Federal Court of Australia

Comcare v SDCS [2023] FCA 1509

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed and the decision of 20 May 2022 be set aside.

2.    Pursuant to ss 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.

3.    The respondent pay the applicant’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

OVERVIEW

1    This is an appeal by the applicant, Comcare, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 20 May 2022. By that decision, the Tribunal set aside a determination made by Comcare to deny liability for the respondent’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of a psychological condition and remitted the matter to Comcare for reconsideration in accordance with a direction that the exclusion in s 5A(1) of the SRC Act was not applicable.

BACKGROUND

2    At the relevant times, the respondent was employed by the Department of Human Services (the Department) as a “Customer Service Officer”. The respondent worked in the Merrylands office of the Department in New South Wales from around April 2016 until he obtained a transfer to the Woodridge office in Queensland in June 2017.

3    On 22 November 2017, the respondent lodged a claim for compensation under the SRC Act for a psychological injury, which he described as “Anxiety and Depression”, and which he alleged arose as a result of stress associated with his role in the self-service area, insufficient training and support in the role, as well as incidents of customer aggression. The respondent stated that he first noticed the condition on 8 August 2016 at 9.00 am and first sought medical treatment for the condition on 1 August 2016 (one week prior).

4    On 22 January 2018, Comcare determined to reject the respondent’s claim.

5    On 27 April 2018, a delegate of Comcare affirmed the determination of 22 January 2018. In the reasons for its decision, Comcare accepted that the respondent suffered from an injury, namely “adjustment disorder with mixed anxiety and depressed mood”, which was likely to have been contributed to, to a significant degree, by his employment with the Department. Although Comcare appeared to accept that the injury occurred in or after July 2017, it rejected the assertion that the injury occurred in 2016 on the basis that there was insufficient evidence. It therefore determined that the injury was excluded from compensation as it resulted from various reasonable administrative actions taken between July and November 2017.

6    The respondent applied to the Tribunal for review of Comcare’s decision on 20 August 2018. Setting aside Comcare’s decision of 20 May 2022, the Tribunal decided that the injury was not a result of reasonable administrative action such that the exception in s 5A(1) of the SRC Act did not apply. This appeared to be based on the Tribunal’s conclusion that the respondent suffered a “symptom onset” in August 2016, which necessarily amounted to a finding that the respondent suffered an injury within the meaning of s 14 of the SRC Act as early as August 2016.

7    In light of this finding, Comcare now seeks to appeal this decision on four separate grounds.

COMCARE’S APPEAL

Statutory framework

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

9    Section 5A(1) relevantly defines “injury” as including “a disease suffered by an employee”. Section 5B(1) further defines “disease” as follows:

(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.

10    Section 5B(2) provides a non-exhaustive list of matters that “may be taken into account” in “determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment”. Section 5B(3) defines “significant degree” as “a degree that is substantially more than material”.

11    An “ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”: s 4(1) SRC Act.

12    However, s 5A(1) excludes from the definition of “injury” a disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. Section 5A(2) provides a non-exhaustive list of actions that qualify as “reasonable administrative action”.

Contentions on appeal

13    By its notice of appeal, Comcare raised the following questions of law:

1.    Whether the Tribunal erred in finding that the Respondent had suffered an “injury” within the meaning of the Safety Rehabilitation and Compensation Act (the Act) as early as August 2016.

2.     Whether the Tribunal erred in finding that the Respondent’s “symptoms onset” in August 2016 was not the result of reasonable administrative action taken in a reasonable manner in respect of the Respondent’s employment.

3.     Whether the Tribunal erred by breaching the rules of procedural fairness in not advising the Applicant and thereby providing an opportunity to provide submissions on whether it was open to dispose of this application for review on the basis of findings the Respondent suffered a “symptom onset” in August 2016 and further, that that symptom onset was not the result of any reasonable administrative action.

4.     Whether the Tribunal erred in law in failing to provide adequate reasons pursuant to s.43 of the Administrative Appeals Tribunal Act in regards to its finding that there was no evidence that the onset of the Respondent’s symptoms was a result of reasonable administrative action.

14    Comcare relied on four related grounds of appeal, as follows:

1.    In finding that the Respondent experienced a “symptom onset” in August 2016, the Tribunal necessarily found that the Respondent had suffered an injury within the meaning of s.14 of the Act at that time. That finding was:

(1)    Not supported by relevant probative evidence;

(2)    Did not address the elements of s.14, more particularly whether any injury so caused “results in…incapacity for work, or impairment”;

(3)    Did not identify any incidents of the Respondent’s employment which were causative of the “injury” in August 2016.

2.    The finding that there was no evidence that the Respondent’s injury in August 2016 was a result of “reasonable counselling action whether formal or informal taken in respect of the Respondent’s employment” was not supported by probative evidence. More particularly:

(1)     The Tribunal’s reasons do not refer to any evidence to support this finding;

(2)     There was ample evidence that such informal counselling was taking place in August 2016: more specifically:

(a)     13 July 2016 - feedback session summary at ST 9, page 29;

(b)     13 August 2016 - feedback summary session at T 3.3, pages 95-96;

(c)     This phase of the counselling was the subject of extensive cross examination of the Respondent at Day 2 Transcripts pp 82-102.

3.    Breach of procedural fairness: Before the Tribunal, both the Respondent and the Applicant conducted their respective cases by reference to what occurred on 10 November 2017. On that day, the Respondent had left work and soon thereafter was certified as unfit for work on account of suffering “mixed anxiety and depression”. The Respondent conducted his case on the basis that he was suffering that condition on account of dealing with aggressive customers in the course of his work. For the Applicant, it was asserted that the Respondent’s mental health symptoms arose as a result of extensive informal counselling which commenced as early as 19 July 2017. In these circumstances, it was a breach of procedural fairness for the Tribunal to not advise the Applicant of this provisional opinion and invite submissions in respect of this provisional opinion. This breach of procedural fairness is further compounded in that by remitting the matter back to the Applicant for reconsideration with a finding that the “reasonable administrative action” exclusion does not apply, the Applicant is thereby impermissibly constrained in investigating what is in effect a new claim and considering evidence which is to the contrary.

4.    The Tribunal has not provided any reasons in support of its finding that in respect of the Respondent’s injury in 2016, that there was no evidence that this injury was the result of “reasonable counselling action (whether formal or informal)” and hence the reasonable administrative action exclusion did not apply. In these circumstances, in light of the evidence and the submissions by the Applicant, this lack of reasons is not in conformity with the requirements of s.43 of the Administrative Appeals Tribunal Act.

(underlining in original)

The Tribunal’s decision

15    The hearing was held before the Senior Member on 2 and 3 November 2020 and on 28 and 29 September 2021. Comcare subsequently provided written closing submissions to the Tribunal.

16    Although Comcare asserted that the issues before the Tribunal were clear, it is evident from the material that they were not. This may have been, at least to some extent, because the respondent was self-represented. In particular, Comcare submitted that the respondent conducted his case before the Tribunal on the basis that he suffered the injury in 2017, not 2016. However, a review of the materials makes clear that the respondent was seeking to not only challenge Comcare’s finding that his injury resulted from reasonable administrative action, but also its refusal to find that his injury occurred in 2016.

17    For example, on the first day of the hearing, the following exchange occurred between the respondent and the Senior Member:

Okay. All right. Now, I’ve listened carefully to your evidence. Is it your case that over – through 2016, 2017, you suffered – sorry, you had exposure to incidents of customer aggression?---Yes, correct.

And that’s what caused you to suffer stress?---Yes.

Which led you to eventually leave work on Friday 10 November 2017, is that so?---Not quite sure on that date …

18    On the final day of the hearing, the following further exchange occurred:

MR CLARK [Counsel for Comcare]: … There’s medical evidence, even on our case, that he suffered an injury or disease, however described …

This case is whether or not he qualifies under section 14 for an injury. Steps will have to be taken. I will set this out. What evidence do you act upon as safely established, okay, bearing in mind that there was no dispute that on 10 November he did suffer an injury …

…

SDCS: May I just - and I absolutely don’t want a debate, as well. I agree with that. However, I’d like to just remind this, that my injury - the mental injury is not the injury that - it’s not like you just fell and you broke your hand. It wouldn’t start at a certain point, just like, say, that second that happened. It has started in 2016 …

…

SDCS: … This … started in 2016 while I reported numerous customer aggression, and then I was talking to EAP …

19    Even if it was the case that the respondent did not (or could not) adduce sufficient evidence to support his assertion that his condition amounted to an injury in 2016, or that (on a proper application of ss 5A, 5B and 14) the injury was not sustained when the respondent first developed symptoms, that does not mean that the respondent did not raise a question of when the injury occurred.

20    It was not disputed that the respondent suffered a condition in 2017, which was variously described as an “adjustment disorder with mixed anxiety and depressed mood”, “an adjustment disorder with anxiety” and “acute mixed anxiety depression”. Therefore, the remaining relevant issues to be determined by the Tribunal were:

(a)    whether the respondent’s condition was contributed to, to a significant degree, by his employment with the Department – this required an assessment of what event might have been causative of his condition (or an aggravation of his condition), and therefore required the Tribunal to determine when any injury occurred;

(b)    then, if the Tribunal found that the condition was significantly contributed to by his employment, whether the exclusion in s 5A(1) of the SRC Act applied to the injury.

21    In its reasons for decision, the Tribunal commenced by considering the background to the matter and the relevant provisions of the SRC Act (at [1]-[15]). It then considered whether the respondent had an “incapacity for work”. It referred to two letters from a Dr Salama, each dated 21 February 2017. One referred to the applicant being unfit to work until 1 March 2017 due to illness. The other outlined various stresses experienced by the respondent in 2016 (at [17]), and evidence from other doctors which was that the respondent was unable to work from as early as 10 November 2017 (at [18]-[20]). It found that the respondent had an incapacity to work until 28 December 2017 (at [21]).

22    The Tribunal then considered whether the respondent suffered an injury. It noted Comcare’s submission that “there is no dispute that on 10 November 2017 [the respondent] did suffer an injury” and the respondent’s submission that the injury was “first noticed” in August 2016 (at [24]).

23    The Tribunal referred to some aspects of Dr Murphy’s report dated 28 December 2017, concluding that the respondent “suffers from 309.28 adjustment disorder with mixed anxiety and depressed mood”. It was noted that some of the diagnostic criteria included “development of emotional and behavioural systems in response to managerial action at work”. When asked to detail what contribution the respondent’s employment had made to his current clinical presentation, the Tribunal noted the doctor’s response that “Yes. The [respondent] outlined an industrial dispute with the employer with the [respondent’s] perception that the [respondent] is a victim of racial vilification”. It was noted that Dr Murphy concluded there was no pre-existing condition and that the condition would not have occurred irrespective of the respondent’s employment (at [25]).

24    The Tribunal provided a detailed account of the report of Associate Professor Taylor (at [26]-[28]). The Tribunal gave a detailed account of the parties’ submissions (at [29]-[31]). It then recorded the following (at [31]):

[Comcare] stated “that the [respondent] suffered a ‘disease’” and stated a “diagnosis … that the [respondent] suffered an ‘adjustment disorder with depression and anxiety”. By determination and letter dated 22 January 2018, [Comcare] accepted that the [respondent] suffers or suffered from an ailment as defined in the Act, being “Adjustment Disorder with Mixed Anxiety and Depressed Mood” on the estimated nominated date of injury of 8 August 2016. Until [Comcare’s] written submissions of 10 September 2019, [Comcare] accepted “that the [respondent] suffered a disease … to which [the respondent’s] employment contributed in a significant degree”. Further, both parties refer to the reports of Dr M, who stated that the [respondent] “developed an adjustment disorder in response to difficulties encountered in the workplace”.

(italics in original; footnotes omitted)

25    It is unclear what exactly the Tribunal concluded in relation to the respondent’s injury. The paragraph cannot be clearly described as a finding or conclusion. The passage seems to suggest the Tribunal found that:

(a)    the respondent suffered a disease (being an injury), being “Adjustment Disorder with Mixed Anxiety and Depressed Mood”; and

(b)    the date of the injury was the date the respondent first experienced symptoms as nominated on his claim form, being 8 August 2016.

26    Turning then to whether the respondent suffered the injury as a result of reasonable administrative action, the Tribunal recorded the parties’ submissions (at [32]-[43]) before it made the following conclusion (at [43]):

Dr M’s and Associate Professor T’s evidence was that the [respondent’s] symptom onset date was August 2016, with the date last worked being “November 2017”. As referred to above, the report by Associate Professor T dated 9 January 2018 stated that prior to 2016 the [respondent] had no significant physical or mental health problems, and that during 2016 “it would appear some work-related stressors accumulated such that in 2017 [the respondent] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence”. As referred to above, Dr B stated in a letter dated 20 September 2017 that the [respondent] “is suffering from acute Mixed Anxiety Depression triggered by stress at work” and that the [respondent’s] anxiety “was triggered by working in the Self Serve Area in Centrelink, without much support”. There is no evidence that the onset of the symptoms in August 2016 (Dr M and Associate Professor T) or as referred to on 20 September 2017 (Dr B) were as a result of ‘reasonable counselling action (whether formal or informal)’ taken in respect of the [respondent’s] employment with the Department. The acute Mixed Anxiety Depression was not therefore as a result of reasonable administrative action taken in a reasonable manner in respect of the [respondent’s] employment.

(italics in original; emphasis in bold added; footnotes omitted)

27    The Tribunal then considered certain ancillary matters which are not relevant to this appeal (at [44]-[55]), before it ordered that the decision under review be set aside (at [56]-[57]).

GROUND 1: FINDING THAT INJURY WAS SUSTAINED AS EARLY AS AUGUST 2016

28    By its first ground of appeal, Comcare submitted that, in finding that the respondent suffered a “symptom onset” in August 2016, the Tribunal necessarily found that the respondent had suffered an “injury” within the meaning of the SRC Act at that time.

29    That finding can be inferred from [31] as well as part of [43] of the Tribunal’s reasons as follows:

31.    … By determination and letter dated 22 January 2018, [Comcare] accepted that the [respondent] suffers or suffered from an ailment as defined in the Act, being “Adjustment Disorder with Mixed Anxiety and Depressed Mood” on the estimated nominated date of injury of 8 August 2016. Until [Comcare’s] written submissions of 10 September 2019, [Comcare] accepted “that the [respondent] suffered a disease … to which [the respondent’s] employment contributed in a significant degree”. Further, both parties refer to the reports of Dr M, who stated that the [respondent] “developed an adjustment disorder in response to difficulties encountered in the workplace”.

…

43.    Dr M’s and Associate Professor T’s evidence was that the [respondent’s] symptom onset date was August 2016, with the date last worked being “November 2017”. As referred to above, the report by Associate Professor T dated 9 January 2018 stated that prior to 2016 the [respondent] had no significant physical or mental health problems, and that during 2016 “it would appear some work-related stressors accumulated such that in 2017 [the respondent] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence”. As referred to above, Dr B stated in a letter dated 20 September 2017 that the [respondent] “is suffering from acute Mixed Anxiety Depression triggered by stress at work” and that the [respondent’s] anxiety “was triggered by working in the Self Serve Area in Centrelink, without much support” …

(italics in original; footnotes omitted)

30    Comcare submitted that this finding was an error of law on the following bases:

(a)    other than the respondent’s self-report, it was not supported by probative evidence;

(b)    the finding ignored the important element of s 14 of the SRC Act in that there had to be an additional finding that any “injury” so arising results, in this case, in either incapacity for work or impairment;

(c)    simply, the Tribunal did not identify any incidents from the respondent’s employment whatsoever which would potentially be causative of the alleged “injury” in August 2016; and

(d)    the Tribunal ignored the large body of factual and medical evidence which pointed to the respondent having suffered an “injury” on or about 10 November 2017.

Legal principles

31    An appeal “on a question of law” has (relevantly) been held to include: whether the Tribunal has applied the correct legal test; whether there is any evidence to support a finding of a particular fact; and whether facts found fall within a statute properly construed: Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94 at [13] (per Dowsett and Gordon JJ). There is no error of law in simply making a wrong finding of fact.

32    The fact that the Tribunal is not bound by the rules of evidence does not enable the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-257 (per Brennan J); Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685 (per Deane J). See, for example, Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579; [2002] FCA 30 at [25] (Rodriguez) (per Kiefel J (as her Honour then was)); Stateships v Lawson (2009) 107 ALD 42; [2009] FCA 59 at [52] (per Gilmour J).

33    In support of its first ground of appeal, Comcare placed particular reliance on the decision of Kiefel J in Rodriguez. In that case, Kiefel J was faced with an appeal from a decision by the Tribunal in relation to a compensation claim where the Tribunal had based a finding on the length of an incapacity period on its own view of the evidence and not in accordance with the medical opinions put into evidence. Her Honour held that, “if a view is formed by a Tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it” (at [24]). Her Honour found that it was not open for the Tribunal to “draw its own inferences”, and went on to say (at [26]):

In an area which required an understanding of a disorder [the Tribunal] could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.

34    The upshot of this decision, as confirmed by the Full Court in Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 (Perry J, with whom Siopis J agreed), is that legal error may be found if the Tribunal bases a conclusion upon its own views in circumstances where the matter required expert evidence.

Consideration

35    Comcare’s submissions alleged essentially three forms of error in the Tribunal’s finding as to injury:

(a)    that the Tribunal failed to apply the correct legal tests in determining “injury” under the SRC Act;

(b)    that the Tribunal failed to have regard to the evidence which pointed to the respondent having suffered an injury on 10 November 2017; and

(c)    that the Tribunal’s finding regarding the date of the respondent’s injury was unsupported by probative evidence and/or contrary to the medical evidence.

To a large extent, each of these alleged errors is closely related.

Evidence as to injury

36    Before the Tribunal and this Court, Comcare identified the respondent’s psychiatric condition as a “disease” under s 5A of the SRC Act – that is, an ailment or aggravation of an ailment within the meaning of s 5B(1). The Tribunal appeared to accept this in its reasons and the respondent did not challenge this characterisation on appeal.

37    At the conclusion of the hearing before the Tribunal, there were two competing positions regarding when the respondent’s condition might have qualified as a “disease” under the SRC Act:

(a)    Comcare’s position: that on 10 November 2017, the respondent developed a temporary exacerbation of his pre-existing adjustment disorder following the disciplinary action at his employment; and

(b)    the respondent’s position: that in August 2016, he developed the adjustment disorder following exposure to aggressive customers.

38    In its written closing submissions before the Tribunal, Comcare submitted that s 5B(1) required the respondent to point to “evidence which establishes that his employment – more specifically the exposure to aggressive customers – has ‘contributed to a significant degree’ to the development of any psychiatric condition”. This, it was said:

involves a two-fold process. Initially, the [respondent] must be able to point to factual evidence which shows that he suffered mental health symptoms on account of exposure to aggressive customers. The second stage involves expert medical evidence which confirms that this alleged exposure has in fact resulted in a psychiatric condition and that the level of contribution of that factor reaches the threshold of “contributed to a significant degree”.

39    Later in its written submissions, Comcare further submitted that:

36.    [Section 14] mandates that not only must a claimant show that he has suffered an injury (as that term encompasses a “disease”), but that such an injury “results in death, incapacity for work or impairment”.

37.    Here, the evidence establishes that [the respondent] did not have any incapacity for work until after the meeting with [his supervisor] on the 10th November 2017 and thereafter visited his general practitioner.

40    In support of its position, Comcare principally relied upon expert evidence from Dr Murphy, a psychiatrist. He examined the respondent in December 2017 and April 2019, and produced four reports between 28 December 2017 and 15 October 2020.

41    Dr Murphy’s evidence was uncontradicted by any other expert evidence and was largely informed by his assessment of the respondent and the other medical evidence available from 2016. Comcare provided the following overview of Dr Murphy’s evidence in its written submissions to the Tribunal and to this Court:

(a)     Report dated 28th December 2017:

(i)     diagnosed the Respondent with an adjustment disorder, with mixed anxiety and depressed mood;

(ii)     “[d]evelopment of emotional and behavioural symptoms in response to managerial action at work”;

(iii)     “[the respondent] has responded to managerial action by developing the perception that he is a target of “systematic racism” in the workplace”. It is not without significance that the Respondent accused Perera of having sought to discriminate against him on account of his Middle Eastern background in the course of cross-examination.

(b)     Report dated 29th April 2019:

(i)     “There is consistent agreement amongst the experts that [the respondent] suffered an adjustment disorder throughout 2017.”

(ii)     “The major significant contributing factors to his adjustment disorder were interactions with management. To a lesser degree, [the respondent] also complains of stress working with the self-help section. [The respondent] has experienced some life difficulties outside of work, which have been a minor contributing factor.”

(c)     Report dated 15th October 2020:

(i)     “The totality of available evidence suggests that [the respondent] has pre-existing adjustment that sits on the spectrum of narcissistic personality disorder. He responds angrily to criticism and feels frustrated by his lack of success and difficulty having his qualifications recognised in Australia.”

(ii)     “Regarding causation, Dr Llewellyn noted other contributing factors including ongoing thoracic, lumbar back pain and commented on [the respondent’s] marriage. “Also significantly, [the respondent] described a deterioration in the romantic nature of his relationship with his wife… this is causing him significant distress. He described his wife as his best friend but he feels distressed by the absence of their romantic relationship”.”

(iii)     “Updated Opinion: Based on the new evidence, [SDCS] developed a temporary exacerbation of his pre-existing Adjustment Disorder following the disciplinary action on 10 November 2017.”

(italics and underlining in original; other emphasis added)

42    Dr Murphy was cross-examined at the hearing before the Tribunal. Comcare pointed out that, in his oral evidence, Dr Murphy described the respondent’s adjustment disorder as “long-standing and pervasive and happens in different contexts. So it’s part of someone’s personality. It’s not a temporary condition. It’s not something that waxes and wanes.”

43    Rather than adducing his own expert evidence, the respondent relied (among other things) on his own testimony and certain letters from medical practitioners who had attended upon him since August 2016.

Application of the SRC Act

44    In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 (May), the High Court (French CJ, Kiefel (as her Honour then was), Nettle and Gordon JJ) noted (at [57]) the Full Court’s observation that the inquiry demanded by the definition of “injury” under an earlier iteration of the SRC Act 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”.

45    In terms of the assessment to be made by a tribunal of fact under the SRC Act, the majority stated the following:

49    It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis…accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.

50    First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?

51    If the answer to both those questions is “Yes”, there is a “disease” within para (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.

(emphasis added)

46    The majority then observed (at [57]) that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are insufficient to provide a positive answer to the above questions. The proper construction of the SRC Act recognises that an employee may genuinely complain of being unwell, but, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” or “disease”, s 14 will not be engaged.

47    Of course, a disease may not always manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense. However, a disease still requires a condition which involves a disturbance of the normal functions of the body or mind: Comcare v Mooi (1996) 69 FCR 439 at 445 (per Drummond J).

48    In De Tarle v Comcare (2022) 178 ALD 339; [2022] FCA 175, Abraham J recently concluded (at [69]) that the above principles from May also apply to the definition of “disease” (see also Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143 at [74]-[76] (per Kenny, Tracey and Bromberg JJ)). Her Honour also described the danger of conflating a claimant’s symptoms with a compensable injury (at [71]):

It is apparent from May that care needs to be taken not to conflate the concept of symptoms of a disease with the existence or aggravation of an underlying disease. The existence of symptoms without more is not sufficient to establish the existence of disease in the context of the SRC Act. Contrary to the applicant’s contention, that the tribunal of fact is satisfied of the existence of symptoms in the case of onset of disease, or the existence of increased symptoms in respect of alleged aggravation, does not necessarily demonstrate the existence of disease or its aggravation for the purposes of the SRC Act.

49    In the circumstances of this case, the Tribunal was required to be satisfied that there was evidence of a physiological or psychiatric change to the respondent for there to have been an ailment for the purposes of the SRC Act.

50    Unfortunately, the Tribunal’s decision revealed little of the reasoning in which it engaged to reach the conclusion that the respondent’s symptom onset in August 2016 amounted to the existence of an ailment in August 2016. Its reasons in respect of this issue appear under the heading, “Injury”. Within that heading, the Tribunal engaged in the following process of reasoning:

(a)    First, it recited aspects of the evidence and the parties’ competing submissions at length. Among other things, it observed the following (at [24]):

[Comcare] stated that “there is no dispute that on 10 November 2017 [the respondent] did suffer an injury”. The [respondent] submitted that the injury started in 2016. The [respondent] submits that the ailment was ‘first noticed’ in August 2016 and the [respondent] first sought treatment at about the same time. The [respondent] submits: “I was dealing with depression and anxiety as [a] result of customer aggression and long-standing work in a high-risk area without … adequate support”.

(italics in original; footnotes omitted)

(b)    At [25], the Tribunal referred to the first of the four reports prepared by Dr Murphy. The Tribunal recorded Comcare’s submission that Dr Murphy’s evidence was uncontradicted, and recited parts of the report as follows:

The report includes the following question and answer, respectively: “Is [the respondent’s] employment with the DHS [the] cause of his current diagnosis? If yes, please detail what contribution [the respondent’s] employment has made to his current clinical presentation.” “Yes. [The respondent] outlined an industrial dispute with the employer with [the respondent’s] perception that [the respondent] is a victim of racial vilification.” Dr M’s report stated that there “is no pre-existing condition”, that the condition would not have occurred irrespective of the [respondent’s] employment within the Department of Human Services, and that the [respondent] “has not suffered an exacerbation of a pre-existing condition. This is a new diagnosis”.

(italics in original; footnotes omitted)

(c)    At [26], the Tribunal then set out parts of the report of Associate Professor Taylor dated 9 January 2018. It then observed:

In the report’s summary and assessment it states that prior to 2016 the [respondent] had no significant physical or mental health problems, and that during 2016 “it would appear some work-related stressors accumulated such that in 2017 [the respondent] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence” …

(italics in original)

(d)    After reciting more of the evidence and submissions (at [27]-[30]), the Tribunal concluded its reasons by recording at [31] (which is set out in full above) that Comcare:

accepted that the [respondent] suffers or suffered from an ailment as defined in the Act, being “Adjustment Disorder with Mixed Anxiety and Depressed Mood” on the estimated nominated date of injury of 8 August 2016.

(italics in original; footnotes omitted)

51    A number of issues can be identified with the above reasoning. Despite the suggestion at [31], Comcare did not at any stage accept that the respondent’s adjustment disorder was suffered “on the estimated nominated date of injury of 8 August 2016”. Indeed, the Tribunal identified the parties’ competing positions regarding the date of injury in a preceding paragraph.

52    Putting that aside, the Tribunal did not engage with any of the submissions or evidence it recited. The Tribunal has not explained what evidence it accepted or given weight (and why). The reasons do not evidence an undertaking of the statutory task, as set out in May, of giving consideration to “the precise evidence, on a fact by fact basis … accepted at trial”.

53    The reasons did not identify that any of the above legal principles were applicable in its assessment of whether the respondent had proven he suffered from a disease in August 2016. Nor was the Tribunal’s reasoning consistent with those legal principles.

54    Critically, the Tribunal did not have regard to the fact that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are insufficient to found an injury or disease under the SRC Act. In its recital of the evidence at [24]-[29], the Tribunal made a number of observations of the evidence concerning the respondent’s symptoms:

(a)    “The [respondent] submits that the ailment was ‘first noticed’ in August 2016 and the [respondent] first sought treatment at about the same time.”

(b)    “The report [prepared by Dr Murphy on 28 December 2017] gives the [respondent’s] symptoms an onset date of 8 August 2016 and an assessment date of 15 December 2017, with the date last worked being ‘November 2017’”.

(c)    “There is a report by Associate Professor T dated 9 January 2018. The report states a ‘symptom onset date’ of 8 August 2016, an ‘assessment date’ of 21 December 2017 and a ‘date of work cessation’ of 10 November 2017.

(d)    “In the report’s summary and assessment it states that prior to 2016 the [respondent] had no significant physical or mental health problems, and that during 2016 ‘it would appear some work-related stressors accumulated such that in 2017 [the respondent] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence’”.

55    This suggests that the Tribunal relied almost solely upon evidence as to the respondent’s initial, self-reported symptoms. As a result, it has wrongly conflated the respondent’s experience of symptoms of a disease with the existence of an underlying disease or aggravation of it that resulted in death, incapacity for work, or impairment. The experience of symptoms was insufficient to support a finding that there was a compensable injury in August 2016.

56    Further, having found that the respondent suffered a disease, it was incumbent on the Tribunal to consider whether the ailment (or aggravation thereof) was contributed to, to a significant degree, by his employment.

57    That required the Tribunal to assess whether the standard specified in s 5B(3) was met. That section (as set out earlier in these reasons) provides that “significant degree” means “a degree that is substantially more than material”. Under a previous definition of “disease”, it was held that the inclusion of the term “material” “imposes an evaluative threshold below which a causal connection may be disregarded”: Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262 at [68] (per French (as his Honour then was) and Stone JJ). The current s 5B(3) requires “a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’”: Explanatory Memorandum to the current SRC Act.

58    There is nothing in the Tribunal’s reasons which indicates that it applied this test in determining that the respondent suffered an injury within the meaning of the SRC Act in August 2016. It did not weigh up or engage with the competing evidence before it concerning the various potential contributing factors to the respondent’s condition.

59    It was necessary for the Tribunal to assess the evidence, including the medical opinions, and deal with how the evidence demonstrated that the respondent suffered an injury within the meaning of s 5A of the SRC Act. This evaluation is not evident in the reasons.

60    In my view, the Tribunal did not correctly apply the legal tests required by the SRC Act. That is an error of law.

Comcare’s contention that the injury occurred in November 2017

61    Relatedly, Comcare asserted that the Tribunal failed to deal with the medical and factual evidence which supported its contention that the respondent did not suffer an “injury” until 10 November 2017.

62    It is apparent from the Tribunal’s reasons that it only had regard to the first report prepared by Dr Murphy (that is, the report dated 28 December 2017). It did not have regard to the three successive reports prepared by him, in which he explained his opinion that the respondent suffered an adjustment disorder throughout 2017, that there were several contributing factors to his condition, and that the relevant injury suffered for the purpose of the SRC Act was a “temporary exacerbation of his pre-existing Adjustment Disorder following the disciplinary action on 10 November 2017”.

63    As outlined earlier in these reasons, the Tribunal did not consider the various potential contributors to the respondent’s condition when it concluded that the respondent’s injury was contributed to, to a significant degree, by his employment with the Department.

64    It also is evident, in my view, that the Tribunal’s reasons did not deal with Dr Murphy’s distinction between the symptoms of the respondent’s condition and the point in time at which he said the respondent suffered aggravations of his condition by reason of his employment. It is notable that Dr Murphy, a specialist psychiatrist, was only prepared to conclude that the respondent suffered an adjustment disorder from July 2017. Further, the Tribunal did not grapple with Dr Murphy’s opinion (both in his reports and expressed in cross-examination) that the respondent’s condition was pervasive and “long-standing”.

65    Comcare’s contention that the respondent did not suffer an “injury” until 10 November 2017, and its reliance on Dr Murphy’s various reports, was fully articulated in the written closing submissions it provided to the Tribunal. There is no doubt it was a substantial aspect of Comcare’s case.

66    In my view, the Tribunal’s failure to deal with a substantial and clearly articulated argument involved a denial of procedural fairness that went to the Tribunal’s jurisdiction: Dranchnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] FCA 26 at [24] (per Gummow and Callinan JJ), [88] (per Kirby J) and [95] (per Hayne J). This is an error of law. See also O’Donnell v K & S Freighters Pty Ltd (2015) 66 AAR 370; [2015] FCA 573 (per Perram J).

67    In light of the above, it is not necessary to consider Comcare’s contention that the Tribunal committed an error in the sense contemplated in Rodriguez. Further, many of the arguments advanced by Comcare in relation to that contention were at risk of seeking that this Court review the Tribunal’s factual findings and to substitute its view of the facts for those of the Tribunal, which is impermissible: Comcare v Moon (2003) 75 ALD 160; [2003] FCA 569 at [33] (per Mansfield J).

68    Ground 1 must succeed.

GROUND 2: FINDING THAT INJURY WAS NOT A RESULT OF REASONABLE ADMINISTRATIVE ACTION

69    If, contrary to the conclusion reached above, it could be said that the Tribunal’s finding that the injury occurred as early as August 2016 was not affected by error, the finding which followed also warrants consideration.

70    By its second ground of appeal, Comcare submitted that the Tribunal’s finding that the “symptom onset” in August 2016 was not a result of reasonable administrative action was “simply not supported by any probative evidence”.

71    The relevant finding of the Tribunal was contained in [43] of its reasons, as follows:

There is no evidence that the onset of the symptoms in August 2016 (Dr M and Associate Professor T) or as referred to on 20 September 2017 (Dr B) were as a result of ‘reasonable counselling action (whether formal or informal)’ taken in respect of the [respondent’s] employment with the Department. The acute Mixed Anxiety Depression was not therefore as a result of reasonable administrative action taken in a reasonable manner in respect of the [respondent’s] employment.

72    Comcare submitted that, not only was there no evidence to support this conclusion, but there was ample evidence before the Tribunal which contradicted it.

73    It is unclear from the quote at [71] above whether the Tribunal contemplated that the injury was potentially sustained on an alternative date, namely 20 September 2017. Given the Tribunal’s earlier finding that the injury was sustained as early as August 2016 (discussed above), it seems unlikely that it would have subsequently considered a later date for the injury. However, acknowledging the ambiguity, I will consider both possibilities in relation to Ground 2.

74    In assessing the Tribunal’s finding that the symptom onset in August 2016 was not a result of reasonable administrative action, it cannot be overlooked that Comcare conducted its case on the basis that the respondent’s injury was sustained in November 2017. Given the balance of the medical evidence, it cannot be criticised for this approach. However, the result of this was that its submissions before the Tribunal regarding reasonable administrative action focused on events that occurred between July and November 2017; Comcare did not address the possibility of the injury having occurred earlier.

75    Before coming to its conclusion at [43], the Tribunal briefly considered the events on which Comcare relied in its submissions. In circumstances where it had determined that the injury occurred as early as August 2016, these matters could not reasonably bear upon its conclusion regarding whether such injury was a result of reasonable administrative action. Rather, the Tribunal was required to assess whether there were any relevant events which occurred leading up to the respondent’s symptom onset in August 2016.

76    There was evidence before the Tribunal which concerned the respondent’s employment during 2016. A review of this evidence revealed that the Tribunal’s conclusion at [43] was not supported by any evidence. To the contrary, there was, in fact, probative evidence which tended to weigh against the Tribunal’s conclusion.

77    Comcare pointed to evidence that the respondent had failed to obtain a benefit (a transfer to another location) in connection with his employment (being an action that may qualify as reasonable administrative action under s 5A(2)) in 2016). In particular, it asserted that soon after the respondent was offered a position in the Merrylands office in April 2016, he sought to agitate for a transfer to Brisbane, where he could reside with his family.

78    This is evidenced by an email from the respondent to his Team Leader, Mr Zajac, dated 27 June 2016. In that email, the respondent stated the following:

My children are 4 and 5 years old and I have no family in QLD to support us so it’s crucial for me to be in a daily travel distance to home to support my family. Since my wife also work for the Department on a full time basis, this has made it mentally and financially difficult to live far away when my family need me most.

79    It was not until June 2017 that the respondent obtained a position in Brisbane at the Department’s Woodridge office. This delay may have contributed to the respondent’s condition.

80    Further, Comcare submitted that, “more importantly”, there was evidence that informal counselling was taking place in July and August of 2016.

81    One of the documents before the Tribunal was a summary of a “Feedback Session” held between Mr Zajac and the respondent. The document recorded that the session occurred on 13 July 2016 and related to the respondent’s behaviour in the workplace and the impact of personal stressors upon his work.

82    Another document was a summary of another “Feedback Session” between Mr Zajac and the respondent conducted on 11 August 2016. Although it appears that it may have been initiated by the respondent rather than Mr Zajac, it recorded difficulties that were being experienced by the respondent in relation to his role.

83    There is no indication in the Tribunal’s reasons that it had regard to any of this evidence in determining that the “onset of the symptoms in August 2016” was not a result of reasonable counselling action (formal or informal) and therefore reasonable administrative action. As this evidence might have impacted or borne upon that conclusion, the Tribunal ought to have considered it.

84    In response, the respondent submitted that any events prior to August 2016 (being the start of the claim period) were not relevant to assessing whether the ailment or aggravation suffered by him was a result of reasonable administrative action. However, the nature of the assessment under s 5A(1) requires an assessment of events which occurred prior to the suffering of the alleged disease. The test involves determining whether the ailment or aggravation would not have amounted to a disease if the administrative action was not taken – an employee will suffer a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered: Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43 at [45] (per French CJ, Bell, Gageler, Keane and Nettle JJ).

85    Turning then to the Tribunal’s alternative possible conclusion, that the onset of symptoms on 20 September 2017 was not a result of reasonable administrative action for the following reason: there was similarly no evidence to support that conclusion.

86    There was evidence that there was administrative action occurring in relation to the respondent’s employment near that date. For example, there is evidence which suggested that, on 19 July 2017, the respondent was directed to leave the floor due to raising his voice with a customer. And there is evidence to suggest that, on 1 September 2017, the respondent was counselled by his supervisor, Mr Perera, regarding inappropriate behaviour towards customers and a colleague. There is a close temporal connection between this event and the respondent’s attendance at the clinic of Dr Burke on 23 September 2017 for his condition and Dr Burke’s notes record that the respondent suffered an “[a]nxiety attack a week ago. Manager was screaming at him”.

87    The Tribunal did not grapple with this evidence in reaching its conclusion that the onset of symptoms was not a result of reasonable counselling action.

88    It follows that the Tribunal failed to consider probative evidence concerning the question whether the injury resulted from reasonable administrative action within the meaning of s 5A(1) of the SRC Act.

89    I have not expressed any opinion as to whether or not any of this evidence would lead to a conclusion that the injury was a result of reasonable administrative action taken in a reasonable manner in respect of the respondent’s employment. That is a matter for the Tribunal to decide on remittal. Accordingly, it is not necessary to consider the respondent’s submissions concerning the inferences to be drawn from the evidence.

90    Ground 2 must succeed.

DISPOSITION

91    Given the above conclusions, it is unnecessary to consider the remaining grounds raised in the appeal.

92    For the foregoing reasons, the appeal should be allowed and the Tribunal’s decision of 20 May 2022 should be set aside.

93    Pursuant to ss 44(4) and 44(5) of the AAT Act, the Court has the power to remit the case for rehearing by the Tribunal. As Comcare submitted, the matter should be remitted to the Tribunal, differently constituted, for hearing and determination according to law.

94    I will order that the respondent pay the applicant’s costs, to be taxed if not agreed.

Associate:    

Dated:    1 December 2023