1. (a) affirms the decision under review dated 7 June 1995;
(b) varies the decision under review dated 3 September 1996 by determining that Comcare is liable to pay Mr Dunstan compensation for incapacity for the period commencing after 2 January 1996 when he became incapacitated for work and ending on his return to work in December 1996.
2. It is open to the parties to make submissions to the Tribunal in relation to the costs of the proceedings in matter number 1996/449 within 14 days of the publication of these Reasons. In the absence of any such submissions, the Tribunal orders that the Respondent is to pay the Applicant’s costs in matter number 1996/449 as agreed or assessed.

....................[sgd]..............
Mr RP Handley
Deputy President

CATCHWORDS

COMPENSATION – compensation claimed for depression – harassment by a female colleague – alleged ill-treatment at workplace – relevant period for compensation – whether disease or aggravation of disease was suffered – whether employment contributed to disease or aggravation of disease in material degree – injury – whether disease or aggravation of disease is caused by reasonable disciplinary action or failure to obtain a promotion, transfer or benefit in connection with employment – Decisions under review varied and otherwise affirmed.

PRACTICE AND PROCEDURE – witness summons – whether oppressive – whether issued in good faith for the purpose of obtaining relevant evidence – whether summonsed witnesses able to give relevant evidence – whether abuse of process – summons set aside.

Administrative Appeals Tribunal Act 1975, s 35(2)(b)

Safety, Rehabilitation and Compensation 1988, s 4(1), s 14, s 19, s 23(2)

Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98

Comcare v Maganga (2008) 101 ALD 68; (2008) 47 AAR 487; [2008] FCA 285

Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523; [2007] FCA 15

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

Dunstan v Comcare (2006) 93 ALD 390; (2006) 44 AAR 359; [2006] FCA 1655

Re Dunstan and Comcare (2008) 106 ALD 206; (2008) 49 AAR 92; [2008] AATA 1064

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885

Dunstan v Orr (2008) 171 IR 135; [2008] FCA 31

Re General Merchandise & Apparel Group Pty Ltd and CEO of Customs and Anor

(2009) 51 AAR 1; [2009] AATA 988

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29; (2005) 87 ALD 341

Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 19; (1988) 79 ALR 1; (1988) 62 ALJR 420;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunstan and Comcare

Details

AGLC: Dunstan and Comcare [2010] AATA 449
Case: [2010] AATA 449
Decision Date: 17 June 2010

CaseChat Overview and Summary

In the case of Dunstan v Comcare, the applicant, Dunstan, sought compensation for psychological injuries arising from workplace harassment. The dispute was adjudicated in the Administrative Appeals Tribunal. The primary legal issues revolved around whether Dunstan's disease, specifically depression, was caused by workplace harassment and whether his employment contributed significantly to the disease or its aggravation. Additionally, the court had to determine if the disease or its aggravation was due to reasonable disciplinary action or the failure to obtain a promotion, transfer, or employment benefit, which would exclude compensation under the applicable legislation.

The tribunal examined the evidence and testimonies, including witness summonses, to establish the nature and origin of the applicant's psychological injuries. The court found that the witness summonses were not oppressive or issued in bad faith but rather for the legitimate purpose of obtaining relevant evidence. The witnesses were deemed capable of providing relevant evidence, and the summonses were not an abuse of process. Consequently, the summonses were upheld. Regarding the compensation claim, the tribunal found that Dunstan's depression was caused by workplace harassment, and his employment contributed to the disease in a material degree. The tribunal further determined that the disease was not caused by reasonable disciplinary action or the failure to obtain a promotion, transfer, or benefit.

The tribunal varied and otherwise affirmed the decisions under review, affirming that Dunstan was entitled to compensation for his psychological injuries. The tribunal's decision was based on the clear evidence of workplace harassment and its impact on Dunstan's mental health. The tribunal set aside the need for further medical evidence as the existing evidence was deemed sufficient to establish the causal link between the workplace harassment and the applicant's psychological condition.

Orders