Federal Court of Australia

SRGF v Comcare (No 2) [2025] FCA 752

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The respondent file and serve submissions (not exceeding five pages) together with any evidence on which it wishes to rely, on the question of costs, by 4.00 pm AEST on 23 July 2025.

3.    The applicant file and serve any submissions in response (not exceeding five pages), together with any evidence on which he wishes to rely on the question of costs, by 4.00 pm AEST on 6 August 2025.

4.    Pursuant to s 37AF of the of the Federal Court of Australia Act 1976 (Cth) and on the grounds referred to in s 37AG(1)(a) of that Act, there be no disclosure, by publication or otherwise, of the reasons for judgment until the parties notify the Court they have no objection to publication of the reasons or 4.00 pm AEST on 16 July 2025 (whichever is the earlier).

5.    Order 4 does not prevent disclosures of the Court’s reasons to and between:

(a)    the Court and its staff; and

(b)    the parties and their legal representatives.

6.    In the event that any party objects to the publication of the Court’s reasons, that party is to provide to the Registry (and to the other party), by 4.00 pm AEST on 16 July 2025, a copy of the reasons marked up with such redactions as they consider necessary in order for the reasons to be published consistently with the orders made on 17 June 2025.

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

REASONS FOR JUDGMENT

KENNETT J:

Introduction

1    The applicant was employed in the Australian Public Service (APS) in Canberra from 2013 until his resignation in late 2021. Following his resignation, he lodged two claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in relation to mental health conditions.

(a)    The first claim was submitted on 1 April 2022, identifying the applicant’s injury as “major depressive disorder, major anxiety, chronic fatigue” and stating that he had first noticed symptoms on 20 June 2014. He said when he had entered the APS he had a “small but engaged social life and high aspirations for public service” but by 2014 was suffering “constant fatigue”.

(b)    The second claim was submitted on 11 December 2022, identifying the applicant’s injury as “major depression and anxiety” and advising that he had first noticed symptoms on 13 August 2019. As further elaborated, the claim appears to have been that his symptoms worsened as work pressure increased from 2017 and he suffered a severe breakdown in 2019.

2    These claims were denied by the respondent (Comcare). The applicant applied to the (then) Administrative Appeals Tribunal (the Tribunal) for review of those decisions on 22 November 2022 and 16 February 2023. The Tribunal dealt with those reviews together and published its decision, affirming the decisions under review, on 31 May 2024 (the Tribunal decision).

3    The present proceeding, commenced on 21 June 2024, is an “appeal”, under s 44 of the Administrative Appeals Act 1975 (Cth) (the AAT Act), from the Tribunal decision. Following the repeal of the AAT Act and the replacement of the Tribunal by the Administrative Review Tribunal, the proceeding continues on foot with the Court empowered to do anything that it could do in relation to the Tribunal under the old law: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16 item 25.

4    The hearing before the Tribunal ran for three days and the evidence presented, including by way of documentary tender and expert reports, was extensive and detailed. The Tribunal in its reasons (R), which are published as [2024] AATA 1818, described the case as one where it was necessary to try “to reach a proper understanding of the applicant’s mental health over the last 40 years” (R[8]). Very briefly, the Tribunal was not satisfied that the applicant was suffering from any compensable psychological condition at times relevant to his first claim (R[262]). As to his second claim, the contest was as to whether (as the applicant contended) he had been psychologically well growing up, entered the APS fit and well in 2013 and developed mental illnesses in response to stress, disillusionment and work pressure, or (as Comcare contended) he was a long-term sufferer of a constitutional mood disorder which manifested both before and after he joined the APS and was not caused by work. For the purposes of this appeal it is necessary to consider only some aspects of this overall contest.

5    The Tribunal summarised its findings as follows (R[20]-[22]).

[20] Having examined the applicant’s history very carefully, I am not satisfied that the psychological decline, which manifested during the period of his employment and became very pronounced in 2019, was contributed to by his employment to a significant degree.

[21] It is notable that none of the applicant’s treating doctors identified the applicant’s work as significantly contributing to the symptoms which he was suffering from at the relevant times. Even in 2019, when the applicant was put off work by a sympathetic and well-regarded psychiatrist, no report states that there is a link between the applicant’s work and the condition he was suffering from. Importantly, time away from work has not diminished the applicant’s symptoms. His decline and subsequent improvement do not appear to correlate with periods of absence from his work. Therefore, I am not satisfied on the evidence before me that the applicant’s mental ailment was contributed to, to a significant degree, by his employment.

[22] In those circumstances I have considered whether the applicant benefits from the deeming provisions in section 7 of the SRC Act. For the reasons set out in the paragraphs from 300 to 325 below, I am satisfied that he does not. Consequently, the decisions under review are affirmed.

6    The applicant’s notice of appeal identifies two questions of law and raises two grounds of appeal which correspond to those questions. The first ground is that the Tribunal interpreted s 7(2) and (3) of the SRC Act incorrectly. The second ground is that the Tribunal decision is inconsistent with s 2A of the AAT Act and s 72 of the SRC Act.

7    For reasons mentioned in an earlier judgment (SRGF v Comcare [2025] FCA 637 at [3]), this appeal has been determined on the papers.

Ground 1: section 7 of the SRC Act

8    Section 14(1) of the SRC Act creates the basic right to compensation. It provides as follows.

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9    An “employee”, in this context, is a person employed by the Commonwealth, a Commonwealth authority or a “licenced corporation”: s 5(1).

10    Clearly, the concept of an “injury” is central to s 14. It is defined by s 5A, relevantly, as follows.

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

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

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

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

11    It will be noted that, in the case of an “injury (other than a disease)”, s 5A itself requires a causal connection between the injury and the person’s employment. The necessary connection in relation to a “disease” is specified by s 5B(1), which provides 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.

12    Section 5B(2) provides a list of matters that may be taken into account in deciding whether an ailment or the aggravation of an ailment was “contributed to, in a significant degree,” by the employee’s employment.

13    Section 7 provides rules for determining, for the purposes of s 5B, whether an ailment or the aggravation of an ailment was “contributed to, in a significant degree”. Section 7(1), (2) and (3) deem the necessary contribution to exist in specified situations. Relevantly to the present case, s 7(2) and (3) are as follows.

(2)    Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

(3)    Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.

14    In the present case, the Tribunal came to s 7 after having concluded (R[299]) that it was not satisfied, on the material before it, that the applicant’s employment contributed to a significant degree to the conditions from which he suffered. Nor, however, was the Tribunal affirmatively persuaded that the applicant’s employment had not contributed materially to those conditions. The question that arose in these circumstances was whether the relevant contribution was deemed to exist by operation of s 7(2) or (3). If either of those deeming provisions applied, the applicant would succeed; otherwise, his claim would fail. The Tribunal recorded its conclusion that the provisions did not apply (R[301]) and went on to explain that conclusion.

15    The Tribunal referred to the reasoning in the earlier decision in Honchera and Comcare [2016] AATA 33 (Honchera), in which it had been concluded that the phrase “in the place where the employee is ordinarily employed” in s 7(2) and (3) referred to the geographical area in which the employee had worked rather than the particular workplace. The Tribunal disagreed with that construction. Having referred to some aspects of the background to the enactment of s 7(2) and (3), it concluded (R[318]-[319]) as follows.

[318] Consequently, the comparison that subsections (2) and (3) call for is between employees at the workplaces where the applicant worked who did not perform the same work as the applicant, with workers who performed the same work as the applicant at the same place. If rates of disease are significantly higher in the applicant’s cohort than in the other cohort, the applicant gets the benefit of the deeming provision but not otherwise.

[319] In the present case, the evidence available does not allow that comparison to be undertaken and the deeming provisions cannot assist the applicant.

16    The applicant takes issue with this construction of s 7(2) and (3), and submits that the preferable construction is in substance that adopted in Honchera.

17    However, the Tribunal went on to address the issue on the basis that (contrary to its view) the position taken in Honchera was correct (R[320]-[325]). In this connection it referred to three bodies of material that had been put before it by the applicant:

(a)    material drawn from a Productivity Commission report on the incidence of mental stress claims by Australian Government employees “regardless of the place they work”;

(b)    statistics from Safe Work Australia which reported data on persons engaged in “Public Administration and Safety”, a category that included occupations very different from that of the applicant (such as police and emergency services); and

(c)    census data which allowed comparisons between APS employees and others in the Australian Capital Territory (ACT) (and suburb by suburb), but which, on the Tribunal’s understanding, did not differentiate by reference to type of work.

18    This evidence, the Tribunal concluded, was not sufficient to establish a “significantly greater” incidence of the conditions affecting the applicant among persons engaged in the type of work that he was doing than among other workers in the same geographical area. Accordingly, assuming the construction in Honchera to be correct, the Tribunal found that the material before it did not engage s 7(2) or (3). I will refer to this as the “alternative s 7 reasoning”.

19    The applicant’s submissions on ground 1 do not engage with the alternative s 7 reasoning. No particular error of law is identified in it. Instead, as part of the applicant’s submissions on ground 2, the Tribunal’s treatment of the evidence referred to in that reasoning is put forward as an instance of the Tribunal “disregarding the merits of the case”. For reasons discussed below in connection with ground 2, the applicant has not identified any legal infirmity in the alternative s 7 reasoning. The important point for present purposes is that the Tribunal’s preferred construction of s 7(2) and (3), with which the applicant takes issue in ground 1, was not necessary to its decision: the Tribunal also reasoned to the same conclusion applying the construction for which the applicant contends.

20    For an error of law by the Tribunal to result in an order setting aside the Tribunal’s decision in an appeal under s 44 of the AAT Act, the error must be shown to have been material in the sense that, absent the error, the decision might have been different: Comptroller-General of Customs v Pharm-a-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 at [40] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). If the Tribunal’s preferred construction of s 7(2) and (3) was erroneous, the error was not material in this sense.

21    For these reasons, ground 1 must fail.

22    What I have said above should not be taken as endorsing any particular construction of s 7(2) and (3). The question how the expressions “such employment”, “other employment” and “in the place where the employee is ordinarily employed” should be construed in the context of s 7 (including its historical context) is not free from difficulty. It is preferable that I should not attempt to resolve this question in a case where it does not actually arise (especially one where the Court has not had the advantage of hearing oral argument).

23    One further point should be mentioned briefly. Contrary to a specific submission made by the applicant, I do not accept that any material error lies in the fact that in its reasons the Tribunal addressed s 7(2) and (3) only after coming to a conclusion as to how the issue of causation would be resolved in the absence of those provisions. It is certainly arguable that s 7(2) and (3) are preferably addressed first, in that whether or not they apply determines how the case must be decided if the decision maker is not positively satisfied one way or the other. However, it does not follow that compliance with the Tribunal’s duties requires the issues to be addressed in its reasons in any particular order. It has been observed that, while reasons are usually expressed sequentially, it should not be assumed that a decision maker has decided the issues in isolation from each other: ordinarily decision makers “review the whole of the evidence, and consider all issues of fact, before they write anything”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] (Gleeson CJ). In the present case, if the Tribunal had been satisfied that the applicant’s employment did contribute to a significant degree to his illness, there would have been no need to refer to s 7(2) or (3). There was therefore nothing improper about discussing these provisions only after analysing the evidence bearing upon the applicant’s case.

Ground 2

24    Section 2A of the AAT Act, at times relevant to this appeal, provided as follows.

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Tribunal.

25    Section 72 of the SRC Act provides as follows.

72 Manner in which claims are to be determined

In performing the function referred to in paragraph 69(a), Comcare:

(a)    shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)    is not required to conduct a hearing; and

(c)    is not bound by the rules of evidence.

26    Ground 2 in the notice of appeal is as follows.

Section 2A of the AAT Act and section 72 of the SRC Act:

a.    The Tribunal’s resolution of pervasive ambiguity and its discretionary interpretations are made in the absence of an explicit, principled and systematic approach. This absence denies the clear and consistent justification that would imply that a preferable decision was reached. The absence of any justification for discretionary decisions risks a perception of bias that might undermine the public’s trust in the decision-making of the Tribunal. As such, the decision advances an incorrect interpretation of the relevant legislation.

b.    The Tribunal’s disregard for precedent implies that consistent decisions will not be made despite analogous circumstances. A lack of consistency would threaten the public’s confidence in the Tribunal’s fair, just and equitable decision-making. As such, the decision advances an incorrect interpretation of the relevant legislation.

c.    The Tribunal’s disregard for the substantial merits of the case threatens the public’s confidence in the Tribunal’s fair, just and equitable decision-making. As such, the decision advances an incorrect interpretation of the relevant legislation.

d.    The Tribunal’s disregard for a fair, just and equitable application of consistent, coherent and valid logic threatens the public’s confidence in the Tribunal’s decision-making. As such, the decision advances an incorrect interpretation of the relevant legislation.

The provisions relied upon

27    In Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80], Griffiths J observed that s 2A was “properly regarded as aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations”. This approach to s 2A has been followed by single Judges of this court in several cases (see Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [79] (Wigney J); Dharma v Minister for Home Affairs [2019] FCA 431 at [69] (Griffiths J); Twentyman v Secretary, Department of Social Services [2019] FCA 586 at [36] (Griffiths J); Doan v Minister for Home Affairs [2019] FCA 1172 at [37] and [49] (Griffiths J); Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606 at [199] (Wheelahan J) (reversed on appeal but not on this point: Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143)) and was also referred to with apparent approval in Shord v Commissioner of Taxation [2017] FCAFC 167; 253 FCR 157 at [127] (Siopis and White JJ). It accords with the approach of the High Court to a similarly worded provision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [48]-[50] (Gleeson CJ and McHugh J (Hayne J agreeing at [158])), [76]-[77] (Gaudron and Kirby JJ), [108]-[109] (Gummow J), [176]-[179] (Callinan J). I would not depart from this understanding unless persuaded that it was clearly wrong. In any event, I consider it to be correct. Section 2A therefore did not impose duties or requirements on the Tribunal whose content in a particular case raises an issue of law for the purposes of s 44 or whose breach forms a basis for an order setting aside a decision of the Tribunal under that provision.

28    Section 72 of the SRC Act applies according to its terms to Comcare. To the extent that it provides powers or discretions, these were expressly conferred on the Tribunal by s 43(1) of the AAT Act. Similarly, because the role of the Tribunal was to “do over again” the task of the primary decision maker (eg Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [14] (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ)), it can also be accepted that in the present case the Tribunal was bound by s 72 in so far as it imposes legally enforceable standards.

29    However, the only language in s 72 capable of being seen as a constraint or requirement is the words “shall be guided by equity, good conscience and the substantial merits of the case” in para (a). Although this expression does not appear to have been interpreted in any decisions of this Court, it was described by Wheelahan J in Wuth v Comcare [2022] FCAFC 42; 289 FCR 464 at [124] (Griffiths and Snaden JJ agreeing) as constituting “exhortations” — terminology that echoes the way the Court has described s 2A of the AAT Act and similar provisions. There are at least two reasons why s 72 should be regarded as similar in nature to s 2A.

(a)    First, the reference to “equity, good conscience and the substantial merits of the case” is introduced by the words “guided by” (which do not suggest an enforceable standard) and followed by “without regard to technicalities”. When these aspects are given proper weight, and the context provided by paras (b) and (c) is considered, it becomes apparent that s 72 is facultative and exhortatory rather than restrictive: Comcare is authorised to proceed without technicality (and without being limited by the rules of evidence or the duty to hold an oral hearing) and urged instead to focus on merits.

(b)    “Equity, good conscience and the substantial merits of the case” is an amorphous phrase which could only be given stable content, as an enforceable legal standard, by taking it to mean that any determination of a claim inconsistently with (for example) the “substantial merits” was inconsistent with the SRC Act. That construction — making adherence to the “substantial merits” a condition for the valid exercise of power — would authorise, in substance, review of each Comcare determination on its merits by way of judicial review proceedings in a federal court. Given the distinction between legality and merits that pervades public law in this country, such an outcome is unlikely to have been intended. It would also sit uneasily with the express creation by s 64 of a right to seek review on the merits in the Tribunal.

30    For these reasons, s 72 also does not impose duties whose content gives rise to an issue of law or whose breach, in itself, would provide a ground for setting aside a decision of the Tribunal.

31    It is possible to envisage deficiencies in the analysis of evidence by the Tribunal that would lead to a decision being set aside on the basis of a failure to give adequate reasons for the purposes of s 43(2) of the AAT Act (as to which see Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; 297 FCR 39 at [100]-[101] (Perry, Meagher and Kennett JJ)), or on the ground of irrationality or unreasonableness (concepts which I sought to explain in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 at [26]-[36] (in reasoning that was not the subject of any discussion by the Full Court on appeal: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586)). However, the applicant does not put his argument in any of these ways.

32    For these reasons, ground 2 must also fail. However, I have considered the applicant’s submissions in connection with this ground in an attempt to ascertain whether they disclose any reviewable error by the Tribunal.

The applicant’s arguments

33    The applicant’s written submissions encapsulate his argument in the following way.

The Applicant contends that the Tribunal’s 31 May 2024 decision undermines trust in the Tribunal’s decision-making by failing to:

i.    adopt a fair, just and transparent approach to discretionary decision making such that preferable decisions are consistently made and justified;

ii.    apply a fair, just and equitable application of precedent such that consistent decisions are made in analogous circumstances;

iii.    address the substantial merits of the case such that decisions are based on demonstrable facts; and

iv.    make a fair, just and equitable application of consistent, coherent and valid logic such that decisions are comprehensible and rational.

34    Expanding on the first point, the applicant lists a number of examples of points in its reasoning where the Tribunal found the evidence to be equivocal or did not express a view as to which of two possibilities was the more likely, and a number of issues upon which (he contends) the Tribunal made “discretionary” judgments to minimise the importance of evidence.

(a)    Although the concept of “onus of proof” as used in curial contexts is generally not useful in administrative decision-making, decision makers frequently encounter situations in which the relevant factual material is incomplete or equivocal but a decision must necessarily be made. In such cases it is necessary to identify what administrative action has been sought or is being considered and work out from the statutory context what the decision maker needs to be satisfied about in order to take that action. That analysis will reveal what course must be taken in the event that the decision maker does not feel what was described in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [38] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) as an “‘actual persuasion of [the] occurrence or existence’ of the thing in issue”. The proper approach of a review Tribunal in circumstances of factual uncertainty was usefully discussed in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358 (Woodward J). In the present case the Tribunal’s decision to affirm Comcare’s rejection of the applicant’s claims for compensation, in circumstances where it was not affirmatively satisfied of a causal link between his employment and his illness, was orthodox in the light of s 5B(1) of the SRC Act and in circumstances where s 7(2) and (3) did not apply: Comcare, in whose shoes the Tribunal stood, could not properly approve a claim for compensation unless actually persuaded that the relevant causal link existed. The Tribunal did not err in law, or depart from any norm imposed on it by s 2A or s 72, by making the decision that it made in circumstances where it regarded the evidence as equivocal.

(b)    Deciding what weight should be given to an item of evidence is an exercise of assessment rather than “discretion” and is quintessentially the task of the tribunal of fact. Aside from egregiously wrong conclusions raising apprehensions of bias, or rendering the ultimate decision capricious or irrational (which the applicant does not allege and which, on the basis of my review, are not present here), dissatisfaction with such assessments or how they are explained does not give rise to any reviewable error.

35    As to the second point, the applicant alleges departure by the Tribunal from “precedent” in relation to: ascribing weight to expert opinion in circumstances where (the applicant suggests) facts upon which the opinion was based were not properly proved; the proper test in relation to aggravation of an ailment; and the relevance of any predisposition to a disease.

(a)    The first complaint is developed in detail in relation to the evidence of Dr Ventura, a consulting psychiatrist called by Comcare. The short answer to this complaint is that the principle relied on by the applicant is an aspect of the rules of evidence, which were expressly excluded by s 33(1)(c) of the AAT Act: the Tribunal was entitled to inform itself in the manner it considered appropriate. Departure from the precedents (and statutory provisions for that matter) governing the admissibility of evidence in curial proceedings was neither an error of law nor a departure from any norm imposed on the Tribunal by s 2A or s 72.

(b)    The second alleged departure from “precedent”, if established, would actually amount to a failure to apply the correct construction of the SRC Act as established by decisions of this Court (which would be an error of law in its own right). The Tribunal at [277] referred to a distinction between a person merely experiencing symptoms at work (which does not give rise to any liability) and a person caused by activities at work to suffer symptoms or suffer them more intensely. Australian Postal Corporation v Bessey [2001] FCA 266 at [12] (Gyles J) (Bessey) was given as an example of the former kind of case. The applicant submits that restrictions imposed on his work by his treating psychiatrist must be understood to be evidence that his work was causing or intensifying his symptoms. He also refers to other evidence, acknowledged by the Tribunal, that aspects of his work caused him stress (and that there were temporal correlations between working and the intensity of his symptoms), and to evidence relevant to the issue which he says the Tribunal did not consider. Generally, these are complaints concerning the Tribunal’s assessment of the evidence and do not point to any error of law or (if relevant) any failure to proceed in accordance with s 2A or s 72. (I note in this connection that the Tribunal’s duty under s 43(2B) of the AAT Act to give reasons referring to the evidence or other material on which its findings of fact were based did not require it to engage in rebuttal of evidence that it found unpersuasive: absence of reference in the Tribunal’s reasons therefore does not, without more, found any inference that evidence not specifically referred to was not considered.)

(c)    The potential exception to this last observation is illustrated by a passage at R[283] where the Tribunal said:

[Dr Lean, the applicant’s psychiatrist] diagnosed the applicant as suffering from general anxiety disorder, major depressive disorder and chronic fatigue. Dr Lean also noted that the applicant ‘has struggled with social interactions all his life’. This is significant in two ways. First, it suggests that, to the extent that the applicant is anxious in social settings, that is not a condition caused by work but is constitutional. Second, it suggests that the applicant’s work, requiring as it does repeated social interactions, was likely to produce symptoms without necessarily causing them or aggravating them.

(Emphasis added.)

(d)    The Tribunal expressed itself similarly at R[297]. At first blush, the italicised sentence in the passage quoted above might be thought to indicate a failure to apply the correct test: if the applicant’s work “produced” symptoms, it is hard to see how it could be said not to have “caused” or “aggravated” them. Relatedly, the applicant submits that the Tribunal misunderstood the relevance of a predisposition or vulnerability to disease or injury by proceeding on the basis that no liability would arise if the applicant’s symptoms arose from a predisposition. However, it is necessary to keep in mind that what is defined as a “disease” in s 5B(1) of the SRC Act is an “ailment”, or the aggravation of an “ailment”, not “symptoms”. Symptoms may be temporary. The observation that aspects of the applicant’s work caused him to suffer symptoms is therefore not inconsistent with that work having no causative effect on the existence or severity of the underlying ailment (which, as noted in the passage quoted above, was suggested by Dr Lean’s notes to be “constitutional” — that is to say, an existing or underlying “condition” rather than a vulnerability or predisposition to illness (see also at [297])). While the Tribunal’s expression in these parts of its reasons may be inelegant, therefore, it does not evince any error. As Gyles J observed in Bessey at [6]:

… if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.

36    The applicant summarises his third point as follows.

a.    The decision disregarded evidence provided to the Tribunal on the incidence rates of mental illness associated with industries, sub-industries and salary levels;

b.    The decision’s understanding of the chronological progression of the Applicant’s condition consistently and extensively contradicts the documentary evidence;

c.    The decision fails to properly assess the medical evidence.

37    This summary of how the Tribunal is alleged to have failed to “address the substantial merits of the case” is sufficient to indicate that the submissions advanced on this point do not rise any higher than disagreement with the Tribunal’s treatment of the evidence. They do not raise issues of law.

38    However, it is necessary to say something further about the first aspect of this point, as it has a connection with the alternative s 7 reasoning (discussed above at [17]-[18]). The applicant submits that that reasoning is deficient because he had provided the Tribunal with evidence that:

(a)    within the ACT, the incidence of mental illness was significantly greater for employees in “Public Administration and Safety” than for employees in other industries;

(b)    within the ACT, the incidence of mental illness was significantly greater for employees in “Public Administration” than for employees in other sub-industries within “Public Administration and Safety”; and

(c)    within the ACT, the incidence of mental illness was significantly greater for employees in the public sector (within the “Public Administration” sub-industry) than for employees in the private sector; and

(d)    within the ACT, the incidence of mental illness was significantly greater for “lower level executives” employees in the public sector than for employees in the private sector or at other income levels.

39    These submissions raise a question as to whether the Tribunal, in its alternative reasoning on s 7(2) and (3), correctly understood the import of the material put before it by the applicant. However, in that respect they go no further than an attempt to re-open questions of fact. They do not suggest that the Tribunal’s decision is affected by any legal error. The material referred to in this connection in the applicant’s submissions (which was not cited by the Tribunal in its reasons) consisted of figures (expressed as percentages) showing the incidence of mental illness, apparently generated by him and citing the 2021 Census as the source. While it is arguable that these figures indicated some difference in the incidence of anxiety and depression between employees performing work similar to that of the applicant and other employees in the locality where he worked, the interpretation of this material was a matter for the Tribunal: it was not so compelling that some failure to perform the statutory task must be inferred from the Tribunal’s failure to be persuaded by it.

40    As to the fourth point, the applicant says by way of summary:

Illogicality is evident at three points:

i.    The decision adopts two contradictory findings of fact;

ii.    The decision arrives at diametrically opposed conclusions from analogous circumstances;

iii.    The decision relies on a perceived absence of evidence.

41    Putting to one side aspects of this part of the applicant’s submissions that merely assert erroneous factual findings, the alleged “contradictory finding of fact” are teased out from the Tribunal’s analysis of the evidence of Dr Ventura, who was Comcare’s expert. She was found by the Tribunal to have significantly overstated the extent to which the applicant showed symptoms of mental illness in his early life, but her assessment of the nature of his condition was nevertheless not entirely disregarded. The contradiction is described as follows (as the conclusion of a lengthy review of the evidence) in the applicant’s submissions.

f.    In rejecting Dr Ventura’s opinion with respect to the period around 2014, but accepting her opinion with respect to 2017, the Tribunal adopts two contradictory findings of fact:

i.    On the one hand, Dr Ventura was incorrect: the Applicant’s early social development was normal and healthy [referring to R[48] and [295]]. ‘As a starting point I am satisfied that the applicant commenced in the APS in 2013 in good mental health’ [referring to the R[246]]. ‘I am not satisfied that the applicant was suffering from a psychological ailment in 2013, 2014 or 2015’ [referring to R[259]].

ii.    On the other hand, Dr Ventura was correct: the Applicant’s early social development evidences a constitutional neurodevelopmental condition which materially hindered his social capabilities, inexorably leading to depression and anxiety. It is ‘the deeper personality structure which the applicant exhibits (including ADHD, ASD how his memory functions and his attitude to human relationships), which she sees as responsible for the conditions which developed’ [referring to R[293]]. ‘His underlying condition already predisposed him to experiencing the symptoms’ [referring to R[297]].

42    In order to deal with this submission, it is useful to set out in full what the Tribunal said in the concluding stages of its reasoning concerning the origins of the applicant’s condition (at R[291]-[299]).

[291] There is no doubt that the applicant’s mental health deteriorated leading up to him being put off work by Dr Lean. The question however remains, was the applicant suffering from a constitutional condition that manifested in a work setting, or from an ailment or aggravation significantly contributed to by work?

[292] Dr Mohanadas subsequently formed the view, in light of the materials that she was given, that the applicant’s work did significantly contribute to the development of his psychological ailments. The report is however unsatisfactory in this sense: Dr Mohanadas was advised by the applicant of a lot of factors that have potential to cause a deterioration in a person’s mental health, and concluded that they did. It is not surprising that when a doctor is presented with a person who was healthy in 2013 before starting work, and very unwell in 2022, and is told about a host of problems that the person experienced while at work, concludes that the identified issues were important causes in him getting sick. However, the picture given to Dr Mohanadas does not reflect the picture which the applicant was providing to his health professionals between 2013 and 2020. The matters reported to Dr Mohanadas as significant were not the matters reported on as significant at the time. Given the very focussed nature of the brief provided to Dr Mohanadas following the report she prepared in relation to the applicant’s claim, I am not prepared to put much weight on Dr Mohanadas’ conclusions.

[293] Dr Ventura’s report deserves serious consideration given that she is a psychiatrist and more qualified than Dr Mohanadas. It does, however, also suffer from the significant disadvantage that Dr Ventura did not see the applicant until 2023 and her time with the applicant was relatively brief. Also, she did make factual errors in her report as the applicant has pointed out. I accept that a more refined understanding of his history might have moderated some of the conclusions she reached. However, Dr Ventura, like Dr Lean before her and Dr Salesian, focuses not just on the current manifestation of symptoms and what might have prompted a specific symptom, but on the deeper personality structure which the applicant exhibits (including ADHD, ASD how his memory functions and his attitude to human relationships), which she sees as responsible for the conditions which developed.

[294] It is possible to argue that the applicant was well in 2013 and very sick in 2022 and so it is something that happened in the intervening period which caused the illness. Dr Ventura is clearly not of that view, nor, from the available evidence, was Dr Lean. We can say with certainty that the applicant’s mental health deteriorated very significantly. What is harder to say is why.

[295] Neither Dr Mohanadas’ nor Dr Ventura’s reports provide a solid foundation for reaching firm conclusions on why the applicant’s mental health deteriorated. Dr Mohanadas’ conclusion is very much a directed one based on material that the applicant has assembled to support a particular view of the effect that work was having on him. Dr Ventura’s report on the other hand, significantly over-emphasises issues about the applicant’s mental health prior to him starting work. Given the history that she received from the applicant and given what had been consistently reported to other doctors prior to the Dr Ventura seeing the applicant, it is in some senses understandable that she took that view. However, when that highly negative view of the applicant’s childhood and early adult development is considered against the objective facts, Dr Ventura’s conclusions in that regard are overstated.

[296] In these circumstances I remain in very significant doubt about the causes of the applicant’s psychological conditions.

[297] I am not satisfied that he suffered from a psychological ailment before 2016. For the reasons stated at paragraphs [247] – [261], I consider the better view to be that psychological symptoms, and anxiety symptoms in particular, did not begin to develop until 2016. When those symptoms began to develop in 2016 and continued to worsen through to 2019, I am not persuaded that the deterioration involved an employment contribution to a significant degree. Considering the factors in sub-section 5B(2), I am satisfied that when the applicant commenced at the Department of Finance in the second half of 2017 he was already reporting symptoms consistent with a psychological disorder that was affecting his health. The tasks he was required to perform in the role (including supervision) resulted in him experiencing symptoms while working but the work was not the substantial cause. His underlying condition already predisposed him to experiencing the symptoms.

[298] It is possible that work was significantly contributing, but it is just as possible that work was simply the setting in which the condition was suffered.

[299] In these circumstances, I am not satisfied that the applicant’s employment contributed to a significant degree to the conditions from which he suffers and in respect of which claims have been made. Equally, I cannot definitively rule it out. In such circumstances, subsections 7(2) and 7(3) of the SRC Act have work to do.

43    I do not read this passage (alone or in combination with the other paragraphs referred to by the applicant) as holding simultaneously that Dr Ventura was incorrect and correct about the Applicant’s early life. In particular, contrary to the submission quoted above, I do not read the reference at R[293] to the “deeper personality structure which the applicant exhibits” (emphasis added) as an acceptance of Dr Ventura’s observations about the applicant’s early life. Her evidence is described at R[295] as not providing a “solid foundation” for reaching a firm conclusion as to when the applicant’s mental health deteriorated and as significantly over-emphasising issues about the applicant’s mental health prior to him starting work. The passage as a whole sets out a nuanced understanding of the medical evidence (including that of Dr Ventura), pointing to deficiencies in all of the sources and arriving at the position that no firm conclusion as to causation can be stated. The problem that this caused for the applicant was not that Dr Ventura’s conclusion was accepted — in significant respects it was not — but that Dr Mohanadas, upon whose evidence the applicant relied, was also not accepted. This left the Tribunal unable to form the state of satisfaction necessary to set aside or vary Comcare’s determinations.

44    The alleged divergent findings from analogous circumstances are as follows.

i.    In both 2014 and 2017, the Applicant’s anxiety levels rose due to adjustments to medications [referring to R[114] and [266]].

ii.    In both 2014 and 2017, the Applicant receives references that paint ‘a picture of the applicant as a person functioning socially at a high level’ [referring to R[73] in relation to 2014, but directly to the evidence in relation to 2017]. Significantly, in November 2017, the Applicant was offered a promotion without an application being made due to his high performance [referring to part of the evidence].

iii.    Following both 2014 and 2017, the Applicant described himself as a person functioning socially at a high level in job applications [referring to R[74] (2014) and to a document in evidence (2017)].

iv.    In both 2014 and early 2017, the Applicant’s resting heart rate was unchanged between business hours on weekdays and the same hours on weekends (indicating no change in the symptoms of anxiety on weekdays during business hours) [referring to R[254] and to a chart in the applicant’s submissions].

v.    The Tribunal’s findings, which are directly based on the above facts, however, are diametrically opposed.

a.    ‘I am not satisfied that the applicant was suffering from a psychological ailment in 2013, 2014 or 2015’ [referring to R[259]].

b.    ‘I am satisfied that the applicant passed the threshold for a psychological ailment no later than June 2017’ [referring to R[267]].

vi.    The Applicant contends that the Tribunal’s decision erroneously makes two divergent findings from identical factual bases; the decision must be considered in error.

45    One obvious problem with this submission is that it relies for part of its foundation on facts that were not found by the Tribunal. (As to the proposition concerning resting heart rates, the Tribunal at R[254] expressed some scepticism as to what could be made of the figures but clearly did not rule out some change occurring around the middle of 2017.) The Tribunal’s conclusions as to 2014 (relevant to the applicant’s first claim) and 2017 (relevant to his second claim) can thus be shown to be contradictory only if this Court makes findings, consistent with the applicant’s assertions, about some of the relevant primary facts. A second problem is that the conclusions that are criticised, quoted out of context in the submission set out above, were based on the whole of the evidence relevant to each period. It is not legitimate to label them as inconsistent by cherry-picking specific aspects of the applicant’s circumstances that showed no change. This submission is rejected.

46    The final complaint in this connection is encapsulated in a proposition that the Tribunal committed the logical fallacy of treating an absence of evidence as evidence of absence. The Tribunal is said to have relied on an “absence of medical records indicating employment as a causative factor for the Applicant’s psychological condition in 2017 and thereafter”.

47    Upon examination, there is nothing in this point. The applicant’s submissions refer at length to evidence which is said to contradict the Tribunal’s findings, which is clearly a simple attempt to re-agitate the merits. The paragraphs of the Tribunal’s reasons that are referred to in order to demonstrate illogical reasoning are as follows.

(a)    At R[249] and [251], the Tribunal said (in relation to 2014):

[249] The applicant’s GP at the time referred the applicant to a neurologist, not a psychiatrist or psychologist. The neurologist made a diagnosis, and it was not a diagnosis of an anxiety disorder or a depressive illness or a panic disorder. The neurologist diagnosed migraine induced vertigo. There is no suggestion at the time from the applicant or his specialist that the condition was related to work or would be relieved by changing his work or his work habits. There is very little evidence of the crippling anxiety which was to become such a prominent symptom for the applicant later on.

…

[251] What little objective evidence there is available from this period is not supportive of a conclusion that the applicant was suffering from a misdiagnosed panic or anxiety disorder. Indeed, there are indications that the applicant is functioning well psychologically. For example, he contacts a former supervisor for a catch-up, he is well reported on by his supervisors in terms of his capacity to develop useful networks within the Department and his functioning remains at a high level.

(b)    At R[272] and [274] the Tribunal said (in relation to 2017 and thereafter):

[272] However, at no point does Dr Andrews report that the applicant’s psychological condition is being caused by, aggravated by or significantly contributed to by his work. He does not suggest that the applicant take time off work in order to address a psychological condition.

…

[274] The evidence on this question is equivocal and it remains difficult to be satisfied one way or the other. The applicant was noticing that his symptoms were worse when he was at work and worse when supervision was required. There is evidence that biologically, the applicant’s symptoms were heightened during the working week. However, there was still no advice from any doctor who saw the applicant at the time which suggested a contributory relationship from work to his psychological functioning.

48    These passages clearly do not confine themselves to noting an absence of medical records supporting the applicant’s claim, let alone treat such an absence as conclusive. The Tribunal needed to be affirmatively satisfied that the applicant was suffering a psychological ailment at the relevant times and that it was caused by his work, and gaps or limitations in the material relied upon to support that conclusion were obviously significant. A lack of contemporaneous medical records of such an ailment, especially during periods when the applicant was receiving some medical treatment (and records would therefore be expected), was at the very least a gap in the applicant’s case and was clearly relevant to the fact-finding exercise.

49    For these reasons, even if s 2A and s 72 imposed enforceable requirements on the Tribunal in respect of its decision-making, I would not be satisfied that such requirements were infringed. Nor do I consider that the submissions expose any flaw in the Tribunal’s reasoning that might be held to constitute reviewable error if framed in some other way.

Disposition

50    For these reasons, the appeal must be dismissed. My orders will provide for the parties to make written submissions on the costs of the appeal.

Associate:

Dated:    9 July 2025