Comcare v Martin

Case [2015] FCA 4

FEDERAL COURT OF AUSTRALIA

Comcare v Martin [2015] FCA 4

Citation: Comcare v Martin [2015] FCA 4
Appeal from: Re Peta Martin and Comcare [2014] AATA 553
Parties: COMCARE v PETA MARTIN
File number: NSD 913 of 2014
Judge: GRIFFITHS J
Date of judgment: 8 January 2015
Catchwords: WORKERS’ COMPENSATION – appeal from decision of Administrative Appeals Tribunal (Tribunal) – where Tribunal found Comcare was liable to pay compensation to an employee under s 14 of the Safety, Rehabilitation and Compensation Act (1988) (Cth) (SRC Act) – whether Tribunal erred in law in concluding that “administrative action” was not taken in a reasonable manner in respect of the respondent’s employment for purposes of s 5A of the SRC Act – appeal allowed – notice of contention – whether Tribunal’s decision should be affirmed on the basis that the exclusion in s 5A(2)(f) had no application because the injury resulted not from the decision not to promote the respondent but rather from indirect and unintended consequences of that decision, namely her anxiety at having to resume her previous position working under a supervisor whom she alleged had bullied and harassed her – notice of contention dismissed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Federal Court of Australia Act 1976 (Cth) s 27
Federal Court Rules 2011 (Cth) r 33.29
Safety, Rehabilitation and Compensation Act (1988) (Cth) ss 5A, 14
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555
Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272
Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Florance v Andrew (1985) 58 ALR 377
Greater Wollongong City Council v Cowan (1955) 93 CLR 435
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
IW v The City of Perth (1997) 191 CLR 1
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436
Preston v Carmody (1993) 44 FCR 1
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Whitaker v Comcare (1998) 86 FCR 532
Date of hearing: 23 December 2014
Date of last submissions: 23 December 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 110
Counsel for the Appellant: A Berger
Solicitor for the Appellant: Lehmann Snell Lawyers
Counsel for the Respondent:

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AGLC
Comcare v Martin [2015] FCA 4
Case
[2015] FCA 4
Decision Date

CaseChat Overview and Summary

Comcare v Martin involves a dispute between the Commonwealth entity, Comcare, and the employee, Ms Martin, regarding the liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute originated from a decision made by the Administrative Appeals Tribunal (Tribunal) that Comcare was liable to pay compensation to Ms Martin. The core legal issue for the court was whether the Tribunal erred in law by concluding that "administrative action" was not taken in a reasonable manner in respect of Ms Martin's employment, as per section 5A of the SRC Act. Additionally, the court had to determine whether the exclusion in section 5A(2)(f) applied, considering the injury resulted from indirect and unintended consequences of the decision not to promote Ms Martin.

The court found that the Tribunal erred in its interpretation of section 5A, noting that the exclusion was intended to narrow entitlements to compensation by broadening the relevant exclusion in respect of legitimate management actions. The court held that Ms Martin’s adjustment disorder was inextricably linked to the decision not to appoint her to a position, and thus, it would be artificial to separate out certain indirect or unintended consequences of that decision from the decision itself. The court concluded that the Tribunal's findings did not support the contention that the injury resulted from indirect and unintended consequences rather than the decision itself.

The appeal was allowed, and the Tribunal's decision dated 11 August 2014 was set aside. The matter was remitted to the Tribunal to be heard and determined according to law. Furthermore, the notice of contention was dismissed, and Ms Martin was ordered to pay Comcare’s costs of and incidental to the appeal and the notice of contention.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision dated 11 August 2014 of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

4. The notice of contention be dismissed.

5. The respondent is to pay the appellant’s costs of and incidental to the appeal and the notice of contention.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Comcare acknowledges that the SRC Act is intended to be remedial or beneficial in nature, but submits that the purpose of the s 5A exclusion was “clearly to narrow entitlements to compensation by broadening the relevant exclusion” in respect of legitimate management actions. It submits:On the findings of the Tribunal Ms Martin’s adjustment disorder was inextricably linked to the decision not to appoint her to the position of cross media reporter… Comcare submits it would be artificial in the extreme to attempt to separate out certain indirect or unintended consequences of that decision from the decision itself.Fresh evidence Comcare sought to adduce as fresh evidence in the appeal a copy of the Policy. In an affidavit in support of the application to adduce fresh evidence, Comcare’s solicitor, Mr Peter Lehmann, explained that the Policy was not adduced below because Comcare did not consider it to be relevant to the issues in dispute, having regard to Ms Martin’s amended statement of facts, issues and contentions dated 3 September 2013. Mr Lehmann also deposed that Comcare wished to adduce a copy of the Policy because it considered that it will be necessary for the Court to refer to the terms of the Policy in order to determine some of its grounds of appeal. These grounds relate to Comcare’s dissatisfaction with the Tribunal’s conclusion that Mr Mellett’s involvement in the selection panel was contrary to the ABC’s recruitment policy (see [31] above). Section 44(8) of the AAT Act permits the Court to receive further evidence for the purpose of making findings of fact in the circumstances specified in s 44(7) of the AAT Act, which imposes a constraint upon the Court making any finding of fact which is inconsistent with a finding of fact made by the Tribunal (other than findings made as a result of an error of law). Under s 27 of the Federal Court of Australia Act 1976 (Cth) and r 33.29 of the Federal Court Rules 2011 (Cth), the Court also has a discretion to admit fresh evidence on an appeal. The general rule guiding the exercise of the Court’s discretion was stated by Dixon CJ in Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444:It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial. It may be that the Court’s discretion is actually wider than that reflected in the passage above (see Florance v Andrew (1985) 58 ALR 377 at 381 per Lockhart J). In my view, the fresh evidence should not be admitted primarily because, as will emerge below, I do not consider that the Tribunal ultimately found that the Policy was breached. Accordingly, there is no sufficient basis for adducing a copy of the Policy. Proposed amendments to notice of appeal

Decision

Reasons for decision

Furthermore, and importantly by way of emphasis, the distinction which Ms Martin seeks to draw between direct or unintended consequences of the decision not to promote her, and the decision itself, sits uncomfortably with the Tribunal’s findings of fact which indicate that the Tribunal saw these matters as being inextricably linked. The Tribunal considered that there were concurrent operative causes of Ms Martin’s adjustment disorder. The first related to the alleged bullying and harassment, noting that the Tribunal found at [42] of its reasons for decision that “Ms Martin was probably suffering from an adjustment disorder during the period she acted in the role of cross media reporter”. The second related to her reaction at being told the outcome of the promotion decision and the dread she felt at the prospect of returning to work under Mr Mellett. The two matters were regarded by the Tribunal as linked, as is reflected in the express finding in [61] that, in Ms Martin’s mind, the dread of that prospect “was a direct and foreseeable consequence” of the promotion decision. In those circumstances the Tribunal was correct to proceed and consider whether or not the relevant exclusion applied. Conclusion The appeal should be allowed and the notice of contention dismissed. The Tribunal’s decision dated 11 August 2014 should be set aside. The matter should be remitted to the Tribunal to be heard and determined according to law. Ms Martin should pay Comcare’s costs of and incidental to the appeal and the notice of contention. Orders will be made accordingly.

Ratio Decidendi

Legal Principle Established

As noted above, Ms Martin opposed the proposed amendments, substantially on the basis that they were foreshadowed only three weeks before the hearing. As matters transpired, the scheduled hearing of the appeal was deferred for another week. In any event, however, Ms Martin could point to no substantive prejudice and, Mr Grey, who appeared for Ms Martin, candidly acknowledged that he was in a position to deal with the amendments. In my view, leave should be granted to permit Comcare to rely upon the amended notice of appeal. Consideration of appeal It is convenient to deal with the first two grounds of appeal together because they relate to the question whether the Tribunal committed an appealable error of law for the purposes of s 44 of the AAT Act in relation to that aspect of its decision concerning the question whether or not administrative action was taken in a reasonable manner for the purposes of s 5A(1) of the SRC Act. It should also be noted at this point that these two grounds plainly relate to a question of law which, in my view, is properly raised by the amended notice of appeal as relating to the proper construction of s 5A of the SRC Act. For the reasons which follow, I consider that the Tribunal did fall into appealable error. It is to be noted that, in contrast with the position concerning what constitutes “reasonable administrative action” (which is defined non-exhaustively in s 5A(2) of the SRC Act), there is no comparable provision which attempts to define – exhaustively or non-exhaustively – what amounts to “taken in a reasonable manner” for the purposes of that provision. It is necessary therefore, to construe that phrase having regard to the text considered in its context, consistently with the modern approach to statutory construction (see generally, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] per French CJ, Hayne, Kiefel, Gageler and Keane JJ). In Keen, which is a decision of the Full Court of the Supreme Court of South Australia, the comparable statutory provision requiring construction was s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA), which relevantly provided:30AA disability consisting of an illness or disorder of the mind is compensable if and only if -(a) the employment was a substantial cause of the disability; and(b)the disability did not arise wholly or predominantly from - (i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or(ii)a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker's employment; or(iii)reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment; or(iv)reasonable action taken in a reasonable manner under this Act affecting the worker.