Comcare v Martin

[2016] HCATrans 116

[2016] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S4 of 2016

B e t w e e n -

COMCARE

Applicant

and

PETA MARTIN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 MAY 2016, AT 12.00 PM

Copyright in the High Court of Australia

MR T.M. HOWE, QC:   If it please the Court, I appear with my learned friend, MR A.P. BERGER, for the applicant.  (instructed by Lehmann Snell Lawyers)

MR L.T. GREY:   May it please the Court, I appear for the respondent.  (instructed by Maurice Blackburn Lawyers)

KIEFEL J:   Yes, Mr Howe.

MR HOWE:   Your Honours could perhaps be forgiven for bringing a certain measure of palate fatigue to the application by Comcare because it does raise yet again the bad penny of causation which seems to return to this Court again and again. Having acknowledged that, we submit, however, that the approach of the majority of the Full Court below was attended by real and serious doubt and the issue of causation arises in a particular statutory context which has very significant implications of wide‑ranging nature and, of course, the particular statutory context of section 5A of the Safety, Rehabilitation and Compensation Act 1988 poses a question of causation which has not to this point received consideration by this Court.

I will take your Honours briefly to section 5A in a moment, but by way of introduction it is worth noting that in a very real and profound sense there was actually no dispute between the parties that the respondent’s failure to obtain a promotion did operate on her mind or her psyche or her psycho‑emotional disposition in a way which, in the course of events, led to her sustaining the particular injury.

But the respondent was able to argue successfully before the Full Federal Court that the particular or precise way in which news of the non‑promotion decision impacted upon her psyche had the effect of actually denying any causal role played by the non‑promotion decision so as to render it nearly chronologically precedent to the onset of injury rather than having any causal role ‑ ‑ ‑

KIEFEL J:   Well, even if that is so, from our perspective, if there are said to be implications for – wider implications in this decision for Comcare, does the question come down to whether or not what is involved is the question of fact bound up in causation questions or whether there is really a question of law which depends upon construction, or are you saying it is mixed fact and law with causation?  I am not quite sure.

MR HOWE:   Yes. Ultimately, it is clear from the reasoning of the Full Federal Court below, the majority, that it resolved the matter in favour of the respondent because it held that the Tribunal had erred in its construction of section 5A, and perhaps one finds that expressed in a couple of places that I will immediately take your Honours to. For instance, at application book, page 120, and in particular at paragraph 106, Justice Murphy, with whom Justice Siopis agreed, said:

Having said this, I consider the Tribunal erred in its construction of the exclusion –

and his Honour went on in the following paragraphs to identify seven principles or propositions in support of the finding that the Tribunal had actually succumbed to a constructional error with respect to section 5A. Then one goes as well to application book, page 126, and in particular to paragraph 121, where Justice Murphy again stated:

I consider the Tribunal wrongly construed the expression “suffered as a result of” as permitting it to treat as causative an event which was no more than chronologically precedent to the event which was – on the lay and expert evidence accepted by the Tribunal ‑ ‑ ‑

KIEFEL J:   Is that not just a question of fact in this case then about what – whether the connection is what requires it to be established?

MR HOWE:   Not in our submission.

KIEFEL J:   Why is it wider, Mr Howe?

MR HOWE:   Because the basis upon which the Full Federal Court held that there had been a constructional error was admittedly directed to a factual matter but was answered, according to the Full Court majority, by the proper interpretation as it saw it of section 5A, namely, the particular factual matter which it regarded as being of central significance to the proper construction of section 5A was that the particular respondent here had not sought the promotion because of some yearning for an opportunity for career advancement but solely, or primarily at least, as a means to a particular end, namely, as a means to avoiding the need to be supervised by a particular supervisor by the name of Mr Mellett.

Contrary to the approach taken by the Tribunal and by Justice Griffiths who heard the appeal at first instance in the Federal Court, and contrary to the finding of Justice Flick who was in the minority in the Full Federal Court, the majority said that as a matter of construction section 5A could only apply to exclude an injury in a non‑promotion context if the particular employee, in effect, had such a yearning for career advancement.

Even though here unquestionably, as it were, something in the psyche of the respondent responded to the news of the non‑promotion in a way which caused her harm, the Full Court said the particular factor which mediated the injury was her dread of returning to the supervision of Mr Mellett and that as a matter of statutory construction that took her injury outside the exclusionary provision. We say that is a construction which, in effect, drives a truck through the protective purpose of section 5A. Could I perhaps ‑ ‑ ‑

BELL J: So section 5A, you say, has a more confined meaning than the March v Stramare approach that the majority took?

MR HOWE:   Indeed so.

BELL J:   That is partly because of the use of the indefinite article, is it, in subsection (1) where there is reference to “as a result of ‑ ‑ ‑

MR HOWE:   Instead of.

BELL J:   ‑ ‑ ‑ reasonable administrative action”.

MR HOWE:   Yes. So there are a number of features of section 5A. It appears as annexure to our summary of argument at page 149 of the application book, and as noted by Justice Bell, the first feature is that it refers to an injury suffered as “a result of” rather than as “the result of”. So there does not need to be any predominance with respect to the causal contribution of the administrative action.

Secondly, it is clear – and I am calling the last three lines of subsection (1) the exclusionary provision – it is clear from those three lines that there are two expressly stated qualifiers or limitations upon the provision in terms of its exclusionary effect and they are that the reasonable action has to itself be reasonable and, in addition, it has to be taken in a reasonable manner but there are no other express limitations.

The third obvious feature is that given that it is dealing with possible causal contribution of administrative action that would naturally be conduct or decisions of an administrative character which would not involve the application of physical force to an employee.  So we are really here concerned with exclusionary – an exclusionary purpose referable primarily to the onset or aggravation of psychiatric or psychological injuries, and that is reinforced when one has regard to subsection (2) because it is talking about appraisal of performance and counselling and suspension and discipline and so on.  Those things would rarely cause a physical injury.

The fourth feature is that the sorts of things with which the section the exclusionary provision is primarily concerned would almost never in any inevitable or natural way cause a psychological or psychiatric injury.  Those forms of administrative action if they are taken reasonably, and if they are of themselves reasonable, would only ever cause injury as a result of how the particular administrative action interacts or interplays with the psyche or mind of an employee and, of course, in that regard, the provision looks to the employee as he or she is with their particular psyche or mind, with all of their perhaps uniquely personal issues and expectations and desires and fears and anxieties, and here the respondent had a profound fear of returning to the supervision of Mr Mellett. 

She realised upon being informed of the non‑promotion that that was something that was going to happen and it was that realisation, because of her dread with respect to that consequence, that caused her to decompensate and break down almost immediately within the space of a conversation that on the evidence lasted a couple of minutes.

A couple of other features of section 5A before I leave it, that subparagraphs (e) and (f) demonstrate a legislative intention in favour of breadth of carve out, and the final matter I would note is that when one has regard to subparagraph (f), promotions and transfers are dealt with, as it were, together and somewhat agnostically.

Now, on the evidence here, the respondent did not want a promotion as an opportunity for career advancement.  She, in effect, wanted something more aligned to just a transfer away from the supervision of Mr Mellett, and it cannot be that in those circumstances simply because she had a dread of return somehow that operates to actually displace the non‑promotion of its causal contribution. 

In fact, in our submission, her dread of returning to working under Mr Mellett explained the causal role of the non‑promotion decision.  It did not displace or extinguish that causal role and, in our submission, the Full Court majority seriously erred in favouring the alternative construction.

KIEFEL J:   The facts of this case are somewhat unusual.  I am just trying to understand the suggestion that there are wider implications for Comcare in the error that you say is identified in the Full Court.  How would it operate more widely?

MR HOWE:   Yes.  Well, for instance, because the section is looking at how administrative action might impact upon the psyche or mind of an employee and because, as it were, the legislature contemplates that the employee brings to his or her reaction whatever their psycho‑emotional disposition is, sometimes they will attach particular significance to favourable administrative actions for work‑related reasons, sometimes for quite personal reasons such as reduced travel time, or the proximity of the new position they are seeking to childcare that they have a strong interest in, and so on.  There is a panoply of motivations, desires, wishes and expectations that will nearly always attend an employee’s response to administrative action.

What the Full Court’s reasoning raises is that upon the fine parsing or discrimination of particular subjective factors that impel an employee to suffer his or her particular injury as a consequence of the administrative action, that can have the actual odd effect of extinguishing the administrative action from any causal role and simply rendering it wholly inert, and yet it is not inert because it is the very factor that the employee responds to with all of his or her particular fears or anxieties and that is a matter of very great significance.

Now, in terms of the fact that it is definitely a question of law that is raised rather than a question of fact, for a start, that is the approach which the Full Court majority took. They discerned error on the part of the Tribunal not because of any factual finding but wholly because of some perceived error in the construction of section 5A. Justice Griffiths at first instance and Justice ‑ ‑ ‑

KIEFEL J:   Did the Full Court actually identify the error in construction?  I know that they said that there was.

MR HOWE:   Yes.  Returning to paragraph 106 again, that is application book page 120, I took your Honours to paragraph 106 where Justice Murphy refers to constructional error, and then we have a number of reasons that are recited commencing at paragraph 107.

KIEFEL J:   But they are not all matters of construction, are they?  Did his Honour actually spell out what the misconstruction was?  Is it in 105?

MR HOWE:   Well, it is in various places. Firstly, we say the majority erred in not attending properly to the text and to the purpose of section 5A and it has been accepted by this Court now on a number of occasions that in a statutory context causation is always purposive. At 108, the majority pretty much commenced its analysis of the proper construction by reference to freestanding notions of common sense, again contrary to exhortations by this Court.

Then one sees further reasons, in particular over the page at page 122, in particular down at line 55, we have Justice Murphy attaching significance to the fact that the employee did not have a “yen” and that career advancement was so minor as to be de minimis, and the fifth error commences at paragraph 120 on page 124, and in particular at subparagraph (a) on page 125, lines 13 and following:

Contrary to the Tribunal’s statement, that Ms Martin’s psychological reaction was primarily attributable to her dread in relation to Mr Mellett was plainly relevant, perhaps central, in a proper approach to deciding whether her psychological injury was suffered as a result of the failure to promote her.

Then we have the finding at paragraph 128 that the non‑promotion was somehow relegated to the status of an inert and chronologically precedent event which can be, as it were, subtracted from a proper understanding as to how the respondent’s injury occurred.

BELL J:   And that is linked to the conclusion at 121 that:

the Tribunal wrongly construed the expression “suffered as a result of” ‑ ‑ ‑

MR HOWE:   That is exactly so.  Then we have a return to the working back from common sense at 125, where Justice Murphy again identified what he saw as the “Tribunal’s error of construction and its erroneous approach”, namely not applying “common sense to the facts, as found by it”.  Now, we do not ‑ ‑ ‑

KIEFEL J:   That is an inference derived from its conclusion.  A large part of the Full Court’s approach appears to be by challenging factual findings.

MR HOWE:   Yes, which we have addressed in the draft notice of appeal.  It is an odd thing for the Full Court to have done in circumstances where the respondent herself never put those factual findings in issue.  There was no “no evidence” ground that was agitated before Justice Griffiths at first instance or on appeal, and yet if your Honours go to page 125 of the application book and the last four lines on that page, one of the factors relied upon by Justice Murphy was that there was:

nothing in the decision to indicate that there was evidence before the Tribunal to support a finding –

that the respondent:

saw it as a “direct and reasonable consequence” –

et cetera.  Now, in fact, far from there being no evidence, the respondent actually conducted her case on the basis that she understood that a return to Mr Mellett was in fact not only the direct and foreseeable but a foreseen consequence by her and the suggestion that somehow the Tribunal’s findings are gainsaid by the existence of no evidence is one of the matters that we propose to address on the appeal.

May it please, I note the time.  Hopefully I have persuaded your Honours of the existence of serious error.  If we have done so, then as we understand it, the respondent does not dispute that the provision is one which has significant implications for large numbers of employees, both in the private sector and the public sector, for instance, licensees and so on, and we rely upon all of the other matters expressing public importance that are set out in our summary of argument.  May it please.

KIEFEL J:   Thank you, Mr Howe.  Yes, Mr Grey.  Is that concession about the general importance correct?

MR GREY:   Well, there is a concession to this extent, that the subject matter of the reasonable administrative action exclusion is a matter of wide interest and would affect a number – I think there are 600,000‑odd employees around Australia who are covered by this scheme.  What we do say though is that on the factual context of this case it is unlikely to have a significant impact on other cases where the application of the exclusion applies.

Your Honours, there are many things about this case – and I think Mr Howe agreed with this – where there is no dispute.  There is no dispute, of course, that Ms Martin suffered from an adjustment disorder.  There is a finding made by the Tribunal that she probably had it to some degree before the event that we are concerned with here, that is the telephone call really between her and Ms Raabus.  There is no dispute that if the reasonable administrative action exclusion fails in this case, then Ms Martin will be entitled to compensation.  There was no other basis for excluding her.

Third, in relation to that exclusion, there is no dispute that the decision not to appoint her was administrative action within the scope of the Full Court decision in Commonwealth Bank v Reeve, that is, Ms Martin does not contend that the decision not to appoint her was in itself unreasonable.  She does not say and has never said that she should have been appointed and the fact that she was not appointed was unreasonable.  What she says is whether the manner in which it was carried out was reasonable.

Now, that particular issue is not in active dispute at the moment.  It has been put to one side by the Full Court decision to uphold the decision of Justice Griffiths and remit the matter back to the Tribunal.  So the only question that we are dealing with here is this question of causation. 

The first point that we say one has to start from are the actual factual findings made by the Tribunal about causation, and they are conveniently set out in the notice of contention which is at page 41 of the application book where they are set out as a series of four paragraphs.

Your Honours, what is abundantly clear about the four paragraphs which are set out there – findings of fact – is that the Tribunal found that what caused her to decompensate on this date when she had the telephone call with Ms Raabus was the realisation that the decision meant she would be returning to Mr Mallett’s supervision and her belief that the alleged bullying by Mr Mallett would continue. 

Now, they are, in our submission, the central findings of fact which determined or should have determined how the matter was resolved.  Justice Murphy – sorry, your Honour, before I say that – paragraph 58, which is the paragraph noted at (d) on page 42 of the application book, sets it out very clearly so that the Tribunal member said:

“I agree with the experts –

there being psychiatrists from both sides who gave evidence, who agreed –

that what caused her to ‘decompensate’ was the realisation that the decision meant she would be returning to Mr Mellett’s supervision, and her belief that the alleged bullying would continue -

The applicant says that that was a matter that she put forward.  It is not quite correct to say that.  What the evidence establishes is that at the time she first learned that the decision to promote her was not going to go her way she was disappointed but, as Ms Raabus said, who communicated it to her in her evidence, she took it in her stride. 

Then the matter moved on to what was going to happen then.  She was told that she would move back to being supervised by Mr Mallett and it was at that point that she decompensated and the psychiatrists, when they were asked their opinion about it, said that, well, it was that issue that caused her to decompensate and the question about her desire for the position was so low – so low in contribution as to be immaterial.  Those are the primary factual findings that the Tribunal made.  Now, the question ‑ ‑ ‑

BELL J:   Coming back to the Tribunal’s primary findings, at paragraph 62 on application book 22, we find the Tribunal concluding:

on balance that one of the operative causes of Ms Martin’s adjustment disorder was her failure to obtain the position of cross media reporter.

MR GREY:   Correct.

BELL J:   Now, as I understand it, the notice of contention asserted that factual finding, namely that it was one of the causes for the purposes of 5A(1) was not open.

MR GREY:   That is right, and the reason, we say, and this gets to the nub of the causation issue, we accept, at paragraph 61 and to a lesser extent 62, are at the nub of the issue.  We say that paragraph 61 is properly to be understood as the Tribunal saying that there is a logical connection between the decision not to promote her and her decompensation, that is, one can go through a philosophical exercise of doing a tree of causal links in a chain and one can put at the top the failure to get the promotion.  One can then say the next step was what was going to happen then.  It appears that it may have been likely, if not certain, that she was going to be transferred back to Mr Mellett and then that produced an outcome.

Now, we say, to use an analogy which I hope is helpful, that is a bit like saying, well, if you have got a father, a grandfather and a son and you say, well, the son owes his existence to the existence of his grandfather and his father before you get to him, that therefore one can infer as a matter of causation that the actions of the grandfather caused the son. 

The problem is that what the Tribunal has done, as we submit it, is to draw a logical, as it were, chain – a series of links – conclude that it does not matter then what had happened because everything can be traced back to the failure to get the promotion.  That is inconsistent with the actual findings made by the Tribunal.  That is the problem with it.  On our submission, it is not a finding of fact.  It is a conclusion that uses an erroneous form of reasoning, in fact, the form of reasoning that Justice Deane in March v Stramare described in this way.  He said:

the mere fact that something constitutes an essential condition (in the “but for” sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a “cause” of that occurrence as a matter of either ordinary language or common sense. 

We say that is the problem that the Tribunal’s reasoning disclosed on the question of causation and that is the problem that was identified by Justice Murphy, and if the Tribunal had simply looked at the statutory context, what it would have found, in our respectful submission, is that it was dealing with a very straightforward form of causation, that is, it is the form of causation you might call of the most basic kind.  That is, was injury X suffered as a result of action X? 

We say that the Tribunal answered that question.  It answered it in paragraph 58.  In paragraph 58 it said that what caused her to decompensate was being told – or was learning or realising that she was going to be transferred back to Mr Mellett and, of course, that was not something that she realised until Ms Raabus told her.  That is what the evidence is, contrary to the suggestion that somehow this was an outcome that she always knew was going to happen.

Justice Murphy referred in his reasons to the fact that there was no, as it were, inevitability about that particular decision, even though there was no evidence as to what might have happened.  As a matter of logic it was not inevitable, and it seems probable that there would have had to have been some other decision made to return her back there, or perhaps when she complained some other decision might have been made to send her somewhere else where she would not have to deal with Mr Mellett.

So that when you are looking at the kind of operative question, that is, whether injury X was suffered as a result of action Y, the first thing we say is in this statutory context it makes no difference whether it is as the result of or as a result of, the same considerations apply.  You look at the evidence.  You make a common sense assessment of what the evidence is telling you about that.  That is what the Tribunal did.  Then you, having found causation, then either the exclusion is enlivened or it is not.  So that is the way it should have been done.  That is the way Justice Murphy says it should have been done and, in our submission, that decision was correct. 

BELL J:   What do you say to Justice Griffiths’ reasoning which, as I understand it, Justice Flick agreed with in dissent, that really the construction for which you contend requires subparagraph (f) to have words read into it?  One is looking at a cause, and at paragraph 104 of Justice Griffiths’ reasons he suggests you really need to read in the words “unless that failure led to an indirect and unintended consequence”.

MR GREY:   Well, with respect, your Honour, the argument that Justice Griffiths and I think maybe Justice Flick and also the majority of the court referred to that we raised was one as to whether one could read into the words “having regard to the statutory purpose” which is only to limit not destroy psychological injuries as compensable entities altogether, whether one could read into it a series of words which suggested that things which were secondary or down the line products of causation would be excluded.

Now, Justice Griffiths and the majority – I think all of the judges of the Full Court rejected that as a matter of construction, but the point I am making here is that the question of causation is not answered by resort to a philosophical notion of things being logically connected beyond that which is a common sense connection.  That is the realm of - I think the Court in March v Stramare said the realm of philosophers and scientists but it is not the realm of legal causation.

Now, the question of the statutory context, the respondent has referred to a number of other cases about giving due weight to that and there is absolutely no difference between us and the applicant on that particular issue.  We do not say that questions of causation can be approached outside the statutory context.  All we say is it is not very helpful to look, for example, at the context of Allianz v GSF, which is a motor vehicle case, or I & L Securities, which is another completely different case under the Trade Practices Act, and say those statutory contexts help us decide how to resolve the causation issue in the present statutory context when we are dealing with a phrase as simple as “as a result of”.

KIEFEL J:   But if you cannot disentangle the facts from the fact of the administrative decision made and conveyed is there not the difficulty for you that Justice Griffiths refers to in paragraph 109?

MR GREY:   Well, your Honour, in terms of disentangle, the Tribunal disentangled it, we would submit.  The Tribunal’s decision, or finding of fact in paragraph 58 of its reasons, disentangled the realisation by Ms Martin from the decision made not to promote her, as did the psychiatrist.  They felt they had successfully disentangled the contribution made by those two things themselves. 

I appreciate that if the Tribunal’s primary fact finding had resulted in an outcome where the Tribunal said, well, we cannot separate out this from what happened later, then the situation may have been different, but that is not what the Tribunal did.  It did attempt and did succeed, in our submission, in disentangling one cause from another.

In relation to the question of the statutory context again, my learned friend referred in his submissions to – criticised us I think for suggesting that there was a balancing act, as if to suggest that resulted in bringing the matter into the area of factual issues.  Well, I just point out, if I may, with respect, that in Reeve where the provisions of the 2006 explanatory memorandum were discussed, it is clear that the very intention to strike a balance was one that the legislators themselves were trying to do – strike a balance between the obligations of employers to injured or ill employees and the need to ensure that the costs of the scheme were maintained at a reasonable level.

So to the extent that it is being argued by Comcare that this exclusion should be interpreted in the most expansive way that is favourable to one objective, that is, keeping the costs of the scheme down, at the expense of enabling injured or ill employees, particularly those who are psychiatrically ill as a result of some action taken in the workplace, to obtain compensation.  That is not a reasonable balance, or not striking a balance at all.  That is pushing a whole slider, if you like, to one side of the spectrum and we say that is not what the Act requires.

It requires that when one approaches the balance one makes, firstly, an appropriate balance between the two things and in Reeve, for example, the Full Court found that operational matters were not covered, whereas those dealing with the nature of the employment itself were.  That is one form of the balance, but also a decision then as to whether one thing is the product of another under the rubric of “as a result of” requires, we say, a common sense factual decision as it would in almost any other statutory context involving personal injury.

As far as the questions of whether this decision has caused courts below or the Tribunal below to be misled about the correct law, one example is given – that is a Tribunal case called Ringshaug.  That case, in fact, was one where the Tribunal was referred by the applicant, relying on this case, to put forward a certain proposition which the Tribunal then rejected and it did find in fact in favour of Comcare as it was asked to do. 

It simply made a comment along the way that it thought that the separation that had been done by the Full Court in this case between one cause and another, even though the two may be connected, was an appropriate one, but then it went on to find that the applicant should lose.  So, in fact, it did not really have any impact as a matter of fact on the case.

We would submit that it is likely that whatever the facts – whatever is done with this case, that that will be the ultimate outcome, that is, in some cases it will be a useful model of a factual situation which somebody could rely on by analogy, but in most cases it is going to be distinguished on its own rather unusual facts, as Justice Kiefel said. 

So those are the matters we would submit on the basis of that.  Also one other point, that the causation issue has been remitted back to the Tribunal by the Full Court, so there actually does remain another opportunity for any further matters that are relevant to determining the causation issue to be ventilated on that occasion.  So in short, your Honours, we say that this is not a case or an occasion for special leave.  Special leave should be refused.

KIEFEL J:   Mr Howe, I omitted to ask you, I see that there are different regimes for costs proposed.  If the main basis for this case is that it has wider implications for Comcare the more usual order is that costs orders below not be disturbed.

MR HOWE:   Yes.

KIEFEL J:   Your suggestion does not go quite that far.

MR HOWE:   Your Honour, we have sought and obtained instructions that, if considered relevant, Comcare would of course accede to a condition of any grant of special leave that the costs order in the respondent’s favour in the Full Federal Court not be disturbed and that Comcare not only not seek costs against the respondent with respect to any appeal but would agree to pay the respondent’s reasonable party/party costs. 

Your Honour, could I just deal very briefly with a couple of matters in response?  Firstly, the way in which the respondent ran her case before the Tribunal appears at application book, page 19, and in particular toward the end of paragraph 51:

the worsening of her condition was caused by her realisation that she would be returning to the supervision of Mr Mellett, a prospect she dreaded, and any contribution caused by her disappointment with the loss of an opportunity for career advancement was immaterial.

So the respondent was in effect arguing that section 5A posed a binary choice which, in our submission, as a matter of law was wrong. It was not an either/or approach and that is the way in which that argument was dealt with by the Tribunal. That appears at application book, page 21, in particular paragraphs 59, 60 and 61, those three paragraphs on that page.

Firstly, at 59, one cannot equate “failure to obtain a promotion” with a “failure to obtain career advancement”; secondly, identification of the number of consequences which flowed from the failure to obtain the promotion. In paragraph 61, an identification of what we submit was the correct question posed by section 5A and a correct conclusion that it matters not as a matter of construction:

which of the anticipated consequences . . . was most likely to have troubled Ms Martin -

and the final sentence in that paragraph:

In her mind the former –

that is, the dread:

was a direct and foreseeable consequence of the decision.

That is, the non‑promotion decision.  So clearly this is not simply a case which turns on nuanced factual findings but it really is a case of the Tribunal having descended to identify a particular motivation that actuated the employee’s desire for a promotion and rather than identifying the promotion as having a causal consequence for that reason, namely the injury, the Full Court said the particular subjective motivation operated to extinguish as a matter of law. 

Finally, it was submitted by my learned friend that there are not any consequences in terms of precedent setting of the Full Federal Court’s approach because it is so closely tied to the facts of this particular case, and my learned friend referred your Honours to Ringshaug’s Case [2016] AATA 88. In fact, although ultimately the correct construction of section 5A did not arise, the Deputy President of the Tribunal stated at 46:

The Tribunal can accept Mr Anforth’s proposition –

Mr Anforth being counsel for the employee:

that only the last link in the chain of causation should be assessed under s 5A for reasonable administrative action. That would appear to be a supportable interpretation of the decision in Martin.

Now, with respect, that is the very sort of reasoning which is a consequence of the Full Court majority’s decision which is likely to spell very significant adverse implications for the administration of the SRC Act by Comcare for employees generally.  May it please, having identified or clarified our position in respect of costs, those are our submissions.

KIEFEL J:   Yes.  On the conditions offered by Comcare, namely that the orders for costs made below not be disturbed and that it will pay the respondent’s costs of the appeal, there will be a grant of special leave.  Would the parties please ensure that they obtain a copy of the timetable which will be necessary to be maintained in this matter.  Thank you.

AT 12.45 PM THE MATTER WAS CONCLUDED