Lower and Comcare
[2005] AATA 551
•9 June 2005
CATCHWORDS – WORKERS’ COMPENSATION – extension of time – application for extension ten years after reviewable decision – whether Comcare unreasonably prejudiced by delay – merits of application – whether an extension is in the interests of justice – extension granted.
Administrative Appeals Tribunal Act 1975 ss. 29 and 42A
Administrative Decisions (Judicial Review) Act 1977 s. 11
Commonwealth Employees’ Compensation Act 1930 s. 9
Compensation (Commonwealth Government Employees) Act 1971 ss. 5, 27 and 29
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 24 and 124
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Behan v Australian Telecommunications Corporation (1990)26 FCR 337; 22 ALD 545
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Chalk v Commissioner for Superannuation (1994) 50 FCR 150; 33 ALD 420
Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480
Comcare v A’Hearn (1993) 119 ALR 85
Commissioner of Taxation v Brown [1999] ATC 4852
Hoare v Deputy Commissioner of Taxation (Vic) (1987) 14 ALD 476
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Lower v Comcare (2002) 124 FCR 498; 36 AAR 220
Mulheron v Australian Telecommunications Corporation (1991) 23 ALD 309
Re Bell and Australian Telecommunications Corporation (1983) 5 ALN N186
Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578
Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97
Re Lower and Comcare (2003) 74 ALD 547
Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309
Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537; 12 AAR 298
Re Pepper-Clayton and Australian Telecommunications (1985) 7 ALD 508
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
Zizza v Commissioner of Taxation [1999] FCA 37
DECISION AND REASONS FOR DECISION [2005] AATA 551
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2003/224
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN BERTRAM LOWER
Applicant
AndCOMCARE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 9 June 2005
Place: Adelaide
Decision:The Tribunal has decided to extend the time within which Mr Lower may lodge an application to review the decision of the respondent dated 27 September 1991 to 10 June 2003.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 27 September 1991, Comcare refused Mr Kevin Bertram Lower’s claim for compensation. On 17 August 1992, Mr Lower withdrew the application he had lodged in the Tribunal to review that decision. Over ten years later, on 10 June 2003, he sought an extension of time to lodge a further application to review Comcare’s reviewable decision. I have decided that he should be given that extension so that his application lodged on 10 June 2003 can be heard and matters relating to Mr Lower’s claim for compensation finally resolved.
THE ISSUE
I must decide whether I should extend the time within which Mr Lower may lodge an application for review of Comcare’s decision dated 27 September 1991.
BACKGROUND
The parties agreed on a number of factual issues forming the background to the application. In light of that and having heard from Mr Lower and read the documents relied on by the parties, I have made the findings of fact set out in the following paragraphs.
Mr Lower was born on 22 November 1944. He completed two years of a Bachelor of Arts degree in Professional Writing at the Canberra College of Advanced Education (“CCAE”). When he was 27 in 1971, he joined the Bureau of Meteorology (“Bureau”) as an Observer Grade 1. Initially, he was a trainee first at Mascot Airport and then at Melbourne to study electronics. His main task as an Observer Grade 1 became the gathering and dissemination of meteorological information. Between 1971 and 1990 he performed higher duties from time to time as an Observer Grade 2. During those years, he was posted to various locations including Hobart Airport, Hobart Regional Forecasting Centre, Launceston Airport, New South Wales Regional Forecasting Centre, Brisbane Airport, Adelaide Regional Forecasting Centre, Adelaide Airport and Edinburgh RAAF Base.
Between March 1989 and March 1990, the Bureau introduced a computerised meteorological system known as the Automated Regional Office System (“AROS”). AROS’s introduction led to the Bureau’s restructuring its organisation and to its reclassifying a number of Observer Grade 1 positions to Observer Grade 2 positions. It advertised the re-classified positions in the Commonwealth Government Gazette (“Gazette”) on 19 April 1990. The Duty Statement specified the duties to be performed by the holders of the Observer Grade 2 positions:
“1. Take meteorological observations using appropriate equipment and perform associated computations.
2.Operate AROS equipment. Participate in other duties associated with the operation of the Regional Forecasting Centre including coding and plotting as required.
3.Check instrumental performance and carry out routine maintenance in accordance with requirements. Take or arrange corrective action as required.
4.Assist with the provision of meteorological information services to the public.
5.Assist in the training and oversight the work of Trainee Observers.”[1]
[1] Exhibit B at 3a
Mr Brian Rowe, who was an Observer Grade 3, was then Mr Lower’s supervisor. After an approach from the Bureau, Mr Lower applied for one of the reclassified positions based in South Australia. He did so in a letter dated 24 May 1990.[2] As Mr Lower’s supervisor and as a part of the selection process for the position, Mr Rowe prepared a referee’s report regarding Mr Lower. The report was dated 25 May 1990 and a copy of that report was given to Mr Lower on 26 May 1990.
[2] Exhibit B at 4-6
Mr Lower was interviewed by a Joint Selection Committee (“JSC”) on 28 and 29 May 1990. In its Selection Report dated 28 May 1990, the JSC wrote of Mr Lower:
“Criterion 1 Refs. rate as adequate. Interview performance poor. Overall the JSC believes that fellow staff would have no confidence in data gathered, analysed and presented by Mr Lower.
May meet criterion to a bare minimum standard.
Criterion 2 Lack of knowledge and poor presentation would make Mr Lower an inappropriate Bureau representative over a range of situations requiring liaison.
Criterion 3 Even if his knowledge was adequate, which it may just be, Mr Lower’s approach and attitude would indicate he should not be used to train any other staff.
Criterion 4 Lacks the required knowledge.
Criterion 5 Meets prerequisite. Claims past qual in Professional Creative Writing is relevant. Has part diploma level course in Computers …[illegible]
Criterion 6 Has good experience in a number of regions
Criterion 7 Supervisors report poor. Although overall probably indicating unacceptable level of performance, generally rated as adequate. Referee nominated does not disagree with supervisors assessment.
Criterion 8 All reports indicate significant lack of commitment to the job and co-operation. If only on that basis, Mr Lower must be considered unsuitable for promotion as Obs Gr 2.
Summary Comments Overall unsuitable.
P.S. The JSC gave full benefit of the doubt to Mr Lower in accepting that he was genuinely an applicant.”[3]
[3] Exhibit B at 7-8
A further extract from the JSC’s Selection Report reads:
“The final applicant was Mr Lower. After careful consideration the JSC accepted that he was a serious applicant and therefore considered him on the same basis as all others. From discussion with Mr Lower and the reports received from his supervisor, which were discussed with him, and the referee he nominated during the course of his interview the JSC formed the opinion that his personal qualities, level of commitment and consequently his abilities are so poor that he is unsuitable for promotion now and further experience would not correct this. Mr Lower assured the JSC that he was working to the best of his abilities and that the resultant output reflected a competent level of performance. Taken across the range of requirements of an Observer Grade 2 such an assessment shows a significant lack of self perception. His performance is apparently unacceptable but at this stage formal action has not been taken.
The JSC is happy for this report or any part of it to be provided to any of the applicants together with their individual assessment.”[4]
[4] Exhibit B at 9 and 19
A little later, Mr Rowe asked Mr Lower to accept a temporary posting to Ceduna as an Observer Grade 2. The permanent occupant of the Observer Grade 2 position in Ceduna had been incapacitated after an accident. Mr Lower declined the transfer but was directed on 18 and 23 July 1990 to take it. He prepared to transfer to Ceduna but, by 24 July 1990, he did not feel physically and mentally able to travel. After consulting his doctor, he was certified unfit for duty. On 5 September 1990, Mr Lower met with officers of the Bureau, Dr Limmner and a representative from his union, the Professional Radio and Electronics Institute of Australia (“PREIA”).
Mr Lower has been diagnosed as suffering from a generalised anxiety disorder and with depression (“illness”). On 15 December 1990, Mr Lower lodged a claim for compensation under the Act in relation to his illness. Although it did not dispute that Mr Lower suffered from the illness, Comcare refused the claim on 14 May 1991. Liability was denied on the basis that the illness arose out of the selection process for the Observer Grade 2 position. The determination was affirmed on 27 September 1991 (“reviewable decision”) on the basis that Mr Lower’s illness was due to:
the dispute between him and the Bureau;
a process of changing and re-negotiating his employment contract and its conditions and not from his employment;
his not wanting to be employed; and
a chain of events flowing from his failure to obtain a promotion.
On 27 November 1991, Mr Lower lodged an application in the Tribunal to review the reviewable decision on the basis that the decision was wrong in fact and law and against the weight of evidence. The application was listed for hearing on 17 August 1992 but his then solicitors, Johnston Withers, withdrew the application on that day. On 17 August, 1992, Mr Lower signed a document instructing his then solicitors
“… to withdraw my application before the Administrative Appeals Tribunal which has been set down for a hearing on Monday 17 August 1992, on the basis that I am unable to afford their services and I do not wish to conduct the hearing of the matter myself.”[5]
A differently constituted Tribunal then dismissed Mr Lower’s application for review of Comcare’s reviewable decision in the following terms:
“The parties to this application for review having consented, it is directed, pursuant to section 42A(1) of the Administrative Appeals Tribunal Act, 1975, that the application be dismissed.” [6]
[5] Set out in my earlier decision, Re Lower and Comcare (2003) 74 ALD 547 at 548.
[6] Re Lower and Comcare (2003) 74 ALD 547 at 548.
In 1994, Mr Lower consulted solicitors, Messrs Palios, Meegan & Nicholson, in relation to his claim against Comcare. They wrote to Comcare in 1994 asking for a copy of Mr Lower’s files. Comcare gave them a copy and heard nothing more from those solicitors. In the meantime, Mr Lower’s relationship with them deteriorated and he withdrew his instructions.
Mr Lower consulted the Commonwealth Rehabilitation Service (“CRS”). He consulted his then union, the Public Sector Union (“PSU”). The PSU did not give him any funding to obtain legal assistance but referred him to a firm of solicitors, Duncan & Hannon. Mr Lower consulted them on 16 September 1996.
In 1996, the Bureau arranged a specialist psychiatric assessment of Mr Lower after it had discussions with the Commissioner for Superannuation (“Comsuper”). Mr Lower saw Dr Davis on 14 November 1996 and the Bureau sent his report dated 26 November 1996 to Comsuper in a letter dated 24 December 1996. Dr Davis concluded his report by writing:
“While I consider that Mr. Lower is unable to return to work in the Bureau of Meteorology, essentially because of the stand he has taken against his employer, I am not convinced that he is totally and permanently incapacitated for work of any sort. He does not have a disabling psychiatric condition, and thereby it cannot be argued that he has an on-going incapacity for work because of chronic mental illness. I consider that his personality disorder is the over-riding factor in his work related difficulties. However, I consider that he has the retained capacity to be educated or trained to undertake other work, outside of the Bureau of Meteorology.
In the end, I consider that Mr. Lower will have to make a choice whether or not he wants to pursue this course of action.”[7]
[7] Exhibit B at 142
In a letter dated 24 December 1996, the Bureau suggested that it would not be practical for Mr Lower to return to work with it given Dr Davis’s report and an earlier assessment by Mr Tim Upsdell of the CRS.[8] Comsuper advised the Bureau on 20 February 1997 that Mr Lower’s application for retirement had been declined.[9]
[8] Exhibit B at 145-146
[9] Exhibit B at 148
In May 1998, the Bureau arranged for Mr Lower to be examined by Dr Long, the Commonwealth Medical Officer (“CMO”) with Health Services Australia (“HSA”). Dr Long’s summary of his assessment of Mr Lower was:
“This man has a history of significant anxiety and depression spanning many years. Although his symptoms have improved considerably with treatment and passage of time and removal from the work place, he remains very angry about events of the early 1990s such that he seems still unable to consider a fresh start back at work even if his employer were willing to do so. The intensity of his emotions is such that I do not foresee his ever returning to work with the Bureau of Meteorology, now or in the future. I note from your referral letter that any return to observer work would require an initial period in Adelaide prior to undertaking extensive retraining Melbourne. As already stated however he is unwilling and I believe unable to return to the Bureau of Meteorology at this time and hence his capacity to comply with these specific requirements is not relevant.
I note that he reports to be functioning satisfactorily in most other aspects of his life at this time in that he is living independently as a boarder and apparently has a circle of friends with whom he socialises regularly. He is also cycling and walking for exercise. He may therefore retain a capacity to enter into alternative employment, which does not require interaction with the Bureau of Meteorology if ties could be severed with that organisation.
In any case I certainly would not see his resuming his duty with your organisation in less than 6 months and doubt that this will ever be an option even in the distant future.”[10]
[10] Exhibit B at 162-163
On 29 February 2000, Mr Lower applied for a reinstatement of his application pursuant to s. 42A(10) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). A differently constituted Tribunal refused the application on the basis that the decision had not been dismissed in error and so could not be reinstated pursuant to s. 42A(10). If Mr Lower were to lodge an application for an extension of time, the Tribunal also expressed the view that it would not grant the application. On appeal to the Federal Court, the Tribunal’s decision was set aside by Tamberlin J on appeal.[11] His Honour remitted the matter to the Tribunal for determination in accordance with the law. On 6 June 2003, I dismissed Mr Lower’s application for reinstatement on the basis that the Tribunal had no power to reinstate the application under s. 42A(10).[12]
LEGISLATIVE BACKGROUND
[11] Lower v Comcare (2002) 124 FCR 498; 36 AAR 220
[12] Re Lower and Comcare (2003) 74 ALD 547
The Tribunal’s power to extend time
Under s. 29(2) of the AAT Act and unless varied by another enactment, a person has 28 days within which to apply for review of a decision. There has been a variation of the time period in this case to 60 days[13]. A person may apply for an extension of the time allowed to lodge an application pursuant to s. 29(7) of the AAT Act and may do so even though the time for an application has expired (s. 29(8)).
[13] Safety, Rehabilitation and Compensation Act 1988, s. 65(4)
An outline of the compensation provisions
Mr Lower’s claim for compensation related to events covering a span of years when compensation was variously regulated by three Acts: Commonwealth Employees’ Compensation Act 1930 (“1930 Act”),[14] Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”),[15] and the Safety, Rehabilitation and Compensation Act 1988 (“1988 Act”).[16] Section 124(1) of the 1988 Act states that it applies to an injury, loss or damage suffered by an employee whether before or after its commencement on 1 December 1988. That date is also the date that Part X of the 1988 Act commenced operation. A person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.[17] This is consistent with the approach adopted by Lockhart J in Behan v Australian Telecommunications Corporation.[18]
[14] Came into operation on 10 November 1930.
[15] Came into operation on 1 September 1971.
[16] Came into operation on 1 December 1988.
[17] 1988 Act, s. 124(1A).The proposition is re-stated in effect in s. 124(2) of the 1988 Act.
[18] (1990) 26 FCR 337; 22 ALD 545
The 1930 Act
Section 9(1) of the 1930 Act provided that:
“If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule.”
The word “injury” was defined to mean:
“… any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury”.[19]
[19] 1930 Act, s. 4(1)
The 1971 Act
Section 27(1) of the 1971 Act provides that:
“If personal injury arising out of or in the course of employment of an employee of the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.”
An “injury” means
“…means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease.”[20]
[20] 1971 Act, s. 5(1)
A “disease” is defined by s. 5(1) of the 1971 Act to mean a:
“... physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.”
It is relevant to note that s. 29(1) goes on to provide that:
“Where –
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.”
Section 29(2)(e) then goes on to provide that, if:
“the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)… the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.”
The effect of a disease’s being deemed to be a personal injury arising out of an employee’s employment with the Commonwealth, means that the employee is entitled to compensation in accordance with the 1971 Act. That is the effect of s. 27(1).
The 1988 Act
In general terms and subject to Part II of that legislation, Telstra is liable to pay him compensation “in respect of an injury suffered … if the injury results in … incapacity for work, or impairment”.[21] Exceptions to that general proposition are found in ss. 14(2) and (3). The first is that compensation is not payable in respect of an injury that is intentionally self-inflicted.[22] The second is that:
“Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”[23]
[21] 1988 Act, s. 14(1)
[22] 1988 Act, s. 14(2)
[23] 1988 Act, s. 14(3)
Unless a contrary intention is shown in the 1988 Act, the word “injury” is defined in s. 4(1) to mean:
“(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
The word “disease” is defined to mean, unless a contrary intention is shown in the 1988 Act, to mean:
“(a) any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.[24]
[24] 1988 Act, s. 4(1)
An “ailment” is defined to mean:
“… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.[25]
[25] 1988 Act, s. 4(1)
Section 19 sets out the circumstances in which Telstra is liable to pay compensation to an employee in respect of an injury. What is meant by “incapacity” in the Act? Section 4(9) provides that:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Section 24(1) provides that, where an injury to an employee results in a permanent impairment, Telstra is liable to pay compensation to an employee in respect of the injury. The word “impairment” means the “… loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.[26]
THE EVIDENCE
[26] 1988 Act, s. 4(1)
Mr Lower’s work experience
Mr Lower said that he was stationed at the Hobart Airport between 1972 and 1975. For most of that time, he worked as an Observer Grade 1 but approximately six months of the period was spent acting as an Observer Grade 2. He also spent three months of the period in the Hobart Regional Forecasting Centre. In 1976, he was transferred permanently to the Launceston Airport where he acted as an Observer Grade 2 for approximately six months. Later, in 1976, he was transferred permanently to the New South Wales Regional Forecasting Centre. In 1980 and 1981, he was based permanently at the Adelaide Regional Forecasting Centre but he spent three months of that period on a temporary transfer as an Observer Grade 1 at the Brisbane Airport.
Between 1982 and 1984, Mr Lowe said, he took a year’s leave without pay to study at the CCAE. He returned to the Bureau’s Adelaide Regional Forecasting Centre in 1985. Later that year, he was transferred for a two year term to the Edinburgh RAAF Base as an Observer Grade 1.
In 1987, Mr Lower said that he was transferred to the Hobart Regional Forecasting Centre for approximately three months. He received a satisfactory report for his work. He then returned to the Adelaide Regional Forecasting Centre where he remained until 1990. He said that he worked as an acting Observer Grade 2 and that he was involved in updating Observers Grade 2 in the use of new computerised meteorological equipment known as AROS. There was an industrial dispute between the Bureau and PREIA, Mr Lower observed, during the year that AROS was introduced. The industrial dispute concerned its introduction. For a period, he worked as an acting Observer Grade 2 at the Adelaide Airport.
Observers Grade 1 and 2
Mr Lower said that, when he joined the Bureau, the main difference between an Observer Grade 1 and an Observer Grade 2 was their location. Observer Grade 1 positions were found in the regions and Observer Grade 2 positions were located in the field as their occupants were required to use radar and radiosonde technology. Occupants of positions at both levels were required to be completely accurate as the information they gather is used by forecasters.
Mr Lower’s application for an Observer Grade 2 position
Mr Lower said that AROS led to the reclassification of some Observer Grade 1 positions as Observer Grade 2 positions and the abolition of one Observer Grade 1 position at the Regional Forecasting Centre. He said that the five reclassified positions were to be made available to then current Bureau employees. PREIA told its members not to apply for the positions. Some did apply, however, but Mr Lower said that their applications were not acted upon.
When the industrial dispute was resolved and the five reclassified positions advertised in the Gazette, Mr Lower said that there were 14 applications. At the time of the advertisement, Mr Lower was on holidays. He understood that Mr Mal Harrison, an Observer Grade 4, contacted his mother and asked whether he, Mr Lower, was applying for one of the positions. Mr Lower said that his mother told him of the conversation and he sent an application. He prepared a handwritten report and was interviewed by the JSC on 28 May 1990.
The JSC comprised Mr Harrison, Mr Ian Bercherie, a representative of PREIA, and Mr Neil Stevenson from the Merit Protection and Review Agency (“MPRA”). Mr Stevenson was the JSC’s convenor. Mr Lower said that he was interviewed again on the following day, 29 May 1990. Mr Lower said that his application for the position was genuine and the JSC understood that. The JSC had been given a report by Mr Rowe. Mr Lower had been given a copy of that report a few days before the hearing. Mr Rowe’s report, Mr Lower said, was a bad report. He asked Mr Rowe why it was so poor and why he had not previously been told about his deficiencies. Mr Rowe replied, he said, that he “didn’t want to big note about it”.[27] Mr Lower told the JSC that he believed his work was satisfactory, that he liked his job and did not agree with Mr Rowe’s comments. With his consent, the JSC obtained a report from the Senior Meteorologist on duty at the time. His report was also adverse, Mr Lower understood, but he had never seen it and did not have an opportunity to comment on it before the JSC made its decision.
[27] Exhibit A at [35]
Mr Lower said that he accepted the JSC’s decision that his application was not successful. He did so as some of the other candidates had more experience than he and, in any event, the decision was not appealable. For all that, Mr Lower did not consider that the JSC’s report was correct. Had his work been as bad as the JSC said, he thought, he should have been sacked from the Bureau. In his view, the JSC’s report said that he was totally incompetent and that it effectively recommended that action should be taken against him.
Events after the JSC’s report
On 14 June 1990, Mr Lower said, he was taken from the Bureau’s roster and he became an unattached officer without a substantive position. He worked for a period in the Hydrological Section. He attended a post counselling session conducted by Mr Harrison and Mr Bercherie. Mr Lower told them that he wanted clarification regarding the quality of his work and told him that he was shocked that the JSC and Mr Rowe could be so vindictive and say such bad things about him. Mr Lower said that Mr Harrison and Mr Bercherie told him that “it’s not us talking in the report”[28] and that they were only part of the JSC. When he pointed out that he had worked unsupervised at the Hobart Airport and that he had ingrained responsibility, they observed that a promotional exercise was different from assessing an individual’s work performance. A promotional exercise involved comparing his work with everyone else’s work. Mr Lower said that he understood that the JSC Guidelines required supervisors and referees to assess applicants on the basis of their suitability for the advertised position and not on their performance in their existing positions. If the person is already acting in the advertised position, the assessment is made on the basis of the work in that position. The JSC Guidelines also provide that reports obtained as part of the selection process will be considered as work reports. Mr Lower said that Mr Harrison and Mr Bercherie would not discuss in any detail his concerns about the process.
[28] Exhibit A at [48]
As he was not happy about the post counselling interview, Mr Lower approached the Bureau’s Personnel Officer, Mr Peter Birkill, to discuss the matter with him. Mr Birkill told him, he said, that he could understand why he was upset but could do nothing about it.
Mr Lower’s transfer to Ceduna
When Mr Rowe told him of the vacancy in Ceduna and asked if he would like to go there, Mr Lower felt that the question was totally inconsistent with the JSC’s assessment of his work. Ceduna was an important position and it was in a remote location without supervision. It was an Observer Grade 2 position without direct supervision. Although more than one Bureau officer is located in Ceduna, each works a 24 hour solitary shift. Mr Lower next thought that Mr Rowe was trying to get him out of the Adelaide office but he later learned that the vacancy was genuine.
Mr Lower asked Mr Harrison for a work report about his work. Mr Harrison gave it to him in a document dated 20 July 1990. The report said that his work had been satisfactory since the JSC interview. This caused him further consternation, Mr Lower said. How could his work change from totally incompetent to satisfactory in the space of a month? After he had received that report, Mr Lower told Mr Rowe that he was not prepared to transfer to Ceduna. His unwillingness was based on the contradictions between the JSC’s reports and Mr Harrison’s later report. He did not feel that it would be appropriate for him to work unsupervised at Ceduna until the matter was properly resolved.
On 3 July 1990, Mr Lower said, he notified Mr Birkill that he had a grievance. He told Mr Birkill of his concerns about the conflicting work reports. If he was incompetent, Ceduna was an inappropriate workplace. He was concerned about legal implications if his work were not performed satisfactorily. Had he not had these concerns, he would not have had a problem with transferring to Ceduna.
On 5 July 1990, Mr Lower received a letter advising him that he would be transferred to Ceduna for 13 weeks. Mr Lower wrote to Mr Harrison on 9 July 1990 asking him to confirm the position and to provide appropriate documents. In response, he received a Staff Movement Notice dated 10 July 1990 confirming that his position had been abolished and that he had been transferred to a position of Observer Grade 1 Relief Pool Observer.
On 13 July 1990, Mr Lower wrote to the Bureau’s Regional Director, Mr Furler, declining to take any positions at all because of the conflict between the JSC’s view of his competency and the fact that they were now attempting to transfer him to Ceduna. At the time, his father was very ill and he asked to be excused from temporary transfer on compassionate grounds. Mr Lower said that he met with Mr Furler on 18 July 1990.
Mr Lower said that the Bureau insisted that he move to Ceduna. He was told, he said, that he would have the opportunity to show that the reports about his work were wrong. Mr Lower told them that he wanted to know immediately that they were wrong. Mr Furler wrote to Mr Lower on 18 July 1990. The letter read, in part:
“I understand from Mal Harrison that he has been involved in at least three discussions with you on the report. I note your comments on the JSC report your work performance and this report which contains recommendations for promotion to permanent Obs 2 positions. You have been acting as Observer Grade 2 since the report and this and additional higher duties will provide opportunity for further ‘on the job training’ and the opportunity to reassess performance and provide counselling if necessary. Field work would further enhance this process.
Your transfer to Ceduna will provide you with opportunity to clearly demonstrate that you can perform contrary to the assessment arising out of the interview session; although there is no role for you to train others anticipated during your period of transfer. The Officer in Charge would be expected to supervise you and counsel you should this be necessary.
As you are aware Ceduna has recently had new equipment installed, does not have radiosonde equipment and you are expected to be able to perform all the station duties for which are qualified.
My review of the administrative process indicates that it is appropriate for you to be transferred to Ceduna with an expectation that you will perform tasks on station in a satisfactory manner.”[29]
[29] Exhibit B at 15
A note from Mr Harrison signed on 20 July 1990 states that he had discussed Mr Lower’s performance with Mr Rowe. Mr Rowe had advised him that Mr Lower had satisfactorily performed the duties of an acting Observer Grade 2 since early June.[30]
[30] Exhibit B at 17
After speaking with his union representative, Mr Ross Calver, Mr Lower decided to apply to the MPRA on 24 July 1990. He was rostered to report for duty in Ceduna on Wednesday, 26 July 1990. He said that he had his car serviced and packed over the preceding weekend and was ready to drive to Ceduna on the Monday. On that Monday morning he said that he found himself “… in a real mess. … [and] physically unable to travel to Ceduna.”[31] He consulted his local general practitioner, Dr Leaney, who gave him a medical certificate. Dr Leaney subsequently referred him to Dr David Kelly, a psychiatrist, whom Mr Lower first saw on 15 August 1990. Dr Kelly saw Mr Lower on several occasions up to and including 17 October 1990 but, in a letter dated 29 October 1990, Mr Lower advised him that he would not be consulting him further.[32]
[31] Exhibit A at [81]
[32] Exhibit 10 at 1
Events after Mr Lower did not take up the position in Ceduna
Approximately three weeks after he was due to leave for Ceduna, Mr Lower saw Mr Birkill and asked him to arrange a meeting with Mr Harrison. Mr Lower wanted to discuss his concerns about the negative work reports with Mr Harrison. Mr Birkill told him that he wanted him to see the CMO. An appointment was arranged for him to see Dr Thea Limmer in late August 1990.
On 5 September 1990, Mr Lower attended a meeting with PREIA representative, Mr Martin Boas, Mr Harrison, Mr Birkill and Dr Limmer. Mr Lower understood that the meeting was called to discuss the reports about his work and options for his returning to work. He said that he felt that the Bureau attacked him from the beginning of the meeting. Reference was made to his objecting to a transfer to the Hobart Airport some 17 years before. He objected to that issue’s being raised. He was told that his name was next on the transfer list. Mr Lower felt that the meeting was purely vindictive and that the Bureau’s officers were trying to find fault with him. When there was discussion about his options, he was told that they were extended sick leave without pay, retiring or returning to work.
The minutes of that meeting set out the options that were discussed in the following way:
“(1) To return to work at the expiration of the sick leave ordered by Dr Kelly. To re-commence work in another environment e.g. at Adelaide Airport for two weeks, to ease him back into his usual duties, and then to undertake the duties at Ceduna which would cease in November.
(2)To undertake temporary re-deployment to some other kind of work e.g. in a position in another section which he has temporarily filled before and liked.
(3)To undertake permanent re-deployment to another department.
(4)To take leave without pay for a period e.g. 6 months, to allow him to get right away from his job and do something else.
(5)To resign – all present considered that this should be a last resort and not in Mr Lower’s interests.”[33]
[33] Exhibit B at 22
On Dr Kelly’s advice, Mr Lower returned to work carrying out administrative duties. Mr Lower felt unable to work upstairs as he was afraid to do so. When he saw Mr Harrison walk into the building, he could not cope, he said and walked out to see Dr Kelly. On 14 September 1990, Mr Birkill wrote to Mr Lower:
“I refer to your recent examination by the Commonwealth Medical Officer, discussions held with representatives from the Bureau, PREIA and the Australian Government Health Service (AGHS) and your current absence from duty commencing 10 September 1990.
I have discussed the matter of your fitness for duty with Dr Alan Gormley of the AGHS who has spoken with your Dr Kelly. It has been indicated by the CMO and Dr Kelly that you are fit to resume work. You should be aware that at present you are on a period of unauthorised absence and as such are not eligible for pay.
Please contact me urgently and advise me of your expected date of return to duty. If I do not receive a response by close of business on 19 September 1990 the payment of your salary will be stopped. You should also note that if you do not contact me and do not return to duty, forfeiture of office proceedings must be undertaken.”[34]
[34] Exhibit B at 24
Mr Lower said that Dr Kelly suggested that he work at the Adelaide Airport for a few hours each day. Despite his disagreeing with the advice, Mr Lower followed it. On 24 September 1990, he attended a meeting with Mr Furler about his transfer to the Adelaide Airport. He was told that it was too late to go to the Adelaide Airport on that day. Mr Lower said that he felt unwell at the time and pulled a razor blade from his pocket and cut his arm in front of the Bureau’s officers. He did not know why he had the razor blade with him at the time. Dr Ramsay stitched the cut. Mr Lower said that he asked Dr Ramsay to refer him to Dr Nick Ford, who is a psychiatrist.
In a report dated 9 February 1991 to Comcare, Dr Ford reported that Mr Lower was suffering from a generalised Anxiety Disorder with marked phobic components. He had suffered from panic attacks but they did not meet the frequency criteria for Panic Disorder according to DSMIIR. That condition was directly related to his work situation. Dr Ford identified a number of factors relevant in the development of his condition:
“… These were the contentious nature of the restructure, his failure to win an upgrade and the provisions of written advice that his performance was not up to standard in terms that are quite unambiguous. As an addendum he then received advice that he was to be transferred to Ceduna a position, I understand from Kevin and your letter, to be on a par with the position that he had unsuccessfully applied for. Although this may have been departmental policy and quite appropriate Kevin took this as paradoxical and interpreted it as a rejection. I also note that he had domestic reasons for wishing to remain in Adelaide as his father was then ill. As an aside it seems that given the perceived difficulties in his work, placement to an important station, with less provision for supervision does seem unusual.
The information he received was quite threatening, and some attempt at the time to couch the comments in more softened terms, with an opportunity for redress by participating in a training scheme would have probably terminated the development of the subsequent difficulties for the department and Kevin’s own suffering.”[35]
At first, Mr Lower began to experience mounting feelings of anger and frustration but they developed into severe anxiety.
[35] Exhibit B at 29-30
As to whether Mr Lower’s condition was temporary or permanent, Dr Ford wrote:
“4. The temporary or permanent nature of the employment situation as stressor is very difficult to answer. Kevin is still showing a marked ambivalence about returning to work. This will worsen as time progresses and his treatment should have commence some considerable time ago. It would be useful to consider a controlled return to work, however to do this the Department may need to reconsider some aspects of their handling of the situation. This would; include a re evaluation of the content and tone of the reports and consideration of the status of those reports in the permanent files, an offer to redress the situation by an official letter and some effort to provide supervision of his work by an empathic supervisor who would be prepared to act as a ‘mentor’ for Kevin and provide or arrange training. These measures could be taken immediately. Following this a time frame could be set for Kevin to return to work on initially a part time basis. The time frame of this should be in approximately three months, ie early May, and the success or otherwise of his treatment could then be gauged. If at that stage he is till (sic) unable to return, given the measures above, I would judge the employment factors to be permanent in nature.
5. Kevins recovery is partial at present, his acute symptomatology has resolved but the phobic or avoidance behaviours persist. The usual way of treating such behaviours is by graded exposure to the feared situation with guarantees that the stressor will remain controlled. Efforts to help him confront this are proving difficult and hence I have suggested above that a finite time period be set, and that this be adhered to, if a return to work cannot be achieved then his incapacity of this type of employment may have to be regarded as permanent.
At present I am reviewing him monthly, prior to his return to work and immediately after, the frequency of consultations will need to escalate to weekly.”[36]
[36] Exhibit B at 32
In a letter to Dr Ramsey of the same date, Dr Ford wrote:
“… His anxiety problems have largely resolved but it is proving very difficult for him to return to work as he is very phobic and mistrustful. There is quite a rigidity to his personality structure, which can amount to a paranoid stance and he has certainly had a difficult time which has reinforced his challenged view of the world.
In this report, I have set a clear time frame for either return to work or an acceptance of a permanent disability. He is quite ambivalent bout either option, although recognises that he will have to make a choice eventually.
This is the difficulty that Dave Kelly encountered, I am cautiously hopeful that we will be able to steer Kevin through this dilemma, but is (sic) is quite possible that he may act out again.”[37]
[37] Exhibit 7
Claiming compensation and seeking review of Comcare’s reviewable decision
At the conclusion of a long letter of advice dated 19 September 1990, Johnston Layton advised Mr Lower:
“If you feel like walking away from any of your claims at this stage, you should do as much as you can in order to protect your position for the future. You may feel one way at this time, but you may feel differently in a few months time. Therefore, even if you do not want to pursue a compensation claim at this stage you may feel that it its appropriate to lodge a claim with Comcare enclosing a short letter indicating that you will be able to follow it up in a few months time when you have recovered sufficiently from the stress related to your work.”[38]
The correspondence in Mr Lower’s bundle of documents includes various exchanges between Johnston Withers and Comcare regarding Mr Lower’s claim for compensation.[39]
[38] Exhibit B at 27
[39] Exhibit B at 40-49
Dr Ford wrote to Dr Mary Devasagayam on 24 April 1991 regarding Mr Lower’s condition.[40] At that stage, Mr Lower was applying for review of Comcare’s decision and Dr Ford felt unable to give any clear prognosis or return to work programme.
[40] Exhibit 1
On 25 February 1992, Dr Ford wrote to Dr Devasagayam at the Australian Government Health Service advising that Mr Lower’s symptoms had continued without abatement.[41] He still had mixed anxiety and depressive symptoms with poor sleep and episodes of marked anger and frustration. The conflict with his employers was still very much on Mr Lower’s mind. Although willing to return to work, Mr Lower was not able to do so at that time. Redeployment would be likely to worsen his symptoms and to heighten his sense of failure and inadequacy.
[41] Exhibit B at 66
Dr Kelly wrote a report dated 29 June 1992; this time to Johnston Withers. In his Summary and Conclusions, Dr Kelly wrote:
“ In summary therefore, it is my opinion that Mr. Lower was a man in whom his personality make-up made him vulnerable to the adverse report made concerning him at work. As a result of the stress which he experienced in receiving this report, it precipitated a significant level of anxiety and depression. However, these personality factors also severely influenced his ability to deal with the situation, thus precipitating it into an area of conflict, rather than allowing any possibility for effective conflict resolution and rehabilitation to occur.
As I have not seen Mr. Lower since late 1990, I cannot comment on his progress since that time. I understand that he has seen another Psychiatrist, who has in fact prepared a report regarding this man for Comcare.”[42]
[42] Exhibit 10 at 5
After Mr Lower lodged his application for review of Comcare’s decision, Mr Lower said that he was sent to Dr Clayer, who wrote a report dated 28 July 1992. He regarded it as a very negative report. He said:
“After my experience with Dr Clayer I was living on every word. I began to doubt that I was well enough to go through with my compensation claim. I was missing appointments and was extremely confused.”[43]
[43] Exhibit A at [121]
The Union had paid Johnston Withers $5,000 but Mr Lower said that he was advised on 13 August 1992 that the hearing had been set down for 17 August 1992 but that all of the funds had been spent. He would have to give the firm an additional $5,000 if it were to continue with the matter. Funds were not available from the Union. Mr Lower said in his statement:
“126. I was in a panic. I did not have enough money to pay Johnston Withers $5,000.00. I had been living on sickness benefits and then a disability pension. I had been off work for nearly two years and I had no savings. My total assets would have been almost as much as the fees.
127.When I read the statements made by the Bureau about me, parts of the reports would jump out. My medical condition exaggerated those reports and I felt overwhelmed by what they said. I almost started to believe what I was reading, which was absolutely crushing. I thought the Bureau would go to the Tribunal with more of the same type of reports.
128.In my mind I imagined the Tribunal as a huge room that would be filled with hundreds of people. I thought the judge would be sitting up very high and far away. I felt unable to even walk into the building by myself.
129.I looked awful and felt physically ill all the time. I felt as though I did not look clean, I had no money to pay a lawyer and I felt that I had hit rock bottom. I simply could not attend the Tribunal and represent myself.
130.I told Jeremy Duffy that I could not represent myself. My paranoia prevented it.
131.I made an appointment to attend his office on the morning of 17 August 1992 to discuss my situation.
132.When I attended Jeremy Duffy’s office on 17 August 1992 he said he wouldn’t go to the Tribunal if I couldn’t pay.
133.I felt totally overwhelmed. I was afraid of going to the Tribunal and thought there was absolutely nothing I could do.
134.Jeremy Duffy gave me a typed document and asked me to sign it. It was a document instructing him to withdraw my claim.
135.I signed the document. I felt that I was in no state to attend the Tribunal myself. I could not pay Jeremy Duffy to go for me.
136.Jeremy Duffy told me they would be disappointed if I did not pursue my claim later. I was hoping to protect my rights until I was better.
137.At that time in my life I had no real conception of what was happening. My whole existence was a battle between reality and irrational thoughts. Part of me was saying to fight for what I believed in. The other part of me felt completely overwhelmed and was afraid of going to the Tribunal.
138.In the end, I just signed the form. I did not understand what the form meant but I thought that my claim would just be put on hold and that I could pursue it later when I was able to. I did not understand the legal technicalities or that I was forfeiting my rights to compensation. I thought I was protecting those rights.”[44]
[44] Exhibit A
Life after withdrawing the application
Mr Lower said that his whole life became a battle for survival. He tried to cut himself with a razorblade on three occasions. He felt incredibly tired and unable to get out of bed. Every now and again, he would feel better but those periods did not last for any length of time. Mr Lower said that he felt angry, depressive and severely violent. During this time, he enjoyed quite an active social life, he continued. He played sport with his friends because he felt it important to maintain contact with them and not to become isolated. In late 1993, his friends barred him from playing tennis with them because of his aggression. He was banned from the Edinburgh Hotel, forced to leave an Annual General Meeting of the Liberal Party, a meeting at the Adelaide Town Hall called to discuss Victoria Square and a meeting of the Burnside Seniors Snooker Club. Mr Lower said that he cut off all of his contacts. He donated blood to the Red Cross Blood Bank and then tried to steal it so that he could throw it over Comcare’s office as a symbol of what was happening to him. The police were called and the Red Cross retained the blood.
In late 1992, Mr Lower said, the CMO wanted to retire him.[45] Between 1992 and 1994, he received various letters regarding retirement but he did not want to be retired. He wanted to return to the Bureau. On 18 October 1994, Comsuper wrote to the Bureau to tell it that he was not totally and permanently incapacitated for work. Between 1990 and 1996, Mr Lower said, he attended the CMO every two or three months. He thought that, so long as he kept the appointments, the CMO would tell the Bureau of his condition. He was too sick to do anything else.
[45] Exhibit A at [149]
Further steps regarding his claim for compensation
The earliest time at which he felt able to do anything was in November 1994 when he approached Messrs Palios Meegan & Nicholson. He had seen their advertisement offering an initial free appointment. Palios Meegan & Nicholson wrote to Comcare on 1 November 1994 requesting documents in relation to his claim. On 7 November 1994, Comcare replied to the effect that it had not accepted liability for Mr Lower’s condition and enclosed documents relating to his earlier claim. Mr Lower said he withdrew his instructions when he felt that his solicitors were not interested in the merits of his claim. “Many months later”, the solicitors sent him the documents sent to them by Comcare.[46]
[46] Exhibit A at [156]
Palios Meegan & Nicholson had written to him on 26 November 1994 advising him that there would be little chance of reinstating his withdrawn application, there would be difficulties as he had allowed two years to pass and he would have had little prospect of success in any event.[47] They enclosed with their letter the documents they had obtained from Comcare.
[47] Exhibit B at 116
In his statement, Mr Lower said that the documents he was sent were the T documents that had been lodged in response to his application in the Tribunal. He realised that they did not include the JSC report and the report from the duty meteorologist. He considered that they were important evidence that had not been considered when his claim had been rejected.
In December 1994, Mr Lower wrote to Comsuper seeking copies of the information that it had received from the CMO. In his statement, Mr Lower said that Comsuper wrote to him advising that it would not release the documents to him directly because it might be detrimental to his health. That was on 11 January 1995.
Mr Lower said that he next saw the CMO on 25 January 1995. This time the CMO was Dr Devasagayam, who wrote a report dated 8 March 1995. Dr Devasagayam summarised her conclusions:
“From the medical point of view, Mr Lower continues to remain symptomatic of missed anxiety depressive disorder despite ongoing treatment by Dr Ford. The depression with a marked admixture of irritability and agitation has occurred in the setting of a passive/aggressive personality structure, as previously described by Dr Ford.
Although he is not fit for employment or retraining presently, Dr Ford is of the opinion that there is a prospect of improvement of medical status and rehabilitation within the Bureau, subject to further negotiation even at this late stage. However, this is unlikely to resolve in the long term, as Mr Lower will not consider negotiation unless on the terms and conditions outlined by Mr Lower, to resolve the perceived injustice to him.
…
In the current status I tend to agree with Dr N. Ford that Mr Lower is unfit to resume employment or take part in any retraining program. I am unable to predict a time frame for resolution of his condition. I understand, from discussions with Mr Boardman, that Mr Lower has the entitlement to preassessment payments and as his current situation seems unlikely to alter in the long term, arrangements for preassessment payments could be made.”[48]
[48] Exhibit B at 131
By this time, Mr Rob Boardman was the Personnel Manager with the Bureau. He spoke with the CRS and Mr Lower was invited to call on the CRS in a letter of 13 June 1995.[49] Dr Ford wrote to Dr Devasagayam.[50] He expressed the view that the matter could have been dealt with by either redeployment or a negotiated settlement with Bureau but neither had been pursued. Mr Lower refused redeployment since he felt unable to return to work. In part, this had been due to the rejection of his claim by Comcare in circumstances that Dr Ford felt were “… quite inadequate on the part of Comcare”. Mr Lower’s condition was not permanent at the time as it was amenable to address by negotiation. If Mr Lower were to retire, Dr Ford thought that his condition would become permanent.
[49] Exhibit B at 132
[50] Exhibit 2 at 1
A letter from Mr Vince Pedulla, Vocational and Rehabilitation Psychologist with CRS, to Mr Tim Upsdell is dated 13 September 1995. It enclosed a referral from the Bureau and an indirect referral from Comsuper to assess the practicability of Mr Lower’s returning to work either with the Bureau or another employer.[51] Mr Lower made an appointment to see Mr Tim Upsdell of the CRS on 20 September 1995.
[51] Exhibit B at 134
In a letter dated 5 September 1995, Dr Ford had suggested to Mr Pedulla that the CRS act as an intermediary in any discussions between Mr Lower and the Bureau. On 29 May 1996, the Bureau wrote to Dr Ford at his request. It summarised the events and reasons surrounding Mr Lower’s not being promoted in 1990 and the Bureau’s subsequent expectation that he move to Ceduna.[52]
[52] Exhibit B at 135
Mr Lower said that he saw Mr Upsdell until approximately October 1996. He felt that Mr Upsdell stopped seeing him as he could not arrange for him to return to work at the Bureau. In an undated letter to Mr Boardman, Mr Upsdell wrote that he had been unable to arrange a return to work for Mr Lower. His inability was as a result of Mr Lower’s insistence that he was unable to consider a return to work unless his claim for compensation were accepted at least in a symbolic manner and the Bureau’s position that it would not support the claim.[53]
[53] Exhibit 9
Dr Ford wrote to Dr Barber on 11 October 1996 regarding the background of Mr Lower’s employment and his symptoms of irritability and depression.[54] He thought that the Bureau would want to seek a second psychiatric report about Mr Lower in an attempt to have him dismissed. That would undoubtedly cause Mr Lower further upset and he would need very careful handling. Mr Lower had very prominent paranoid and passive/aggressive traits and there was a risk that he would harm himself and others. A further stressor had been the illness of Mr Lower’s father and his feeling that he had been usurped by his brother in placing their father in nursing care.
[54] Exhibit 5
On 26 November 1996, Dr Davis wrote a report and the Bureau and Comsuper exchanged correspondence regarding Mr Lower’s fitness to return to work.[55]
[55] see [15] above
Mr Lower consulted Messrs Duncan and Hannon, solicitors. He said in his statement that he did so on 16 September 1996. He felt as if he was “getting dragged along” and a year or so passed as he telephoned them each month or so. He said that he felt as if the matter were going nowhere and he was in a real quandary. Sometime in 1997, he approached Comcare once more as he thought that it might reconsider the matter in light of the information that he thought it had not considered earlier. In 1992, Comcare had told him that it would reconsider its decision if he provided new information. Comcare told him that the matter was finished as far as it was concerned but told him he could go to the Tribunal.
On 3 July 1997, Duncan and Hannon wrote to him referring to their recent discussion with him.[56] They advised him that he could apply to the Tribunal to reinstate his matter in the Tribunal or apply for an extension of time within which to lodge another application. They advised him that either would be very difficult tasks in which to achieve success. His inability to pay legal costs was unlikely to be sufficient grounds for the applications. They noted that Mr Lower had indicated he would get his file from Johnston Withers and asked him if he had done so. Funds would be required if Duncan and Hannon were to proceed with the applications or either of them. Mr Lower said that he gave them copies of the documents.
[56] Exhibit B at 151-152
Mr Lower said that he approached other solicitors, Finlaysons, who told him that they could not act as they had a conflict of interest. The Tribunal told him that it could do nothing and that it had destroyed his file. Mr Lower understood the Tribunal to give him a form to apply for reinstatement of his claim.
On 24 November 1997, Dr Ford wrote to Centrelink to advise that Mr Lower continued to suffer from a panic disorder and personality disorder.[57] Mr Lower could be extremely irritable and he recommended that he continue to receive an Invalid Pension that had recently been cancelled. In cross-examination, Mr Lower said that he would now dispute that Mr Lower was suffering from a personality disorder. He should have added that he was suffering from a generalised anxiety disorder.
[57] Exhibit 4
Assessment for return to work at the Bureau
Mr Lower said that he received a telephone call from the Bureau’s Melbourne office advising him that it was being restructured. As a result, positions would be available and he was asked to nominate his preference as to where he would like to be located. He said that he nominated Ceduna. The Bureau sent Mr Lower to see Dr Long, who wrote a report dated 24 June 1998.[58]
[58] see [16] above
On 26 June 1998, Mr Lower wrote to the Medical Board of South Australia complaining about Dr Clayer’s earlier report of August 1992 as irrelevant and failing to consider relevant issues. Mr Lower said that it had taken him six years before he had felt well enough to make the complaint. He knew that Comcare had relied on it and thought that, if he could show that it had not been prepared properly, Comcare would look at his case again. In a letter dated 19 August 1998, the Medical Board advised Mr Lower that it would not take any action.
Mr Lower said that he was still battling to survive and was “ultra aggressive”.[59] He returned to his union and consulted Ms Karen Atherton at the CPSU on 21 December 1999. The CPSU acted on his behalf in making the application for reinstatement.
[59] Exhibit A at [178]
Mr Lower said that his aim is to get his case back on track. He feels that people with broken arms are given more sympathy than those with depression. He said that he has had difficulty in confronting the issues but it was harder in earlier days when he was more unwell. Many times, he has thought about giving up but he has been able to go on even though he feels that he has been treated unjustly. Whenever he has been well enough, he has pursued his claim, he said. At other times, he has been too unwell to do so.
Further medical evidence
Dr Ford, who has been a psychiatrist since 1988, first treated Mr Lower in late November 1990 after he had been referred by Dr Beth Ramsay. He had last seen him the day before the hearing when he felt that Mr Lower had needed a little reassurance. His previous visit had been ten days earlier on 15 May 2004. At that time, Dr Ford felt that Mr Lower had been anxious but not as anxious as he had been on other occasions. At the first consultations, Mr Lower had answered his questions with strong emotion and looked disturbed, angry and upset. He was nervous about the litigation but not as bad as he had been. At earlier consultations, Mr Lower had started well but had become anxious as the conversation continued. Dr Ford had treated Mr Lower with minimal doses of anti-depressant of moderate efficacy and anti-panic medication from the first consultation. He also treated him with supportive psychology encouraging him but challenging him ever so slightly when Mr Lower seemed to be getting out of hand. Supportive psychology also entailed Dr Ford’s showing Mr Lower alternative ways of handling situations. Mr Lower’s anger management improved although there had been a couple of occasions when he had been belligerent in public meetings. He now sees other points of view.
Since approximately 1990 or 1991, Dr Ford said, Mr Lower has engaged in episodes of self harm and has attended the Blood Bank as part of the trend. The episodes decreased with an increase in Mr Lower’s medication and after talking him through them. His actions were indicative of confused thought but Mr Lower showed increasing maturity in his efforts to find the cause of his behaviour and in his capacity to feel remorse and to find ways of solving his feelings.
Dr Ford said that Mr Lower had spoken with him about the events in the Bureau at the first consultation in 1990. In discussing those events, Mr Lower had invariably shown anger but less so in the previous two or three years than in 1990 and 1991. For quite a long time, Dr Ford had not understood what had happened. That resulted from Mr Lower’s “way of giving evidence …[being] tangential”. Only recently has Dr Ford felt that Mr Lower has been able to “get his story in anything that approaches a logically temporal order”. In Dr Ford’s experience, apart from psychotic patients, Mr Lower was one of the more disordered historians he had met. His thoughts were quite clouded and disordered about a matter that meant a great deal to him.
As to Mr Lower’s current condition, Dr Ford said that he was suffering from an anxiety disorder that has variously been described as a panic attack or a generalised anxiety disorder. It can appear as outbursts of rage imposed on a generalised anxiety disorder. He still suffers from panic attacks from time to time. Mr Lower could be described as passive/aggressive. His traits do not meet a full personality disorder but, as are we all, he is made up of a constellation of qualities. In Dr Ford’s assessment, Mr Lower was suffering from a moderate degree of psychological disturbance at the time of the hearing. If his symptoms were then mild, or even minor, he would be able to work but with problems.
The events in 1995 and 1996 point to Mr Lower’s being increasingly unwell. It was then that he was last living with his parents and later experienced conflict with his brothers over a will. That matter had not left his mind and it was only in the weeks before the hearing that he was able to get his thoughts in order over the matters with his brothers. Dr Ford said that he had talked to him about leaving that issue behind him in 2001 but he had been unable to do that. In February 2001, Mr Lower would have been incapacitated for work and that, unfortunately, has remained the case. His capacity to conduct himself in Dr Ford’s rooms is good but, if he feels challenged, he can erupt. Mr Lower does not seek out social contact and feels edgy when he does. Only recently have Mr Lower’s thoughts got themselves into some order. He has improved but not to the stage where he could work.
In cross-examination, Dr Ford said that Mr Lower had gradually improved in the years from 1990 but that there had been episodes of depression and despair. Those episodes had been more widely spaced since 1998 or 1999 but there had also been events where he had been angry and distressed. Mr Lower has not shown steady improvement. His improvement has been discernible but one of the difficulties with psychological illnesses is that one of the responses to it is to slow down those responses. Part of his improvement has resulted from his withdrawing from social contact over the years. His illness is not really seen until he is put in stressful situations. Mr Lower’s ability to structure his thoughts and to give a coherent account of his history has definitely improved. There are times, however, when he becomes aroused and his thoughts are quite tangential.
In 2001, there would have been times when he would have been well enough to approach a solicitor but those times would not have lasted long and he would not have had the stamina to continue them. What really changed him was the appeal in 1992, Dr Ford said. Mr Lower was told that the appeal would be withdrawn unless he paid $5,000. That really knocked the stuffing out of him. Mr Lower was struggling at the time and it was reminiscent of the time that he applied for the Observer Grade 2 position. In Dr Ford’s view, Mr Lower would not have been viewed as a person whom solicitors would choose if they were looking for a case to run on a no win, no costs basis. Such firms were looking for a person who would be regarded as credible and able to perform. He did not think that this was the reason that Mr Lower did not proceed with his claim, though. It was important to look at his demeanour. Only after three to four years was he able to get a proper history. Solicitors would have seen the level of distress that he was observing. Dr Ford thought that Mr Lower would not have had the capacity to react appropriately at the time of the meeting with the union and Mr Upsdell. There was an impasse as the Bureau would not accept Mr Lower’s claim for compensation even in a symbolic sense.
Of his report dated 11 October 1996 to Dr Barber, Dr Ford said that Mr Lower’s concerns about his father and his brother would not have attracted a psychiatric illness unless something had happened to him. He would have managed both of them if had not had a preceding condition. There was no link between his childhood and his condition. The situation he found himself in at the Bureau would have distressed anyone.
Dr Ford agreed with the proposition that the rejection of Mr Lower’s claim for compensation played some role in his medical condition. The claims process became part of the pathology but Mr Lower was trying to get security before the claims issue became part of the pathology.
CONSIDERATION
The principles that guide my decision
In considering the manner in which the discretion to grant an extension should be exercised, regard is traditionally paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[60] In that case Wilcox J considered an application for extension of time pursuant to s. 11 of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). After noting that s. 11 does not set out any criteria to be followed in exercising the Court’s discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said, in part:
“... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court’s discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed method’ of 28 days is not to be ignored …: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time: Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly (Neaves J, 9 December 1983, unreported, at p7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, unreported, at p18 of the transcript) with Lucic at 414–5 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at p287; Duff at pp484–5; Hickey at pp525–7 and Wedesweiller at pp533–4.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p18; Lucic at p416; Hickey at p523. In this context, public considerations often intrude: Lucic, Hickey. A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at p550; Becerra v Fowell (Morling J, 18 February 1983, unreported, at 12– 13)) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at p417; Chapman at p6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at pp534–5.”[61]
[60] (1984) 3 FCR 344; 58 ALR 305
[61] (1984) 3 FCR 344; 58 ALR 305 at 348-349; 310-311
The Hunter Valley case has since been cited with approval and applied by the Federal Court in relation to applications for judicial review under the ADJR Act e.g. Burchett J in Chumbairux v Minister for Immigration and Ethnic Affairs[62] and Northrop J in Hoare v Deputy Commissioner of Taxation (Vic).[63] It has also been followed in reported decisions of this tribunal such as Re Bonavia and Secretary, Department of Social Security,[64] Re Bogaards and Commonwealth of Australia[65] and Mulheron v Australian Telecommunications Corporation.[66] Similar principles were applied by Mr R K Todd, Deputy President, in the case of Re Bell and Australian Telecommunications Corporation,[67] which pre-dated the decision in Hunter Valley, and in Re Pepper-Clayton and Australian Telecommunications,[68] which post-dated it but made no reference to it.
[62] (1986) 74 ALR 480
[63] (1987) 14 ALD 476
[64] (1985) 9 ALD 97
[65] (1987) 13 ALD 578
[66] (1991) 23 ALD 309 at 314
[67] (1983) 5 ALN N186
[68] (1985) 7 ALD 508
The Federal Court has also expanded upon the principles in subsequent cases. In Windshuttle v Deputy Commissioner of Taxation,[69] von Doussa J considered an appeal from the Tribunal’s decision to refuse to extend the time within which Mrs Windshuttle might seek review of an objection decision on her objection to her taxation assessment. The Tribunal had held that:
“Turning now to any prejudice which may be caused to the respondent were I to grant the application, I am unable to find any. The area of dispute between the parties is documented and is not particularly dependant upon memories which may fail over time. On the evidence I have, I find that the Commissioner was not aware that the assessment was disputed after judgement was entered in September 1991 until action was taken to have the judgement set aside in December 1991 but I am satisfied that he was not prejudiced in this regard or by subsequent delays.”
Von Doussa J said:
[71]“The kind of prejudice which is relevant is prejudice that could arise to the opposing party in properly and fairly dealing with the subject matter of the dispute that will require determination if the extension of time is granted. Relevant matters will be whether witnesses have disappeared or their recollections have faded (provided of course that the evidence of the witnesses would have been material: Ulowski v Miller (1968) SASR 277 at 283-284 and cannot be refreshed Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 534); whether avenues of useful enquiry have dried up or become difficult to pursue; and whether material documents have been destroyed. In a case like the present it may be open to the party potentially entitled to recover money to establish that by reason of the delay, the financial resources of the applicant have so altered for the worse that the chance of recovery of whatever sum is ultimately found to be due has seriously diminished. But as Bray CJ observed in Ulowski v Miller, at 284 and also in Victa Limited v Johnson (1975) 10 SASR 496 at 504, a court (or tribunal) should be slow to infer something to the existence of which the party asserting it is unwilling to depose. So, if a party against whom an extension of time is sought, intends to oppose that extension on the ground of prejudice, that party should adduce evidence which shows the nature and extent of that prejudice. In the present case no cause for prejudice beyond those matters listed above was asserted or deposed to.”
[69] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
In Windshuttle, von Doussa J also expanded upon what Wilcox J meant by taking proper account of the substantial merits of the case:
“The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant's case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to [attack] the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”[72]
[72] (1993) 46 FCR 251; 93 ATC 4992; 27 ATR 88 at 243-244; 4999 and 95 and approved by Commissioner of Taxation v Brown [1999] FCA 1198 at [12] per Drummond, Sackville and Hely JJ
In Commissioner of Taxation v Brown[73] Drummond, Sackville and Hely JJ summarised the essential principles in considering the substantial merits of the application:
“ It is important to appreciate the limits of the Commissioner's argument. Mr Bevan, who appeared with Mr Iuliano for the Commissioner, explicitly (and properly) made the following concessions:
(i) In determining whether a taxpayer seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit.
(ii) The arguable merits test requires the taxpayer's case to be assessed at its highest.
(iii) It follows that, in applying the arguable merits test, findings of credit have no place. In other words, it is an error of law for the AAT to decide that the taxpayer’s objection has no arguable merits on the basis that the taxpayer's evidence is not worthy of belief.(iv) Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer’s witnesses with the view to testing the veracity of their evidence so far as the merits of the objection were concerned. Mr Bevan specifically conceded that it was ‘inappropriate’ for the AAT Member to have cross-examined the taxpayer as to the truth of his claim that the unit was an unsolicited gift offered by Mr Ray.”[74][73] [1999] ATC 4852 at 4856
[74] [1999] ATC 4852 at 4858
In applying the guidelines set out in the Hunter Valley case, I have also kept in mind that it was stated in that case and has been consistently stated in decisions of the Federal Court since that they are not exhaustive. The Full Court of the Federal Court has also said that there is no precondition that there must be an acceptable explanation of the delay before an application for an extension of time can be successful. While there is no pre-condition it is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered.[75] Where that explanation involves delays by a solicitor, those delays are not visited upon the client.[76]
[75] Comcare v A’Hearn (1993) 119 ALR 85 at 88
[76] Comcare v A’Hearn (1993) 119 ALR 85 at 88
In Chalk v Commissioner for Superannuation,[77] Davies J, with whom Black CJ agreed, went beyond a description of particular factors to which regard should be had to an explanation of, as it were, the spirit in which an application for extension should be approached. He said:
“ Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v. Byrnes: Bauknecht [1974] 1 NSWLR 27 at 30:-
‘We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.’
Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended.”[78]
[77] (1994) 50 FCR 150; 33 ALD 420
[78] (1994) 50 FCR 150; 33 ALD 420 at 155; 425
Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:[79]
“Even where the cause of action relates to personal injuries …, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible …
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ (35)[[80]] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[81]
[79] (1996) 186 CLR 541
[80] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635
[81] (1996) 186 CLR 541 at 553-554
One of the principles relating to compensation
In Australian Telecommunications Commission v Tzikas,[82] the Full Court of the Federal Court considered whether Mrs Tzikas’ employment had contributed to the aggravation or acceleration of her mental disease within the meaning of s. 29(1) of the now repealed 1971 Act. Sweeney and Woodward JJ said:
“... In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
For those reasons the matter should, in our view, go back to the Tribunal to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment, and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely a focus for that disease.”[83]
[82] (1985) 5 AAR 173
[83] (1985) 5 AAR 173 at 195
In the same case, Smithers J said:
“If by his finding that the four specified sequelae played a part in the respondent’s mental illness the tribunal meant no more than that in the course of the respondent’s natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue definitely or a desire to punish Telecom for the situations described in items one and four, then it could not be said that any of the sequelae were factors which contributed to cause an aggravation of the natural illness. They constituted a reason for action by the impaired mind but did not cause it.”[84]
[84] (1985) 5 AAR 173 at 186
Provided that it is a person’s employment, or some aspect of it, that has aggravated or accelerated his or her disease, there is no need to establish that the employment or any aspect of it was in any way out of the ordinary. That is to say, the person does not need to establish that the employer was at fault in some way. The Full Court was considering the 1971 Act but the same issue has been considered by Spender J with the same outcome in relation to the 1988 Act.[85]
[85] Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Should I extend the time in this case?
As Comcare’s reviewable decision was made on 27 September 1991, the effect of s. 29 of the AAT Act when read with s. 65(4) of the 1988 Act was that Mr Lower had until a date at or about the end of November or beginning of December 1991 to lodge an application to review it. He did not lodge his application to extend the time within which he could review the decision until 10 June 2003. Even though my decision has been delayed, I must consider whether the time should be extended to 10 June 2003 and not until the date of my decision.
In the years between 1991 and 2004, much has happened. The first was Mr Lower’s application lodged on 29 November 1991 and subsequently withdrawn on 17 August 1992. As the Tribunal had not reviewed Comcare’s reviewable decision, it has not exhausted its powers to review the decision and so is not prevented from considering Mr Lower’s application for an extension of time on that basis.[86] The fact that Mr Lower made that application and then withdrew it is relevant in looking at the events over the years. Objectively viewed, Mr Lower had decided not to proceed with his application and the matter was at an end. He had not done so happily or even willingly as it is clear from his letter dated 17 August 1992 that two factors motivated him: lack of money and Mr Lower’s inability to conduct the matter himself.
[86] The Tribunal is not functus officio: Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537; 12 AAR 298 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
In essence, Mr Lower’s position is that he thought that he was putting the matter on hold and that he could return to it when he had more information. That was not the case in so far as the Tribunal was concerned but it was open to him to go back to Comcare to make a further claim and start the proceeding again. Indeed, Comcare could have reviewed the matter on its own motion[87] and, on Mr Lower’s evidence, I find that Comcare indicated as much to him if he gave it further information. That was in 1992. To some extent, Mr Lower’s position was consistent with the advice that Mr Lower had been given by his solicitors in 1990 when they suggested that he make a claim and tell Comcare that he would follow it up in a few months’ time when he had recovered sufficiently from the stress related to his work.[88] Their advice, however, was clearly in relation to a claim and not in relation to lodging a further application for review in the Tribunal.
[87] 1988 Act, s. 62
[88] see [56] above
Even on the basis that Mr Lower thought that he could make a further application when he felt better, he did very little about it in the next few years. During this time, he said that he felt both angry, depressive and extremely violent but was still able to enjoy quite an active social life. He planned a symbolic protest at Comcare’s office about his treatment but it came to nought when he was unable to steal his blood from the Red Cross. I am satisfied that, until November 1994, Mr Lower did nothing that let Comcare or the Bureau know that he might still be pursuing his claim for compensation. Comcare then knew that Mr Lower might be considering his position but it heard nothing more from him or his then solicitors in 1994.
I find that, in December 1994, Mr Lower started to gather material that might be relevant to his claim for compensation. He did not tell Comcare what he was doing at this time. It would have been clear to Comsuper from Dr Devasagayam’s report of 8 March 1995 that Mr Lower was not happy and would not consider negotiating any return to work unless it was on his terms and conditions. Mr Lower’s continued dissatisfaction with Comcare’s rejection of his claim would also have been quite clear to Dr Devasagayam when she received Dr Ford’s letter of 23 July 1993.[89] It is not clear to me whether the Bureau or Comcare saw this letter but, even if it did, it would not have known that Mr Lower continued to seek compensation. Dr Ford referred only to dealing with the matter by redeployment or a negotiated settlement with the Bureau. The subsequent events during 1995 underlines that position and they continued to do so during 1996. Even in October 1996, Mr Lower had not returned to Comcare but sought only a symbolic acceptance of his claim and the Bureau’s support for it.
[89] see [69] above
On the basis of his evidence, I find that Mr Lower approached Comcare sometime in 1997 about his compensation claim. When Comcare told him that the matter was finished and that he should come to the Tribunal, he did not approach the Tribunal. Instead, he went to another firm of solicitors for assistance. He blames them for doing nothing but I am satisfied on the basis of his evidence that his ability to pay legal costs was an issue clouding the progress of the matter. Mr Lower approached another firm of solicitors and then, in the middle or second half of 1997, approached the Tribunal. He says that he was handed a form to apply for reinstatement of his application. Accepting that he was, he did nothing with it until 29 February 2000 when almost three more years had passed. In those three years, I find that there were further negotiations with the Bureau regarding his returning to work and he approached the CPSU in December 1999 to act on his behalf on the reinstatement application. There is no evidence that he approached Comcare regarding his claim for compensation. I am not satisfied that either it or the Bureau would have been aware that he wanted to seek review of Comcare’s decision of 27 September 1991. That is so even though the Bureau would have been well aware that Mr Lower was unhappy both with it and with Comcare’s failure to accept his claim for compensation.
Mr Lower relies on his health as his reason for not lodging an application for an extension of time to review before 10 June 2003. The evidence on that point is mixed. His own evidence is that he could carry out quite an active social life until late 1993 when his friends banned him from their activities and others banned him from other venues and activities. It is apparent from the findings that I have already made that he was able to approach others for assistance even if he did not feel satisfied with the outcome of his enquiries and with the assistance he received. He was able to approach everyone except the Tribunal or, apart from one instance, Comcare.
I am not satisfied that Mr Lower’s state of health provides a sufficient explanation for his failing to lodge an application for extension of time. Dr Ford’s evidence is to the effect that it is sufficient. He is Mr Lower’s treating psychiatrist and I have given his opinion great weight accordingly. It was Dr Ford’s evidence that Mr Lower was only able to get his thoughts in order some time in 2004. At the same time, he acknowledged that Mr Lower had gradually improved over the years with episodes of depression and despair occurring at more widely spaced intervals since 1998 or 1999. Mr Lower’s improvement over the years and in particular since 1996 is supported by the reports of Dr Davis in 1996 and Dr Long in 1998. Both support the view that Mr Lower was functioning quite satisfactorily and the only qualification was that he could not resume duty with the Bureau. I do not need to make a finding as to whether I prefer the evidence of Dr Davis and Dr Long to that of Dr Ford. All three support my finding, as I do, that Mr Lower has had periods at least since 1998 or 1999 in which he had the capacity to lodge an application for extension of time. That he did have that capacity is supported by Mr Lower’s choosing to apply on 29 February 2000 for reinstatement of his first application. He pursued that application through the Tribunal, the Federal Court and a further hearing in the Tribunal. He had the capacity to pursue that matter during those years.
The extent to which Comcare has been prejudiced by Mr Lower’s lack of action is a difficult matter. Ms Bean submitted that it would be prejudiced by the unavailability of witnesses or, if they could be located, by their recollections’ having faded in all likelihood over the years. No evidence was led in support of this submission but she advised, and I accept, that the Personnel Officer, Mr Birkill has died. Mr Birkill’s evidence would have been useful but I am not persuaded that it would be pivotal. Therefore, I have decided that Comcare would not be unreasonably prejudiced by the passage of time since it made its decision.
Ms Bean also submitted that Comcare would suffer substantial prejudice by reason of its being deprived of the opportunity to have Mr Lower medically examined during the intervening eight years. In a case in which the claim for compensation is founded on a person’s suffering a psychiatric condition, medical evidence over the whole period covered by the claim and up to the date of the hearing is a vital piece among those on which the Tribunal must try to see the whole picture. In this case, Comcare has not had the opportunity to refer Mr Lower to psychiatrists of its own choosing. Over the years, however, Mr Lower has been referred to other medical practitioners and psychiatrists who, unlike Dr Ford, have not been in the role of his treating practitioner. They include the psychiatrists, Dr Davis, Dr Long and Dr Devasagayam. I do not consider that Comcare will be unreasonably prejudiced by not having referred Mr Lower to its own choice of medical practitioners in the intervening years.
Generally, matters are regarded as final once they have been dismissed. There is good reason for that. Both parties know where they stand and make their arrangements accordingly. Those who are engaged in similar matters know that they must make their decisions about the way they conduct them carefully because those decisions will be respected and they will not, in the normal course of events, be able to change their minds. As I have already indicated, though, that is not always the case and there have been others who have sought to make a second application substantially out of time. Some have been successful and some not. In light of what Davies J and McHugh J said,[90] it is, at the end of it all, a matter of weighing up what is just in any particular case.
[90] see [98] and [99] above
The merits of the case are a further matter I must consider. I do not need to weigh contradictory evidence and make findings of fact. The basis of the claim is not entirely clear but it is to be expected that, at its lowest, the case will be that Mr Lower was already suffering from a psychiatric condition and that, when he directed his mind to his conditions of employment, his condition was aggravated or accelerated and consequently incapacitated. It is also to be expected that Mr Lower will present his case at a higher level than this. As Ms Bean conceded, his case is not completely lacking in merits and, if Mr Lower is able to establish his factual basis, the application of the law to those assertions would bring about the result for which he contends.
Mr Lower has been unable to put his claim for compensation behind him and he has consistently raised it. He, or Dr Ford on his behalf, has raised it as a relevant matter in his discussions with the Bureau regarding his future. Comsuper will not take steps to invalid Mr Lower from the Australian Public Service (“APS”) as it is not satisfied that he is incapacitated for work. The compensation issue hangs as the Sword of Damocles over both the Bureau and Comsuper if not Mr Lower as they sit down not to a feast but to resolving whether Mr Lower’s future is to be either in the APS, whether in the Bureau or elsewhere, or outside it. Its resolution one way or another would mean that matters can proceed. That is a desirable outcome for all concerned as well as for the wider public who have an interest in ensuring that matters are resolved and not unnecessarily prolonged. That is so even though, as in this case, it means that an exception will be made to the normal course of events to allow that to happen.
Taking all of the evidence into account and the conclusions to which I have come, I have decided to extend the time within which Mr Lower may lodge an application to review the decision of the respondent dated 27 September 1991 to 10 June 2003.
I certify that the one hundred and sixteen preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Extension of Time Hearing 24 and 25 May 2004
Date of Decision 9 June 2005
Solicitor for the Applicant Mr S. Langsford
C/- Langsfords Solicitors
Solicitor for the Respondent Ms K. Bean and Ms S. Marshall
C/- Australian Government Solicitor
[70] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 at 249; 5003 and 100
[71] (1993) 46 FCR 251; 93 ATC 4992; 27 ATR 88 at 249-250; 5003-5004 and 100-101 and subsequently approved by Katz J in Zizza v Commissioner of Taxation [1999] FCA 37 at [38]
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