McEwan v Comcare

Case [2023] FCA 447

FEDERAL COURT OF AUSTRALIA

McEwan v Comcare [2023] FCA 447

File number(s): NSD 520 of 2022
Judgment of: ABRAHAM J
Date of judgment: 11 May 2023
Catchwords: WORKERS’ COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal – where Tribunal found applicant not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal was required to consider whether applicant had suffered an aggravation of either an injury or an ailment – where requirement did not arise from the material – application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety Rehabilitation & Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 72(a)

Cases cited:

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Ellison v Comcare [2022] FCA 95; (2022) 175 ALD 62

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

McEwan and Comcare (Compensation) [2022] AATA 1586

Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68

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

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Division: General Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 59
Date of hearing: 5 April 2023
Counsel for the Applicant: Mr J Morris SC with Mr J L Harrison
Solicitor for the Applicant: Cardillo Gray Partners
Counsel for the Respondent: Mr C J Clark
Solicitor for the Respondent: HBA Legal

ORDERS

NSD 520 of 2022
BETWEEN:

JAMES MCEWAN

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

11 MAY 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the costs of the respondent to be agreed or assessed.

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


REASONS FOR JUDGMENT

ABRAHAM J:

  1. The applicant, James McEwan, appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the Reviewable Decision made by Comcare rejecting his claim for “depressive disorder and generalised anxiety disorder” pursuant to s 14 of the Safety Rehabilitation & Compensation Act 1988 (Cth) (SRC Act). This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

  2. A supplementary notice of appeal dated 24 October 2022 identified five grounds, with only grounds 1, 2 and 5 now being relied on (those grounds being interrelated). The grounds now relied on were not raised in the original notice of appeal.

  3. For the reasons below, the appeal is dismissed.

    Relevant legislative provisions

  4. Given the nature of the applicant’s submissions, it is helpful at the outset to refer to the relevant provisions.

  5. Section 14 of the SRC Act relevantly provides as follows:

    14       Compensation for injuries

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Details
AGLC
McEwan v Comcare [2023] FCA 447
Case
[2023] FCA 447
Decision Date

CaseChat Overview and Summary

The applicant, Mr. McEwan, brought an appeal against a decision of the Administrative Appeals Tribunal (AAT), which found that he was not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The AAT had concluded that Mr. McEwan had not been subjected to persistent bullying and harassment during his employment, and that his ailment was not contributed to by his employment to a significant degree. The primary judge found that the Tribunal did not err in its approach to the evidence and did not make any errors of law in its decision.

The primary legal issue in the appeal was whether the AAT was required to consider whether Mr. McEwan had suffered an aggravation of either an injury or an ailment. The applicant argued that the Tribunal should have considered whether he had suffered an aggravation of an ailment, and that this was a case of aggravation based on the medical records from the Mater Hospital. However, the court found that the submissions advanced by the applicant before the Tribunal did not include any such submission, and that the issue of aggravation was not raised by the applicant in his Statement of Facts, Issues and Contentions or his closing submissions. The court held that the AAT did not err in law in not considering the issue of aggravation, as it did not arise from the material before it.

The court further held that the Tribunal's findings were supported by the evidence, and that there were no errors of law in its decision. The Tribunal had considered the evidence and found that Mr. McEwan's allegations and recollections were not corroborated by any other evidence. The Tribunal found that Mr. McEwan's evidence was self-serving, exaggerated, and more suggestive of differences of opinion and disagreement rather than bullying or harassment. The Tribunal also found that there was no mention of workplace bullying in the medical records until one week before Mr. McEwan lodged his compensation claim. The court held that the Tribunal's findings were reasonable and supported by the evidence, and that there were no errors of law in its decision.

The final orders of the court were that the application be dismissed, and that the applicant pay the costs of the respondent to be agreed or assessed. The court held that the applicant's appeal was without merit, and that the Tribunal's decision was correct. The court further held that the applicant's submissions did not establish any errors of law in the Tribunal's decision, and that the Tribunal had properly considered the evidence before it. The court dismissed the appeal and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent to be agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

However, the Tribunal found that the applicant’s allegations and recollections were not corroborated by any other evidence: see Tribunal’s reasons at [202]-[204]. It concluded as follows at [205]-[213]:[205]The tenor of much of Mr McEwan’s evidence, in my view, was self-serving, exaggerated, and more suggestive of differences of opinion and disagreement rather than bullying or harassment. The evidence suggests that he considers himself as more capable than some of his colleagues, tends to get angry when his opinions are not followed and also does not acknowledge his own contribution to the incidents.[206]Furthermore, Mr McEwan’s evidence is almost entirely focussed on establishing his claim that workplace bullying, and harassment has been the cause of his mental health issues, with little acknowledgment of other stressors. In his oral evidence he was quite dismissive of the various personal and family stressors which have been clearly identified in the documentary evidence.[207]Relevantly, there is no mention of workplace bullying in the Mayfield Medical Centre records until 9 January 2020, one week before Mr McEwan lodged his compensation claim. At that consultation Dr Younis noted that Mr McEwan ‘thinks’ his depression was ‘due to workplace bullying’ which suggests he was trying to formulate his own diagnosis.[208]Furthermore, in the Mater Hospital Mental Health Unit records, although there is reference to pressure and stress at work with long hours, there is no mention of a history of persistent workplace bullying and harassment. However, personal and family issues were clearly identified as the predominant stressors that led to Mr McEwan’s hospital admission.[209]The original focus of Mr McEwan’s claim was clearly based on an allegation of workplace bullying and harassment, however, in the course of the hearing Mr McEwan’s counsel sought to establish an alternative claim and submitted that ‘it is entirely plausible that the kind of years and years of pressure would accumulate and cause stress’ and that this was a significant contributing factor to Mr McEwan’s psychiatric injury.Conclusion[210]On consideration on the evidence as set out above I am not persuaded that Mr McEwan was subjected to persistent bullying and harassment during his employment with NBN.[211]I accept that during his employment with NBN there were occasions where there were differences of opinion, disagreements and some behaviour which caused Mr McEwan to experience some stress. However, I am not persuaded that these occasions contributed, to a significant degree, to Mr McEwan’s ‘ailment’.[212]I also accept that in the course of his employment Mr McEwan may have experienced periods of stress because of work pressure and working long hours, however, on the available evidence, I am not persuaded that this contributed to, to a significant degree, to his ailment.[213]On consideration of the evidence as set out above I am satisfied that Mr McEwan’s ‘ailment’ was not contributed to, to a significant degree, by his employment with NBN and, therefore, not a ‘disease’ for the purposes of section 5B of the SRC Act.

Ratio Decidendi

Legal Principle Established

The respondent also emphasised the Tribunal’s findings including, as to the ailment, that: the Mater Hospital records clearly identified personal and family issues as the predominant stressors at the time of the applicant’s hospital admission; persistent workplace bullying and harassment were not mentioned in the Mater Hospital records; and occasions of differences of opinions, disagreements, “some behaviour” that caused the applicant “to experience some stress” and “periods of stress because of work pressure and working long hours”, did not contribute to it to a significant degree. Consideration There are a number of observations to be made about the applicant’s submissions. First, the submissions now advanced as to aggravation, which are said to be obvious based on the medical records from the Mater Hospital, were not advanced by the applicant before the Tribunal. I do not accept the applicant’s submission that the primary case run below was that the applicant had suffered an injury, and that as a secondary position, the issue of aggravation was raised. No transcript references, or references to any submission to that effect were identified by the applicant. I do not accept that the extracts of the transcript referred to by the applicant include any such submission. Nor was it advanced in the applicant’s Statement of Facts, Issues and Contentions or his closing submissions in the Tribunal. Although I note that: in the respondent’s Statement of Facts, Issues and Contentions filed before the hearing, “[w]hether the applicant’s ailment or an aggravation of an ailment” was significantly contributed to by his employment was referred to as an issue, and answered in the negative without further expansion; and the reviewable decision dated 8 February 2021 listed as an issue whether the applicant had “sustained a condition, or an aggravation of a condition”, although aggravation was not subsequently addressed. There was an alternate case advanced by the applicant in closing submissions before the Tribunal, that “years and years of work stress, work pressure, difficulties with design, constant deadlines and conflict between, on one hand deadlines and on the other hand quality” and stress from having a heavy workload and working long hours were a significant cause of his injury. That was not a case of aggravation, but a case where the nature of the applicant’s employment was advanced as an issue at a factually lesser level than that originally claimed. It covered the same period as the allegations as to bullying and harassment, that is “years and years” of such stress. However, this case as advanced, was inconsistent with the history the applicant gave to each of the medico-legal doctors and his claim, which was based on alleged bullying and harassment. It could only arise for consideration if the applicant’s primary case was not accepted. Nonetheless, the Tribunal considered and rejected this alternate claim: see, for example, Tribunal’s reasons at [209] and [212].