Kelly v Australian Postal Corporation

Link copied
Case Copied 36 min read

FEDERAL COURT OF AUSTRALIA

Kelly v Australian Postal Corporation [2015] FCA 1064

Citation: Kelly v Australian Postal Corporation [2015] FCA 1064
Appeal from: Kelly and Australian Postal Corporation [2014] AATA 779
Parties: GARRY KELLY v AUSTRALIAN POSTAL CORPORATION
File number(s): NSD 1223 of 2014
Judge(s): GRIFFITHS J
Date of judgment: 2 October 2015
Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) affirming the respondent’s determination that the applicant no longer suffered from a previously accepted compensable injury – whether the AAT complied with s 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the AAT’s reasons failed to disclose proper consideration or analysis of medical evidence – whether the AAT’s reasoning process in preferring certain medical evidence was illogical and/or unreasonable
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2B), 44

Federal Court of Australia Act 1976 (Cth) s 37N(4)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 62

Cases cited:

ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630

Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 50 AAR 267

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254

Lawrence Smith v Comcare [2014] FCA 811

Military Rehabilitation and Compensation Commission v SRGGG [2005] FCA 342; (2005) 215 ALR 459

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Munswamy v Australian Postal Corporation [2015] FCA 678

Smith v Comcare [2015] FCAFC 24

Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) 317 ALR 328

WZAQU v Minister for Immigration and Citizenship [2013] FCA 327

Date of hearing: 15 September 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: Mr M Gilbert
Solicitor for the Applicant: North Coast Compensation Lawyers
Counsel for the Respondent: Mr G Johnson SC with Mr N Swan
Solicitor for the Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1223 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

GARRY KELLY
Applicant
AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

2 OCTOBER 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The amended notice of appeal be dismissed. 

2.The notice of objection to competency dated 23 March 2015 be dismissed.

3.The applicant pay the respondent’s costs of the proceeding, as agreed or assessed. 

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1223 of 2014
ON APPEAL…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kelly v Australian Postal Corporation and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2015] FCA 1064
Decision Date

CaseChat Overview and Summary

The applicant, Kelly, sought review of a decision by the Australian Postal Corporation (respondent) that he no longer suffered from a compensable injury. The decision was affirmed by the Administrative Appeals Tribunal (AAT), leading Kelly to appeal to the court. The central issue was whether the AAT correctly applied sections 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which require the AAT to provide written reasons for its decision, including findings on material questions of fact and references to the evidence on which those findings were based. Kelly argued that the AAT's reasons failed to properly consider or analyse the medical evidence, and that its reasoning in preferring certain evidence was illogical and unreasonable.

The court examined the obligations under the AAT Act and relevant case law to determine if the AAT had sufficiently complied with these provisions. The court noted that it was not enough for the AAT to merely reference other reasons or findings; it must articulate its own path of reasoning based on the evidence before it. The court found that the AAT had indeed provided written reasons that included its findings on material questions of fact and references to the evidence. While the AAT's reasons did not discuss all the evidence in detail, this was not required by the AAT Act. The AAT was entitled to prefer certain evidence over others, and its reasoning in doing so was logical and reasonable.

Consequently, the court dismissed Kelly's appeal and affirmed the AAT's decision. The court also dismissed Kelly's objection to the competency of the respondent and ordered Kelly to pay the respondent's costs of the proceeding.

Orders

Orders of the court

1. The amended notice of appeal be dismissed.

2. The notice of objection to competency dated 23 March 2015 be dismissed.

3. The applicant pay the respondent’s costs of the proceeding, as agreed or assessed.

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

Full text does not contain this section.

Decision

Reasons for decision

On 11 July 2013, the respondent determined that the applicant no longer suffered an “injury” or “disease” as defined in ss 5A and 5B of the SRC Act respectively. The respondent was not satisfied that, as at that date, it bore any liability to pay compensation under the SRC Act for the applicant’s previously accepted injury (the reviewable decision). The reviewable decision was based on evidence before the decision-maker, which included reports by Dr Simone Shaw, a clinical psychologist, and Mr Edward Campbell, a clinical psychologist. At that time, Dr Shaw had prepared two reports, dated 14 March 2012 and 15 February 2013 respectively. Mr Campbell had also prepared two reports, dated 20 March 2013 and 6 July 2013 respectively. The applicant was informed by the decision-maker that she was:…more persuaded by the opinion of Dr Shaw as such and I am not satisfied that Australia Post has present liability to pay you compensation as at today’s date, for your previously accepted condition of ‘adjustment disorder’ with mixed anxiety and depressed mood. Although the reasons for the reviewable decision made no specific reference to other medical evidence which was before the decision-maker, it appears that there was such evidence. It included a report dated 11 April 2000 by Dr Derek Lovell, a consultant forensic psychiatrist; a report dated 20 January 2000 by Mr Charles Jenvey, a rehabilitation counsellor; and a brief report dated 22 April 2013 by the applicant’s treating general practitioner, Dr Hayward. As is evident from the dates of some of those reports, the applicant’s complaints of disabling stress covered a lengthy period. The AAT proceeding The applicant sought review of the reviewable decision by the AAT. He argued that the attitude of his immediate superior and the management team of Australia Post had continued to cause him anxiety and depression, which rendered him unable to work. He contended that he was unable to return to work until some prolonged process of discussion and acknowledgement of his concern was completed. He said that he did not trust the respondent’s senior management. Both parties relied upon extensive medical evidence in the AAT, which included the earlier reports of Dr Shaw (as well as a later report by her dated 9 September 2013) and those of Mr Campbell. Neither Dr Shaw nor Mr Campbell gave oral evidence in the AAT. In the AAT the applicant relied upon two medical reports dated 10 January 2014 and 19 August 2014 respectively by Dr Brian Parsonage, a consultant psychiatrist. Dr Parsonage concluded that, using criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV), the applicant was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Parsonage opined that this was:…because he experiences symptoms of anxiety and depression in relation to problems associated with his work and his symptoms are significant in that they require on-going treatment and are causing significant impairment in his occupational functioning. Dr Parsonage added that he believed that:Mr Kelly’s employment with Australia Post is a substantial contributing factor to his condition in so far as Mr Kelly has felt unsupported by more senior management to do his management role and he believes that such past issues have not been satisfactorily addressed and he has no faith that further problems will be properly addressed, should he return to his management role.

Ratio Decidendi

Legal Principle Established

The applicant further contended that the AAT failed to discuss the diagnostic criteria in DSM-IV that would justify Dr Smith’s evidence being preferred, which led to the AAT’s conclusion that the applicant did not continue to suffer from adjustment disorder as at 11 July 2013. Indeed, the applicant submitted that the AAT’s own reasons justified a diagnosis of adjustment disorder at the relevant time, because the AAT found that the applicant had “[m]arked distress that is out of proportion to the severity or intensity of the stressor”. The applicant contended that Dr Smith had said that it could be argued that the applicant’s hyper-reaction to the manner in which he was treated by the respondent fitted “squarely into the indicator for adjustment disorder in DSM-IV”. The applicant complained that the AAT never explained why it arrived at a conclusion which was different from the observations it made during the course of the hearing (see [34] above). Consideration In view of their central importance in the appeal, it is convenient to set out both s 43(2) and (2B) of the AAT Act. 43 Tribunal’s decision on review…(2)Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.…(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.… The former provision obliges the AAT to give reasons either orally or in writing for its decision, unless either ss 35 or 36D apply. Section 43(2B) then clarifies that, where the AAT gives its reasons for decision in writing, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Significantly, that obligation does not oblige the AAT to include findings on non-material questions of fact nor is it obliged to refer to the evidence or other material in respect of any of its findings other than those on material questions of fact. In determining whether the AAT has complied with these obligations, it is relevant to take into account case law which has clarified their nature and scope. First, it is insufficient merely to point to other reasons, findings or references that may have been made by some other decision-maker. As Robertson J observed in Lawrence Smith v Comcare [2014] FCA 811 (Smith) at [90]:… Of course it is the Tribunal’s actual reasons which need to be given rather than the reasons which a party thinks the reasons should have been: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [1], [34], [68] and [217]; see also the reference to the actual path of reasoning in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 303 ALR 64 at [55]. That the reasons may show an error is not a criticism of the reasons themselves.