FEDERAL COURT OF AUSTRALIA

Ocampo v Australian Postal Corporation [2022] FCA 789

ORDERS

THE COURT ORDERS THAT:

1.    The deadline by which the applicant is to file a notice of appeal from the decision of the Administrative Appeals Tribunal in Re Princess Ocampo and the Australian Postal Corporation [2021] AATA 4464 be extended until 4:00pm on 15 July 2022.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is (or, at the least, was at material times) employed as a “Parcel Post Officer” at the respondent’s “Sydney Parcel Centre” in Chullora, New South Wales. She moves for an extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) so that she might commence in this court an appeal against various decisions of the Administrative Appeals Tribunal (the “AAT”), all of which concerned claims that she made against the respondent under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) in relation to an injury that she alleges that she suffered by reason of her employment.

2    The respondent neither consents to nor opposes the granting of an extension. For the reasons that follow, I am satisfied that an extension of time should be granted and I will make orders accordingly.

3    My reasons for doing so can (and, in the circumstances, should) shortly be stated. The criteria to which the court might have regard in considering whether to grant relief of the kind in present focus are notorious and needn’t here be rehearsed in detail. Of particular relevance are the following, namely:

(1)    the extent of the delay that has attended the commencement of proceedings in this court;

(2)    whether or not the applicant has a credible explanation for that delay;

(3)    the degree to which the respondent will be unduly prejudiced in the event that an extension of time were to be granted; and

(4)    the prospects that the appeal might succeed if permitted to proceed.

(See generally: Orfali v Chief Executive Officer, Services Australia [2020] FCA 747, [20] (O’Bryan J); and Parr v Commissioner of Taxation [2022] FCA 678, [40] (Banks-Smith J)).

4    Before proceeding to outline the applicant’s central contentions, it is convenient to record—at no more than a headline level—some relevant concepts applicable under the SRC Act. At least for present purposes, an employee’s entitlement to compensation under the SRC Act is dependent upon their having suffered an employment-related “injury”. Section 5A of the SRC Act defines “injury” as follows:

5A Definition of injury

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or 

(b)    an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include 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.

5    Section 5B of the SRC Act defines “disease” relevantly as follows:

5B Definition of disease

(1)    In this Act:

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 or a licensee.

…

6    “[A]ilment” is defined as “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”: SRC Act, s 4(1).

7    Before the AAT, the applicant maintained that she had suffered an “injury” (as that term is defined) in consequence of which she was entitled to compensation under the SRC Act. Primarily, she contended that she had suffered one or more “ailments” affecting her cervical spine and left shoulder, to which her employment with the respondent had contributed to a significant degree. Success on both fronts would necessarily mean that she had suffered a “disease” and, therefore, an “injury”.

8    Additionally (and in the alternative), the applicant maintained that she had suffered an “injury (other than a disease)” that had arisen out of or in the course of her employment with the respondent. Again, if both components of that contention were made out, it would follow that she had suffered an “injury” (as defined).

9    By a series of “reviewable decisions”, the respondent dismissed (save to a limited degree) each of those contentions. The applicant applied to have those decisions reviewed by the AAT. By a decision dated 1 December 2021, the AAT affirmed each of them. Pursuant to section 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”), the applicant had a period of 28 days within which to lodge in this court an appeal from that decision. That period expired on 29 December 2021. In order that her proposed appeal might proceed, she requires the extension for which she now moves.

10    In support of that endeavour, she has filed (and relies upon) an affidavit affirmed by her solicitor, Ms Elmasri, on 14 January 2022. No doubt, largely on account of the respondent’s neither consenting to nor opposing the grant of an extension, the parties indicated that they were content for the court to determine the extension application on the papers.

11    The affidavit relied upon contains an explanation as to why the applicant did not lodge her appeal within the time limit for which section 44(2A) provides. In order properly to understand it, something must first be said about the AAT’s decision. In affirming the relevant reviewable decisions, the AAT made the following observations (at 16-18 [46], [51]-[52]):

It is alleged that the applicant suffered either injury in the primary sense to, or aggravation of, a pre-existing and underlying disease of both the cervical spine and the left shoulder.

…

In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 (May), at [50] to [52], the plurality set out the questions that the Tribunal must resolve in determining whether the applicant suffered from a disease or an injury other than a disease. The first question of course is whether the applicant suffers from an ailment that is defined in the SRC Act. The second is, if so, was that state contributed to in a material degree by the employee’s employment by the respondent. In this case however, the contribution is to a “significant degree”.

The High Court held in May that subjectively experienced symptoms such as pain without an accompanying physiological change are not sufficient to amount to either an ailment or an injury for the purposes of the SRC Act. Under the heading, ‘Not sufficient for an employee merely to feel unwell’, the plurality went on to identify the error in the decision of the Full Federal Court, which was the subject of the appeal before them at [57] to [62]:

The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.

That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".

Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.

Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".

Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.

The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. [Emphasis added]

If the applicant suffered any symptoms or pain on 6 April 2017 or 21 February 2018, or during her employment, as she alleges, the available evidence does not objectively show that this resulted in a physiological change to the underlying pre-existing pathology in her left shoulder or neck/cervical spine. Dr McGill, Dr Chase, and Dr Dickinson reported that the applicant’s claimed symptoms and restrictions resulted from pre-existing underlying degenerative pathology of the applicant’s cervical spine which has not resulted in physiological change nor been caused or contributed to, to a significant degree, by the performance of the applicant’s duties with the respondent.

12    It is apparent that the AAT proceeded on the basis (or at least partly on the basis) that, in order that she might establish an entitlement to compensation under the SRC Act, it would be necessary for the applicant to demonstrate that her symptoms were a function of “a physiological change to the underlying pre-existing pathology in her left shoulder or neck/cervical spine.”

13    That chain of reasoning was consistent with AAT precedent. In Re Wuth v Comcare [2020] AATA 3625 (Humphries AO DP), the AAT had come to essentially the same conclusion, principally in reliance upon the observations that the High Court had made in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468. As at April 2021, when the AAT came to hear the present matter, Wuth was the subject of an appeal to this court. That appeal was heard in September 2021 and the court’s judgment in it was pronounced on 22 March 2022, after the AAT had decided the present matter and after the present application for an extension of time had been lodged.

14    That chronology assumes some significance. The affidavit read in support of the current application offers the following explanation for the applicant having not met the 28-day deadline within which she ought to have lodged her appeal:

The Applicant’s case in this appeal is that…if the Full Court ultimately embraces the submissions made by the Applicant in Wuth, then Senior Member Poljak will have made a material error of law in applying the High Court decision in MRCC v May which significantly affected the disposition of the present case, to the disadvantage of Ms Ocampo. To that end, the Applicant will be submitting to this Court that the hearing of the appeal should be delayed until the Full Court hands down its judgment, which may render any further argument in the matter moot.

Against that background, the delay in filing the appeal arose for the following reasons:

(a)    On counsel’s advice, it was decided to wait and see whether the Full Court handed down its decision prior to the Christmas break. That did not occur.

(b)    Counsel was in the UK and Ireland between 18 December 2021 and 9 January 2022, and was not in a position to deal with the matter.

(c)    On counsel’s return to Australia, further discussions took place between myself and counsel about what should be done, having regard to the provisions of s.44(2A) and FCR Rule 1.62. Counsel as of the initial view that the most sensible and cost-effective course for the parties, and the one which would cause the least consumption of the Court’s time and resources, would have been to await the decision of the Full Court, which would be likely to determine, or at least significantly impact upon, the outcome in the present case, one way or the other. However, counsel noted that the Full Court had given no indication as to the likelihood that a decision might be handed down within weeks or months, and that there was also some uncertainty about the operations of Rule 1.61(5) in the absence of a request for an extension of time.

(d)    On the advice of counsel, I also made enquires about whether the Applicant would be entitled to a waiver, or reduction, of the filing fee for initiating the appeal in this Court. We are still in the process of obtaining an outcome regarding those enquiries.

(e)    On 14 January, after further consideration of the matter, counsel advised that the safest course was to file the Notice of Appeal as soon as possible together with an Application for an Extension of Time to cover the possibility that it may be required.

(f)    Upon receipt of that advice from counsel, I set about filing the appeal and the application for an extension of time, and this affidavit, at the first opportunity.

15    That affidavit, of course, was affirmed prior to the decision of this court in Wuth v Comcare (2022) 174 ALD 472 (Griffiths, Wheelahan and Snaden JJ). That decision also assumes some significance. There, Wheelahan J (with whom Griffiths J and I agreed), had occasion to analyse what the High Court had said in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468. His Honour made the following observations (at 500-502 [101]–[111]):

…[57] of the joint judgment was relied upon by counsel for Comcare to support a submission that a physiological or psychiatric change is necessary in order for there to be an “ailment” for the purposes of the “disease” limb of the defined term “injury” in s 4(1) –

Not sufficient for an employee merely to feel unwell

57    The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind” (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.

The “first question” referred to in the last sentence of the above passage is the first question posed in [50] of the joint judgment, relating to whether there is a physical or mental ailment, disorder, defect or morbid condition for the purposes of the definition of “ailment”. The “third question” is the question posed at [52] of the joint judgment, namely, “does the evidence demonstrate the existence of a physical or mental injury (in the primary sense of that word)?”. The relevant paragraphs of the joint judgment are set out under [99] above.

Their Honours went on to hold at [67] that while the Tribunal had accepted that Mr May felt unwell, the “nature and incidents of the physiological [or psychiatric] change” suffered by Mr May were not established, with the result that there was no “injury” in the primary sense of the word.

It is reasonably clear from the joint judgment in MRCC v May that the requirement that there be a physiological change is applicable only to “injury (other than a disease)”, and is not applicable to an “ailment”. The main indications are, first, that the court was not concerned with a claim by Mr May to have suffered a “disease” that was contributed to in a material way by his employment, but a claim for an “injury (other than a disease)”, and that it was a claim of the latter type that was the subject matter of the reasons in the joint judgment. This is reflected in the attention that is given in the reasons to the fact that “disease” and “injury (other than a disease)” are separate bases of liability, and that the Act “draws an important distinction between ‘disease’ and ‘injury (other than a disease)’”, and that “[e]ach limb deals with a separate basis for something being an ‘injury’”: see [59].

The second indication is that in posing the first and second questions at [50], there is no reference to any requirement that there be a physiological change in order for there to be an “ailment”. Rather, the second question that is posed is whether the employee’s “state” was contributed to in a material degree by the employee’s employment by the Commonwealth. This is consistent with the definition of “ailment” in s 4(1) of the Act, which includes a “disorder, defect or morbid condition”. Those conditions are effects on an employee’s body or mind which, if employment contributed in a material degree, would constitute injuries in respect of which there is a liability to pay compensation: see, Canute v Comcare [2006] HCA 47; 226 CLR 535 at [10] (Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ).

The third indication is that the main focus of the judgment was to identify the characteristics of an “injury” in the primary sense. On that question, [52] is central. Their Honours expressly refrained from laying down an exhaustive judicial formulation, but gave the guidance that, generally, the question whether there was an injury will be determined by asking “whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. I do not consider that Gageler J described an “injury” in materially different terms at [75] in stating –

An injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”.

[Footnote omitted.]

At [76], Gageler J distinguished an “injury” involving a definite or distinct physiological change in the above sense from “any alteration from the functioning of a healthy mind or body”.

The fourth indication is [54], which states that there may be circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of “ailment”. This picks up some of the language of [52], but shorn of “sudden and ascertainable or dramatic”, which were held at [47] not to be necessary conditions of “injury” in its primary sense, but which were nonetheless relevant. I would therefore not understand [54] to venture into any sort of considered explanation of the defined term “ailment”. Instead, I would understand [54] merely to make the point that a condition that is a candidate to be an “injury” in the primary sense may qualify as an “ailment”, but would not constitute a “disease” if the relevant connecting condition is not satisfied, namely that the ailment or an aggravation was contributed to in a material degree by the employment.

The court’s reasons at [54] form an important part of the context in which [57] is to be understood. Other contextual features are the facts that were found by the Tribunal and which were summarised in the joint judgment; the heading above [57]; and the immediately succeeding paragraphs. On the facts found by the Tribunal, Mr May had subjectively experienced symptoms that were unaccompanied by physiological or psychiatric change, where no diagnosis could be made, and which the joint judgment characterised by the heading above [57], and in [67], as a state where Mr May felt “unwell”. All that the joint judgment is relevantly saying at [57] is that Mr May’s condition of feeling unwell, where there had been no diagnosis, would not have resulted in an affirmative answer to the first question that was posed at [50]. Otherwise, the succeeding paragraphs of the joint judgment, and in particular [61]-[62], focus on “injury” in its primary sense as a component of the phrase “injury (other than a disease)”. There was no discussion of the ambit of the defined term “ailment”, or of any necessary characteristics of its components, as Mr May had made no such claim.

The statutory definition of “ailment” in s 4(1) of the SRC Act should be “approached on the basis that Parliament said what it meant and meant what it said”: Owners of the ship “Sin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420. The definition of “ailment” refers to “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. These are words of ordinary meaning. A requirement that an ailment be “physical or mental” corresponds to the elaboration of “injury (other than a disease)” in s 4(1) as being “a physical or mental injury” and should not be regarded as words of limitation. The key point which I would understand their Honours to identify by [57] of the joint judgment in MRCC v May is that even with an ailment, “there must be more than an assertion by an employee that he or she feels unwell”: at [62]. Even then, I would say that in relation to “ailment” this statement would fall into the category of general guidance, and that the text of the Act has to be applied to the circumstances of individual cases as presented by the evidence, which will vary immensely. In the case of the onset of migraines or chronic headaches, it might readily be accepted by a trier of fact in a particular case that such an ailment is not the product of “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”: cf, MRCC v May at [52]. Whether that is so will depend upon the evidence. However, there is nothing in the definition of “ailment” that invites the application of these criteria, which have been developed to assist triers of fact in borderline cases to identify whether or not a condition is an “injury” in the primary sense. Further, to require that there be an “identifiable physiological change” as an element of an “ailment” would distort the defined term “ailment” by importing a characteristic that is the hallmark of an “injury” in the primary sense, thereby narrowing the distinction between them.

It follows that in deciding that the applicant had not suffered an ailment on the ground that no physiological change could be identified, the Tribunal misdirected itself…

16    By her proposed notice of appeal (which she intends to file in the event that her present application for an extension of time succeeds), the applicant nominates the following grounds of challenge to the decision of the AAT:

1.    The Tribunal misdirected itself as to the ratio of the High Court's decision in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 ("MRCC v May"), particularly in paragraphs [51]-[52] of the Tribunal's reasons for decision, by stating that the High Court held in MRCC v May that "subjectively experienced symptoms such as pain without an accompanying physiological change are not sufficient to amount to either an ailment or an injury for the purposes of the SRC Acf' ( emphasis added), when the High Court's requirement for ascertainable physiological change applied only to an "injury (other than a disease)".

2.    Having misdirected itself as to the ratio of the decision in MRCC v May, the Tribunal failed to give any, or any adequate, consideration to the following submissions seriously advanced by the Applicant, which were central to her case:

(a)    The Applicant suffered one or more "ailments" affecting her cervical spine and left shoulder, or an aggravation thereof, to which her employment with the Respondent contributed to, to a significant degree, thereby constituting a "disease".

(b)     The "ailment" or" ailments" were the result of underlying degenerative disease being rendered symptomatic, particularly in the cervical spine and left shoulder.

(c)    The rendering symptomatic of any underlying degenerative disease suffered by the Applicant was significantly contributed to by (a) specific incidents occurring on dates identified by the Applicant, or (b) the nature and conditions of her work with the Respondent, or (c) both of the above.

(d)    It was not necessary that the "ailment" or "ailments" should be accompanied by any specific and ascertainable physiological change in order for them to be classified as a "disease", as this requirement applied only to an "injury (other than a disease)", and the decision of the Tribunal in Re Wuth and Comcare [2020] AA TA 3625 (in particular) was wrongly decided on that issue.

3.     The Tribunal’s reasons failed to comply with the requirements of ss. 42(2) and (2b) of the AAT Act, in the following respects:

(a)    the reasons did not enable the Applicant to understand why the Tribunal considered that her primary submissions were not correct in relation to the proper application of MRCC v May;

(b)    the reasons did not make relevant findings of fact which dealt adequately with the issues raised in Ground 2 above, in particular the differentiation of the question of the causation of any underlying degenerative disease, and the rendering of such underlying disease (if present) symptomatic; and

(c)    having failed to consider adequately, and in accordance with MRCC v May, the submission that Applicant suffered from a "disease", and separately whether the "disease" gave rise to a secondary psychological condition, the Tribunal's reasons do not permit the Applicant to understand why the Applicant failed in her claim for the secondary psychological condition.

17    Given the conclusions expressed by this court in Wuth, it is apparent that the grounds that the applicant proposes to agitate are at least arguable. Further, her explanation as to why it was that her appeal was not lodged within the timeframe envisaged by the statute is credible, and bespeaks an abiding intention to challenge the ruling of the AAT (notwithstanding her initial inaction). It cannot be said (and it is not suggested) that the applicant has, to speak proverbially, dragged her heels in a way that is undue or inexcusable.

18    Moreover, there is no material prejudice to the respondent in the applicant being granted an extension of time as sought. No doubt for that reason, it has not sought to oppose the application.

19    In all of the circumstances, I am persuaded that the interests of justice warrant the indulgence for which the applicant moves. The applicant shall have until 4:00pm on Friday, 15 July 2022 to lodge the notice of appeal appended in draft form to her application for an extension of time.

Associate:

Dated:    8 July 2022