FXWZ and Comcare
[2011] AATA 364
•30 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4416
GENERAL ADMINISTRATIVE DIVISION ) Re FXWZ Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr I Alexander, Member
Date30 May 2011
PlaceSydney
Decision Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal publishes the attached summary of its Reasons for Decision .................[sgd]............................
Ms N Isenberg
Presiding Member
CATCHWORDS
COMPENSATlON – confidentiality - ASIO employee - claim for psychological injury - employment by intelligence agency - whether applicant suffers a mental disorder – whether applicant's condition contributed to in a material degree by his employment - decision under review set aside
Administrative Appeals Tribunal Act 1975 (Cth): s 35, 35(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth): s 14Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Alister v R (1994) 154 CLR 404
Church of Scientology v Woodward (1982) 154 CLR 25
Comcare v Canute (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Kahn (2007) 156 FCR 536
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
R v Lodhi (2006) 199 FLR 270
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR
Re Y and Commissioner for Superannuation (1982) 4 ALD 499
Sankey v Whitlam (1978) 142 CLR 1
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16
Wiegand v Comeare (2002) 72 ALD 795REASONS FOR DECISION
30 May 2011 Ms N Isenberg, Senior Member Dr I Alexander, Member CONFIDENTIALITY
Background
1.FXWZ worked for the Australian Security Intelligence Organisation ("the Agency") between 1965 and 1979. In 2007 FXWZ submitted a claim for compensation for psychological injury pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Comcare rejected his claim at first instance and on reconsideration. Dissatisfied with that result, FXWZ applied for review by this Tribunal.
2.The Tribunal made its decision on 1 March 2011, setting aside the decision under review. In substitution, the Tribunal decided that the Respondent is liable to pay compensation to the Applicant in respect of an injury (in the form of a mental disorder) pursuant to s 14 of the SRC Act.
3.The Tribunal published its reasons in full to the parties but sought submissions as to whether there might be reasons why the decision should not be published in the ordinary course, given that, on the Agency‘s application, the hearing had been conducted in private and many documents produced in the proceedings were subject to confidentiality orders.
4.The Agency made written submissions that the decision should not be published in full on the basis that publication would likely be prejudicial to national security and impact on the Agency’s ability to fulfill its statutory functions. It was initially submitted that the facts and evidence in the matter were so interwoven that it would be difficult to separate what could safely be disclosed from what could not. It was also submitted that this is a case dependent upon its own highly individual facts such that no real point of principle arose from the reasons.See Re Y and Commissioner for Superannuation (1982) 4 ALD 499 at 503.
5.In support of its submission the Agency filed an open affidavit of a senior Agency officer sworn 23 March 2011 and a confidential affidavit by the same officer sworn the same date. Those affidavits were sworn with the authority of the Director-General of ASIO. Similar affidavits by the same officer dated 21 July 2009 and an affidavit by the Director-General were also relied upon, these having been tendered in support of earlier confidentiality applications in the matter.
6.The affidavits, in general terms, were to the effect that protection of sensitive Agency information is necessary to avoid prejudice to Australia's national security.
7.A hearing was conducted on 9 May 2011 and oral submissions which elaborated on the written submissions were made. At the hearing counsel for the Agency modified the Agency‘s submission and conceded that not all of the Tribunal’s Reasons for Decision need be subject to a confidentiality order and suggested an edited version of the Reasons that would not pose any security risk.
Consideration
8.The Tribunal has an obligation to give reasons, either oral or written: Section 43(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That section is subject to ss 35, 36 and 36A of the Act: Re Y and Commissioner for Superannuation (1982) 4 ALD 499. The Tribunal has power to make confidentiality orders pursuant to s.35(2) of the Act. There is no doubt that the power conferred by s 35(2) is a wide one and discretionary: Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16.
9.Discussion of the Tribunal’s powers in relation to s 35(2) is most commonly in the context of whether Tribunal hearings should be conducted in private. ‘The norm’ is that reasons for decision will be published: Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130. Similarly, in our view, publication of Reasons for Decision should be ‘the norm’.
10.In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Brennan J considered the operation of s 35(2) of the Act:
Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant — they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
11.It fell to the Agency to provide us with adequate grounds as to why we should depart from the norm. The reasons in the affidavits, as we have observed, were in fairly general terms. This was particularly the case in respect of the open affidavit.
12.The present application requires the Tribunal to conduct a balancing exercise. In general terms this requires balancing the protection of national security and the principles of open justice.
13.When considering the public interest in favour of non-disclosure, the Courts have repeatedly emphasised the special importance which attaches to protection of national security: eg Alister v R (1984) 154 CLR 404, (at page 436.5). In R v Lodhi (2006) 199 FLR 270 at [41], Whealy J stated that the 'interests of national security and effective intelligence operations, in an age of heightened terrorist activity, are of very great importance.' In Church of Scientology v Woodward (1982) 154 CLR 25 at 59.8, Mason J stated 'No one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security'.
14.The Tribunal is required to attach proper weight to the views of a senior deponent who adduces evidence in support of an application for protection of confidential government information: Sankey v Whitlam (1978) 142 CLR 1. In R v Lodhi (2006) 199 FLR 270 at [32], Whealy J stated:
'it is clear that considerable respect should be paid to the views expressed by the Director-General of Security. National security forms a category of public interest of special importance. Considerable weight must attach to the view as to what national security requires as expressed by a person holding the office of Director-General of Security.'
15.The events giving rise to the Applicant’s claim are now many years old. It also seemed to us, from a common sense perspective, that not all of the evidence before the Tribunal had a flavour of national security. While we may consider the concerns of the Agency to be overstated, we simply do not know, nor should we speculate. In Alister v R, Wilson and Dawson J J stated.(at page 435.9):
… Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister.
Similarly, in that matter, Brennan J acknowledged that a court is 'ill-equipped itself to evaluate pieces of intelligence obtained by ASIO' (at page 455.5).The same must necessarily apply to this Tribunal.
16.In agreeing that a summary of the Tribunal’s reasons would not breach national security, the Agency adopted a common sense view, rather than claim that even uncontroversial aspects of the matter somehow presented security issues. That of course only serves to highlight that the matters excluded from the summary legitimately give rise to the concerns asserted.
17.Accordingly, we accept the views expressed by the senior Agency official as to the need to protect the confidentiality of the Tribunal's reasons for decision.We have therefore come to the view that due to the confidential nature of some of the evidence before the Tribunal we have provided the following Summary of our Reasons for Decision dated 1 March 2011. This summary is not intended to be a substitute for the Reasons for Decision of the Tribunal vis-a-vis the parties.
SUMMARY OF REASONS FOR DECISION
ISSUES FOR DETERMINATION
The issues for determination are:
·Did FXWZ suffer an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (the Act)?
·If so, is Comcare liable to pay compensation to FXWZ in respect of the claimed injury pursuant to s 14 of the Act?
CONDUCT OF THE HEARING
The matter was heard over several days. FXWZ was unrepresented at the hearing, his former solicitor apparently having found dealing with the confidential nature of the matter to be too onerous. At all times in the substantive matter the Agency had a solicitor present, although (s)he did not formally take part in the proceedings.
The Agency had produced, in answer to summonses issued by FXWZ or on his behalf, material relating to aspects of his career with the Agency. The material contained numerous redactions in consequence of a certificate issued under s 36 of the Administrative Appeals Tribunal Act 1975 by the Attorney-General on 6 October 2009.
While some of the documents in the summons material were otherwise before us, a relatively small number of the remaining summons documents were extracted and tendered by the Respondent. Prior to the hearing other of the summons documents were identified by the Respondent's solicitor as being relevant, but were not ultimately tendered, although they appeared to us to relate to the issues at hand. Especially because FXWZ was unrepresented, we reviewed the summons material pursuant to s 33(1)(c) of the AdministrativeAppeals Tribunal Act 1975, and referred to documents or parts of documents we considered to be relevant in addition to those to which the Respondent had selectively tendered. We observe, too, that some of the summonsed documents were also available as material summonsed by FXWZ from National Archives of Australia.
FXWZ provided a number of statements and gave evidence. He was cross-examined at considerable length.
We observe that although the Respondent had arranged for FXWZ to be examined for the purposes of these proceedings by Dr Norman Rose, consultant psychiatrist, the doctor was not called to give evidence. Four reports were obtained by the Respondent from Dr Rose in all, but only two of those reports were tendered (those being part of the section 37 documents). The remaining two reports were marked as exhibits by the Tribunal.
When it became apparent that no evidence from a psychiatrist was to be called by either party, we decided we would be assisted by hearing evidence from FXWZ's treating psychiatrist and the Tribunal summonsed him to appear. The Respondent subsequently called Dr Klaas Akkerman, consultant psychiatrist, who is a friend of FXWZ. His evidence, discussed below, related mainly to a chance meeting with FXWZ nearly four years ago and whether he had known FXWZ had worked for the Agency, and therefore was not in the nature of medico-legal or treating doctor evidence.
BACKGROUND: FXWZ’S WORK FOR THE AGENCY
FXWZ commenced work for the Agency in 1965. The background to his work for the Agency is contained in the Respondent's Statement of Facts and Contentions and was broadly not in dispute.
FXWZ ceased working for the Agency in December 1979. Thereafter he had no further contact with the Agency until 2000.
APPLICANT’S CONTENTIONS
FXWZ's case, in summary, relied on events he experienced and aspects of his work for the Agency as giving rise to his condition.
FXWZ gave evidence and was cross-examined about these events and experiences. The Agency's documents provided contemporaneous accounts of FXWZ's concerns and provided some useful insight into his work for the Agency.
OTHER POSSIBLE FACTORS IN FXWZ’S CONDITION
The Respondent contended that if FXWZ suffered a psychiatric condition, there were a number of other matters, related to his personal relationships, particularly his marriage, and non-work related medical conditions, that might have been responsible. FXWZ was cross-examined at length about these other matters.
MEDICAL EVIDENCE
The Tribunal received evidence from the following medical practitioners: (either by way of records produced or evidence given to the Tribunal):
·An Agency psychologist;
·Dr Vogt, FXWZ’s General Practitioner between 1989 and 2002;
·Dr McKeough, Consultant Psychiatrist who FXWZ attended on several occasions between May and August 1999;
·Dr Meyerowitz, FXWZ’s General Practitioner from 2002;
·Dr George Jacobs, FXWZ’s current treating psychiatrist;
·Dr Akkerman, a friend of FXWZ;
·Dr Norman Rose, a consultant psychiatrist who examined FXWZ on behalf of the Respondent on two occasions; and
·Dr Fernando Roldan, neuropsychologist who examined FXWZ on behalf of the respondent on one occasion.
CONSIDERATION
THE APPLICANT’S EVIDENCE
It was the Respondent's submission that there were a large number of serious inconsistencies in FXWZ's evidence that make it unreliable and, in any event, it should not be preferred to the contemporaneous evidence. It was further submitted that he was "highly evasive and non-committal" in his responses in cross-examination. In this regard we note that FXWZ was unrepresented in a hearing that lasted seven days, was subjected to cross-examination for about three of those days, and is a person who is medicated and requires psychiatric care fortnightly. Taking account of these factors we formed the view that FXWZ was being sincere in giving his answers and making his representations to the Tribunal.
LEGISLATIVE CONTEXT
For the purposes of this matter "injury" is defined as:
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
For the purposes of this matter, "disease" is defined as:
disease means
(a) any ailment suffered by an employee; or
(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
Ailment is defined as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)
DOES FXWZ SUFFER FROM A MENTAL DISORDER?
The evidence of FXWZ first seeking medical attention for a work-related psychological condition was a meeting with an Agency psychologist which occurred on 30 March 2006. In relation to diseases the Act provides at s 7(4):
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation, or
In his claim form FXWZ stated that the conditions for which he was claiming workers' compensation were:
DEPRESSION - ANXIETY ATTACKS
PTSD - STRESS DISORDERS
ETC SUICIDAL TENDENCIES
NIGHTMARES
The Respondent's counsel focussed a great deal of the cross-examination of Dr Jacobs, FXWZ's treating psychiatrist, on whether FXWZ met the diagnostic criteria for PTSD and major depression, and relied upon the lengthy report and evidence of Dr Roldan that he did not.
The Respondent referred in its detailed written submissions to an issue of whether FXWZ suffers from a "specific" psychiatric condition. This, however, is not the question for the Tribunal. In determining whether FXWZ suffered an injury within the meaning of the Act we must first determine only whether FXWZ suffers a disease, namely, a psychological condition "outside the boundaries of normal mental functioning and behaviour": per Comcare v Mooi (1996) 69 FCR 439 at 444.
In our view the weight of the medical evidence leads to a conclusion that FXWZ's behaviour was not within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances: per Mooi. The medical evidence establishes to our satisfaction that FXWZ is suffering a psychological condition which was "outside the boundaries of normal mental functioning and behaviour": per Mooi.
Therefore, we find that FXWZ does suffer a mental disorder within the meaning of the Act.
WAS FXWZ'S MENTAL DISORDER CONTRIBUTED TO IN A MATERIAL DEGREE BY HIS EMPLOYMENT FOR THE AGENCY?
The phrase "in a material degree" is not defined in the Act. Finn J discussed the meaning of the term in Comcare v Sahu-Kahn (2007) 156 FCR 536. The word "material" "imposes an 'evaluative threshold' below which a causal connection may be disregarded", and that the phrase "requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment. For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question. It is sufficient that the employment contributes to the ailment in a material degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
The Respondent conceded in its written submissions that it was possible that FXWZ’s work for the Agency contributed in some way to some psychiatric condition and referred us to Treloar v Australian TelecommunicationsCommissions (1990) 26 FCR 316 at 323: “The causal connection must be established on the probabilities and not left in the area of possibility or conjecture... ".
Any contribution by his employment to the condition must be "more than a mere contributing factor”: Comcare v Canute (2005) 148 FCR 232, and in fact, the test for "material contribution" in Comcare v Sahu-Khan (2007) 156 FCR 536 requires that the connection be more than de minimis. Taking into account the dangers identified by Finn J in Sahu-Khan in paraphrasing legislative expressions, the case is authority for the principle that "a material contribution" requires at least that the contribution be "in a material degree; substantially, considerably", taking into account "all relevant contributing factors".
The Respondent submitted that there is no cogent evidence that FXWZ was a particularly psychiatrically vulnerable individual. While it is not entirely clear as to the relevance of this submission, we observe, in any event, that the Agency files record a number of instances of FXWZ demonstrating stress.
While an Applicant may believe that his employment caused or materially contributed to his condition this is not the test: Australian TelecommunicationCommission v Tzikas (1985) 5 AAR 173 at 195; Kirkpatrick v Commonwealth ofAustralia (1985) 9 FCR 36. The "incident or state of affairs" must have some grounding in fact: per Wiegand v Comcare (2002) 72 ALD 795 As von Doussa J said:
A perception held by the employee will meet a 'reality' test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened
It was submitted that we could not be reasonably satisfied that the incident or state of affairs, as alleged by FXWZ, actually occurred. We reject the Respondent’s submission and find that we are reasonably satisfied that what FXWZ had alleged, in general terms, did occur.
The Respondent further contended that FXWZ's condition was not materially contributed to by his employment, but rather by non-employment stressors, especially his health and his marriage breakdown. The Respondent referred to FXWZ's medical conditions since 1975. Perhaps the most significant was the diagnosis of an aortic aneurysm in 1996. A report from Dr Alford, FXWZ’s treating cardiologist, dated 6 May 1997, contains a reference to FXWZ being "absolutely terrified at these findings”. It was about that time that FXWZ's "wonderful" relationship with the wife disintegrated. There was a dispute between FXWZ and his wife about whether to undergo the Bentall's procedure. We accept that in the days following the operation FXWZ was very anxious and distressed, in accordance with the hospital notes, and that the anxiety and distress was not connected with his work, but with his very serious medical condition. This, in our view, was entirely understandable, but does not, in our view, detract from the fact that he was experiencing ongoing symptoms arising from his work.
We accept that FXWZ has a complex psychiatric history which is interwoven with relationship problems with his wife and with issues associated with his health. He has experienced a number of life's difficulties: socially, vocationally and financially. His marriage disintegrated, acrimoniously, his health is not good, he is living with a partner but does not have any extended social network; and, at 67 years of age, is concerned about his demise. However, even though there may be other factors which contribute to an Applicant's condition to a greater degree, it is sufficient if the incident or state of affairs [in the workplace 1 contributes in a material degree: per Wiegand.
We note that two psychiatrists, Dr Rose and Dr Jacobs, were of the opinion that FXWZ’s employment significantly contributed to FXWZ's development of a psychiatric disorder which they diagnosed as PTSD.
Dr Roldan, a psychologist, was of the opinion that FXWZ did not suffer from PTSD and that his employment with the Agency made little, if any, contribution to his mental health. In our view, Dr Roldan's opinion appears to be based on a rejection of FXWZ's perception of the state of affairs in respect of his employment by the Agency. Dr Roldan appears to rely significantly on his own interpretation of the state of affairs as described in the Agency documents (see Wiegand).
We prefer the opinions of the two psychiatrists and are reasonably satisfied that the incidents associated with his employment described by FXWZ and which were acknowledged in the records of the Agency contributed, individually or in combination, in a material degree to FXWZ’s mental disorder.
The Tribunal is satisfied that FXWZ has a compensable injury within the meaning of the Act.
DECISION
The Tribunal sets aside the decision under review and in substitution the Tribunal decides that the Respondent is liable to pay compensation to the Applicant in respect of an injury (in the form of a mental disorder) pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ..............[sgd].......................................................................
AssociateDate/s of Hearing 9, 10, 11, 12, 26 August, 11, 12 November 2010
Date of Decision 1 March 2011
Appearance for the Applicant Self represented
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Mr C Hutchins, Australian Government Solicitor
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