Federal Court of Australia

Fernandez v Australian Postal Corporation [2025] FCA 1144

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s appeal against the decision of the Administrative Appeals Tribunal made on 9 May 2024 be allowed.

2.    Application 2020/6518, for review of the decision dated 5 October 2020 relating to the applicant’s claim for compensation in respect of “mental stress”, be remitted to the second respondent, differently constituted, to be determined according to law.

3.    The amended originating application for judicial review filed on 16 August 2024 otherwise be dismissed.

4.    The first respondent pay the applicant’s costs of the appeal.

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

REASONS FOR JUDGMENT

MCDONALD J

Introduction

1    The applicant, Hanson Fernandez, commenced employment with the first respondent (Australia Post) as a postal transport officer and/or dock marshal in April 2018. Mr Fernandez claims that he began to feel ostracised in the workplace a short time after starting work at Australia Post, and perceived that he was being picked on or discriminated against by his supervisors. Mr Fernandez asserts that, in February 2020, he suffered psychological injury which was contributed to, to a significant degree, by his employment. In June 2020, he lodged a claim for compensation with Australia Post in which he described his injury as “mental stress” (mental stress claim). Attached to Mr Fernandez’s claim form dated 8 June 2020 was a single page of typed text that detailed his account of incidents that took place on 21 February 2020, including a meeting with his manager, E.

2    On 21 August 2020, a claims manager at Australia Post determined the mental stress claim. The claims manager declined liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) on the basis that the actions reported by Mr Fernandez as having been taken by his managers amounted to reasonable administrative action taken in a reasonable manner in respect of his employment.

3    On 5 October 2020, a reconsideration officer at Australia Post decided to affirm the decision to decline liability and deny Mr Fernandez’s mental stress claim.

4    On 9 May 2024, the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the claims manager to deny the mental stress claim on the basis that Mr Fernandez’s psychological ailment was not contributed to, to a significant degree, by his employment at Australia Post.

5    By his amended originating application for judicial review, Mr Fernandez seeks review of the Tribunal’s decision in this Court. Although the document filed by Mr Fernandez to commence these proceedings was an originating application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), its terms state that Mr Fernandez also appeals against the Tribunal’s decision pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

6    Even though the amended originating application for judicial review does not explicitly set out questions of law (as is required on an appeal pursuant to s 44(1) of the AAT Act), counsel for Mr Fernandez contends that each of the three grounds upon which he relies amounts in substance to an assertion that the Tribunal made errors of law: cf Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 350 [94], 350-1 [97], 352 [100]. Australia Post did not take particular issue with the form of the application and its failure expressly to identify questions of law, as opposed to the substance of whether the Tribunal’s decision was affected by any error of law and whether Mr Fernandez’s grounds involved an impermissible departure from his case before the Tribunal.

7    For the reasons that follow, Mr Fernandez’s appeal should be allowed. The decision of the Tribunal should be set aside and the matter remitted to the Administrative Review Tribunal to be determined according to law. Given the availability of a statutory appeal on a question of law, Mr Fernandez’s application should be dismissed insofar as it seeks judicial review under the ADJR Act.

Relevant provisions of the SRC Act

8    Division 1 of Part II of the SRC Act deals with compensation for injuries, property loss or damage, and medical expenses. Section 14 is titled “Compensation for injuries” and provides as follows:

(1)    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.

(2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

9    Section 5A of the SRC Act provides the following definition of “injury”:

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

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

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

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

(2)    For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

(a)    a reasonable appraisal of the employee’s performance;

(b)    a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c)    a reasonable suspension action in respect of the employee’s employment;

(d)    a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e)    anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f)    anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

10    Section 4(1) of the SRC Act defines “ailment” as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

11    Section 5B of the SRC Act provides the following definition of “disease”:

(1)    In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)    In this Act:

significant degree means a degree that is substantially more than material.

12    It was not in dispute before the Tribunal that Mr Fernandez suffers from a “disease” as defined in s 5B of the SRC Act, rather than from an “injury”, pursuant to s 5A.

13    Section 7(7) of the SRC Act provides that:

A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

The hearing in the Tribunal and the decision of the Tribunal

14    On 21 October 2020, Mr Fernandez applied to the Tribunal for review of two decisions, only one of which, the decision relating to the mental stress claim, is the subject of the appeal and application for judicial review to this Court.

15    On 26, 27 and 28 March 2024, the Tribunal conducted a hearing. The issues for consideration by the Tribunal were:

(a)    whether Mr Fernandez suffered from an “ailment”;

(b)    if so, whether that ailment was contributed to, to a significant degree, by his employment with Australia Post (SRC Act, s 5B(1) and (2));

(c)    if so, whether the ailment was a result of reasonable administrative action taken in a reasonable manner in respect of his employment (SRC Act, s 5A(1) and (2)); and

(d)    whether the exclusionary provision in s 7(7) of the SRC Act applied because Mr Fernandez had not disclosed any prior mental health condition in his pre-employment medical questionnaire.

16    The Tribunal was satisfied that Mr Fernandez suffered from a psychological condition that was best characterised as an “ailment”: Tribunal’s reasons at [75].

17    In determining the issue of causation, the Tribunal considered the evidence of Mr Fernandez, his manager, J, and his territory manager, R, as well as expert reports of Dr Ng, a consultant psychiatrist whose report was relied on by Mr Fernandez, and Dr Terace, a consultant forensic psychiatrist whose report was relied on by Australia Post. The Tribunal ultimately found that Mr Fernandez’s evidence was not reliable and “seemed to be affected by a desire to defend his position”. The Tribunal found that both J and R were honest, straightforward and credible witnesses. The Tribunal also found that Dr Terace’s evidence should be preferred over that of Dr Ng, by reason of its being more objective (and by reference to the example of the extent of each expert’s consideration of witness statements of Australia Post).

18    At the hearing before the Tribunal, there was discussion between counsel for both parties and the senior member in relation to the conduct of the hearing, particularly with respect to the expert reports of Dr Ng and Dr Terace. In the course of opening submissions, counsel for Australia Post foreshadowed that it may not be possible to complete the evidence and submissions in the three days set aside for the hearing. He said that he thought it would be possible to complete the evidence but that more time might be needed for closing submissions. He then suggested another possible course, which had not been agreed at that point, namely “to deal with the lay evidence only, and ascertain where that falls within the psychiatric opinion in this case”. He referred to “some views expressed by Dr Terace, which were to the effect of which side of the line this case falls on is really a legal and factual analysis”. He referred to certain passages in Dr Terace’s reports, including the following:

14.    This essentially means that there are one of two possible conclusions to reach in this case and they are the following –

14.1    If Mr Fernandez’ allegations are correct, then this initially provoked a former Adjustment Disorder in probably already a psychologically vulnerable individual. …

14.2    The other conclusion is that if the allegations against him by others i.e., the other Statements are correct, then this represents a collateral history fully supporting the view that the problems are not in others, but rather in Mr Fernandez’ maladaptive experience of mental events and interpersonal relationships with others in the workplace, and the latter is commonly seen associated with maladaptive personality-characteristics which are, by nature, inherent and constitutional in nature.

15.    Thus, the issues of causation in this case principally depend upon the weight of evidence determined from an industrial and legal perspective as to whose version of events is preferred.

(Emphasis in original.)

19    After a short break, the parties indicated that they had reached an agreement that the expert witnesses would not be called to give oral evidence at the hearing. Counsel for Mr Fernandez described the parties’ agreement in the following terms:

Yes. The parties have come to agreement to dispense with the expert witnesses giving oral testimony, so we’ve agreed that the reports be accepted into evidence, and that determination of the values, the application of weight in respect of any differences in opinion, be canvassed through submissions.

20    Counsel for Australia Post added:

That’s mostly, with respect, correct. No oral testimony from the experts is agreed. One point I would add is that no Browne v Dunn points will be taken with respect to the experts, I apprehend that’s what my learned colleague intended to convey, and then the parties can make submissions as to the weight to be accorded to each expert report. For the sake of clarity, the applicant does not want to be bound by [Dr] Terace and the respondent, correspondingly, doesn’t want to be bound by Dr Ng.

21    The Tribunal summarised the agreement between the parties in its reasons (at [32]-[37]) as follows:

At the commencement of the hearing, the parties agreed to proceed based on the Applicant and two lay witnesses (J and R) giving evidence in person at the hearing.

This was because Dr Terace had stated in his reports (R3 and R4), that there were two possible conclusions depending on the factual findings of the Tribunal.

If the Applicant’s allegations against Australia Post (including bullying and harassment in the workplace) were correct, then the events in the workplace provoked an adjustment disorder. Dr Terace commented, “If [the Applicant] was mistreated, then the matter is relatively simpler with respect to causation” (R3/pages 32 and 33 of report, underlining in original). In this factual scenario, the Applicant would succeed in application 2020/6518 and the 2020/6518 Reviewable Decision would be set aside and substituted with the decision that liability under s 14 of the SRC Act should be accepted.

However, if the allegations made against him by others (including J and R) were correct, then any mental ailment was not caused by the workplace, but rather had a constitutional causation from maladaptive personality characteristics of the Applicant (R6/page 16 and 17 of report). In this factual scenario, the Applicant would not succeed, and the 2020/6518 Reviewable Decision should be affirmed.

In his report dated 21 February 2022, Dr Terace described the question succinctly (R3, page 32) as being: “whether [the Applicant] is correct as to being mistreated or was his perception simply a consequence of his own inherent maladaptive personality characteristics?”

It was agreed that once I had made these factual findings, I could consider the evidence of Dr Ng and Dr Terace on the papers and on the basis that the rule in Browne v Dunn (1893) 6 R. 67, HL which requires contradictory evidence to be put to a witness before it can be relied upon, would not apply.

22    In the part of its reasons appearing under the heading “Was the Applicant’s mental ailment contributed to, to a significant degree, by his employment with Australia Post?”, the Tribunal said (at [77]):

The answer to this question will depend on my findings about the evidence of the Applicant and the lay witnesses. That is why the parties[] agreed that the hearing would proceed based on that evidence, because my findings would inform whether to prefer the evidence of Dr Ng or Dr Terace concerning workplace contribution.

23    The Tribunal then:

(a)    noted (at [83]) that V, an HR advisor at Australia Post, had made a statement that provided “contemporaneous confirmation of the incidents and meetings referred to by J and R, but [was] primarily relevant to the issue of reasonable administrative action”, and that V did not give evidence at the hearing;

(b)    said (at [84]) that it had “focussed on the evidence of the Applicant, J and R, which is relevant to the issue of whether the Applicant’s ailment was contributed to, to a significant degree, by his employment with Australia Post”;

(c)    summarised the evidence of Mr Fernandez, and recorded (at [112]) the following impression of him as a witness:

The Applicant did not come across as a credible witness at the hearing. He was defensive and often had to be directed to listen to the question carefully and to answer the question being asked of him. I do not think that the Applicant was being deliberately dishonest. Rather, it was his perception of events that was problematic and inaccurate.

(d)    summarised (at [117]-[145]) the evidence of Mr Fernandez’s immediate manager, J, and recorded (at [146]) the following impression of him as a witness:

My impression of J was that he was an honest witness who gave evidence to the best of his recollection. If he could not recall facts or circumstances, he said so. He appeared to me to be objective. He did not embellish his evidence to support a particular narrative. None of the evidence he gave during cross-examination was inconsistent with his statements (transcript/170-181). I note that J denied that K was his girlfriend (transcript/177).

(e)    summarised (at [147]-[161]) the evidence of Mr Fernandez’s territory manager, R, and recorded (at [162]) the following impression of him as a witness:

My impressions concerning R were like my impressions of J. I found him to be an honest and straightforward witness. He answered the questions put to him directly and succinctly (transcript/182-192). I found him to be a credible witness.

(f)    expressed the conclusion (at [163]) that, for the reasons it had given above, the Tribunal preferred the evidence of J and R to the evidence of Mr Fernandez.

24    In respect of the issue of whether Mr Fernandez’s ailment was contributed to, to a significant degree, by his employment with Australia Post, the Tribunal expressed the following conclusion (at [164] of its reasons):

My findings about the Applicant’s evidence, and my preference for Dr Terace’s evidence, supports a conclusion that the problems are not in others, but are rather as the result of maladaptive personality characteristics which are inherent and constitutional in nature, and were therefore not contributed to, to a significant degree, by the Applicant’s employment with Australia Post.

25    At [165], the Tribunal discussed the factors listed in s 5B(2) of the SRC Act, referencing aspects of Dr Terace’s evidence and concluding that consideration of those factors supported the Tribunal’s conclusion.

26    In light of the Tribunal’s finding in respect of causation, it did not go on to deal with the issues of whether Mr Fernandez’s ailment was a result of reasonable administrative action taken in a reasonable manner in respect of his employment, and whether the exclusionary provision in s 7(7) of the SRC Act applied.

27    The way the Tribunal approached this case was unusual in some respects. The Tribunal set out its impression of the respective witnesses – Mr Fernandez, J and R – and then expressed the conclusion that it preferred the evidence of J and R to that of Mr Fernandez. Although critical of Mr Fernandez’s evidence, the Tribunal accepted that he was attempting to be truthful, and did not say that it rejected all of his evidence.

28    The Tribunal did not proceed to make specific findings of fact about any of the events about which the witnesses gave evidence. While it may be accepted that the Tribunal’s expressed preference for the evidence of J and R over that of Mr Fernandez means that it might be inferred or assumed that, where their perceptions of particular events differed, the Tribunal accepted that the facts were more consistent with the way the events were described by J and R, the Tribunal did not actually record any findings in relation to any of the contested factual issues.

29    Perhaps more importantly, there were events about which Mr Fernandez gave evidence, for which neither J nor R was present. Most notably, Mr Fernandez was summoned to attend a meeting with E on 21 February 2020. At that meeting, he claimed that E alleged that, on 14 February 2020, Mr Fernandez had failed to collect parcels in accordance with a direction that he do so. Mr Fernandez relied on the events of 21 February 2020 either as contributing, to a significant degree, to his adjustment disorder or as contributing to an aggravation of the adjustment disorder. It will be necessary to return to his case about the events of 21 February 2020 in more detail. For present purposes, the point is that the Tribunal’s general expression of a conclusion that it preferred the evidence of J and R over that of Mr Fernandez could not be understood as implying that the Tribunal had made any particular findings as to what was said at the meeting on 21 February 2020, or about the allegations to which the meeting related.

30    The approach of the Tribunal appears to have been influenced by the manner in which Dr Terace expressed his opinions in his reports dated 21 February 2022 and 13 February 2023. An important issue was whether Mr Fernandez had maladaptive personality characteristics which were “inherent and constitutional in nature” or whether he developed those personality characteristics as a consequence of events that occurred in the course of his employment. Dr Terace’s report dated 13 February 2023 stated that his opinion on that issue would depend on whether the evidence of Mr Fernandez or the evidence in the statements of the witnesses relied on by Australia Post were accepted or preferred.

The appeal to this Court

31    By his amended originating application for judicial review, Mr Fernandez seeks review of the Tribunal’s decision on four grounds. As already mentioned, Mr Fernandez also relies on the identified grounds of review as grounds for an appeal under s 44(1) of the AAT Act. It will be convenient to refer to them as grounds of appeal. In written submissions filed prior to the hearing, Mr Fernandez indicated that he no longer presses the fourth ground, nor particular (c) of ground 3.

32    The three remaining grounds of appeal can be summarised as follows. First, Mr Fernandez contends that the Tribunal erred in applying the wrong causal test in determining whether his claimed condition was a “disease” pursuant to s 5B(1) of the SRC Act. Secondly, he asserts that the Tribunal denied him procedural fairness by failing to give proper, genuine and realistic consideration to a key part of his case. Thirdly, Mr Fernandez contends that the Tribunal’s acceptance of Dr Terace’s opinion – which is said to have been predicated on an incorrect understanding of the test to determine the question of causation under s 5B(1) of the SRC Act – amounted to an error of law.

33    For reasons to be explained below, I have reached the conclusion that Mr Fernandez’s second ground of appeal should be upheld, and that the appeal should be allowed on that basis.

34    In light of this conclusion, it will not be necessary to determine the first and third grounds. Given that those two grounds relate to the particular way the Tribunal approached the matter, or the terms in which it expressed itself, it is not necessary to decide them in order to provide guidance to the Administrative Review Tribunal when dealing with the matter on remitter.

The objection to competency

35    Australia Post filed a notice of objection to competency. The basis for Australia Post’s submission that the appeal is incompetent is its claim that, in this Court, there has been a radical departure by Mr Fernandez from the way in which he conducted his case before the Tribunal. It contends that Mr Fernandez should not be allowed to raise what are said to be new arguments. In the alternative, Australia Post contends that the appeal should be dismissed in the exercise of the Court’s discretion.

36    I accept that the Tribunal’s approach was affected by its understanding of the agreement of the parties that the expert reports could be admitted without challenge, that the experts need not give oral evidence and that their evidence would be the subject of submissions, only, and the Tribunal’s acceptance of Dr Terace’s report. However, when the whole course of the proceedings before the Tribunal is considered, I do not think Mr Fernandez can fairly be understood to have acceded to the proposition that the Tribunal could or should determine whether Mr Fernandez’s ailment was contributed to, to a significant degree, by his employment with Australia Post, merely by concluding that it preferred the evidence of J and R to that of Mr Fernandez.

37    Insofar as Mr Fernandez contends (in connection with his second ground of appeal) that the Tribunal failed to give proper consideration to a key part of his case, and that it ought to have made findings with respect to the meeting between E and Mr Fernandez on 21 February 2020, that is not inconsistent with the position he adopted in the Tribunal. Mr Fernandez’s evidence and submissions to the Tribunal emphasised the importance of that meeting and addressed findings which it was submitted the Tribunal should make.

38    Counsel for Australia Post, in proposing that the experts not give oral evidence, had suggested that the issue could be framed as being on “which side of the line” the case fell by reference to a dichotomy set up by Dr Terace – that is, “whether Mr Fernandez was correct as to being mistreated or was his perception simply a consequence of his own inherent maladaptive personality characteristics”. However, nothing in the way Mr Fernandez’s case was conducted in the Tribunal amounted to an acceptance by him that the Tribunal could resolve all the issues simply by expressing a preference for the evidence of the witnesses called by Australia Post, without specifically considering the events relied on by Mr Fernandez and whether they contributed, to a significant degree, to his ailment or to an aggravation of it. All that counsel for Mr Fernandez agreed to was to “dispense with the expert witnesses giving oral testimony”, “that determination of the values, the application of weight in respect of any differences in opinion, [could] be canvassed through submissions”, and that neither party would make any submission regarding non-compliance with the rule in Browne v Dunn (1893) 6 R 67.

39    Australia Post relies on the following statement of Hill, Sackville and Hely JJ in Glennan v Commissioner of Taxation (1999) 90 FCR 538; [1999] FCA 297 (at 558 [82]):

As a matter of general administrative law, it has long been accepted that it is no part of the duty of the decision-maker to make out a case for the applicant: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170, per Wilcox J. In a statutory context in which a taxpayer seeking to challenge an assessment is required to specify the grounds of his objection, and bears the burden of proving that it is excessive, as a general rule it cannot be said that the AAT is bound to make findings of fact and rulings on issues not relied upon by the taxpayer in the proceedings before it. It follows that, as a general rule, there is no error of law if the AAT fails to address issues of fact and law not the subject of argument by the taxpayer.

40    For the reasons already explained, I do not consider that it can be said that, before the Tribunal, Mr Fernandez did not rely upon a contention that the events of 21 February 2020 contributed, to a significant degree, to his psychiatric injury. Mr Fernandez is not contending that the Tribunal was bound to make findings or rulings on an issue that was not relied upon before the Tribunal; it was relied upon.

41    I also do not consider that Mr Fernandez’s conduct of the hearing in the Tribunal precludes him from raising what he contends are errors of law that are reflected in the reasons of the Tribunal (in connection with his first and third grounds of appeal). At the time of the hearing, Mr Fernandez could not have anticipated how the Tribunal would express its reasons. The fact that Mr Fernandez did not specifically take issue with certain language used in the report of an expert witness should not, in the circumstances of this case, be treated as a concession that the language used accurately reflected the legal test to be applied by the Tribunal. Although the expert reports were admitted into evidence on the basis that the parties had agreed that the experts would not be required for cross-examination and the reports would be the subject of submissions, it was made clear that neither party accepted that they were “bound” by anything in the expert report relied on by the other party. Moreover, there is a distinction between factual matters not canvassed before the Tribunal and legal issues, and “[t]he Tribunal was bound to proceed according to law regardless of what submissions were made to it”: Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76 at 625 [50]-[51].

Ground 2 – consideration of whether the events of 21 February 2020 contributed, to a significant degree, to Mr Fernandez’s ailment or the aggravation of his ailment

42    The second ground of appeal asserts that the Tribunal denied Mr Fernandez procedural fairness by failing to give proper, genuine and realistic consideration to whether the events of 21 February 2020 caused or aggravated his ailment. He asserts that this was a key part of his case before the Tribunal.

43    In a different statutory context, in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, Kiefel CJ, Keane, Gordon and Steward JJ said (at 598-600 [24]-[26]):

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

… The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnotes omitted.)

44    The authorities to which their Honours referred included Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at 1092 [25], which demonstrates that the failure of a tribunal to address a clearly articulated submission in respect of an important aspect of an applicant’s case may be characterised as amounting to a denial of procedural fairness or a constructive failure of the tribunal to exercise its jurisdiction. See also, eg, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at 604 [44], 604-5 [46]-[47] (WAEE); Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at 209 [34], 210 [37].

Mr Fernandez’s case before the Tribunal with respect to the events of 21 February 2020

45    As recorded in the reasons of the Tribunal at [7], in his original claim for compensation, in answer to the question, “When did the injury happen, or when did you first notice the illness?”, Mr Fernandez identified the date 21 February 2020. In answer to the question, “Did the injury/illness result from one specific incident?”, Mr Fernandez referred to a letter from E and an attachment. The attachment was a single typed page in which Mr Fernandez detailed incidents that occurred on 21 February 2020, including one in which he claimed he was told by E that he had not collected parcels and that she was going to “escalate” the matter. Mr Fernandez said that he had collected the parcels and that he believed a false complaint had been made because he had not said “hello” to K, whom he understood to be the girlfriend of his immediate supervisor, J.

46    In his statement of facts, issues and contentions (SFIC), Mr Fernandez referred to the events of 21 February 2020 at [28] in the following terms:

On 21 February 2020 at another meeting with [E] that he was summoned to attend, it was alleged that he did not collect parcels from Osborne Park business centre on 14 February 2020. After the meeting whilst at Osborne Park, the Applicant queried with [A] if he missed anything, and he was told that the allegation was made against him because he did not say “hello” to [K], [J’s] girlfriend. After being informed of this, on the same day, the Applicant confronted [J] and lost it.

The Applicant was not able to continue working subsequently due to his psychological state, and has since been under treatment from his own psychologist and GP and certified unfit for work from 15 May 2020.

47    In his SFIC, Mr Fernandez articulated a contention that he first sought treatment on 3 December 2019, and that the date of the injury should be deemed to be 3 December 2019, but also that there may have been “aggravations” to his injury on three dates, including “21 February 2020 when [A] told him that he did not omit to pick up any parcels at Osborne Park on 14 February 2020, and that [K] had put in the complaint because he did not say ‘hello’ to her”. This description was opaque, but the discussion with A, one of the Australia Post staff at Osborne Park, related to something that was said to Mr Fernandez in the meeting with E earlier on 21 February 2020.

48    In his witness statement dated 30 July 2021, Mr Fernandez provided evidence about the lead up to, and the events of, 21 February 2020 quite briefly, at [31]-[32]. In a supplementary witness statement dated 25 November 2022, Mr Fernandez addressed the events of 21 February 2020 in greater detail at [61]-[67], as follows:

On 21 Feb 2020, [E] called me to her office. She notified me about parcels that were not collected by me on 14 Feb 2020 from Osborne Park Depot.

I queried what and which parcels that were not collected, what exactly the complaint or issue was. And, why was I informed about this matter 1 week later.

[E] could not provide me with an answer.

I knew it was all bullshit because I was always diligent in going about my work, and told her so.

Later on at about 5 pm on 21 Feb 2020, when I was at Osborne Park Depot for daily routine pickup I had a chat with [A]. I ask if I did miss to pick-up some parcels on that Friday 14 Feb.

[A] confirmed with me that there were no parcels missed to be picked up and that I had collected everything. [A] told me that I did not say “hello” to [K], [J’s] new girlfriend, so [K] made a complaint.

After checking with [A] in regards to parcels that [E] accused me of not picking it up from Osborne Park Depot I returned to Malaga Depot. (Osborne Park area was my last pick up point). As usual, I unloaded my parcels and then moved on to do my scanning of the EMS parcels when [N] (Supervisor) came to me and asked “how are you”. I responded “I am fine apart from the bad situations”. And I told him “I don’t know when are you guys going to speak honestly”. (I said this knowing that no parcel was missed to be picked up by me after Allan had confirmed it)

(Original emphasis removed.)

49    He further said at [83]-[89]:

As explained in paragraph 65 and 66 above, I found out from [A] on 21 February [2020] that [K’s] complaint was fabricated because I did not say hello to her.

[K] was [J’s] girlfriend at the time, and I believed that [K], [J] and [E] started accusations in regards to the parcel not picked up from Osborne Park.

There should not have been any doubt about my work ethic. If there was a parcel to be picked up, [E] and [J] would know that I would pick it up.

They set me up to provoke me, wanting me to speak to them badly in which I believe they are expecting me to respond. Their behaviours are intentional. They were all making inflammatory allegations against me.

This was very disturbing. They were out to get me because I was raising issues with their ethics and how they were running the place. I can see how they were escalating things to cover up their wrong doing.

This really frustrated me. The frustration had been building up for over a year, and I lost it with [E] and [J] that day.

I have had trouble sleeping and suffered from severe sleep disruptions because of the frustration about the workplace that had been building up.

50    In Mr Fernandez’s outline of opening submissions, filed ahead of the hearing, he submitted that “a significant issue to be determined” was whether the events described at [6]-[28] of his SFIC contributed, to a significant degree, to his psychological injury. This included the description of the 21 February 2020 incidents at [28] of the SFIC, although that was by no means the central focus in the written opening submissions.

51    In his oral opening submissions before the Tribunal, counsel for Mr Fernandez summarised the chronology of events relevant to his case. This included a description of the events of 21 February 2020. It was pointed out that 21 February 2020 was Mr Fernandez’s last day of work. The position articulated in opening submissions was that Mr Fernandez’s psychiatric injury first manifested in mid-2019 but that each of the events in the chronology (including what occurred on 21 February 2020) was relevant to “the development of his psychiatric injury”.

52    Mr Fernandez was cross-examined to the effect that he had originally said, in the claim form, that he had noticed his mental stress on 21 February 2020, but that he was now trying to claim that it had begun at an earlier point in time. Mr Fernandez was also cross-examined about his meeting with E on 21 February 2020 and counsel for Australia Post put to him a specific version of events in connection with that meeting. Mr Fernandez agreed with some matters put to him and disputed others. Mr Fernandez was asked further questions about the meeting on 21 February 2020 in re-examination.

53    In his oral closing submissions, counsel for Mr Fernandez commenced by saying:

A big issue in these proceedings is the question of causation, what has resulted in Mr Fernandez suffering from, I think what both parties accept to be, an adjustment disorder. That manifested itself on 21 February 2020, that was the subject of a claim that was submitted in the claim form, although other earlier incidences were referred to in the claim form.

54    Counsel placed more emphasis on the events of 21 February 2020 than had been foreshadowed in the opening submissions, saying:

Now he did say that he did have some mild flare-ups before that, but the full manifestation of that occurred approximate to 21 February 2020. So we say that that is a very very significant event, and that is the main focus of the applicant’s submissions and what we say is the reason for the irretrievable breakdown, the significant contribution of what happened that day resulted in him suffering this recognisable psychiatric injury, psychiatrists have referred to as an adjustment disorder.

55    Counsel returned to the conversation between Mr Fernandez and E on 21 February 2020, making relatively detailed submissions over around two full pages of the Tribunal transcript. He drew attention to what he submitted was a difference between the allegation that was put to Mr Fernandez on 21 February 2020 (that there were parcels Mr Fernandez had not collected) and the description of what had occurred on 14 February 2020 which appeared in an email sent to E by K (which suggested that he had not left any parcels uncollected, and had, rather, complied with a direction to collect parcels that had not previously been collected). Counsel’s submission to the Tribunal on this issue concluded:

So we say – well, really, that is the event that we have to focus at. We say that that event alone without the precursor events would have led to recognisable psychiatric injury. We say that is significantly contributed to by the employment being in the course of employment.

56    Further oral submissions made in closing made it sufficiently clear that it was Mr Fernandez’s primary case that the events of 21 February 2020 should be regarded as the relevant cause of his psychological injury. In response to a question by the Tribunal member as to whether Mr Fernandez accepted that there was a pre-existing “ailment” before 21 February 2020, counsel appeared to accept that that was so, but submitted that the events of that day contributed, to a significant degree, to Mr Fernandez’s psychiatric condition.

57    In response to these submissions, Australia Post did not submit that the focus on 21 February 2020 was beyond the issues before the Tribunal, or that Australia Post was unfairly prejudiced by a change of focus in Mr Fernandez’s case. Counsel for Australia Post addressed the submissions on behalf of Mr Fernandez on their merits, by submitting that, if his position was that those events substantially contributed to his psychiatric injury, then Australia Post’s position was that E’s conduct of the meeting was reasonable administrative action taken in a reasonable manner.

58    Mr Fernandez’s position as to the significance and effect of the events of 21 February 2020 had not been entirely consistent between his claim form, his SFIC, his opening submissions, and his closing submissions. However, it is clear that, at least by the closing submissions before the Tribunal, the events of 21 February 2020 were a central focus of Mr Fernandez’s case, and an express contention on which he relied was that those events had immediately precipitated, and were themselves a sufficient cause of, his psychiatric injury. There was evidence (in the form of the email sent by E to K) that tended to support Mr Fernandez’s position that he had not failed to collect any parcels, and which was capable of shedding light on whether his interpretation of the events of 21 February 2020 was reasonable or understandable, even if mistaken. In making this observation, I am not expressing any view on how these issues should have been, or should be, resolved.

The Tribunal’s reasons in relation to the meeting with E on 21 February 2020

59    The Tribunal’s reasons do not include any findings in relation to the meeting between E and Mr Fernandez on 21 February 2020, or in relation to what happened on 14 February 2020, which was the subject of the allegations which E raised with Mr Fernandez. The main references to those events in the Tribunal’s reasons are as follows.

60    The Tribunal referred to the incident with E on 21 February 2020 in passing at [7] of its reasons when describing his initial claim. At [13], the Tribunal referred to Mr Fernandez’s letter to Australia Post in which he sought review of the decision to deny his claim for compensation, and recorded that he again referred to the 21 February 2020 meeting where he was accused of failing to collect parcels.

61    At [107] of its reasons, in the course of describing the evidence in Mr Fernandez’s supplementary witness statement dated 25 November 2022, the Tribunal fairly summarised his evidence about the conversation with E on 21 February 2020. In its description and discussion of the evidence given at the hearing, the Tribunal did not refer again to the meeting between E and Mr Fernandez on 21 February 2020.

62    The reasoning and conclusions of the Tribunal have been referred to above. Notably, the Tribunal made no findings relating to the meeting between E and Mr Fernandez on 21 February 2020. The Tribunal did not consider whether Mr Fernandez’s description of what occurred at that meeting was accurate, or whether Mr Fernandez’s perception of what occurred in the meeting caused or aggravated his psychiatric injury. Nor did the Tribunal consider or make any findings as to whether the allegation put to Mr Fernandez during his meeting with E on 21 February 2020 accurately reflected what had occurred on 14 February 2020.

Conclusions

63    An issue presented for the determination of the Tribunal on the review was whether the events that occurred on 21 February 2020 contributed, to a significant degree, to Mr Fernandez’s psychiatric injury, either because they were a cause of his ailment or because they aggravated an ailment that already existed at that time. In my view, this was a contention that was sufficiently central to Mr Fernandez’s case that the Tribunal was required to engage with and address it, in accordance with the authorities to which reference has been made at [43]-[44] above. In saying that, I do not mean to suggest that the Tribunal was necessarily required to resolve every minor issue regarding the events of 14 and 21 February 2020, but it was, in my view, obliged to engage with submissions advanced on behalf of Mr Fernandez in relation to the contention that the conversation with E was an aspect of his employment that contributed, to a significant degree, to his injury.

64    Although Dr Terace had expressed his opinion by reference to the broad question of whether the Tribunal preferred the evidence of Australia Post’s witnesses or that of Mr Fernandez, that could not absolve the Tribunal of the obligation to respond to the submissions advanced by Mr Fernandez regarding the events of 21 February 2020 and to apply the relevant provisions of the SRC Act having regard to the facts as the Tribunal found them to be. Put slightly differently, the fact that Dr Terace had chosen to express an opinion in terms that referred to the question of which witnesses the Tribunal preferred could not result in the issues that properly arose for consideration on the review being wholly replaced by the question of which witnesses the Tribunal preferred. It remained for the Tribunal to consider the relevant evidence, make any necessary factual findings (including, of course, by reference to its preference for certain witnesses’ evidence over others’) and apply the law to the facts.

65    The issue that arose for consideration by the Tribunal was similar to that described by Perram J in Dean v Australian Postal Corporation (2010) 52 AAR 54; [2010] FCA 680 at 56 [8]-[9]:

A number of decisions of this Court have examined how the concept of material contribution operates when the condition suffered by an employee springs from an inaccurate or unreliable perception arising in the workplace.

The problem arises where, for example, an employee develops a persecution complex as a result of an argument in the workplace. As the complex takes hold the employee becomes convinced – inaccurately – that co-workers are plotting his or her downfall and some nervous disorder from the mental anguish this perception generates then ensues. The view has generally been taken that such a condition can be an ailment which has been “contributed to in a material degree by the employee’s employment”. Because the scheme of compensation is in essence a no-fault one it has been necessary to discount any assessment of whether the employee’s perceptions are rational or reasonable. On the other hand, it has also been necessary to place some outer limits on the extent to which mental unwellness may generate a compensation claim. The particular problem the authorities exhibit a desire to avoid is the case of a person whose nervous condition predates the incident in question but whose symptomology fixes on to the workplace incident and inaccurately attributes the aggravation of the pre-existing condition to that incident. …

66    Justice Perram’s discussion of this problem does not suggest that it will always be sufficient for the Tribunal to identify and resolve factual issues at the level of which witnesses it prefers, even if an expert witness has described the issue as turning on which version of events the Tribunal accepts. Nor does the quoted passage suggest that it can never be necessary for the Tribunal to make factual findings about particular events on which the employee relies in order to discharge its review function. Justice Perram went on to say (at 57 [10]):

However, no special principle arises from these decisions; each is merely an illustration of a particular – albeit unusual – set of facts. The critical question always remains the one posed by the statutory language, namely, whether the ailment “was contributed to in a material degree by the employee’s employment”. That question is one involving notions of causation which are factual in nature and informed by commonsense.

I note that the statutory expression “material degree” has since been amended to require contribution by the employment to a “significant degree”, and that, in Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43 at 479 [42], the High Court deprecated the use of a “common sense” approach to causation. That does not detract from the point made in this passage, that ordinary principles apply.

67    Both parties’ closing submissions engaged directly with the evidence (including as to the interpretation of what had occurred on 21 February 2020) and with the application of the relevant provisions of the SRC Act to that evidence. Although counsel for Australia Post had, fairly, identified the way he would submit the Tribunal could proceed to assess the evidence by reference to the report of Dr Terace when he proposed that the experts not give oral evidence, it was far from clear that that would result in the Tribunal proceeding to determine the review without making any factual determination of its own as to what occurred in the incidents on which Mr Fernandez relied, particularly at the meeting with E on 21 February 2020. As explained above, counsel for Mr Fernandez cannot be taken to have agreed to the Tribunal adopting that course.

68    The Tribunal (even having accepted Dr Terace’s evidence) was not bound to proceed simply by reaching a binary view as to whether it preferred the evidence of J and R to that of Mr Fernandez and treating that as conclusive of its decision. If the Tribunal had considered Mr Fernandez’s submissions regarding the meeting of 21 February 2020 – for example, that Mr Fernandez was reasonably justified in perceiving that he had been unfairly accused of failing to collect parcels – that could have affected the way it applied Dr Terace’s opinion. Those submissions were seriously advanced on behalf of Mr Fernandez, and there was a realistic possibility that, had the Tribunal engaged with the submissions on this issue, it could have reached a different conclusion.

69    It is sometimes possible to conclude that an issue which the Tribunal might otherwise have had to consider has in fact been addressed through the making of findings of greater generality: see WAEE at 604-5 [47]. In this case, the Tribunal’s general finding that it preferred the evidence of J and R to the evidence of Mr Fernandez could potentially be understood as implicitly resolving certain factual issues in favour of Australia Post and against Mr Fernandez, where J and R gave different evidence from Mr Fernandez in relation to the same incidents.

70    However, the issues as to what occurred on 21 February 2020, and the effect of those events on Mr Fernandez, could not be resolved merely by the Tribunal’s expressing a preference for the evidence of J and R to that of Mr Fernandez, in circumstances where J and R were not present during those events (or the events on 14 February 2020 to which the meeting on 21 February 2020 related) and were thus not in a position to give meaningful evidence about them.

Conclusion

71    For the reasons set out above, Mr Fernandez’s second ground of appeal is upheld.

72    As has been explained, Mr Fernandez applied for judicial review of the Tribunal’s decision as well as appealing it. Given that he had a statutory right to appeal against the decision of the Tribunal on a question of law, which was at least as beneficial to him as an application for judicial review, the application for judicial review was unnecessary, and should be dismissed.

73    The appeal will be allowed. The decision of the Tribunal will be set aside and the application for review in relation to Mr Fernandez’s mental stress claim will be remitted to the Administrative Review Tribunal to be determined according to law. Australia Post should pay Mr Fernandez’s costs of the appeal.

Associate:

Dated:    19 September 2025