Dunstan v Comcare

Case [2011] FCAFC 108

FEDERAL COURT OF AUSTRALIA

Dunstan v Comcare [2011] FCAFC 108

Citation: Dunstan v Comcare [2011] FCAFC 108
Appeal from: Colin Dunstan and Comcare [2010] AATA 449
Parties: COLIN GEORGE DUNSTAN v COMCARE
File number: ACD 28 of 2010
Judges: GRAY, COWDROY, REEVES JJ
Date of judgment: 24 August 2011
Catchwords: WORKERS’ COMPENSATION – depressive illness – arising from sexual relationship with co-employee – whether contributed to in a material degree by employment – Administrative Appeals Tribunal found that employment merely part of the setting – whether Tribunal applied correct test – whether Tribunal erred in law in finding that illness during one period was the result of the applicant’s failure to obtain a transfer – whether Tribunal should have considered claim in respect of periods after applicant’s return to work in December 1996
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 20B, 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 19, 23(2), 54
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Colin Dunstan and Comcare [2010] AATA 449
Colin George Dunstan and Comcare Compensation [1996] AATA 213
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Commissioner of Taxation v Service (1999) 42 ATR 725
Dunstan and Comcare (2008) 106 ALD 206
Dunstan v Comcare  (2006) 93 ALD 390
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Industry Research and Development Board v IMT Ltd [2001] FCA 85
Kowalski v The Military Rehabilitation and Compensation Commission (2011) 191 FCR 345
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
White v Repatriation Commission (1995) 39 ALD 42
Wiegand v Comcare Australia (2002) 72 ALD 795
Date of hearing: 10 May 2011
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 75
Counsel for the Applicant: Mr T Crispin
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 28 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

COLIN GEORGE DUNSTAN
Applicant
AND:

COMCARE
Respondent

JUDGES:

GRAY, COWDROY, REEVES JJ

DATE OF ORDER:

24 AUGUST 2011

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The decision of the Administrative Appeals Tribunal, made on 17 June 2010, be set aside, to the extent that the Administrative Appeals Tribunal:

(a)affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and

(b)affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act

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AGLC
Dunstan v Comcare [2011] FCAFC 108
Case
[2011] FCAFC 108
Decision Date

CaseChat Overview and Summary

In this case, the applicant, a former employee of the Commonwealth, appealed a decision of the Administrative Appeals Tribunal which had rejected his claim for workers’ compensation. The applicant alleged that his depressive illness was materially contributed to by his employment and the relationship with a co-employee. The Federal Court of Australia was tasked with reviewing the Tribunal's decision and determining if it erred in its application of the law. The key legal issues before the court were whether the Tribunal had correctly assessed if the applicant’s employment contributed materially to his depressive illness and whether the Tribunal failed to consider the applicant's claim for periods after he returned to work in December 1996.

The court found that the Tribunal did not apply the correct legal test in assessing whether the applicant’s employment contributed materially to his condition. The Tribunal had merely considered the employment as the setting for the relationship and not as a contributing factor to the illness. Furthermore, the court determined that the Tribunal failed to address the applicant’s claim for periods after his return to work in December 1996, which constituted an error in law. The court concluded that the appeal should be allowed in part, and the decision of the Tribunal was set aside to the extent it had not considered the applicant's claim for ongoing incapacity. The case was remitted to the Tribunal, differently constituted, to be heard and decided again.

In its final orders, the court allowed the appeal in part, set aside the Tribunal’s decision, and remitted the applicant’s claims to the Tribunal for rehearing. The respondent was ordered to pay the applicant's costs of the appeal. The court emphasised the need for the Tribunal to correctly apply the statutory test for determining material contribution by employment to an ailment, and highlighted the importance of considering all relevant periods of claimed incapacity.

Orders

Orders of the court

1. The appeal be allowed in part.

2. The decision of the Administrative Appeals Tribunal, made on 17 June 2010, be set aside, to the extent that the Administrative Appeals Tribunal:

(a) affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and

(b) affirmed the decision of Comcare to reject the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 30 January 1996, in respect of the period 1 November 1998 to 2 December 1999 and the period since 3 January 2008.

3. The case be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and decided again, in respect of:

(a) the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and

(b) the Applicant's claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 30 January 1996 in respect of the period 1 November 1998 to 2 December 1999 and the period since 3 January 2008.

4. Otherwise, the appeal be dismissed.

5. The 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.

Background

Background to the litigation

The third issue on this appeal raises the question whether the Tribunal erred by failing to make any determination concerning the liability of Comcare for the period from 1 November 1998 to 2 December 1999 (being the date before the commencement of the applicant’s imprisonment) and from 3 January 2008 (being the day of the applicant’s release from imprisonment) and ongoing.FACTS The applicant joined the Commonwealth Public Service in 1975. From 1987, he was employed in the ATO as a Computer Systems Officer. He met a female employee, designated as Ms X, in August 1982 whilst working in the Department of Housing and Construction (“the DHC”). They worked together from time to time until March 1986 when Ms X transferred to the Department of Administrative Services. Despite the transfer, the applicant claimed that Ms X tried to maintain an ongoing relationship by telephoning the applicant and visiting him. By March 1989, a sexual relationship had developed between them. In March 1990, Ms X transferred to the ATO where she was assigned to work in the Database Administration subsection (“the DBA subsection”). The applicant was a supervisor in the DBA subsection, and he and Ms X worked closely together. The applicant claimed that, as a result of difficulties in their ongoing personal and sexual relationship, he became depressed and at times suicidal. He first sought medical advice in June 1991 for his depressive condition and commenced taking medication prescribed by his general practitioner. The applicant was referred to a psychiatrist, Dr Robert Tym, who commenced treating the applicant in July 1991. It was in this context that the first claim was made. The applicant claimed that his employment contributed in a material way to his depression and incapacity in the period 11 to 16 July 1991 and materially contributed to the aggravation of his condition in the period 3 to 10 April 1992. The second claim is also based in part on the contribution of the applicant’s employment during 1990 and 1991 to his subsequent condition. RELEVANT STATUTORY PROVISIONS Section 19 of the SRC Act entitles an “employee” (as defined in s 5 of such Act) to claim compensation in respect of injury where that injury results in, inter alia, incapacity for work. There is no dispute that the applicant was an employee of the Commonwealth within the definition s 5 of the SRC Act or that he is entitled to make a claim for compensation under the SRC Act. At the times relevant to this appeal, the definitions of the terms “injury” and “disease” in s 4(1) of the SRC Act were in a form different from the present definitions. Section 4(1) of the SRC Act relevantly provided: aggravation includes acceleration or recurrence.ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). …disease means:(a) any ailment suffered by an employee; of(b) the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.…injury means: (a)a disease suffered by an employee; or (b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By failing to deal with that matter, the Tribunal erred in law. To the extent to which it relates to any period or periods of claimed incapacity after December 1996, the second claim should be remitted to the Tribunal to be heard and decided again. To the extent to which any such periods of incapacity are said to be due to an aggravation of the applicant’s condition by reason of events subsequent to December 1996, it is open to the applicant to make a further claim to Comcare.CONCLUSION For the reasons set out above, the appeal should be allowed in part. The decision of the Tribunal should be set aside in part. The first claim of the applicant should be remitted to the Tribunal differently constituted to be heard and decided again. So much of the applicant’s second claim as relates to alleged ongoing incapacity after December 1996 should also be remitted to the Tribunal differently constituted to be heard and decided again. As the applicant has been substantially successful in the appeal, the respondent should be ordered to pay his costs of the appeal. I agree with the other members of the Court on the substantive disposition of this appeal. However, I must respectfully disagree with them on an aspect of the orders they propose. I refer to that part of Order 3 that requires the Tribunal that is rehearing the applicant’s applications to be “differently constituted”. The President of the Administrative Appeals Tribunal is a judge of this Court and, in my view, judicial comity dictates that this Court should be slow to interfere with a fellow judicial officer’s discretion exercisable in another judicial role. This respect for judicial comity is consistent with observations made by two judges of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [4] per Gleeson CJ and [107] per Kirby J. Furthermore, from my reading of the decision, this was the approach adopted by the Full Court in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42–3 as follows:If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member’s views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, “... subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted”.

Ratio Decidendi

Legal Principle Established

Comcare submitted that the Tribunal was correct in concluding that the applicant’s employment did not contribute materially to the onset of his major depression. It submitted that the conclusion was justified by the Tribunal’s finding that the clinical onset of the applicant’s depression in 1991 was “associated” with his relationship with Ms X. It submitted that, in view of the Tribunal’s findings of fact summarised in [21] above, the Tribunal was entitled to find that the relationship took place outside of the employment of the applicant, and that the ATO was only the setting in which it took place: see Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240 per Davies J. In consequence, the Tribunal was correct to find that the applicant’s employment did not contribute materially to his depression but instead, his depression resulted from his relationship with Ms X.Consideration At [35] of his reasons for judgment Mansfield J concluded that the Tribunal had failed to regard the state of affairs to which the applicant claimed to have been exposed in his employment as capable in law of contributing materially to his condition. The question is whether the Tribunal has now remedied that omission. The applicant claimed, and the Tribunal appears to have accepted, that Ms X became more angry and jealous over time, resulting in the applicant’s need to consult his general practitioner who referred him to Dr Tym. As the Full Court said in Treloar, “material” emphasises the need for evidence that “features of the employment did in fact and in truth contribute to the condition complained of” (at 323). Treloar involved a claim brought under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which was repealed and replaced by the SRC Act in December 1988. It was easier for an applicant under the former Act than for an applicant under the SRC Act to obtain an award of compensation: see Kowalski v The Military Rehabilitation and Compensation Commission (2011) 191 FCR 345 at [47]. In Comcare v Sahu-Khan (2007) 156 FCR 536 at [16], Finn J observed that the definition of “disease” in s 4 of the SRC Act required a much stronger causal relationship between the employment and the ailment than that prescribed by the 1971 Act. His Honour said that the words “in a material degree” required “an evaluation of all relevant contributing factors”, making each case a matter of fact and degree. Similarly, it should be observed that the legislation considered in Federal Broom did not contain any requirement of a “material” contribution. Rather, an injured employee was entitled to compensation where it could be shown that the employment was a “contributing factor to” the disease. The terminology was similar to the provisions of the 1971 Act considered in Treloar. The suggestion of the Full Court in Treloar at 323 that the word “material” in the definition of “disease” in the SRC Act was not intended to add any significance to the words already used appears difficult to reconcile with the Second Reading Speech to the Bill which became the SRC Act. The relevant text of the speech is reproduced in Comcare v Canute (2005) 148 FCR 232 at [66] per French and Stone JJ:It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged. In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. [Emphasis added]