Lim and Comcare (Compensation)
[2018] AATA 4354
•21 November 2018
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 HumphriesCatchwords
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) 1988Cases
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 25Thomas & Anor v Nash [2010] SASC 153
REASONS FOR DECISION
Deputy President Gary Humphries
21 November 2018
HISTORY OF DR LIM’S APPLICATION
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.
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.
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 of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The Senior Member made a finding of fact that Dr Lim’s condition was suffered on, or a few days before, 18 March 2011. Comcare had contended that any injury suffered by Dr Lim was suffered as a result of a mid-cycle performance appraisal conducted on 31 January 2011 (the performance appraisal) and therefore was excluded from compensation by operation of the exclusion provision in s 5A of the Act. However, Dr Lim contended her condition was suffered in September or October 2010 and therefore could not have been as a result of the performance appraisal that occurred in January 2011.
[1] In this decision, italicised text is generally used to indicate direct quotations.
Dr Lim filed a notice of appeal in the Federal Court in April 2015. Her (amended) notice of appeal listed the following asserted errors of law for the court’s attention:
ERROR 1: Whether the Tribunal was operating under a misconception that needed to be satisfied of an appropriate clinical diagnosis of the psychological disturbances Dr Lim reported before it could find she had suffered an “injury” within s 5A(1) of the Act?
ERROR 2: Whether the Tribunal misunderstood its statutory task and approached the determination of whether Dr Lim had suffered an injury for the purposes of s 5A by the application of a formula purportedly derived from an expression of Drummond J in Comcare v Mooi [1996] FCA 508, (1996) 69 FCR 439 (said to be at 444)?
ERROR 3: Whether the Tribunal misunderstood its statutory task and misconstrued the expression “suffered as a result of” in s 5A of the Act?
ERROR 4: Whether the Tribunal failed to provide reasons in breach of its obligation under s 43(2B) of the AAT Act in respect of its finding that the performance appraisal having “contributed to [Dr Lim’s] psychological condition at [42] of its Reasons?
ERROR 5: Whether the Tribunal misunderstood its statutory task and unnecessarily confined the ambit and operation of s 7(4) of the Act?
In the subsequent hearing before Flick J the fifth asserted error of law was not pressed, but in Lim v Comcare [2016] FCA 709 his Honour rejected each of the other errors Dr Lim asserted the Tribunal had made, and dismissed the appeal with costs.
Dr Lim appealed from Flick J’s judgment to the Full Court of the Federal Court by notice of appeal in July 2016. Between the filing of this notice and consideration of the appeal by the Full Court, however, on 9 November 2016 the High Court handed down its decision in Comcare v Martin (2016) 258 CLR 467.
In Lim v Comcare [2017] FCAFC 64 the Full Court (Kenny, Tracey and Bromberg JJ) reviewed the court’s previous relevant decisions (Hart v Comcare, Commonwealth Bank v Reeve and Drenth v Comcare) and the High Court’s decision in Comcare v Martin, and concluded (at [40] and [42]) that:
(a)What the Tribunal failed to do [in Dr Lim’s case] was address the entirety of the question to which the application of the exclusion in s 5A(1) [of the Act], when read with s 5B, gave rise…; and
(b)The Tribunal did not address the question whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. The failure to do so was an error of law.
The Full Court made the following orders:
1.The appeal be allowed.
2.Paragraphs 1 and 2 of the orders of Justice Flick made on 15 June 2016 be set aside and in their place order that:
(a) The decision of the Administrative Appeals Tribunal dated 27 March 2015 be set aside in so far as it affirmed the decision under review.
(b) The matter be remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein upon the evidence already given in the proceeding before the Tribunal, unless the Tribunal considers it appropriate to receive further evidence limited to the question set out in paragraph [44] of these reasons.
(c) There be no order as to the costs of the appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
3.There be no order as to the costs of this appeal.
I will return to the question articulated by the Full Court in paragraph [44] later in these reasons.
Prior to his retirement from the Tribunal, Senior Member Popple, pursuant to the remitter, considered that it was appropriate to receive further evidence relating to the question set out in paragraph [44] of the Full Court decision. Accordingly, Comcare commissioned a medical report from Dr Wasim Shaikh, a psychiatrist. Dr Shaikh conducted an assessment of Dr Lim on 13 March 2018 and produced a report dated 27 March 2018.
Prior to the substantive hearing on the remitter on 22 August 2018, the Tribunal (by now differently constituted) conducted a number of directions hearings during 2018 dealing with interlocutory matters. In the course of those directions hearings it made rulings on two interlocutory questions relevant to the substantive hearing. It is convenient here to set out those rulings and the reasons for which they were made.
ADMISSION OF TRANSCRIPT OF CONSULTATION WITH DR SHAIKH
Prior to the substantive hearing Dr Lim sought to have admitted into evidence what she described as a transcript of the consultation she had had with Dr Shaikh on 13 March 2018. It appears that Dr Lim (and apparently Dr Read, her chaperone for the interview) covertly recorded the consultation. The recording has apparently been transcribed by, the Tribunal was told, a law student, with what accuracy it is not known.
An email appears on the Tribunal file from Dr Shaikh, in which he advises that he was certainly not aware (his emphasis) that the consultation was being recorded, that he did not give his consent to the recording and that he did not record the consultation himself.
Dr Lim considered that the contents of the transcript may be relevant to the case. Comcare however objected to the admission of the transcript into evidence. It submitted that the recording of the consultation and preparation of the transcript constituted breaches of the Listening Devices Act 1992 (ACT) (the Listening Devices Act).
For present purposes the following provisions of that Act are relevant:
4.Use of listening devices
(1)A person must not use a listening device with the intention of—
(a) listening to or recording a private conversation to which the person is not a party; or
(b) recording a private conversation to which the person is a party...
(2)Subsection (1) does not apply to—
(a) the use of a listening device under an authority granted by or under a law of the Commonwealth; or
(b) the unintentional hearing of a private conversation by means of a listening device.
(3)Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—
(a) each principal party to the conversation consents to that use of the listening device; or
(b) a principal party to the conversation consents to the listening device being so used, and—
(i)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; or
(ii)the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.
(4)Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory...
5.Communication and publication of records of private conversations by parties
(1)A person who is party to a private conversation commits an offence if—
(a) the person divulges or communicates a record of the conversation; and
(b) the person knows that the record was made, directly or indirectly, using a listening device (whether or not in contravention of section 4)…
(2)Subsection (1) does not apply if the communication or publication—
(a) is made to another party to the conversation; or
(b) is made with the consent of each principal party to the conversation; or
(c) is made in the course of civil or criminal proceedings; or
(d) is considered by the party making it, on reasonable grounds, to be necessary for the protection of that party's lawful interests; or
(e) is made to a person who is believed by the party on reasonable grounds to have such an interest in the conversation as to make the communication or publication reasonable in the circumstances; or
(f) is made under an authority granted by or under a law of the Commonwealth.
(3)Subsection (2) (d) does not apply so as to exempt a person from the application of subsection (1) if the relevant record of conversation is made, directly or indirectly, by the use of a listening device by or on behalf of the Territory.
While noting that the Tribunal is not bound by the rules of evidence, Comcare submitted that s 138 of the Evidence Act 1995 (Cth) (the Evidence Act) offers some guidance on the considerations the Tribunal should use in determining whether the transcript should be admitted.
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.
Dr Lim said that, since MLRSA appeared to have again been an agent in the preparation of Dr Shaikh’s most recent report, her lawful interests were best protected by the recording of the consultation through which the report was prepared.
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 principles
24. 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.
Necessary
25. In this statutory context, ‘necessary’ has been held to mean appropriate, but not essential: Sepulveda at [117].
Reasonable grounds
26. 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.]
Her Honour then considered the meaning of the phrase lawful interests, observing at [36]:
36. In my view, neither a broad nor a confined construction attaches to the exception created by s 4(3)(b)(i) of the Act. Rather, in line with Doyle CJ’s comment in Nash (referred to in [28] of these reasons), it is preferable to simply consider the expression ‘lawful interests’ in the context of the circumstances of each case, focusing on the words not in isolation, but in the context of the section being an exception to a criminal offence, and with the purpose of the Act in mind. It may be that the more tenuous the lawful interest, the less likely that it will be objectively necessary to protect it through the means of a listening device.
Her Honour later stated at [40], [42]:
40. Similarly, the desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in court proceedings about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness, have been held to be lawful interests in R v Le at [83] per Adams J (with whom RS Hulme J agreed)…
42. Such interests may be contrasted with a mere desire to have a reliable record of a conversation, or a desire to gain an advantage in civil proceedings, which would not ordinarily amount to a relevant lawful interest: Nash at [48] per Doyle CJ, noting again that each case has to be considered on its facts.
In Thomas & Anor v Nash [2010] SASC 153 Doyle CJ considered the legality of recordings made by a party under the South Australian equivalent of the Listening Devices Act. His Honour observed at [45]:
45. Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. This is not a case in which the recording was made to uncover a crime, or to resist an allegation of crime.
Later, at [48], [49] and [56], his Honour observed:
48. Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
49. A number of the decisions make the point, with which I agree, that the exception in s 7(1)(b) should not be read so widely that it undermines the protection given by s 4, which protection is at the very heart of the Act…
56. There is no need to decide whether or not the Court has a discretion, similar to the discretion identified in Bunning v Cross [1978] HCA 22; (1978-1979) 141 CLR 54, to exclude the evidence. In Southern Equities Corporation Ltd (In Liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554, Lander J held that such a discretion might well exist: at [109]. If it does, I would exercise my discretion to exclude the material tendered by Mr Nash. Its use would be unlawful. The evidence discloses that Mr Nash routinely made covert recordings of conversations when he thought that doing so might be to his advantage. What he did amounts to a substantial intrusion on privacy. There is no public interest calling for the admission of the evidence. To admit the evidence in the circumstances of this case would amount to the Court condoning what Mr Nash has done. It was open to Mr Nash to give his own evidence about any relevant consideration. No doubt the Court could exclude the evidence if the use of the evidence would amount to an abuse of process, but there is no need to consider whether the use of the evidence in this case would amount to an abuse of process: cf Southern Equities at [111]-[112] Lander J.
Deputy President Perram J made these observations in Arnold and Commissioner of Taxation [2017] AATA 1318 at [72]:
72. The Commissioner called a Mr Fratzia to give evidence. Mr Arnold sought to ask Mr Fratzia about a recording Mr Arnold had taken of Mr Fratzia without his permission. I declined to permit this to occur. The conduct in question was a breach of s 7(1) of the Surveillance Devices Act 2007(NSW) which prohibits the use of a listening device to record a private conversation. There is an exception where the recording is reasonably necessary to protect the lawful interest of one of the parties to the recording: s 7(3). The test is one of reasonable necessity not convenience. There were plenty of perfectly lawful ways for Mr Arnold to make his point about the valuation of the medicines without resorting to espionage: see, eg, DW v The Queen [2014] NSWCCA 28; (2014) 239 A Crim R 192 at 200 [38] ff. Accordingly, s 7(3) does not apply. The material was therefore unlawfully obtained. The Evidence Act 1995(Cth) does not apply to these proceedings. Nevertheless, I do not think that I should allow the material to be used unless its probative value outweighs the public ill involved in condoning unlawful behaviour. I did not think that the probative value of the material in question warranted permitting it to be used.
The cited authorities indicate that, in each case where a possible breach of s 4 of the Listening Devices Act is in issue, the lawful interests of the party concerned must be assessed in the context in which they are asserted. The test is one of reasonable necessity, and not convenience (Arnold at [72]).
The lawful interest which Dr Lim asserted here is, as I understand it, her interest in preventing some distortion or adulteration of Dr Shaikh’s report occurring through the intervention of the firm for whom or through which he works, MLRSA. I do not understand her to be saying that she has doubts about the honesty or integrity of Dr Shaikh himself; indeed, it appears that she wished to rely on the manner in which he undertook the consultation, and specifically the questions that he asked of her at that time, as evidence of the propositions that she wished the Tribunal to accept. The interest she sought to protect therefore were purportedly threatened by MLRSA, rather than by Dr Shaikh.
This claim suffers however from a problem of sequentiality. The consultation with Dr Shaikh occurred on 13 March 2018. The decision of the Tribunal in Milevska and Comcare was handed down on 6 July 2018. Dr Lim could not have known about the criticism levelled at MLRSA prior to this date. The concern about some potentially mischievous role of MLRSA must be considered an ex post facto justification rather than a concern based on any evidence at the time she undertook the consultation.
Even if I were to recast her reasonable grounds for the covert recording as generously as I am able – i.e. as a precaution against possible unspecified malfeasance by either Dr Shaikh or MLRSA – it seems clear from the cited authorities that such a basis does not constitute reasonable grounds for a breach of s 4(1) of the Listening Devices Act. A mere desire to have a reliable record of a conversation, or a desire to gain an advantage in civil proceedings, will not usually amount to a lawful interest within the terms of the section: Dong at [42], Nash at [48].
In the circumstances of the present case, Dr Lim has not cited any lawful interest which faced some threat requiring protection. The reasonableness of the necessity for the recording should have existed at the time the recording was made: Dong at [26]. Even if the decision in Milevska had been available and had come within her knowledge prior to the consultation with Dr Shaikh, I doubt that it would constitute reasonable grounds for undertaking a covert recording. In that eventuality, there would be no reason Dr Lim could not raise any concerns about the role of MLRSA with Dr Shaikh and thereby obtain assurances about the process to be used in preparing the report. In any case, it is unclear why the deception of Dr Shaikh was necessary in order to head off a problem with MLRSA.
For the reasons already outlined, I consider that a defence under s 5(2) of the Listening Devices Act is most likely not available to Dr Lim in respect of her dealings with the transcript of the consultation.
The Tribunal is, of course, a quasi-judicial body without a criminal jurisdiction. In that light, it would be unsafe for me to come to a concluded view about the legality of the recording or the transcript. As I have already indicated, however, a finding of (likely) contravention of the criminal law does not automatically preclude the Tribunal from admitting the transcript into evidence.
I have exercised the discretion here against admission of the evidence. In doing so I have had particular regard to the criteria set out for admission of illegally or improperly obtained evidence before courts as set out in s 138(3) of the Commonwealth Evidence Act.
First, I consider the likely criminality involved in obtaining the report is a factor weighing against its admission (s 138(3)(c), (d)). Even if Dr Lim’s actions do not rise to the level of criminality, the section allows a court to consider the impropriety involved in obtaining evidence in this fashion, a factor which counts against the admission of the transcript in this case. In that respect, I consider it appropriate to assess the precedential value that the admission of such a document would have. The concern expressed by Dr Shaikh in his email advising that he did not consent to the covert recording of his consultation is a concern which, I have little doubt, would be expressed by doctors undertaking medicolegal examinations everywhere. I anticipate doctors would express opposition to the invasion of the privacy of their surgeries and consulting rooms, and I would share that concern. Were I to admit the transcript, a green light might be given for other litigants being examined by an opposing party’s expert witness to covertly record their interviews, since a very low threshold of reasonable grounds would have been established by such a decision.
I also consider that the probative value of the evidence contained in the transcript appears to be low (s 138(3)(a)). Anticipating my ruling on this evidence, I have not read the contents of the transcript, and therefore cannot comment with certainty on its relevance, but I take the conclusion that the material has low probative value to flow from Dr Lim’s own submissions. I gather from those submissions that she did not propose to use the transcript to suggest that Dr Shaikh is not a witness of truth, but rather to suggest that he has misinterpreted the evidence of his own examination. If there is no suggestion of dishonesty being levelled at Dr Shaikh, then it is difficult to see why the relationship between the data gathered at the consultation and his clinical conclusions could not have been adequately explored through the usual process of cross-examination. In his report of 27 March 2018, Dr Shaikh sets out the basis for his clinical opinion and the other documentary evidence relied upon to form it; there would have been ample opportunity to probe the adequacy of that opinion using this material. It is not uncommon for a doctor’s clinical conclusions to be challenged in this way in courts and tribunals, and such challenges invariably proceed in the absence of direct evidence of what was said between doctor and patient in clinical settings.
This does not appear to be a case where the desirability of admitting the evidence proposed to be adduced outweighs the undesirability of admitting it by reason of the way it has been obtained (Guo and Minister for Immigration and Border Protection [2016] AATA 901 at [64]). On the contrary, there appears to be little efficacy in the evidence and some harm to good public policy in admitting it.
SCOPE OF THE FEDERAL COURT’S REMITTER
The second matter on which the Tribunal made an interlocutory ruling was the scope of the Federal Court’s remitter to the Tribunal.
The Full Court’s reasons for remitting the decision to the Tribunal are contained in paragraphs [44] and [46] of its judgment. They are as follows:
[44] The appeal should therefore be allowed and the matter remitted to the Tribunal in order that it might address the statutory question, whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. It is for the Tribunal to make the findings of fact that answer this question. In so doing the Tribunal will need to assess the evidence before it. This is not a case in which the Court should exercise the power to make findings of fact conferred by s 44(7) of the AAT Act. The conclusion that the Tribunal reaches after it has considered the evidence is a matter for it, and not for this Court.
…
[46] For the reasons stated, we would allow the appeal and set aside the orders Flick J made on 15 June 2016 and in lieu thereof order that the Tribunal’s decision of 27 March 2015 be set aside in so far as it affirmed the decision under review; and the matter be remitted to the Tribunal to be determined according to law and the reasons herein. For the purpose of answering the question identified in paragraph [44] above, the Tribunal should have regard to the evidence that has already been given in the proceeding before it and receive further evidence limited to this question only if it considers it appropriate to do so. We consider it appropriate in the circumstances that there should be no order as to the costs of the appeal. We note that the parties did not propose otherwise.
Comcare contended that the Full Court with these words limited the scope of the rehearing. It submitted that:
The Full Court has remitted this matter to the Tribunal on a very limited basis – to address the question whether the applicant would have suffered her adjustment disorder if the performance appraisal that occurred 31 January 2011 had not been made …
Conversely, Dr Lim contended that these words – and in particular, the phrase according to law – connoted a broad subject matter remittal to the Tribunal. At the directions hearing on 3 July 2018, Dr Read, Dr Lim’s representative, recommended that the Tribunal should determine the re-hearing of this matter according to law. He then explained what that implied:
‘According to law’ would imply that you have to determine according to all the relevant law that is involved within the case... We would argue very strongly that the legal issues in the case – particularly the date of injury – is a legal issue that needs to be addressed by the Tribunal.
Dr Read told the present Tribunal that it could, and should – by reviewing the evidentiary material already presented to it (and the previous Tribunal) by the parties in this matter – come to its own conclusion about, for example, whether the performance appraisal of 31 January 2011 could in fact be characterised as reasonable administrative action under s 5A of the Act. He told the Tribunal:
The Full Federal Court has overturned the decision so that the decision of Dr Popple no longer stands. So you have to make a new decision in its entirety on what was originally put forward. As I have said to you they have said ‘according to law’.
Further details of what were said to be fundamental errors of law in Dr Popple’s decision were provided in written submissions:
(a)Unlawful determination of [erroneous] date of injury of 18 March 2011 contrary to the statute s 7(4) Safety, Rehabilitation and Compensation Act 1988 (SRCA)’; and
(b)Acceptance that the 31 Jan 2011 ‘mid-cycle performance appraisal’ was a reasonable administrative action for the purposes of the s 5A SRCA exclusionary provision notwithstanding that the subject mid-cycle appraisal was unlawful. (emphasis in original)
In written submissions dated 18 August 2018 Dr Lim argued:
Scope of Full Federal Court Remittal
5. Comcare has contended that the Full Federal Court remittal of the matter back to the Tribunal is a strictly 'limited remittal' only requiring that the Tribunal determine whether Dr Lim's psychological ailment would have occurred in the absence of the 31 January 2011 mid-cycle performance appraisal action' referenced in the Tribunal’s “Conclusion” to its 2015 Decision:
“Dr Lim suffered a psychological condition which arose out of her employment with ACMA. The condition was suffered (on, or a few days before, 18 March 2011) as a result of—amongst other causes—the performance appraisal (on 31 January 2011). The performance appraisal was reasonable administrative action taken in a reasonable manner in respect of Dr Lim’s employment. It follows that Dr Lim’s psychological condition is not an injury for the purposes of s 5A of the SRC Act. Comcare is not liable to pay compensation in respect of her psychological condition.”
6. The Applicant strongly disputes the Comcare contention and controverts that the Full Federal Court remitted the matter to the Tribunal “to be determined according to law” … “upon the evidence already given in the proceeding before the Tribunal” and any further evidence it considers it appropriate to receive in consideration of the reasons for the Full Federal Court's decision to set aside the 2015 Decision. The Applicant maintains that this meaning is explicit in the text used by Kenny, Tracey and Bromberg JJ3 and further that the Tribunal does not have the jurisdiction to make determinations other than “according to law”:
·The jurisdiction of the Federal Court is limited to hearing and determining an appeal “on a question of law” from a decision of the Tribunal. The Court does not have power to engage in merits review and, accordingly, typically remits matters in upheld appeals back to the Tribunal of fact for ‘redetermination’ “according to the law”.
·The High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [49] to [52], expressly referred to “the tribunal of fact” and to its decision making – the critical question for the Tribunal, a finder of fact, being whether the respondent had sustained an injury, in the sense in which that term is used in the SRC Act!
(emphasis in original)
Consideration
The powers of the Federal Court on appeal from the Tribunal are set out in s 44 of the AAT Act. Subsection (1) permits a party to proceedings before the Tribunal to appeal to the Federal Court on a question of law. The section later provides:
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court…
A broad power is thereby conferred on the court by these legislative provisions to remit to the Tribunal the entirety of the subject matter of the original decision or merely such discrete matter or matters as the court considers demonstrate error on the part of the Tribunal (a partial remitter). Pursuant to this power, the Federal Court has from time to time made partial remitters to the Tribunal. In determining whether a remittal is full or partial, the form and context of the court’s reasons for remittal are critical. In Peacock v Repatriation Commission [2007] FCAFC 156 (Peacock) the Full Court (Downes, Lander and Buchanan JJ) stated (at [6]):
Once the prior decision of the Tribunal was set aside, in the absence of some express limitation, it was then for the Tribunal rehearing the matter to determine all questions of fact and law relevant to the applicant’s claim…
In that case the court found that in the absence of some express limitation the Tribunal should have re-heard the matter in its entirety. In the process, their Honours (at [19]) referred, with approval, to the decision in Repatriation Commission v Nation (1995) 57 FCR 25 where the court found that the Tribunal should have restricted the scope of its consideration under the remittal:
In that case… The Court held that the terms of the reasons made it clear that the remittal was restricted... Accordingly, the remittal did not permit the veteran’s entitlement arising from his sinusitis to be reconsidered…
Beaumont J in Nation, with whom Black CJ and Jenkinson J agreed, remarked (at 34):
It follows from the ambiguity of the order of remitter that resort may be had, in aid of its true interpretation, to the surrounding circumstances. Those circumstances included, of course, the reasons for judgment. When regard is had to those reasons, it appears clearly that the meaning to be given to “matter” in the present context is the more restricted on, that is, the sequela question. That was the only issue tendered for determination by the Court.
In Kaluza v Repatriation Commission [2011] FCAFC 97 the Full Court of the Federal Court considered whether an earlier decision of a single judge constituted a full or partial remittal to the Tribunal. It observed at [34]-[35]:
34. In [Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518] the High Court allowed an appeal from the decision of the Full Court of this Court which had directed that a matter be remitted to the tribunal ‘as previously constituted’. Gleeson CJ held (at [7] and [16]) that orders setting aside a decision and remitting the matter to be determined according to law meant that all questions of fact and law relevant to the claim before the tribunal (in that case, the Refugee Review Tribunal) had to be determined again. McHugh J noted (at [45]) that the tribunal was not bound to make the same findings that it had made on the first occasion and Gummow and Hayne JJ (at [67]) held that the Court’s orders taken as a whole provided for the tribunal to begin its statutory task again.
35. When the Full Court came to consider this situation again in Peacock in 2007, the question for consideration arose from a single judge having upheld an appeal on the basis that the Tribunal had erred in applying the criteria set out in s 24(1)(c) of the Veterans’ Act. That was an issue which had previously been conceded by the Commission. The Full Court held that the Tribunal had not erred in doing so. After considering Nation, Morales and Wang the Full Court departed from the approach taken in Nation and Morales concluding (at [6]) that once the prior decision of the Tribunal was set aside, in the absence of some express limitation, it was then for the Tribunal hearing the matter to determine all questions of fact and law relevant to the claim. As appeals are limited to questions of law it was unsurprising that the issues discussed in the appeal were limited but it did not follow that what was remitted was confined to the issues relating to that question of law. As the primary judge noted, the Full Court commented (at [18]) that it would be a rare case in which a limitation to a remittal would be inferred from reasons for judgment when the terms of the remittal were unqualified.
In determining that the single judge’s remittal had been a full remittal, the court found at [38]:
38. The Commission argued, and the primary judge accepted (at [72]), that the orders of the Tribunal were ambiguous in the sense described in the reasoning of Beaumont J in Nation. It seems to us that this approach has been displaced by the reasoning in Wang which was followed in Peacock. In light of the statements in Wang, in our view, unless there is some qualification in the remittal order, there is nothing ambiguous about the order. The entire case is remitted…
Taking the reasons for the Full Court’s judgement in this matter as my principal point of reference, it seems tolerably clear that their Honours were making a partial, not a full, remittal of the matters which had been determined by the original Tribunal and by Flick J, subject to one qualification to which I will later refer. This conclusion can safely be reached by consideration of the words their Honours used and by the context in which they were used.
The Full Court decision focused on one issue, and one issue alone, which it considered gave rise to error on the part of the decision-makers below. That issue was the misconstruction by the decision-makers of the expression suffered as a result of in the exclusion in s 5A(1), following the decision of the High Court in Comcare v Martin. At paragraph [12], the Full Court states:
For the reasons set out below, we would allow Dr Lim’s appeal on the basis that the Tribunal did not address the whole of the correct statutory question when it came to apply the exclusion… (emphasis added)
In para [42], their Honours reiterate:
The Tribunal did not address the question whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. The failure to do so was an error of law…
The consequential restriction which the Full Court then placed on the matter to be remitted to the Tribunal is crystallised at [44]:
The appeal should therefore be allowed and the matter remitted to the Tribunal in order that it might address the statutory question, whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made... (emphasis added)
At [46] their Honours link the matter being remitted to the reasons for remittal to which they have earlier referred:
For the reasons stated, we would allow the appeal and set aside the orders Flick J made on 15 June 2016 and in lieu thereof order that the Tribunal’s decision of 27 March 2015 be set aside in so far as it affirmed the decision under review; and the matter be remitted to the Tribunal to be determined according to law and the reasons herein… (emphasis added)
Those reasons, apparently actuating the remittal, are that the Tribunal did not apply the appropriate test as outlined in Martin. The order for remittal is made conditional on the Tribunal addressing its earlier error: ...remitted to the Tribunal in order that… This construction, in my opinion, constrains the terms of the remittal to reconsideration of the specific matter on which the Tribunal fell into error. In fact it is hard to imagine a clearer instance of a qualified remittal.
The Tribunal is fortified in this approach by the following sentence in [46]:
For the purpose of answering the question identified in paragraph [44] above, the Tribunal should have regard to the evidence that has already been given in the proceeding before it and receive further evidence limited to this question only if it considers it appropriate to do so. … (emphasis added)
If the Full Court had intended a general remittal of all the matters which had been before the original Tribunal, it is hard to see why it would have restricted the present Tribunal’s ability to take further evidence on questions other than the issue identified in paragraph [44].
Clearly, the reasons herein in [46] relate to the question of whether or not Dr Lim would have suffered her adjustment disorder if the performance appraisal on 31 January 2011 had not occurred. Those reasons, it seems to me, frame and define the entirety of the question which has come to me under the remitter. Dr Read, however, put much emphasis on how the Tribunal ought to construe the words determined according to law – found, for example, in para [46]. He argued that appeal courts tend to use that form of words, or some variation thereupon, because they cannot themselves engage in fact-finding exercises but wish lower courts or tribunals to do so. He said, therefore, that inherent in the phrase is an instruction by the appellate court to the Tribunal to determine the rehearing in any remitted matter in its entirety.
The mechanism whereby the words determined according to law achieve this outcome was not explained. The phrase might be regarded as a legal term of art, meaning, to a lawyer at least, that a matter must be determined according to the law as interpreted by the superior court making the remitter. It is an enjoiner to the lower court or tribunal to once again carry out its statutory task but on this occasion to apply the law correctly as elucidated and articulated by the remitting court.
As such, the phrase determined according to law may be said to determine the nature or quality of the task being referred to the Tribunal, but not its scope or ambit. The question or questions which the Tribunal is required to consider again according to law are to be identified by the overall terms of the remitter, and cannot be inferred merely by the use of the phrase according to law.
If, as Dr Lim asserts, the use of the phrase connotes a full rather than a partial remitter, then one would not expect to find the phrase used by the court in cases of partial remitter. However, in Comcare v Davies (No 2)[2008] FCA 566 the Federal Court made the following order (at [7]):
3. The matter be remitted to the Tribunal for further consideration in accordance with law for the determination of the following issues:
(a) What may constitute suitable employment other than the Respondent’s Bali Gardens business; and
(b) The quantification of the Respondent’s ability to earn.
(emphasis added.)
This is plainly a qualified remittal. In doing so the court (Flick J) replaced an earlier order for full remittal of the matter to the Tribunal (The matter be remitted to the Tribunal for further consideration in accordance with law: Comcare v Davies[2008] FCA 393 at [49]). Similarly, in Commissioner of Taxation v Faigenbaum [2008] FCA 510 McKerracher J made the following order at [33]:
That part of the decision of the Tribunal dated 31 July 2007 and given on 1 August 2007 at Perth by which the Tribunal concluded that no penalties should be imposed on the respondents will be set aside and the matter will be remitted to the Tribunal to reconsider that question according to law. (emphasis added.)
I note in the Kaluza decisions that, in considering whether the primary judge had made a full or partial remittal, neither Jacobson J nor the Full Court appeared to attach any significance to her Honour’s use of the phrase according to law in making the remittal. Finally, I note that at least one judge of the Federal Court considers that the remittal by the Full Court in Lim v Comcare was a limited, not a full remittal: see Katzmann J in Hollis v Comcare [2017] FCA 558 at [25], [40].
Accordingly, I conclude that Full Court has remitted this matter to the Tribunal for the purpose, and only for the purpose, of answering the question: would Dr Lim have suffered her adjustment disorder if the performance appraisal on 31 January 2011 had not been made? The one qualification to this construction of my task is that, if I find that Dr Lim would still have suffered her disorder if the performance appraisal had not occurred, then I am required to consider the broader question facing the Tribunal as originally constituted, namely whether Dr Lim is entitled to compensation pursuant to s 14 for her adjustment disorder. Then, but only then, would I be required to consider the other issues pressed by Dr Lim, including the appropriate date of injury and the lawfulness of the administrative action said to give rise to the injury.
WOULD DR LIM HAVE SUFFERED HER ADJUSTMENT DISORDER BUT FOR THE PERFORMANCE APPRAISAL?
In order to answer the question posed by the remittal, Comcare tendered the medical report dated 27 March 2018 of Dr Shaikh. Dr Shaikh is a psychiatrist with significant experience. He holds appropriate qualifications, including a senior lectureship in psychiatry at the University of Queensland. He assessed Dr Lim on 13 March 2018, and reviewed relevant evidence from the previous proceedings in the Tribunal.
Dr Shaikh was apprised of the key issue to be determined by his assessment, whether, if the performance appraisal of 31 January 2011 had not occurred, Dr Lim would have sustained her psychological condition. He based his opinion on several postulated findings of fact, being those found by the Tribunal at first instance. Dr Shaikh’s summary and conclusion based on the foregoing is as follows:
I have assumed that as of 10 December 2010, Dr Lim was not suffering psychiatric symptoms outside the boundaries of normal mental functioning. This would mean that, whilst there may have been the presence of emotional distress prior to this period, it was not reflective of a psychiatric disorder. Dr Lim had not been in receipt of any psychiatric treatment or referred to a mental health professional.
The first true discussion of mental health complaints with her GP was in March 2011. Post this, there was a referral to a psychiatrist and psychologist, and commencement of treatment. I understand the alleged perpetrator was on leave for approximately one month between December 2010 and January 2011.
There is no evidence available to me to suggest that Dr Lim was suffering significant emotional distress, or a diagnosable psychiatric disorder, prior to 31 January 2011. While she herself claims that there was the presence of substantive symptomatology, this appears to be speculation. Dr Lim has maintained reasonably regular attendances with her GP into 2010, and I would have expected that if there were significant symptomatology, that there would have been more discussion surrounding emotional disturbances – this was not to be.
On the basis of available information, therefore, and on the balance of probabilities, it is my opinion that Dr Lim suffered a mental disorder which was first identified in March 2011. The most significant event in question was the performance review in January 2011, and in the absence of this, Dr Lim is unlikely to have experienced a psychiatric disorder. Had the performance review of January 2011 not occurred, Dr Lim’s experienced frustration with workplace matters is likely to have resolved, without the need for specific intervention.
His professional medical opinion on the issue now facing the Tribunal is that, if the performance appraisal of 31 January 2011 had not occurred, Dr Lim would not have suffered her mental disorder on or around 18 March 2011.
He confirmed that opinion in viva voce testimony before the Tribunal. Under cross-examination he denied that the link he had drawn between the performance appraisal in January 2011 and the onset of illness in March 2011 was a manifestation of the logical fallacy post hoc ergo propter hoc – after this, therefore because of this. He told the Tribunal:
My assessment of Dr Lim based on that, as well as the reports of the GP and the psychiatrist, suggest that the performance review in itself was the most significant contributory factor, failing which she would not have developed a psychiatric disorder.
Also before the Tribunal was a letter dated 24 April 2018 of Dr May Matias, a consultant psychiatrist who had treated Dr Lim. In it she expresses surprise about the confidence in which [Dr Shaikh’s] report states categorically that [Dr Lim’s] condition resulted only after the mid cycle review in January 2011. She states:
…I postulate that Dr. Lim was likely already significantly affected by her psychiatric condition well before the mid-term cycle review.
Dr Matias was not called to give evidence. The Tribunal was unable to test her opinion, as it was Dr Shaikh’s. I note that in her letter of 24 April 2018 she asserted that Dr Shaikh had indicated that the mid cycle review was the “sole” reason for the onset of the depressive disorder, a view which she says does not make sense in my mind. I observe however that this misrepresents Dr Shaikh’s view, which was that the mid cycle review was the most significant event, not the sole event, in the onset of Dr Lim’s disorder.
Dr Shaikh’s assessment appears to be consistent with the evidence represented by the records of Dr Maria McPhail, Dr Lim’s then general practitioner. The Tribunal at first instance summarised that evidence – and its conclusions based on it – as follows:
31. At the hearing, Dr Lim said that she was not feeling quite right in October 2010. She did not see a doctor until 8 December 2010, when she was diagnosed with sinusitis. On 10 December 2010, she saw her general practitioner, Dr Maria McPhail. Dr McPhail’s notes from that day indicate that Dr Lim had been unwell, since 6 December, with a runny nose, a cough, sore ears and related symptoms, and had a viral illness. Dr McPhail noted that Dr Lim was stressed and anxious about her work for various reasons: some of those reasons relate to the issue of the template letters and ACMA’s response to enquiries; some of those reasons are discussed below. Dr McPhail also noted that Dr Lim would return to discuss her stress at work “next week when feeling better”. Dr McPhail gave Dr Lim a medical certificate for the period 10–17 December. Dr McPhail’s notes indicate that, on 15 December, Dr Lim left a message saying that she had returned to work and asking that the certificate be changed to cover the period 10–13 December. Dr McPhail issued a revised certificate.
32. There is no evidence that Dr Lim sought any other medical or psychological assistance until she returned to Dr McPhail on 18 March 2011. Dr McPhail’s notes indicate that they discussed Dr Lim’s stress at work. Dr McPhail diagnosed Dr Lim as suffering “adjustment reaction with depression/anxiety”. Dr Lim saw Dr McPhail again on 22 March. On 27 March 2011, Dr McPhail issued a medical certificate for workers’ compensation “in relation to the injury stated as occurring” on approximately 15 October 2010.
33. I am sure that Dr Lim was not completely well in September and October 2010, but I do not think that she was then suffering from the psychological condition that she later developed. She told her doctor, on 10 December 2010, that she was stressed and anxious about her work. But she returned to work after only a few days, and even arranged to have a medical certificate reduced in its period of operation. At the hearing, Dr Lim said that she did this because the Christmas break was coming up, and because Ms Richardson would be away on leave. I am sure that this is true, but I think that it demonstrates that Dr Lim was not then operating outside the boundaries of normal mental functioning and behaviour. The medical certificate that Dr McPhail issued on 27 March 2011 said that Dr Lim suffered her condition around 15 October 2010. But, as Dr Lim confirmed at the hearing, Dr McPhail included that date based on what Dr Lim had told her. In doing so, Dr McPhail was not attesting that Dr Lim suffered the condition in October 2010; she was providing the date on which “the injury [was] stated as occurring”.
Dr Lim points out, in urging the Tribunal to reject Dr Shaikh’s opinion, that he did not address and assess the causal impact on her condition of either the workplace issues in late 2010 or the administrative action of her being declared excess in February-March 2011. This, it must be observed, is because Dr Shaikh was not asked to consider those questions, falling, as they clearly do, outside the matter remitted to the Tribunal by the Full Court.
Dr Shaikh’s written and oral evidence before the Tribunal was forthright and persuasive, to the effect that Dr Lim would not have developed her psychiatric disorder but for the performance appraisal occurring in January 2011. Comcare in a written submission summarised his evidence in the following way:
(a)the adjustment disorder Dr Lim suffered from is a condition that arises in response to specific stressors and it is diagnosed by the symptoms suffered and the impairment in functioning they cause;
(b)an important diagnostic criterion in distinguishing an adjustment disorder from the suffering of stress or other normal human emotions is that the symptoms are sufficient enough to typically cause significant impairment in functioning;
(c)in seeking to determine whether [Dr Lim’s] mid-cycle performance appraisal of 31 January 2011 had caused her to sustain the adjustment disorder she later developed, he considered the symptoms she had exhibited. The impairment in her functioning and the treatment she had received in relation to her symptoms (particularly the commencement of psychiatric treatment in 2011) suggested she developed adjustment disorder symptoms in response to the mid-cycle performance appraisal on 31 January 2011;
(d)there was a substantial demarcation in terms of symptomatology [Dr Lim] exhibited and treatment she received after early 2011, which indicated it was events of early 2011 that caused her adjustment disorder;
(e)he had reached his conclusion as a result of his discussion with [Dr Lim] and his review of relevant medical records, including those of [Dr Lim’s] general practitioner, psychologist and psychiatrist; and
(f)whilst other matters may have contributed to the onset of [Dr Lim’s] adjustment disorder, the performance review in itself was the most significant contributory factor and without it she would not have developed a psychiatric disorder.
This is an appropriate summation of Dr Shaikh’s evidence. The weight of that evidence was not, in my opinion, disturbed on cross-examination. The Tribunal prefers this evidence to the opinion expressed in the written report of Dr Matias.
Other contentions of Dr Lim
Dr Lim filed a number of submissions, the last dated 5 September 2018. In them she raised a number of contentions which I now address.
Throughout her submissions she pressed the argument that the Tribunal should consider events both preceding and succeeding the 31 January 2011 performance appraisal, for their contribution to the onset of her mental disorder. In particular, she maintained that there is evidence that the work-related events of late 2010 were such as to have caused the onset of her condition before the January 2011 performance appraisal. As I have already indicated, however, I do not regard those matters as being within the remit of the Federal Court to the Tribunal. That remit takes as its starting point that the performance appraisal was, as the original Tribunal found, an event which contributed significantly to the onset of Dr Lim’s illness. Resting on that foundation, the Tribunal’s present task is to determine whether she would have suffered that illness but for the performance appraisal (the Martin test). There can be no relevance to that exercise in considering the relative contribution made by other events to the onset of the condition.
Even if I have misapprehended this task, and the entirety of the matter considered by the original Tribunal has in fact been remitted to me, I would regard the performance appraisal of 31 January 2011 as having significantly contributed to the onset of her condition. I have read the decision of the original Tribunal, and examined the evidence which it considered. Notwithstanding Dr Lim’s submissions, I have discerned no reasonable argument to set aside any of its findings of fact. Pursuant to the discretion conferred on me by the Federal Court with respect to the taking of additional evidence, I do not consider that that is necessary in light of the way in which the original Tribunal reached its conclusions (save, of course, with respect to the issue addressed at paragraph [44] of their Honours’ judgement).
A related argument advanced by Dr Lim is that the performance appraisal of 31 January 2011 comprised not one but two distinct actions, both occurring in the course of the same meeting: her supervisor’s appraisal of her performance and an operational direction by the supervisor relating to powers Dr Lim was required to exercise as an ACMA delegate under the telecommunications legislation. Dr Lim characterised this operational direction as one which invited conspiracy to systematically engage in the improper exercise of power. She contended that the performance review should be uncoupled from the operational direction. The argument, as I comprehend it, is that if the operational direction was the event which in fact contributed significantly to the onset of her condition, and the direction, being illegal, cannot by definition constitute reasonable administrative action, then Comcare cannot avail itself of the exclusion in s 5A(1) to avoid liability for Dr Lim’s condition.
The provenance of this argument is unclear. In particular, it is unclear as to whether, and if so how, it was articulated to the Full Court. If it was so articulated, it throws into some doubt what their Honours meant in paragraph [44] of their decision by the words the performance appraisal on 31 January 2011, that is, the subject matter of the remittal. Ultimately, however, I am not persuaded that anything turns on this question. If by the expression the performance appraisal on 31 January 2011 the court was making a shorthand reference to the events which transpired at the meeting on that day between Dr Lim and her supervisor, then I am not inclined to subdivide what the court has evidently aggregated. If, alternatively, the phrase is a reference only to that part of the meeting in which the supervisor gave Dr Lim a performance appraisal, then that is the matter on which the Tribunal has taken evidence and on which it has now reached a conclusion with respect to the application of the Martin test. On that interpretation the operational direction is outside the Tribunal’s remit.
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.
I certify that the preceding 82 (eight-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
........................................................................
Associate
Dated: 21 November 2018
Date(s) of hearing: 22 August 2018 Date final submissions received: 22 August 2018 Applicant: In person Advocate for Dr Lim: Dr Jeffrey Maxwell Read Counsel for Comcare: Mr Andrew Berger Solicitors for Comcare: Mr L Woolley, Sparke Helmore
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