Federal Court of Australia

Edser v QSuper Board [2023] FCA 1120

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Notice of Objection to Competency be upheld in respect of questions two and four(a) in the Notice of Appeal.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MEGAHER J

INTRODUCTION

1    The applicant appeals from a determination of the second respondent, the Australian Financial Complaints Authority Ltd, made on 16 August 2022, which affirmed a decision of the first respondent, the QSuper Board, not to pay a Total and Permanent Disablement (TPD) benefit to him.

2    The appeal is brought pursuant to s 1057(1) of the Corporations Act 2001 (Cth), which provides that a party may appeal to this Court on a question of law. While, in a technical sense, this is an appeal, it lies within the Court’s original jurisdiction: Hannover Life Assurance Re of Australasia Ltd v Membrey (2004) 210 ALR 462; [2004] FCA 1095 at [11] (Crennan J). By virtue of s 1057(3) of the Corporations Act the Court has the jurisdiction to hear and determine the appeal and make any such orders it thinks fit.

3    By a Notice of Appeal filed on 13 September 2022, the applicant raised the following five questions:

1.    Whether the Authority erred in law:

a.    by misconstruing and/or misapplying the phrase “causally connected to his TPD in a way which is clear” as requiring only a preference for the view of one medical expert over another, instead of a causal connection that was obvious.

b.    alternatively, by failing to make any findings about the proper construction of the phrase “causally connected to his TPD in a way which is clear”;

c.    alternatively, in making a critical finding of fact that the Applicant’s pre-existing medical condition was “causally connected to his TPD in a way which is clear” when there was no evidentiary support therefore.

2.    Whether the Authority’s finding that there was a “key single common element” in each of the diagnosed conditions present in the Applicant’s medical history, was legally unreasonable, alternatively irrational or illogical, or was a critical finding of fact for which there was no evidential support

3.    Whether the Authority was required, in order to properly consider the matter, to resolve ambiguities in the report of Professor McFarlane:

a.    in the meaning of his reference to asymptomatic individuals;

b.    as to whether or not his statement that the stressors might produce psychiatric symptoms in such an individual referred to the symptoms which the Applicant developed –

having not done so.

4.    Whether the Authority erred in law in concluding that the Applicant’s pre-existing medical condition was “causally connected to his TPD in a way which is clear” when:

a.    the only possible basis therefore was a finding the Applicant was “predisposed to an increased risk of recurrence and a potential for precipitation of exacerbations of acute depression in response to exposure to significant stress”; and

b.    the Authority was required to but did not make findings as to whether that predisposition and/or potential had a clearly causative role in rendering the Applicant totally and permanently disabled.

5.    Whether the Authority erred in law in failing to consider whether the effect of the bullying and threats suffered during the Applicant’s employment beginning in 2011 was itself so substantial that it denied any clearly causative role to his pre-existing medical condition.

4    On 28 October 2022, QSuper Board filed a Notice of Objection to Competency, contending that the Notice of Appeal:

a.    raises factual disputes or the merits of the Authority's determination of the complaint;

b.    alternatively, comprises or implies mixed questions of fact and law; and

c.    does not pose questions of law but are broad or open enquiries to determine if there is a question of law.

background

5    The applicant commenced employment as a security guard with Queensland Health in October 2011, and became a member of QSuper on 31 October 2011.

6    The applicant began working for Princess Alexandra Hospital as a security guard in 2012. Around this time, he reported incidents regarding abuse of psychiatric patients at the hospital and says that he was bullied and threatened at the workplace due to those reports (Claimed Incidents). The applicant claimed that, as a result of this, he developed an adjustment disorder with mixed anxiety and depressed moods, as well as major depressive disorder and post-traumatic stress disorder (PTSD).

7    On 3 January 2013, the applicant commenced stress leave and did not return to work.

8    On 5 June 2013, his employment with Queensland Health was formally terminated.

9    The applicant made a claim under the total disability insurance scheme that QSuper offers to some of its members on the basis that adjustment disorder with mixed anxiety and depressed moods, major depressive disorder and PTSD had rendered him TPD from working.

10    On 21 December 2018, QSuper Board found that the applicant was TPD, however was not satisfied that the TPD was “not related to a pre-existing medical condition” and declined to pay TPD benefit (Decision).

11    On 12 February 2019, the applicant complained to the Authority with respect to the Decision, and on 26 February 2021, the Authority affirmed the Decision of QSuper Board.

12    The applicant appealed from that determination to this Court and, on 18 November 2021, Perram J allowed the appeal and ordered that the decision be set aside and remitted to the Authority for determination in accordance with the law: Edser v QSuper Board [2021] FCA 1437.

13    On 16 August 2022, the Authority affirmed the Decision.

statutory framework

14    QSuper Board is a body corporate pursuant to s 3 of the Superannuation (State Public Sector) Act 1990 (Qld). Pursuant to s 4, its function is to administer the State Public Sector Superannuation Scheme (QSuper Fund) as its trustee.

15    The Superannuation (State Public Sector) Deed 1990 (Qld) was established pursuant to s 12 of the Superannuation Act. Pursuant to s 84(1) of the Deed, QSuper Board was required to provide TPD insurance to members of the scheme, the terms of which are covered in the Insurance Terms. The relevant Insurance Terms are those dated 1 July 2011.

16    Pursuant to s 4 of the Deed, TPD is defined as:

Disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.

17    Disablement is defined in the same section of the Deed as “any mental or bodily injury, illness, disease or infirmity”.

18    Clause 1.1 of the Insurance Terms defines pre-existing medical condition as “a medical condition the signs or symptoms of which existed before the start of the member’s insured membership”.

19    Clause 6.2 of the Insurance Terms stipulates:

No death or total and permanent disablement insurance benefit will be paid for a claim unless:

(a)     the member has been an insured member for 7 continuous years or more; or

(b)    (i) the member has been an insured member for fewer than 7 continuous years; and

(ii) in the board’s opinion, the member’s total and permanent disablement or death was not related to a pre-existing medical condition; or

(c)    (i) the member has been an insured member for at least 2 continuous years but fewer than 7 continuous years; and

(ii) in the board’s opinion, the member’s total and permanent disablement or death was related to a pre-existing medical condition.

(d) Where sub-clause 6.2(c) applies the insured member’s insurance benefit shall be determined in accordance with the following formula — Standard insured benefit x 0.1 plus 0.015 for every month of insured membership the member has over 2 years.

20    The Authority's jurisdiction to make a determination of a superannuation complaint arises from s 1055 of the Corporations Act. Pursuant to subsection (2), the Authority must affirm a decision if it is satisfied that it “was fair and reasonable in all the circumstances”.

decision of perram j

21    As the parties’ submissions relied heavily upon the decision of Perram J, it is first necessary to set out a summary of his Honour’s reasons. Similar to this matter, Edser appealed against the Decision of the Authority which affirmed QSuper Board’s determination not to pay the applicant TPD benefit. The appeal raised six questions of law, and ultimately turned on four matters:

(1)    Whether the Authority failed to consider a mandatory relevant consideration;

(2)    The definition of “pre-existing medical condition”;

(3)    The proper construction of the words “not related to” in cl 6.2(b) of the Insurance Terms; and

(4)    The application of the Insurance Contracts Act 1984 (Cth).

22    The applicant’s first question of law was whether the Authority properly considered whether the decision was “fair and reasonable” in accordance with s 1055 of the Corporations Act. The applicant contended that the Authority did not determine the duration of his insured membership with QSuper and therefore failed to consider his eligibility for the TPD benefit under cl 6.2(c) of the Insurance Terms (at [15]). His Honour rejected this ground, finding that if the Authority had considered the applicant’s eligibility under cl 6.2(c) it would have been bound to conclude that he was not eligible as he would have had to be an “insured member” for between 2 and 7 years (at [16]). His Honour found that the applicant became an insured member on 31 October 2011, and ceased when he became TPD on 3 January 2013, in accordance with cl 11.1(b) of the Insurance Terms (at [23]). Accordingly, the applicant was never eligible to make a claim pursuant to cl 6.2(c) (at [23]). His Honour concluded that the applicant could only make a claim pursuant to cl 6.2(b) stating that, consistent with Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] (Gleeson CJ) and [68]-[69] (McHugh, Gummow and Hayne JJ), it is well established that provisions of this sort do not impose an enforceable obligation on a decision maker to make a particular finding of fact (at [25]).

23    The second question of law asked whether the Authority's construction of “pre-existing medical condition” was too expansive. The applicant submitted that the Authority treated a prior diagnosis in 1998 as evidence of a continuous depressive condition which existed up until the applicant became an insured member, despite evidence from doctors showing that depressive conditions might resolve (at [28]-[29]). His Honour considered each parties’ view on this question, detailing at [30]:

The first, which was advanced by QSuper, was that [the applicant’s] depressive episodes (including those which he experienced after mid-2012) were instances of a single underlying depressive condition which had manifested itself. The second, advanced by [the applicant], was that these episodes were distinct medical conditions, each of which had fully resolved and as such did not reflect the existence of a single underlying depressive condition. There was evidence before the panel capable of supporting both views.

24    At [31], his Honour found that:

The [Authority] thought that the preferable view was that there was a single underlying depressive condition. That being its factual conclusion, I am unable to see how it can be said that it misapplied the definition in concluding that that condition was a ‘medical condition the signs or symptoms of which existed before the start of the member’s insured membership’. On the facts it had found it plainly was.

25    Accordingly, at [33], his Honour determined that “no occasion arises to interfere with the decision made by the [Authority] on this basis”.

26    In relation to the third question of law, his Honour made the following observations at [35]:

However, it was not enough for the [Authority] merely to identify that [the applicant] had some pre-existing medical condition. The language of cl 6.2(b)(ii) cast upon it the burden of a [sic] answering a further question. For [the applicant] to be eligible for the TPD benefit the [Authority] had to be satisfied that the TPD was ‘not related to’ the pre-existing medical condition. This required the [Authority] to reach a view on the meaning of ‘related to’. It did so, and concluded that ‘if the [applicant’s] identified pre-existing medical condition was causally or clearly connected to the [applicant’s] TPD, clause 6.2 operated to exclude payment of his TPD benefit’.

27    The applicant, relying on a medical report of Professor Alexander McFarlane, submitted that it was “impossible… to determine whether his pre-existing condition was a clear cause of his TPD without having some understanding of the extent of the role that the bullying and threats had played in the TPD” (at [38]). The report observed and concluded:

The question then arises as to what the relationship is between [the applicant’s] prior episodes of depression and the episode of depression he developed subsequent to this employment in November 2011. It is important to not dismiss the significance of the stressors that [the applicant] was exposed to in his employment or their capacity, independent of his prior history or vulnerability, to cause a psychiatric disorder. In this context, the word vulnerability indicates that an individual has a greater probability of developing an episode of depression due to the fact of his experiencing previous episodes of depression. In my opinion, there was a significant risk to his mental health as a consequence of the exposures that are the subject of the compensation claim arising from this period of employment beginning in 2011. In this setting risk refers to the probability that an asymptomatic individual will develop an episode of a psychiatric disorder. However, that is not the question that I have been asked to express an opinion about. The question is as to the nature of the relationship between his prior episodes or psychiatric symptomatology and his subsequent symptoms.

…

…having considered the body of information provided, the episodes of depression that the complainant had experienced prior to 2011 are related to the condition that he developed and experienced in 2014. Those prior episodes influenced both the severity of his symptoms and the probability of their reoccurrence.

28    At [59], His Honour considered that the Authority applied a two-limbed test to determine its satisfaction of the words “related to”, which included consideration of whether there was a causal connection between the applicants’ pre-existing medical condition and his TPD, or whether there was a clear connection between the two. In that regard, his Honour found at [60] that the Authority:

…appears to have proceeded on the basis that if the TPD would not have occurred but for the existence of his pre-existing medical condition, then it could be said that the two were related within the meaning of cl 6.2(b)(ii).

29    His Honour determined that this resulted in a misapplication of cl 6.2(b)(ii) of the Insurance Terms (at [61]). His Honour regarded the words “related to” as “elastic and, depending on context, connote a wide range of relationships of connection” (at [62]). His Honour made the following findings at [67]-[68] and [71]:

It seems to me that the most plausible interpretation of cl 6.2(b)(ii) is the one proposed by QSuper: that the connection required is one of clear causation. This standard will not be satisfied by the mere satisfaction of the but-for test. The decision maker will need to be satisfied that the pre-existing medical condition is causally connected to the TPD in a way which is clear.

Consequently, I accept that the [Authority] did not correctly apply the correct causal standard. Instead, it asked itself two questions, neither of which was the correct one. It was not correct to ask whether the TPD was merely causally linked to the pre-existing medical condition because this was apt to encourage the application only of a but-for standard of causation. This risk appears, in fact, to have come to pass. Nor was it correct to ask – as the [Authority] did – whether there was a clear connection without a causal element.

…

Once a test of clear causation is applied I do not see the language of cl 6.2 as altogether ousting any contention that the effect of the bullying and threats was itself so substantial that it denied any clearly causative role to his pre-existing medical condition. It will depend on the facts. Certainly, if this argument is advanced to the [Authority] on remitter it is a matter that it will need to address.

30    At [72], his Honour identified difficulties, perhaps “surmountable”, with Professor McFarlane’s report insofar as it contained two ambiguities which would need to be resolved for any proper consideration of the issues which arise. The reference to “asymptomatic individuals” could, his Honour stated, be to “persons devoid of any form of psychological disorder” or alternatively to “persons with an underlying condition not presently displaying symptoms”. The second ambiguity involved the reference to “that the stressors might produce psychiatric symptoms in such an individual”. There, the ambiguity involved whether the stressors experienced by the applicant would induce “psychiatric symptoms in otherwise healthy individuals but it may not have made them TPD”. His Honour made no determination on these issues.

31    With respect to the final question of law, relating to the application of the Insurance Contracts Act, the Authority made a finding that the Act did not apply to the complaint (at [74]). The applicant contended that he was denied procedural fairness and that the Authority erred in making this determination (at [75]). His Honour found that the applicant was not denied procedural fairness as the applicant made no submission that the Authority should have applied that Act, and it is therefore immaterial whether the Authority’s finding on that point was correct or not (at [76]-[77]).

32    Based on his Honour’s finding in relation to question three, the decision was remitted to the Authority for re-determination in accordance with his Honour’s reasons (at [81]).

33    While the parties expressed it in slightly differently terms, it was effectively common ground that a number of clear principles emerged from the judgment of Perram J. I adopt the propositions as helpfully distilled by Mr Kelsey-Sugg for the applicant, as follows:

1.    For the TPD to be ‘related to’ the pre-existing medical condition within the meaning of cl. 6.2(b)(ii), the pre-existing medical condition is not required to be the proximate, dominant or effective cause of the TPD: [63] and [66].

2.    Although not required to be the proximate, dominant or effective cause of the TPD, the pre-existing medical condition must at least be a non-trivial and sufficient cause of the TPD: [66].

3.    Clause 6.2(b)(ii) can operate where there are multiple non-trivial and sufficient causes of the TPD, including amongst them a pre-existing medical condition: [66].

4.    The connection required between the pre-existing medical condition and the TPD in order to disentitle a person from payment of a TPD benefit under cl. 6.2(b)(ii) is one of “clear causation”: [67].

5.    The standard of clear causation is not satisfied by the mere satisfaction of “the but-for test”: [67].

6.    While the standard of clear causation is not satisfied by mere satisfaction of the but-for test, a but-for element remains a necessary condition of the clear causation test: [53]; [68].

7.    The decision-maker will need to be satisfied that the pre-existing medical condition is causally connected to the TPD in a way which is clear.

34    An additional proposition, identified by Mr Holyoak for QSuper Board, which I accept and also adopt is:

The alleged bullying and threats must be so substantial that they deny any clearly causative role for any pre-existing medical condition, which is a factual question.

(Footnotes omitted, emphasis in original)

the authority’s determination on remitter

35    The part to be played by the Authority in considering a complaint under the enabling legislation is set out in Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8 (Kenny, Lander and Logan JJ), which considered similar provisions in relation to the previous scheme. Kenny and Lander JJ explained the following principles:

(1)    The Authority stands in the shoes of the decision maker and, based on all the information and evidence before it, determines whether the decision made by the decision maker was fair and reasonable in all the circumstances: at [46].

(2)    In determining whether a decision is “fair and reasonable”, the question is “directed to whether the actual decision, rather than the process led to it, was fair and reasonable”: at [46].

(3)    The Authority must make its own findings of fact only for the purpose of determining whether the decision was fair and reasonable. It does not make all of the factual findings afresh, and only makes such findings of fact that are necessary for it to complete its task: at [50], quoting Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484; [2003] FCA 54 at [19]-[20] (Mansfield J).

(4)    If the Authority determines that a decision is not fair and reasonable, it will substitute that decision for a decision that is fair and reasonable in accordance with the law, rules of the fund or terms of insurance. If the Authority is satisfied that a decision is fair and reasonable, it must affirm the decision: [47]-[48].

36    On 16 August 2022, the Authority completed its re-determination. On remitter, it found that the applicant:

(a)    Met the definition of TPD;

(b)    Had a pre-existing medical condition;

(c)    The pre-existing medical condition was casually connected to his TPD “in a way which is clear”; and

(d)    He was therefore not entitled to receive the TPD benefit.

37    The Authority had regard to a number of medical reports provided by the parties, and the expert opinion obtained from Professor McFarlane. The Authority also had particular regard to a report provided by Dr AS, obtained by the applicant after the provision of Professor McFarlane’s report, which stated that the applicant suffered from both PTSD and major depression, and that, although he had pre-existing problems with depression and long-standing personality vulnerabilities, he was not depressed when he commenced employment. The report also stated, “I certainly do not think there is a direct causal relationship between [the applicant’s] pre-existing conditions and the psychiatric problems that he is manifesting currently”.

38    The Authority also noted the following regarding the report of Dr AS:

Dr AS also stated, somewhat conversely, that although the [applicant’s] pre-existing problems appeared to be in remission at the time of commencement of insurance over, he thinks it is likely they did continue to operate as predisposing or vulnerability factors for future mental illness presentations.

39    In determining that the applicant had a pre-existing medical condition, the Authority found that despite varying medical opinion, there was “a key single common element in each diagnosed condition present in [the applicant’s] medical history”, being signs or symptoms of an underlying depressive disorder to varying degrees between 1996 – 2009. The Authority found that while the episodes appear to have been separated by “asymptomatic periods”, the evidence shows that the applicant was predisposed to developing a depressive disorder in response to life stressors. The Authority was satisfied that the applicant’s depressive disorder constituted a pre-existing medical condition which fluctuated in its morbidity from at least 1998, up until 31 October 2011 and 23 July 2012. The first of those dates is the date upon which the applicant became a member of QSuper and received two insurance units and the second of which is the date upon which he received two further insurance units.

40    In its determination as to whether the applicant’s pre-existing medical condition was causally connected to his TPD in a way which is clear, the Authority interpreted Professor McFarlane’s use of the word “asymptomatic” as having its ordinary meaning, that is, “the absence of symptoms, regardless of past history”. Despite the applicant’s complaint that the report is flawed, the Authority found that it answered the questions that were asked of it, and that Professor McFarlane accurately identified the relationship between the applicants pre-existing medical condition and the condition that led to him becoming TPD.

41    The Authority set out details of the harassment and threats to which the applicant says he was subjected, and makes certain observations with respect to them including that QSuper Board does not admit that the Claimed Incidents occurred, that the applicant had made an unsuccessful claim for workers compensation, and that, in the absence of independent corroboration, the Authority is unable to ascertain with certainty what were the behaviours to which the applicant had been exposed. However, the Authority noted that the applicant had regularly asserted that he had been subjected to the Claimed Incidents which he found objectionable and caused him stress.

42    It was satisfied that the Claimed Incidents would have exacerbated or caused a relapse in the applicant’s underlying depressive disorder, and that the symptoms he experienced were a reaction to those incidents. The Authority found that the symptoms experienced by the applicant were “similar in pattern and context” to the symptoms he had previously suffered in depressive episodes, however acknowledged the symptoms suffered during the most recent episode were more prolonged, as such rendering the applicant TPD.

43    The Authority considered the report of Dr AS before concluding that it added little weight to the question of whether the applicant’s pre-existing medical condition was causally connected to the TPD in a way which is clear. The Authority found limited utility in obtaining a new clinical assessment and preferred contemporaneous assessments as they were likely to reflect the applicant’s condition at the time of the Claimed Incidents. The Authority found:

Even if the [applicant] was asymptomatic at the commencement of his employment, that is not to say the subsequent work stresses would not and did not exacerbate a pre-existing condition of depression. Dr AS concedes it may be linked to his current condition.

44    The Authority decided that it ultimately preferred the views expressed by Professor McFarlane, and concluded:

On balance, the [Authority] is satisfied the [applicant’s] pre-existing medical condition was casually connected to his TPD in a way which is clear. Indeed, the [Authority] is of the view that the high standard of [Professor McFarlane’s] clinical and academic dissertation and the clarity and erudition by which he conveyed his message, leaves no room for any other inference.

45    The Authority concluded that QSuper Board’s decision was fair and reasonable in all the circumstances and affirmed the Decision.

OBJECTION TO COMPETENCY

46    QSuper Board objected to the competency of this proceeding, submitting that the questions raised are, in substance, factual questions relevant to the Authority's assessment and weight it gave to evidence, the merit of those assessments and its reasoning.

47    In Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92, Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ (as her Honour then was) said at [92]:

We agree with Ryan J in Lambroglou that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: “[I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law.“ (Emphasis added.) But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows.

48    Further, Allsop CJ said in Carrette v Superannuation Complaints Tribunal [2017] FCA 640 at [40]:

Whilst I am reluctant to set aside a decision of a Tribunal with the specialist medical knowledge, as in this case, and for all the reasons put forward by Mr Hickey in written submissions, in my view, there has been a failure to address essential material critical to the decision. How one characterises that, whether as a failure to engage with central material or the making of a decision in a manner which is unreasonable, or the failure to attend to the mandatory consideration of central material does not matter.

49    Relying on Carrette and Rauchle v Q-Super Board [2022] FCA 1537 (Thomas J), the applicant submitted that the Objection to Competency seeks to elevate form over substance. The applicant submitted that the questions raised relate to the proper construction of private documents and statute, therefore are clearly questions of law: AIA Australia Ltd v Lancaster [2017] FCA 962 at [31] (Allsop CJ); Waraich v Minister for Home Affairs (2021) 286 FCR 45; [2021] FCAFC 155 at [6] (Bromberg, Katzmann and Cheeseman JJ).

50    It was accepted by Kenny and Lander JJ in Edington at [36] that an appeal which raises questions relating to findings of fact will not be allowed, unless such findings are relevant to a question of law, for example whether there was a failure to take into account a relevant consideration, or take into account an irrelevant consideration, or make an unreasonable decision. Further, in Haritos at [192], the following was summarised with respect to the principle relating to mixed questions of law and fact:

In summary, the terms, the context (particularly s 7 of the AAT Act and noting what we have said especially at [149] above as to s 45 not providing an analogy), the history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal“ may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure“ question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the court “should not usurp the fact-finding function of the AAT“, citing Repatriation Commission v O’Brien [1985] HCA 10 ; 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact-finding. As Brennan J said in Waterford v Commonwealth [1987] HCA 25 at 163 CLR 54 at 77:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding“ but only “on a question of law“. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact …

It follows that legally erroneous fact-finding may found an appeal on a question of law within s 44.

51    I will deal with the nature of each question in the below consideration. That consideration does not deal with the questions in the order in which they are set out in the Notice of Appeal, but rather for convenience and in accordance with the way argument unfolded.

consideration

Question Two

52    It is appropriate to first deal with question two, which is concerned with whether, in finding that there was a “key single common element” in the applicant's diagnosed conditions, the Authority made a legally unreasonable finding, or alternatively an illogical or irrational finding, or a critical finding of fact for which there was no evidential support.

53    As became apparent throughout the course of submissions, this question is not purely a question of law.

54    The applicant submitted that the Authority’s finding that there was a “key single common element” in the applicant’s diagnosed conditions was central to its conclusion that he had a pre-existing medical condition and is inconsistent with the Authority's other finding that the exact nature of the applicant's psychiatric condition is uncertain. He submitted that this finding was simply not supported by the Authority’s reasoning and that if the Authority was referring to an “underlying depressive disorder”, it would be nonsensical to describe the disorder as having a “common element”, and “occasionally in remission” but “marked by a predisposition and increased risk of recurrence of depression”. The applicant queried how the Authority could find clear causation with a pre-existing medical condition which is an underlying depressive disorder with variable diagnoses, in circumstances where there were varying medical opinions and disagreement.

55    The applicant also submitted that the use of the word “underlying” is ambiguous, and if the single common element was the predisposition that had been identified, that is a finding made with no evidential support from the materials the Authority had and is therefore unreasonable in light of its antecedent findings.

56    I do not consider that the applicant’s submissions addressed how the Authority’s finding was legally unreasonable (as opposed to merely unreasonable), illogical or irrational, or a critical finding of fact for which there was no evidential support. No authority was provided by the applicant which supported his contentions. Although the question is drafted as a question of law, the submissions to the Court made it clear that the applicant sought a reappraisal of the merits. Accordingly, I am not satisfied that question two is a question of law, and there is no reason to interfere with the Authority’s findings in that respect.

Question Four

57    Question four has two limbs. First, it asks whether the Authority erred in concluding that the applicant's pre-existing medical condition was causally connected to his TPD in a way which is clear, when the only possible finding was that the applicant was “predisposed to an increased risk of recurrence and a precipitation of exacerbations of acute depression in response to exposure to significant stress”. The second aspect of question four is whether the Authority was required to make findings as to whether the predisposition had a clearly causative role in rendering the applicant TPD.

58    The applicant submitted that the rationale of the Authority's finding that the applicant had a pre-existing medical condition that was causally connected to his TPD in a way which is clear was because he was predisposed to exacerbations of a depressive disorder in response to stress. Accordingly, there was an exacerbation of the applicant's underlying depressive disorder as a result of the stress caused by the Claimed Incidents. The applicant contends, however, that the Authority failed to make a finding that his predisposition actually had a clearly causative role in rendering the applicant TPD. The applicant submitted that finding that he had an exacerbation of an underlying depressive disorder is not the same as finding that the predisposition to this underlying depressive disorder had a clearly causative role in rendering him TPD.

59    The applicant submitted that, due to the onset, nature and characteristics of his symptoms which were caused by the Claimed Incidents, it therefore follows that any person exposed to those Claimed Incidents in the workplace would have been at risk of becoming TPD as a result. As such, the applicant submits that the Authority failed to make a "but-for" finding that "but for the increased risk in his predisposition, he would not have become TPD".

60    The purpose of only allowing questions of law to be raised in this jurisdiction is to ensure that the Court does not deal with the merits of the case: Haritos at [194]. The question raised by the applicant in 4(a) is an attempt to re-argue the merits of the factual findings made by the Authority with which he disagrees.

61    The respondent submitted that question 4(b) is in a similar category. I disagree. I consider it to be within that category identified in Haritos at [192] of a mixed question of fact and law involving “judicially review the Tribunal’s fact finding” (in this case, the Authority’s).

62    Notwithstanding that, when the Authority’s reasoning is read as a whole, it is clear that it made findings as to the causative connection between the applicant’s predisposition and him becoming TPD. The Authority considered and weighed up the medical evidence and formed its own conclusions based on that. It then found:

The [Authority] considered that the evidence suggests the [applicant’s] chronic depressive disorder was occasionally in remission but the disorder was marked by a predisposition and increased risk of recurrence of depression. The [Authority] is satisfied this disorder represented a pre-existing chronic psychiatric condition which existed in a continuum marked by fluctuating morbidity dating back to at least 1998 and continuing up to 31 October 2011 and 23 July 2012 respectively. The [Authority] is satisfied ‘the [applicant] had a medical condition the signs or symptoms of which existed before the start of the complainant’s insured membership’.

The [Authority] is therefore satisfied the [applicant] had a pre-existing medical condition under the insurance terms.

63    Contrary to the applicant’s assertion, the Authority made findings and did not err as the applicant submitted.

Question One

64    The applicant did not press the third particular of question one, therefore the remaining consideration is whether the Authority erred by misconstruing and/or misapplying the phrase "causally connected to his TPD in a way which is clear" as if it required only selecting a preference for one medical expert over another, or alternatively by failing to make any findings about the proper construction of that phrase.

65    As to its submission in the alternative, the applicant submitted, correctly, that construction of a private document is a matter of law, relying on AIA Australia Ltd at [31] and Felix v NULIS Nominees (Australia) Ltd [2020] FCA 591 at [42] (Stewart J). The applicant contended that the phrase “causally connected to his TPD in a way which is clear” required construction. The respondent submitted that judicial reasons are not to be construed in a manner similar to statutes. Ultimately what the applicant was pressing was that the interpretation of clause 6.2(b)(ii) be revisited, notwithstanding it had already been the subject of judicial consideration by Perram J. While it is not appropriate that his Honour’s reasons be revisited in this proceeding, the question as framed is in substance a question of law.

66    The applicant took issue with the Authority's finding that "[a]fter considering all the medical and other evidence provided, [the Authority] prefers the views expressed by [Professor McFarlane]". The applicant submitted that the Authority erred in making this finding as it approached the clear causation test as merely preferring the view of one medical expert over another, rather than applying the clear causation test as "requiring the existence of a causal connection that was obvious." The applicant submitted that the words “clear” and “obvious” are synonymous in the present context, and referred to a number of cases which used the words synonymously: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [193] (Gleeson CJ, Gaudron and Gummow JJ) (“obvious and clear language”); Piper & Mueller [2015] FamCAFC 241 at [54] (Ryan and Aldridge JJ) (“The inference is an obvious and clear one”); E & J Gallo Winery v Lion Nathan Australia Pty Limited (2009) 175 FCR 386; [2009] FCAFC 27 at [75] (Moore, Edmonds and Gilmour JJ) (“there is an obvious and clear link”).

67    It was further submitted that the Authority bound itself to the views of Professor McFarlane by asserting that his report left "no room for any other inference”, thus invalidly fettering its statutory decision-making function.

68    In the alternative, the applicant submitted that the Authority ought to have made findings as to the proper construction of the phrase "casually connected to his TPD in a way which is clear" as “clear” has a range of possible meanings and therefore forming an opinion as to its meaning was a necessary step in its determination. The applicant referred to Perram J's comment at paragraph [35] the judgment in Edser where it was said:

However, it was not enough for the [Authority] merely to identify that [the applicant] had some pre-existing medical condition. The language of cl 6.2(b)(ii) cast upon it the burden of a answering a further question. For [the applicant] to be eligible for the TPD benefit the [Authority] had to be satisfied that the TPD was ‘not related to’ the pre-existing medical condition. This required the [Authority] to reach a view on the meaning of ‘related to’.

(Emphasis added)

69    The applicant submitted that, in the same way that “related to” has a wide range of meanings, so too does the word “clear”, and therefore the Authority was required to form an opinion as to what the word "clear" meant.

70    Insofar as this question relates to the Authority preferring Professor McFarlane's medical opinion over that of another, that is entirely a matter for the Authority. The applicant's submission that the Authority merely weighed up two conflicting reports and treated the resolution of such process as sufficient to establish clear causation is incorrect. As specified above, the Authority considered the medical evidence put before it and made factual findings regarding such evidence, as was open to it. The Authority noted the applicant's concerns with the report but found that it "accurately identified the relationship between the [applicant's] pre-existing condition and the medical condition which ultimately led to him becoming TPD."

71    QSuper Board submitted, and I accept, that the applicant has misconstrued the Authority's comment of "no room for any other inference". I do not accept that the Authority considered that it was bound to accept Professor McFarlane's report, I instead regard the comment to mean that the report fully satisfied the Authority in reaching its conclusion due to “the high standard of [Professor McFarlane’s] clinical and academic dissertation and the clarity and erudition by which he conveyed his message”. The decision must be read in its entirety; the Authority acknowledged that it read all of the medical evidence before extracting and commenting on certain matters, and discussing the varying views expressed in the opinions provided. It then applied the test as to whether there was a causal connection which was clear between the pre-existing medical condition and the TPD, noting that there could be multiple non-sufficient causes of the TPD including a pre-existing medical condition, before then stating that it preferred Professor McFarlane's opinion. The Authority considered the issues before it and did not fetter its decision-making function.

72    The applicant's interpretation of the clear casual connection as requiring the connection to be "obvious" cannot be accepted. The applicant attempts to unnecessarily alter the test already set out by Perram J in Edser. His Honour was not satisfied that a "but-for" approach by the Authority was sufficient to make a connection, and determined that the test must go further, such that the connection must be one that is "clear". His Honour considered that there must be a causal element with clear connection, such that if a causal link is found it must be able to be described as “clear”. It may be accepted that the terms "clear" and "obvious” have been used synonymously in certain cases, however here that is neither appropriate nor helpful. There is nothing to indicate that his Honour considered that the word “clear” required further elucidation by the use of the word “obvious”, and nor do I. Accordingly, had the Authority substituted the word “obvious” for “clear”, or added the word to the test, it would have amounted to a failure to comply with the orders of Perram J to reconsider the matter in accordance with his Honour’s reasons for judgment.

73    The Authority was not required to make any findings about the proper construction of the phrase “causally connection to his TPD in a way which is clear”. The context in which Perram J said that the Authority was required to reach a view on the meaning of “related to” was due to the fact that, even if the clear causation test and but-for test were met, there can still be circumstances in which an applicant’s disablement is related to a pre-existing medical condition. His Honour considered that it was not enough for the Authority to identify that a pre-existing medical condition existed, rather the Authority was bound to answer a further question as to whether the applicant’s TPD was or was not related to the pre-existing medical condition.

74    The same interpretation cannot be said for the meaning of “clear” in the term “casually connected to his TPD in a way which is clear”. There is no ambiguity in his Honour’s reasons that would require any further interpretation from the Authority as to the proper construction of the phrase.

75    I am satisfied that question one is a question of law. The answer to question one is that the Authority did not err in law by misconstruing and/or misapplying, or by failing to make any findings about, the phrase “causally connected to his TPD in a way which was clear”. Nor did it invalidly fetter its statutory decision-making function.

Question Five

76    The fifth question is whether the Authority erred in failing to consider whether the effect of the Claimed Incidents were so substantial such that they denied any clearly causative role to his pre-existing medical condition. The applicant referred to paragraph [71] of Perram J's decision, which states:

… I do not see the language of cl 6.2 as altogether ousting any contention that the effect of the bullying and threats was itself so substantial that it denied any clearly causative role to his pre-existing medical condition. It will depend on the facts. Certainly, if this argument is advanced to the [Authority] on remitter it is a matter that it will need to address.

77    The parties dispute whether this argument was actually advanced by the applicant before the Authority, although this point somewhat subsided in oral submissions.

78    The applicant's submissions to the Authority included the following:

The Court expressly did not determine whether the behaviours to which [the applicant] was exposed in the workplace were sufficient causal factors resulting in [the applicant’s] TPD: at [70]. However, the Court accepted that it was an available conclusion on the facts. Specifically, the Court said “Once a test of clear causation is applied I do not see the language of cl 6.2 as altogether ousting any contention that the effect of the bullying and threats was itself so substantial that it denied any clearly causative role to his pre-existing medical condition. It will depend on the facts. Certainly, if this argument is advanced to the [Authority] on remitter it is a matter that it will need to address”: [70].

…

[The applicant] respectfully submits that AFCA should find that there is no clear causal connection between [the applicant’s] pre-existing condition and his TPD. [The Authority] should find that the bullying and threats suffered by [the applicant] were sufficient causal factors resulting in [the applicant’s] TPD.

79    The applicant then refers to "four critical matters" in support of their submission, including:

(1)    The report of Professor MacFarlane, submitting "[the applicant’s] primary submission is that Professor McFarlane’s report, properly understood, does requires a conclusion that the workplace stressors were themselves sufficient causal factors to have resulted in [the applicant’s] TPD."

(2)    The report of Dr AS, submitting "The Samuels’ Report requires a conclusion that the bullying and threats suffered by [the applicant] were sufficient causal factors to have resulted in [the applicant’s] TPD."

(3)    That there is no other evidence before the Authority that properly addresses the clear causation test.

(4)    The details of the conduct the applicant witnessed during employment, submitting "Lastly, we invite [the Authority] to have regard to the particular conduct to which [the applicant] was exposed in the workplace. The severity of the conduct, and its propensity to cause psychological injury and TPD, is clear on its face."

80    QSuper Board submitted that the Authority dealt with the arguments as they were advanced in the applicant’s submissions made to it, and to say that the Authority failed to deal with the applicant’s submission, if it can even be said that the submission was made in those terms, is to overanalyse the Authority’s reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272.

81    In its reasons, the Authority acknowledged that "[t]he [applicant] further says the bullying and threats he suffered in the workplace with the employer were so substantial that it denied any clearly causative role to his pre-existing medical condition", and that “the bullying and threats he suffered were sufficient causal factors resulting in his TPD”. It then outlined the medical evidence before it, and made findings on that evidence, including:

The [Authority] notes the [applicant] says he was asymptomatic at the commencement of his employment with the employer in October 2011 and he was subject to extreme work stressors in his employment with the employer.

The [Authority] accepts the Claimed Incidents would have led to either an exacerbation or relapse in the [applicant’s] underlying depressive disorder with associated major dysfunction.

The [Authority] is satisfied the onset, nature and characteristics of the signs or symptoms the [applicant] experienced, after he commenced employment with the employer, represented a reaction to the Claimed Incidents in the workplace.

The [applicant’s] reaction to the claimed stressors were in a similar pattern and context to those he suffered in his previous episodes of depressive disorder. Albeit on this occasion, it resulted in a wider and deeper spectrum of prolonged symptoms and dysfunction, ultimately rendering the [applicant] TPD under the insurance terms.

82    The Authority ultimately concluded that "[o]n balance, the [Authority] is satisfied the [applicant’s] pre-existing medical condition was casually connected to his TPD in a way which is clear."

83    It is true that the Authority did not expressly find that the Claimed Incidents in the workplace and threats said to be suffered by the applicant were not “so substantial that [they] denied any clearly causative role to his pre-existing medical condition”. However, the Authority did not, as the applicant submitted, simply recognise the submission and fail to consider it. Rather the Authority reached conclusions, which when read in the context of the entirety of the Authority’s reasons, make it clear that the Authority considered the role played by the Claimed Incidents in the workplace. Having done so it concluded that those incidents would have led to either an “exacerbation or relapse” or “represented a reaction”. The Authority used words that fell short of “so substantial” which, when the Authority’s reasons are read as a whole, make it clear that it considered that, notwithstanding the effect of the Claimed Incidents, it was ultimately satisfied that the clear causation test was satisfied. The Authority’s reasons should be read as a whole, and to find that it erred by omitting the exact phrasing contained within the judgment of Perram J, as contended for by the applicant, would be to read the decision with an eye keenly attuned to the perception of error: Wu Shan Liang.

84    I am satisfied that the applicant has raised a question of law, however I do not consider that the Authority erred in the manner for which the applicant contends.

Question Three

85    The third question is whether the Authority was required to resolve the ambiguities in Professor McFarlane's report regarding the reference to “asymptomatic” individuals, and whether the statement that “stressors might produce psychiatric symptoms in such an individual” referred to the symptoms which the applicant developed. The applicant referred to paragraph [72] of Perram J's judgment which states:

In particular, there are two ambiguities in the report which would need to be resolved for any proper consideration of the issues which arise. The first is the Professor’s reference to asymptomatic individuals. It is not clear whether by this Professor McFarlane meant persons devoid of any form of psychological disorder or whether he intended to refer to persons with an underlying condition not presently displaying symptoms. The second is that although he said that the stressors might produce psychiatric symptoms in such an individual, this does not necessarily equate to the symptoms which [the applicant] developed. Put another way, the stressors might have induced psychiatric symptoms in otherwise healthy individuals but it may not have made them TPD.

86    The applicant submitted that the Authority's approach to the ambiguities was to interpret the meaning of “asymptomatic” as “in its usual sense, that is, the absence of symptoms, regardless of past history”, and did not consider at all whether the statement that “stressors might produce psychiatric symptoms in such an individual” referred to the symptoms experienced by the applicant. He submitted that it was for the Authority to resolve these ambiguities, and in not doing so it had failed to give proper consideration to the matter.

87    QSuper Board drew the Court's attention to the submissions the applicant put before the Authority as part of the redetermination and submitted that in those circumstances it is unsurprising that the Authority did not resolve the ambiguities in the report. In those submissions dated 8 April 2022, the applicant referred to paragraph [72] of Edser, then submitted:

[The applicant’s] primary submission is that Professor McFarlane’s report, properly understood, does requires a conclusion that the workplace stressors were themselves sufficient causal factors to have resulted in [the applicant’s] TPD. Professor MacFarlane accepts that the behaviours to which [the applicant] was exposed in the workplace created a “significant risk”, independent of [the applicant’s] prior history, to cause a “psychiatric disorder”. Although Professor MacFarlane’s reference to “psychiatric disorder” is ambiguous, [the applicant] submits that on the balance of probabilities Professor MacFarlane must have had in mind a psychiatric disorder that results in TPD. Professor MacFarlane’s primary task was to inquire about whether [the applicant’s] pre-existing condition had a relationship with his TPD. Professor MacFarlane’s reference to a “psychiatric disorder” must be understood in this context. It is unlikely that Professor MacFarlane would have intended to refer to a psychiatric condition that was not a TPD, as any such observations would not assist [the Authority’s] primary task.

In the alternative, if [the Authority] does not accept [the applicant’s] primary submission that Professor McFarlane’s report requires a conclusion that the workplace stressors were themselves sufficient causal factors to have resulted in [the applicant’s] TPD, [the applicant] respectfully submits that Professor McFarlane’s report does, at the very least, provide good support for such a finding. When Professor McFarlane’s report is read together with the other evidence referred to below, that conclusion is even more compelling.

(Errors in original)

88    Clearly, the applicant did not ask for any further enquiry to be made of Professor McFarlane’s report, rather he asked the Authority to interpret its meaning in a way that supported the applicant’s case. The applicant is now, by his written submissions, suggesting that a course should have been adopted which he did not urge at the time of making submissions to the Authority on remitter. Where the applicant contended for a particular interpretation of Professor McFarlane’s report to the Authority, he is not entitled now to seek to advance that a different approach should have been taken.

89    In Edser at paragraph [72], Perram J noted that he was not expressing a concluded view on the status of the report, nor did he prescribe the manner in which the Authority ought to deal with any ambiguities in the report, such as obtaining a supplementary report. It is arguable that the comments made at paragraph [72] are obiter. Based on the parties’ submissions, and particularly those the applicant put before the Authority, it is not the case that the Authority overlooked a submission that it ought, in one way or another, to have resolved certain comments made in the report. In any event, the Authority clearly interpreted the word “asymptomatic” using its ordinary meaning, which is an orthodox approach. Moreover, based on Professor McFarlane’s report, the Authority was satisfied that:

(1)    The Claimed Incidents would have led to an “exacerbation or relapse in the applicant’s underlying depressive disorder with the associated major dysfunction”;

(2)    That the “onset, nature and characteristics” of the symptoms experienced by the applicant after commencing employment “represented a reaction to the Claimed Incidents in the workplace”; and

(3)    The symptoms experienced by the applicant “were in a similar pattern and context to those he suffered in his previous episodes of depressive disorder”.

90    I am satisfied that the applicant has raised a question of law. Insofar as it was required to do so, I am satisfied that the Authority resolved any ambiguities in the report of Professor McFarlane – just not in the manner contended for by the applicant.

conclusion

91    The Authority may affirm a decision if it is satisfied that the decision is “fair and reasonable in all the circumstances”. I consider that the Authority did so in accordance with the law. The appeal is therefore dismissed. QSuper Board’s Objection to Competency is upheld in respect of questions two, and four (a). The applicant must pay QSuper Board’s costs as agreed or assessed.

Associate:

Dated:    20 September 2023