question of law at all. Instead, it seeks to quibble with the commonplace procedural rulings made by the Tribunal in conducting the hearing before it, none of which involved any lack of procedural fairness, or constituted a question of law such that they could fall for consideration in this appeal.

CONCLUSION

33    For these reasons, none of Mr Leach’s questions of law has any merit. His appeal against the Tribunal’s decision must therefore be dismissed with costs. The orders will be:

1.    The appellant’s notice of appeal filed 9 July 2018 is dismissed.

2.    The appellant is to pay the respondent’s costs of and incidental to the appeal to be taxed failing agreement.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:    

Dated:    16 October 2019