Lim and Comcare (Compensation)

Case [2018] AATA 4354

Lim and Comcare (Compensation) [2018] AATA 4354 (21 November 2018)

Division:GENERAL DIVISION

File Number(s):      2013/4430

Re:Sharon Yuh-Shyan Lim

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:21 November 2018

Place:Canberra

The Tribunal affirms the reviewable decision dated 14 August 2013.

........................................................................
Deputy President Gary Humphries

Catchwords

COMPENSATION – whether Dr Lim would have suffered the adjustment reaction with depressant anxiety if the performance appraisal on 31 January 2011 had not occurred – reviewable decision affirmed.

PRACTICE AND PROCEDURE – whether the Tribunal should admit Dr Lim’s transcript of consultation with Dr Shaikh into evidence – whether the Listening Devices Act 1992 (Act) was breached – whether the Full Court’s remittal to the Tribunal was a full or partial remittal – whether the phrase ‘according to law’ has any special connotations.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 44
Evidence Act 1995 (Cth) s 138
Listening Devices Act 1992 (ACT) ss 4, 5
Safety, Rehabilitation and Compensation Act (Cth) 1988

Cases
Arnold and Commissioner of Taxation [2017] AATA 1318
Comcare v Davies (No 2) [2008] FCA 566
Comcare v Martin (2016) 258 CLR 467
Commissioner of Taxation v Faigenbaum [2008] FCA 510
Dong v Song [2018] ACTSC 82
Guo and Minister for Immigration and Border Protection [2016] AATA 901
Hollis v Comcare [2017] FCA 558
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Lim and Comcare [2015] AATA 189
Lim v Comcare [2016] FCA 709
Lim v Comcare [2017] FCAFC 64
Milevska and Comcare [2018] AATA 2141
Peacock v Repatriation Commission [2007] FCAFC 156
Repatriation Commission v Nation (1995) 57 FCR 25

Thomas & Anor v Nash [2010] SASC 153

REASONS FOR DECISION

Deputy President Gary Humphries

21 November 2018

HISTORY OF DR LIM’S APPLICATION

  1. This is a decision made on remitter to the Tribunal from the Full Court of the Federal Court of Australia. It is useful to set out here the previous course of this litigation.

  2. In March 2011 the applicant, Dr Sharon Yuh-Shyan Lim, submitted a claim for compensation to Comcare for an adjustment reaction with depressant anxiety relating to her employment at the Australian Communications and Media Authority (ACMA). Comcare, the present respondent, rejected this claim in July 2011. Comcare accepted Dr Lim had sustained a psychological condition that was significantly contributed to by her employment, but determined that compensation was not payable for the condition as it arose as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Comcare affirmed this determination on 14 August 2013. Dr Lim applied to the Tribunal for review of Comcare’s decision on 3 September 2013.

  3. In Lim and Comcare [2015] AATA 189 the Tribunal (Senior Member Popple) concluded that Dr Lim had suffered a psychological condition but found it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment and therefore was not an injury[1] for the purposes…

Continue reading Lim and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Lim and Comcare (Compensation) [2018] AATA 4354
Case
[2018] AATA 4354
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Dr Lim against a decision of the Administrative Appeals Tribunal (the Tribunal) concerning a claim for compensation. The central dispute revolved around whether Dr Lim's adjustment reaction with depressant anxiety was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment, specifically a performance appraisal conducted on 31 January 2011. Dr Lim contended that her condition arose on or before this date, while the Tribunal had determined it occurred later. A further issue involved the admissibility of a transcript of a consultation between Dr Lim and Dr Shaikh, which Dr Lim argued was obtained in accordance with exemptions under the Listening Devices Act 1992.

The Tribunal was required to determine several legal issues. Firstly, it needed to ascertain whether Dr Lim would have suffered her adjustment reaction with depressant anxiety if the performance appraisal on 31 January 2011 had not occurred. Secondly, the Tribunal had to consider whether to admit Dr Lim's transcript of her consultation with Dr Shaikh into evidence, assessing whether its creation or the preparation of the transcript breached the Listening Devices Act 1992. The Tribunal also considered the nature of a previous remittal by the Full Court and the potential connotations of the phrase 'according to law'.

In its reasoning, the Tribunal acknowledged that while it was not strictly bound by the rules of evidence, the circumstances surrounding the obtaining of the transcript were a relevant consideration in exercising its discretion, particularly in light of section 138 of the Evidence Act 1995. The Tribunal found that the circumstances in which the transcript was obtained most probably constituted a breach or breaches of the Listening Devices Act, although this finding was not entirely free from doubt. Consequently, the Tribunal determined it would be inappropriate to admit the transcript into evidence. Regarding the primary compensation claim, the Tribunal concluded that Dr Lim would not have suffered her adjustment disorder if the performance appraisal on 31 January 2011 had not occurred.

Based on these findings, the Tribunal concluded that Dr Lim's psychological condition was a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Therefore, this condition was not considered an injury for the purposes of section 5A of the relevant Act, and the reviewable decision of 14 August 2013 was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 138 of the Evidence Act provides:138 Discretion to exclude improperly or illegally obtained evidence (1)Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Dr Lim submits that neither the recording of the consultation with Dr Shaikh nor the preparation of the transcript constitute a breach of the Listening Devices Act. She argues that the recording of the consultation falls under the exemption in s 4(3)(b)(i), that is, her view as a principal party to the conversation is that:…the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests…The use of the transcript, she contends, is similarly protected by the exemption in s 5(2). She informed the Tribunal that the reasonable grounds on which she relied were found in commentary by the Tribunal in Milevska and Comcare [2018] AATA 2141, at [151]-[159]. In this passage, Senior Member Evans considered a joint report submitted in evidence and purportedly written by Dr Shaikh and another doctor. The Tribunal criticised the process whereby the joint report had been compiled, apparently without the full knowledge and consent of Dr Shaikh. It quoted Dr Shaikh as saying that the process had been a debacle. The Tribunal there is critical of the role of Medico Legal Reporting Services of Australia (MLRSA), the organisation through which the report was prepared and delivered. It is unclear as to whether it was also critical of Dr Shaikh. It declined to give the report any weight.

Decision

Reasons for decision

Dr Lim argues in her submissions that the original Tribunal erred in determining that she had suffered her psychological condition on or about 18 March 2011 rather than on or before 31 January 2011 as determined under s 7(4) and/or s 7(6) of the SRC Act. For this purpose she draws on which she calls the Parliament’s intention as demonstrated by the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and other Legislation Amendment Bill 2006. I cannot accept that submission. First, determining again the date of injury is outside the terms of the Federal Court’s remittal (unless the Tribunal finds that Dr Lim would have suffered her condition irrespective of the performance appraisal on 31 January 2011, a finding which I do not make). Secondly, even if I was at liberty to consider this question afresh, I can see no error in the original Tribunal’s approach to this matter.CONCLUSION For the reasons given above the Tribunal answers the question referred to it by paragraph [44] of the Full Court’s decision in Lim v Comcare by concluding Dr Lim would not have suffered her adjustment disorder if the performance appraisal on 31 January 2011 had not occurred. Accordingly, it is appropriate to conclude that:(a)Dr Lim’s psychological condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment (specifically, the mid-cycle performance appraisal of 31 January 2011); (b)therefore this condition is not an injury for the purposes of s 5A of the Act; and (c)the reviewable decision of 14 August 2013 should be affirmed.

Ratio Decidendi

Legal Principle Established

Dr Lim has noted that, at a directions hearing in this matter on 3 July 2018, I suggested to her that it would be appropriate for the transcript of the consultation to be filed. However, it was not made clear to me at that time that the transcript derived from a recording made without Dr Shaikh’s knowledge or consent. Had I known that, I would not have invited her to file it.Consideration The Tribunal was asked to determine whether the circumstances in which the transcript was obtained constitutes a breach or breaches of the Listening Devices Act. I observe however that it is not strictly necessary to make such a finding, since the Tribunal is not bound by the rules of evidence (s 33(1)(c), Administrative Appeals Tribunal Act 1975 (the AAT Act)) and could choose to admit the transcript even if it did constitute a breach of the Listening Devices Act. A discretion in similar terms is available to federal courts pursuant to s 138 of the Evidence Act. Nonetheless, I consider that the question of whether the making of the recording or the obtaining of the transcript might constitute a breach of the Listening Devices Act is a relevant consideration in exercising the discretion. The nature of any criminal offence committed in the process of obtaining the evidence is also a relevant consideration in the application of s 138 (see paragraph (3)(c)). I have decided that the circumstances in which the transcript was obtained most probably constitute a breach or breaches of the Listening Devices Act, although that finding cannot be said to be free of doubt. I have further decided that it would be inappropriate in those circumstances to admit the transcript into evidence. My reasons follow. In Dong v Song [2018] ACTSC 82 the ACT Supreme Court considered whether to admit into evidence a covertly-obtained recording of a conversation between the two parties to the commercial dispute to which the proceedings related. The plaintiff, who had undertaken the recording, argued that her actions fell within the exemption in s 4(3)(b)(i). McWilliam AsJ summarised the issues facing the court as follows, at [18]:18. The overarching question on admissibility then, is whether the recording falls within the s 4(3)(b)(i) exception under the Act. That may be broken down into a number of elements. In order for the evidence in the present case to be admissible under the Act: (a)The person must be a principal party to a conversation; (b)The person must consent to using a listening device; (c)The reason for the recording must be because the person considers it necessary to protect his or her lawful interests; (d)There must be reasonable grounds for that belief; and (e)The evidence must be led for the purpose of protecting those lawful interests (picking up the purpose referred to in s 10(2)(c) of the Act). In considering the elements referred to in (c) and (d) of the preceding paragraph, her Honour made the following observations:Applicable legal principles24. A number of authorities in other jurisdictions have given consideration to the meaning of ‘necessary’, ‘reasonable grounds’, and ‘protection’ of ‘lawful interests’ in the same or similar statutory contexts.Necessary25. In this statutory context, ‘necessary’ has been held to mean appropriate, but not essential: Sepulveda at [117].Reasonable grounds26. The reasonableness of such necessity is to be judged objectively, and upon bases or grounds that exist at the time of the recording: Sepulveda at [118], in relation to the terminology used in the NSW Act, being ‘reasonable necessity’. [Emphasis added.]