McGuinness v Comcare - [2007] FMCA 1486

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McGUINNESS v COMCARE AUSTRALIA

[2007] FMCA 1486

ADMINISTRATIVE LAW – Safety, Rehabilitation and Compensation Act – rehabilitation program – whether failure to deal with submission relevant to issue and worthy of consideration, namely whether a rehabilitation program had been created – whether Tribunal failed to consider matters prescribed by s.37(3) of the Safety, Rehabilitation and Compensation Act – whether Appellant had reasonable excuse for refusing or failing to undertake rehabilitation program.

Administrative Appeals Tribunal Act 1975, s.44(1)
Safety, Rehabilitation and Compensation Act 1988, ss.36, 37

Slater v Telstra [2004] FCA 476
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Secretary Department of Employment & Workplace Relations v Barrington (2006) FCA 527
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Australian Postal Corporation v Forgie (in her capacity as Deputy President of the Administrative Appeals Tribunal) and Another (V128 Of 2003) (2003) 202 ALR 63
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Department of Defence v Fox (1997) 24 AAR 171

Applicant:

RAYE ANN McGUINNESS

Respondent:

COMCARE AUSTRALIA

File number:

MLG 616 of 2006

Judgment of:

McInnis FM

Hearing date:

29 January 2007

Delivered at:

Melbourne

Delivered on:

31 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr P.J. Hanks QC with Mr M.X. Carey

Solicitors for the Applicant:

Maurice Blackburn Cashman

Counsel for the Respondent:

Ms D. Mortimer SC with Mr J. Ferwerda

Solicitors for the Respondent:

Dibbs Abbott Stillman

ORDERS

That the decision of the Tribunal dated 15 March 2006 be set aside.
That Applications V2005/206 and V2005/345 be remitted to a differently constituted Tribunal to be determined according to law.
The Respondent pay the Appellant’s costs of and incidental to this appeal, including reserved costs, if any.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 616 of 2006

RAYE ANN McGUINNESS

Applicant

And

COMCARE AUSTRALIA

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 15 March 2006 (the decision). The appeal was filed pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
In its decision, the Tribunal affirmed two reviewable decisions of Comcare (the Respondent) made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The reviewable decisions before the Tribunal related to a direction to the Appellant to commence a graduated return to work program and a decision suspending the Appellant's compensation entitlements purportedly for failure to attend as directed the rehabilitation program.
The reviewable decisions which were considered by the Tribunal are referred to in the Notice of Appeal in the following terms:
1.1V2005/2006 - a reviewable decision made on 28 January 2005, which varied an earlier determination made on 30 November 2004 by Centrelink, a rehabilitation authority for the purposes of the SRC Act by requiring that the Applicant should commence a graduated return to work in the week commencing 31 January 2005, or such later date as directed by Centrelink.
[The first reviewable decision]
1.2V2005/345 - a reviewable decision made on 18 April 2005, affirming a decision of the rehabilitation authority, Centrelink, made on 7 April 2005 to suspend the Applicant's rights to compensation under the SRC Act, pursuant to

s 37(7) of the SRC Act on the ground that the Applicant had failed to participate in a rehabilitation program provided for her under s 37 of the SRC Act and that she did not have a reasonable excuse for so doing.
[The second reviewable decision]
The issues arising from the reviewable decisions which were accurately identified by the Tribunal are whether the return to work program was a rehabilitation program and, if so, whether the decision by the Appellant to refuse to undertake the program was reasonable.

Background and Chronology

The background and chronology of events has been set out by both parties in their outlines of submissions. Unless otherwise stated there is no dispute concerning the background which I have primarily taken from the Appellant's outline of submissions.
The Appellant was born on 27 September 1956 and joined Centrelink in 1993. Relevantly, she worked as an investigator in the debt recovery area for Centrelink from 1997.
On 2 July 2004 the Appellant lodged a claim for compensation for a depression claimed to be as a result of "being verbally abused by a team leader and then trying to resolve the matter".
By a determination dated 28 September 2004, the Respondent accepted the Appellant's claim for compensation and specifically made a determination pursuant to s.14 of the SRC Act, deciding to "accept adjustment reaction with depressive reaction" (Appeal Book p.19).
The date of injury was deemed to be 1 October 2003 by the Respondent in its determination accepting liability.
The Appellant remained off work under the care of a treating psychiatrist, Dr Geoffrey Hogan, who initially diagnosed "adjustment disorder with depressed mood" (report dated 18 August 2004, Appeal Book pp.8-14) though subsequently changed the diagnosis to "major depressive disorder" (report dated 7 February 2005, Appeal Book pp.72‑74). The Appellant claimed to have developed panic attacks and an inability to drive a motor vehicle, take public transport or visit shopping centres (Appeal Book p.73).
According to the Tribunal decision, when referring to the evidence of Dr Hogan, by early 2005 the Appellant had not made sufficient progress and was in no position to consider working.
It is common ground that for the purpose of s.37 of the SRC Act, the Appellant's employer, Centrelink, is a "rehabilitation authority". In its capacity as a rehabilitation authority, Centrelink arranged for an assessment of the Appellant's capacity to undertake a rehabilitation program. An assessment pursuant to s.36 of the SRC Act was carried out by Dr Peter Cotton on 30 July 2004 (Appeal Book p.2). A report was prepared by Dr Cotton dated 5 August 2004 where Dr Cotton diagnosed the Appellant's symptoms as being consistent with a "major depressive episode".
Whilst concluding it would be highly "unlikely that she will be able to return to the Fraud Investigation Team in the short term", Dr Cotton states “It would be appropriate to appoint a rehabilitation provider to liaise with her treating psychiatrist and begin to identify alternative return to work options." (Appeal Book p.7). Dr Cotton noted that although the Appellant's “condition has not yet stabilised, identifying a suitable alternative position will facilitate her resumption of work and it is probable that she will not require a protracted return to work program once her mood has stabilised." (Appeal Book p.7).
A further assessment was made pursuant to s.36 of the SRC Act by a consultant psychiatrist, Dr Victor Botvinik, who assessed the Appellant on 24 November 2004 and provided a report of the same date (Appeal Book pp.31-34). Dr Botvinik diagnosed the Appellant as suffering from an adjustment disorder with anxious and depressive mood. Dr Botvinik thought the Appellant would be fit to resume some form of non-stressful duties within six to eight weeks.
On 30 November 2004 (incorrectly referred to as 30 September 2004, Appeal Book p.27), Centrelink, as a rehabilitation authority, advised the Appellant that it had organised a meeting at the Box Hill office of Centrelink for 5 January 2005. In the same correspondence Centrelink stated that it had determined that a graduated return to work program would commence "with effect from Tuesday, the 11/01/2004 at 8 hours per week initially, worked 4 hours each day on Tuesdays and Thursdays" (Appeal Book p.27).
On 5 January 2005, the Appellant and Dr Cotton attended a meeting at the Centrelink office at Box Hill. The Tribunal referred to what it described as meetings between the Appellant and Centrelink and notes that the Appellant found "the meetings distressing". The Tribunal refers to the meeting in the following extract from its decision:
“12.In January 2005 Ms McGuinness attended meetings with Centrelink but found the meetings distressing. She stated that because of her ongoing psychological problems the return to work program involving debt recovery at the Box Hill office was unrealistic and impractical. This is because she had lost all confidence, the ability to concentrate, and was tearful. She also said that she was unable to drive there and would be unable to cope with public transport or people unknown to her in a large and unfamiliar office environment. Ms McGuinness stated that no-one from Centrelink bothered to discuss with her the difficulties involved in implementing the return to work program. She told the Tribunal that for these reasons she did not re-commence work.
13.Under cross-examination Ms McGuinness agreed that the program outlined for weeks one and two, involved meetings, discussions and computer set-up etc. that would not have been affected by a previous shoulder injury. She emphasised that her psychological state would have prevented her from undertaking any meaningful work. She stated that Centrelink had not considered the possibility of meeting her needs with respect to her limitations, and the location of her employment. She said that Centrelink had an obligations to formulate an acceptable program, and this had not occurred or been contemplated by Centrelink at any time. She agreed that any offer made by Centrelink would be stressful.”
(Appeal Book p.408)
In a report dated 4 January 2005 received by Centrelink on 5 January 2005, Dr Botvinik stated that he believed that the Appellant, "is fit and capable from a psychiatric point of view to work 4 hours a day 2 days a week in a different department where she would be away from her previous stressors". It is also noted that before the scheduled meeting of 5 January 2004, the Appellant, by letter dated 21 December 2004 (Appeal Book pp.35-36), sought independent review of the determination made on 30 November 2004 (Appeal Book pp. 27-28). The Appellant, in seeking independent review of the determination of 30 November 2004, states in her letter dated 21 December 2004, amongst other things, the following:
“As a result Centrelink have organised a return to work meeting on 05/01/2005. At this point in time I do not feel ready to return to work yet as I have not yet been able to bring under control my symptoms of Depression and my treating psychiatrist and psychologist agree that I am not yet ready to enter a return to work program.”
(Appeal Book p.35)
At the meeting on 5 January 2005, it appears that duties were discussed including payment, or overpayment, of student support benefits.
On 7 January 2005 Dr Hogan provided a brief handwritten note (Appeal Book p.39) where the doctor refers to the Appellant remaining "unwell with anxiety and depressive disorder and unfit for employment at least until 31 Jan ‘05". In a report dated 17 January 2005 by Ms Renae Lisle, a psychologist (Appeal Book p.40), reference was made to the Appellant attending a depression management program once weekly at Pine Lodge Hospital since October 2005. A request was made for the Appellant to attend a further day in the program to participate "in the Anxiety Management program".
By letter dated 27 January 2005, a rehabilitation case manager from Centrelink advised the Appellant in relation to a return to work plan. Attached to that letter was a "Comcare return to work plan and a schedule for the period ending 25/02/05" (Appeal Book pp.63-68). The return to work plan, signed by an officer of Centrelink as the rehabilitation authority and dated 27 January 2005, provided for the Appellant to commence a return to work program on 15 February 2005 in the Debt Recovery Team to perform debt recovery work. The duties were to be performed for four hours per day on Tuesdays and Thursdays.
On 28 January 2005, in the first reviewable decision (Appeal Book pp.41-50) the Respondent reconsidered the determination which had been erroneously dated 30 September 2004 and which should have been dated 30 November 2004 and in part the review officer stated:
“However, in the light of Dr Hogan's report dated 7 January 2005, I have varied the determination to provide that you should commence a graduated return to work with Centrelink in the week following 31 January 2005 or such later date as directed by Centrelink.”
(Appeal Book p.41)
The review officer provided reasons for the first reviewable decision, noting in the course of those reasons that the determination which was the subject of the review was incorrectly dated and should be dated 30 November 2004 (Appeal Book pp.42-50).
By letter dated 27 January 2005, that is, the day before the first reviewable decision, Centrelink, through its rehabilitation case manager, advised the Appellant of the return to work plan and in part stated:
“Please find attached Comcare return to work plan and a schedule for the period ending 25/02/05. It is expected that you report to work on 15/02/04 ... at 1000 hours.” (sic)
(Appeal Book p.63)
It is common ground that the Appellant did not report for work on 15 February 2005 which it is noted was erroneously referred to in the letter as "15/02/04".
By letter dated 1 February 2005 the Respondent requested a further medical report from Dr Hogan the treating specialist for the Appellant. Dr Hogan was asked to respond to a number of questions set out in the Comcare letter (Appeal Book pp.69-71).
In his report dated 7 February 2005 (Appeal Book pp.72-74) Dr Hogan noted the last consultation of the Appellant for what he describes as "a major depressive disorder" occurred on "4 February". He then relevantly concludes:
"Mrs McGuinness's depressive symptoms have been to a degree ameliorated by Fluoxetine, recently increased to 40 mg daily. She has had difficulties with sedation. She has had concurrent problems with hypotension. On 1^st February Mrs McGuinness had shoulder surgery so that she was in considerable pain and had just had a general anaesthetic, both of which clouded an assessment of her current mood state. It seems likely that Mrs McGuinness will over the coming weeks be capable of resuming work in a non stressful environment on a graduated basis. That, in my view, has not been the case to this point. It has been quite distressing for Mrs McGuinness to be threatened with dismissal by Centrelink from her employment when she has been quite unfit to comply with unrealistic return to work plans. It is not anticipated that her depressive symptoms are permanent. A return to work will not bring about a cure of her depression, she is not merely disgruntled and dysphoric in the face of occupational problems, she has quite clearly been suffering with a major psychiatric illness."
(Appeal Book pp.73-74)
On 7 March 2005, Centrelink, as a rehabilitation authority, made a determination purportedly pursuant to s.37(7) of the SRC Act which significantly determined:
“As I do not consider that you have provided me with a reasonable excuse for failing to undertake the rehabilitation program, your compensation entitlements are suspended.”
(Appeal Book p.79)
In a further determination dated 8 March 2005, Centrelink, as a rehabilitation authority, referred to its determination dated 7 March 2005 and stated:
“… I neglected to make comment on your letter to me of 24^th February 2005, hence my haste to provide you this further information.”
(Appeal Book p.80)
The rehabilitation authority in the determination dated 8 March 2005 then proceeded to deal with correspondence from the Appellant dated 24 February 2005 together with enclosures and ultimately concluded, in almost identical terms to the determination of 7 March 2005, the following:
“As I do not consider that you have provided me with a reasonable excuse for failing to undertake the rehabilitation program, your compensation entitlements are suspended...”
(Appeal Book p.80)
By letter dated 24 March 2005 (Appeal Book p.83), the Appellant sought reconsideration of the determination dated 8 March 2005. In the letter requesting reconsideration, the Appellant included a certificate from Dr Hogan dated 17 March 2005 (Appeal Book p.82) and otherwise advanced reasons for her failure to comply with the return to work plan. Dr Hogan in his certificate stated that the Appellant "is unfit for work with her work-stress-induced major depressive disorder at least until 15/4/05". (Appeal Book p.82)
The second reviewable decision dated 18 April 2005 (Appeal Book pp.84-89) was made by the Respondent reconsidering what the review officer referred to as being the determination of "7 March 2005". The correct date of the determination is "8 March 2005" (Appeal Book p.80). In the second reviewable decision, the review officer affirmed the determination which had the effect of affirming the decision to suspend the Appellant's compensation payments.

Relevant Legislation

The rehabilitation provisions of the SRC Act have been relevantly set out in the Appellant's submissions as follows:
“6.Section 4(1) of the SRC Act defines a ‘rehabilitation authority’, in relation to an employee, to mean:
if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority – the principal officer of the Entity or the Commonwealth authority in which the employee is employed…
7.Section 4(1) defines a ‘rehabilitation program’ to include:
medical, dental, psychiatric and hospital services (whether on an in-patient or outpatient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training…
8.Section 36(1) of the SRC Act provides that, where an employee suffers and injury resulting in incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
9.Section 36(8) of the SRC Act provides that, where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
10.Section 37(1) of the SRC Act provides:
A rehabilitation authority may make a determination than an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program, and where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
11.Section 37(3) of the SRC Act provides that in making a determination under s 37(1), ‘a rehabilitation authority shall have regard to’:
(a)     any written assessment given under subsection 36(8);
(b)     any reduction in the future liability to pay compensation if the program is undertaken;
(c)     the cost of the program;
(d)     any improvement in the employee’s opportunity to be employed after completing the program;
(e)     the likely psychological effect on the employee of not providing the program;
(f)     the employee’s attitude to the program;
(g)     the relative merits of any alternative and appropriate rehabilitation program; and
(h)     any other relevant matter.
12.Section 37(7)of the SRC Act provides:
Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
13.Section 37(8) of the SRC Act provides:
Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.” (sic)

The Tribunal's Decision

In its reasons for decision the Tribunal referred to the chronology of events and the relevant legislation. It identified the issues set out earlier in this judgment and then referred to the following key questions:
Was the return to work program a rehabilitation program?
Was the decision to refuse to undertake the program reasonable?
The Tribunal referred to relevant legislation.
When considering whether the return to work program was a rehabilitation program the Tribunal states:
“5.In Re Wilkinson and Australian Postal Corporation (1998) AATA 849 the Tribunal held at paragraph 88:
In the Tribunal’s opinion, a rehabilitation program in the context of the Act is a plan for the restoration of an employee, who has suffered a disease or injury, to optimum health and working capacity given any limitations imposed by their condition. Such a plan can include medical treatment, broadly defined, therapy, and physical or vocational training.
In Re Oellering and, Department of Health, Housing and Community Services (1992) 16 AAR 198 the Tribunal identified rehabilitation program as:
… a plan, policy, list or agenda which was formulated for the purpose of restoring the applicant to her greatest potential physically, mentally, socially and vocationally…
6.In the matters under review the Tribunal takes into account that the return to work plan produced by Centrelink and sent to Ms McGuinness on 27 January 2005 includes a declaration that the plan is a determination under s 37 of the Act, and follows an assessment under s 36 of the Act. Although there is reference only to the first two weeks, the plan states that it is the basis that it is the basis of the rehabilitation program. The plan includes long-term goals for full-time employment and interim goals for a graduated return to work, modified duties and reduced hours, and was discussed with her on 5 January 2005. It lists the specific activities proposed for weeks one and two (four hours per day on two days per week), including introductory discussions, workplace orientation and the commencement of training. The plan also includes discussion with the rehabilitation provider (Dr P. Cotton, occupational and clinical psychologist) and the rehabilitation case manager.
7.Although Dr Cotton subsequently ceased his involvement as rehabilitation case manager, the Tribunal is satisfied from his letter dated 25 January 2005 to the rehabilitation case manager that he was aware of the treatment arranged by the treating psychiatrist (Dr G. Hogan) for Ms McGuinness. Dr Cotton took into account her ongoing treatment when contributing to the return to work program. The Tribunal concludes that at the meeting on 5 January 2005 Ms McGuinness was consulted about alternative duties contained in the program.
8.The Tribunal finds that the rehabilitation authority has had regard to the matters contained in s 37(3) of the Act. The return to work program aims to restore Ms McGuinness to her greatest potential, so it satisfies the criteria for rehabilitation program for the purposes of the Act.”
(Appeal Book p.406-407)
When considering the question of whether the Appellant's decision to refuse to undertake the program was reasonable, the Tribunal again referred to relevant legislation and the employment history of the Appellant, including circumstances leading to the claim.
The Tribunal referred to the work environment and, as set out earlier, in paragraphs 12 and 13 of its decision, made reference to the Appellant's attendance at meetings with Centrelink. The Tribunal recorded that the Appellant's husband had been supportive and her denial that in February 2005 she was determined "not to return to work in any circumstances". Reference was made to the evidence of Dr Hogan and other medical evidence in the following terms:
“16.Dr Hogan said that the program planned for Ms McGuinness, involved debt recovery work, which was totally inappropriate and was beyond her capacity. He stated that Centrelink had not consulted her about the program, which added to her fears. He said that she was unfit to work under any circumstances. Under cross-examination Dr Hogan stated that there was no point in him discussing a return to work with her because of her depressed condition.
17.Dr Cotton said that Ms McGuinness was referred to him in August 2004 for implementation of a return to work program and rehabilitation support. He emphasised the importance of rehabilitation overlapping with treatment, but said that in this case Dr Hogan seemed to be concentrating on treatment and was no supportive of a return to work. Dr Cotton said he preferred the opinion from Dr V. Botvinik, an independent psychiatrist.
18.Dr Cotton explained that he attended a meeting at the Box Hill office of Centrelink on 5 January 2005 to discuss the return to work program with Ms McGuinness. On

25 January 2005 he sent a letter to Centrelink in which he referred to her ongoing psychiatric care and psychotherapy treatment, and noted Dr Hogan’s preference for initiating rehabilitation only when treatment had been concluded. However he said that he was preparing alternative duties similar to those discussed on 5 January 2005 and was encouraging her return to work on 13 February 2005. Dr Cotton acknowledged that Ms McGuinness was reluctant to accept the program, and he believed she had lost confidence in him. He said that on 11 April 2005 he sent a letter to Centrelink formally ending his role. Under cross-examination he agreed that any proposal to place Ms McGuinness in the debt recovery area as part of a return to work program was not ideal. He also agreed that he preferred to devise a return to work program with the person’s active involvement.”
(Appeal Book pp.409-410)
The Tribunal then referred to the Centrelink officer, Ms Hadya, who was the Appellant's rehabilitation case manager in the following terms:
“20.Ms S. Hadya, a Centrelink officer who was Ms McGuinness’s rehabilitation case manager, told the Tribunal that she recognised that Dr Hogan’s preference was for treatment to be completed before any return to work. However she stated that she formulated the return to work plan in association with managers and medical professionals, particularly an independent psychiatrist such as Dr Botvinik, and took Ms McGuinness’s attitude into account. Ms Hadya said that she explained to Ms McGuinness that the plan involved work orientation in the first week, and that debt recovery was only an initial placement. Ms Hadya also said that every effort was made to locate Ms McGuinness in a suitable Centrelink office, taking into account transport and other considerations. She denied threatening to dismiss Ms McGuinness.”
(Appeal Book pp.410-411)
It is appropriate to set out the findings of the Tribunal in the following paragraphs:
“22.In the matters under review the Tribunal acknowledges that Ms McGuinness has a good work history and has been a conscientious and reliable Centrelink officer. Dr Hogan diagnosed depression and was clear in his opinion that she should not return to work before treatment had concluded. The Tribunal notes the oral evidence from Dr Botvinik in which he conceded that his earlier diagnosis of adjustment disorder might have been inaccurate. The Tribunal also takes into account that at the meeting on 5 January 2005 Ms McGuinness displayed signs of distress and anxiety when discussing a possible return to work. She was unhappy at the prospect of working at all on the basis that she could not cope, yet she received the return to work program in the mail without further consultation. Week two of the return to work plan included dual headsetting with staff in the debt recovery area at Box Hill, which would have been stressful for Ms McGuinness in her psychiatric state at the time, and with her difficulties regarding public transport.
23.On the other hand the Tribunal accepts that rehabilitation is part of the compensation scheme and that participants have obligations as set out in the Act. The Tribunal has accepted that the return to work plan was part of a rehabilitation program in which Centrelink was making an effort to restore Ms McGuinness’s health and working capacity. The program itself recognised the graduated nature of a return to work as it comprised four hours per day on two days during a two-week period. The first week included discussions with the rehabilitation provider and rehabilitation case manager about supporting the program, as well as discussion about incorporating Ms McGuinness’s work experience, knowledge and skill levels. This indicates that her progress and participation would be continually monitored in consultation with her.
24.The Tribunal notes that the program was introductory in nature and involved few actual tasks, which would have lessened any stress that Ms McGuinness might experience from a return to work. Each day’s schedule contained adequate opportunities for feedback, assessment of progress and discussion of difficulties that might arise. She seems to have interpreted Dr Hogan’s views on her fitness to work as a reason not to make any attempt to return to work. She had not brought the program to his attention or discussed the contents with him in any way. The Tribunal notes that she drove her car to see Dr Botvinik and to the 5 January 2005 meeting.
25.Debt recovery was not the most desirable area in which to commence the program, and Centrelink may have consulted more closely with Ms McGuinness after 5 January 2005 regarding matters such as transport to Box Hill and the implications of the program. On balance the Tribunal concludes that Centrelink made an effort to take her limitations and medical condition into account when formulating the rehabilitation program The Tribunal is satisfied that the program incorporated sufficient monitoring and safeguards and was flexible enough to accommodate any difficulties that she might encounter in attempting to carry out any of the components of the program. She had adequate notice of the dates of the program, and would probably have been able to arrange for a family member to drive her to Box Hill.
26.In the entirety of the circumstances she had a responsibility to make an attempt to undertake the program, and her failure to do so was not reasonable. Under s 37(7) of the Act the Tribunal finds that Ms McGuinness refused or failed without reasonable excuse, to undertake a rehabilitation program provided for her under the Act.”
(Appeal Book pp.411-412)
In summary, it is clear that in relation to the significant issues to be determined by the Tribunal it had found that the rehabilitation authority had regard to the relevant matters set out in s.37(3) of the SRC Act and that the return to work program satisfied the criteria for a rehabilitation program for the purpose of the SRC Act. Significantly the Tribunal then also found that the Appellant's failure to undertake the program was not reasonable and the appellant did so "without reasonable excuse". It made that finding pursuant to s.37(7) of the SRC Act.
I have deliberately set out in some detail the Tribunal decision as Counsel for the parties before the Court in written submissions were unable to agree on a summary of the Tribunal's decision and findings.

Grounds of Appeal

The grounds of appeal set out in the Notice of Appeal filed 11 April 2006 are:
“4.1The Tribunal breached s 43(2) of the AAT Act and effected a miscarriage of justice by failing to deal with a submission seriously advanced by the Applicant, relevant to an issue before the Tribunal and worthy of consideration – namely, that the program of 27 January 2005 was not a rehabilitation program for the purposes of s 37(7) of the SRC Act because that program had not been provided for the Applicant under s 37 of the SRC Act, by reason of the rehabilitation authority’s failure to have regard to each of the matters prescribed by s 37(3) of the SRC Act.
4.2The Tribunal failed to exercise its review jurisdiction when it failed to consider an essential question posed by s 37(7), read with s 37(1) and (3), of the SRC Act – namely, whether the program of 27 January 2005 was a rehabilitation program for the purposes of s 37(7) of the SRC Act and, in particular, whether the determination that the Applicant should undergo that program was made having regard to each of the matters prescribed by s 37(3) of the SRC Act.
4.3On the evidence and other material before the Tribunal, the Tribunal could only have determined that the program of 27 January 2005 was not a rehabilitation program provided for the Applicant under s 37 of the SRC Act and that, as a consequence, the Applicant could not be subject to suspension under s 37(7) of the SRC Act.
4.4The Tribunal failed to exercise its review jurisdiction when it failed to consider an essential question posed by s 37(7) of the SRC Act – namely, whether the Applicant had a reasonable excuse for refusing or failing to undertake the program of 27 January 2005.
4.5On all the evidence and other material before the Tribunal, the Tribunal could only have determined that the Applicant did have a reasonable excuse for refusing or failing to undertake the program of 27 January 2005.”

First Reviewable Decision – Ground 4.1

Appellant's Submissions

The main thrust of the Appellant's submissions in support of this ground and indeed as a consequence in support of other grounds is that there was no rehabilitation program in existence before 27 January 2005. The attack made by the Appellant upon the second reviewable decision it was argued was based upon the submission that the determination made on 27 January 2005 was not a valid decision under s.37(1) of the SRC Act. It was argued it was not a valid decision because in making that decision or determination the rehabilitation authority did not have regard to the mandatory criterion, namely the employee's attitude to the program.
The submissions relating to s.37(7) which is the foundation for the second reviewable decision rely upon whether it can be concluded that there was a rehabilitation program in existence on 27 January 2005. That in turn depends on whether there has been a failure by the rehabilitation authority to comply with the mandatory requirements of sub-s.37(3)(f), namely having regard to the employee's attitude to the program. As I understand it, if the first reviewable decision can be successfully attacked, then the consequence would be that the second reviewable decision would be set aside and the matter remitted. Once remitted the Tribunal would then have to determine in any event whether there was indeed a rehabilitation program in place and then determine whether the Appellant had failed to participate in the program or whether she had a reasonable excuse for not doing so.
It was submitted that the Tribunal by concluding the program was a relevant program for the purpose of s.31(1) of the SRC Act "failed to deal with the submission put" by the Appellant that the rehabilitation authority failed to consider her attitude to the program as required by s.37(3)(f) of the SRC Act. It was submitted the Tribunal did not deal with this submission in reaching its decision that the program of 27 January 2005 was a program within the meaning of s.37 of the SRC Act.
Reference was made to the transcript of the proceedings before the Tribunal where Counsel for the Appellant relevantly stated:
“It throws up two questions for the Tribunal. First, does it meet the description of rehabilitation program for the purposes of section 37(1)? Now – because if it is not properly described as a rehabilitation program for the purposes of the Act, section 37(7) can’t come into operation at all. You can’t fail to participate in a rehabilitation program which is not otherwise regarded to be properly, on its true construction, a true rehabilitation program. Well, it complies in certain basic respects, in that it is in writing, and it has been sent to the applicant, and it is done by a rehabilitation authority. So certain formalities are observed, buy you ought to query, in our submission, whether it is a true rehabilitation program.”
(Appeal Book p.383)
Specific reference was made by Counsel for the Appellant to the submissions made by Counsel on her behalf at the Tribunal where the issue of the employee’s attitude to the program was raised. So much is clear from a proper reading of the transcript where reference was made to the chronology of events set out earlier in this judgment, leading Counsel to then submit:
“And I say there was no earlier program because, although some of the answers given to this Tribunal suggested that it was being formulated on the 5^th and it sort of got carried through to the latter period, Ms Hadya correctly and properly said, no, that there were differences.”
(Appeal Book p.386)
Counsel for the Appellant at the Tribunal further submitted that Ms Hadya “accepted in cross-examination finally the provisions there, that it was a return-to-work program, there was no interim, and that there will be dual head-setting with staff in a large debt team to familiarise Raye with the type of work she will be undertaking” (Appeal Book p.387).
Ultimately Counsel for the Appellant at the Tribunal submitted:
“So the reality is, is that the person being rehabilitated was simply never asked her views. Ant that is a breach of the requirements of a return-to-work program – sorry, rehabilitation program. So our primary submission is, this is not a rehabilitation program, either in its primary meaning, or for its failure to comply with the mandatory requirements of subsection (3) of section 37…”
(Appeal Book pp.387-388)
After referring to the extracts from submissions made by Counsel for the Appellant before the Tribunal, it was submitted before this Court that the submission was fully developed before the Tribunal and the rehabilitation program was only created shortly before 27 January or around about the time of the letter from Dr Cotton dated 25January.
Reference was made to the Tribunal's reasons and it was argued that the Tribunal was aware of and acknowledged that the Appellant had "received the return to work program in the mail without further consultation". So much is clear from paragraph 22 of the Tribunal's decision set out earlier in this judgment.
It was argued that submissions referred to the evidence before the Tribunal in the following terms:
·The relevant program to which failure to commence resulted in suspension of compensation entitlements, was only formulated on 27 January 2005.
·There was no program formulated at the stage of the meeting at 5 January 2005.
·The rehabilitation authority did not ask the employee about the program and could not have taken her views into consideration before its commencement.
The Appellant referred to the evidence of the rehabilitation case manager, Ms Hadya. It was argued that her evidence was:
·There was no rehabilitation program in existence on 5 January 2005 and the meeting held on that day was in the assessment stage. Reference was made to the transcript of the proceedings before the Tribunal where Ms Hadya, under cross‑examination relevantly states:
“All right. So 5 January is a meeting still in the assessment stage?---Yes.
And we are yet to get to a rehabilitation program somewhat later than that?---That is right.
And did you ever formally produce a rehabilitation program with the appropriate documentation before 12 January?---Yes. There was a plan that was made out between the 5th and the 12th. I don't know whether we have the documents to that effect. I can't comment on that.”
(Appeal Book p.342)
·The only return to work program purporting to be formulated pursuant to s.37 of the SRC Act was the proposal of 27 January 2005. Again, reference is made to the evidence under cross‑examination of Ms Hadya where the following appears in the transcript:
“... The one and only return-to-work program pursuant to section 37 is the proposal of 27 January?---That is right.”
(Appeal Book p.343)
·The proposal of 27 January 2005 was formulated taking into account the views of the rehabilitation provided Dr Cotton, who had been asked for his views on the proposed duties and who emailed his response to Ms Hadya who was about to go on leave. Reference was made to the following extract from the transcript and the evidence of Ms Hadya under cross‑examination:
“All right?---Because I had mentioned to him that I was proceeding on the rec leave and I wanted to formulate the return-to-work plan.
Yes?---And so I did have a telephone discussion with him regarding the proposal for 15 February. And he did indicate that that proposal that I was making as discussed on the meeting on 5 January was a reasonable one.
...
You had already drawn that up?---No, I had not. I wanted ‑ ‑ ‑
Sorry?---Yes. I had discussed the proposal with him.
Yes?---And I said, "What do you think of the proposal?" It was not typed or printed or anything. I said, "This is what we are proposing, what do you think about that?" and so when we got this report I was able to finalise the draft and mail it across to Raye.
...
Sorry, say that again, I missed it?---I said because I was proceeding on leave I asked Dr Cotton whether I could put something in the mail that he was in agreement with so he could sign it and we could send the paperwork out before I left.”
(Appeal Book p.348)
·The program was formulated on 27 January 2005 and mailed immediately to the Appellant.
·Ms Hadya had no other contact with the Appellant until 15 February 2005. Reference was made to the following extract from the cross‑examination evidence of Ms Hadya:
“Right. So did he see the plan which was starting on 15 February before you set out the determination dated 27 January?---Yes.
...
Right, okay. And then you mailed out the determination to Raye?---Yes.
And the next you heard from her was on the 15th, or you tried to call her on the 15th?---That's right.”
(Appeal Book p.349)
·Ms Hadya did not ask the Appellant about the program formulated on 27 January 2005 at all. Reference was again made to Ms Hadya’s evidence as follows:
“But you hadn’t formulated any return-to-work program until about 27 January?---No, there was a proposal that she can come into a team, have an orientation meeting. Though it was not in black and white, this is what we discussed at the meeting.
Well, yes, but you didn't formulate that program until well to the end of January ‑ ‑ ‑?---Yes.
- - - and you have given answers that you hadn't formulated it on the day on the 5th?---Yes.
Comcare certainly said you can't proceed on this because there is a problem, there is a legal problem?---That's right.
And you could only have formulated this program on your evidence at around about 27 January, after you talked with Dr Cotton. And you've indicated to us that you've had no contact with Ms McGuinness from the time when you formulated this program until the date of the start. So you haven't actually asked the employee about this program at all, have you?---No.” (Appeal Book p.350)

Respondent's Submissions

The Respondent submitted that whether Centrelink did or did not take into account the matters in s.37(3) in making the s.37(1) determination "was not a question the Tribunal was required to decide in performing its merits review function". It was argued that if the Tribunal was not required to decide that matter, then there is no error of law.
Further it was argued that the Tribunal, having regard to the matter in which the Appellant conducted the case before it, found Centrelink did take into account the matters in s.37(3) and it was argued that finding was open to the Tribunal on the material before it.
It was submitted that part of the "Tribunal's task was to decide for itself whether a s37(1) determination in respect of the Appellant was the correct or preferable decision". It was submitted the Tribunal was "obliged by s 37(3)(f) to take the Appellant's attitude to the RTW plan into account in arriving at the correct or preferable decision". Reference was made to paragraphs 24 and 25 of the Tribunal's decision set out earlier in this judgment and it was submitted the Tribunal did take the Appellant's attitude to the return to work plan into account in arriving at its decision.
It was argued no error of law arises by any alleged failure by the Tribunal to take into account the matters in s.37(3) when making the s.37(1) determination which, as indicated earlier, was not a question the Tribunal was required to decide in performing its merits review function. This was supported, it was argued, "plainly from the Tribunal's merits review function, and from the terms of s 37(3) which affect the exercise of discretion in s 37(1) to make, or not make, a determination that a person undertake a rehabilitation plan - that being the task entrusted on review to the Tribunal". It was argued that what Centrelink did or did not do need not "be the subject of a finding at all by the Tribunal".
In any event it was argued that the Tribunal did make a finding about the matters Centrelink took into account. Reference was made to paragraph 8 of the Tribunal's decision set out earlier in this judgment. It was argued that para.25 of the Tribunal's decision, also set out earlier, demonstrated that "the Tribunal (and Centrelink) had regard to the Appellant's attitude toward returning to debt recovery work".
It was submitted that there was ample evidence "before the Tribunal to sustain that finding." In written submissions the Respondent referred to the following:
“a)The Appellant being interview by Dr Cotton on 30 July 2004 for the purposes of the s36 assessment. The Appellant has not disputed in this Appeal that the assessment conformed to s36 requirements including subsection (8) (AB 2)
b)The Appellant being examined by Dr Botvinik on 24 November 2004 at which her attitude to returning to work at Centrelink was discussed, including her ability to return to work at that time and her ability to return to work at Centrelink at all (AB 33)
c)Centrelink’s determination dated 30 November 2004 directing the Appellant to attend the 5 January 2005 meeting to discuss proposed alternate duties and for the Appellant to commence a ‘graduated return to work commencing 11 January 2005’ and to ‘work 4 hours on Tuesdays and Thursdays’ (AB 27)
d)Telephone discussion on 4 January 2005 between Sri Hadya and the Appellant concerning the proposed content of the RTW plan and the Appellant’s attitude to Ms Hadya’s proposal to draw the RTW plan to incorporate work orientation in the first week of February, not involving active work other than the Appellant getting to know her team (AB 351)
e)The meeting between Centrelink and the Appellant on

5 January 2005 at which a documented ‘work plan’ was discussed that included, inter alia, on day one the Appellant being introduced to certain people and day two a desk being set up, and commencing data matching for 4 hours 2 days a week. The discussion included the Appellant’s attitude to that work plan (AB 153 & 178)”
It was further argued that evidence before the Tribunal "demonstrated that Centrelink was cognisant at the time the RTW plan was forwarded to the Appellant on 27 January 2005 of the Appellant's attitude regarding returning to work at Centrelink in January or February 2005 in any capacity and for any hours, returning to work at Centrelink in January or February 2005 in any capacity on graduated hours, initially 4 hours on each Tuesday and each Thursday, her ability to return to work as at 21 December 2004 and her ability to undertake the RTW plan.” Reference was made to the transcript of evidence of the Appellant before the Tribunal (Appeal Book p.215) and the Appellant's letter dated 21 December 2004, referred to earlier in this judgment, concerning whether the Appellant was ready to enter a return to work program.
Reference was also made specifically to the following extract from the Appellant's evidence before the Tribunal:
“… I just said that I wouldn’t be able to do it, and she said, ‘Let’s just go through the work plan,’ and everybody had copies of this work plan which said, you know, I can’t remember in detail, but day one I would come in and be introduced to certain people and day two they would set up a desk or something, or in the afternoon. I don’t remember the detail, but those sort of things. So then I went downstairs after the end of the meeting and Dr Cotton told me in confidence that I should be aware that there was somebody else in my section of the 15 people that worked there who was also off for the same reason now that had put in a claim to Comcare, and I made the ask to support that person’s claim or give some information, and I said it would be at that time – at that time I still was sort of talking to one person from work and I don’t talk to…”
(Appeal Book p.153)
Reference was also made to the evidence before the Tribunal of Ms Hadya where she stated in evidence‑in‑chief:
“All right. Well, what I am asking you is, in drawing up that plan that is included with your letter, in drawing up the plan did you have contact with Mrs McGuinness to discuss the plan? --- I did. I had a phone conversation with her.
And did you discuss with Mrs McGuinness what you were going to put in the plan? --- Yes. I only had said to her at the phone call was I was proposing to have work orientation in the first week of February, which will not involve active work other than to get to know her team.
All right. And what was her attitude to that? --- She indicated to me that she may not attend that proposal and she asked me whether I was giving consideration to Dr Hogan or Dr Botvinik’s report.”
(Appeal Book pp.327-328)
It was submitted the Appellant gave evidence in December 2005 demonstrating a negative attitude towards returning to work in any capacity and in any location under any conditions (Appeal Book p.176).
It was argued that in its reasons in paragraph 24 and 25 set out above, it is demonstrated that the Tribunal (and Centrelink) "had regard to the Appellant's attitude to the RTW plan, including noting the Appellant's failure to bring the RTW plan to the attention of her treating Psychiatrist and failing to discuss its contents with him in any way at the 7 February 2005 consultation" (see Appeal Book pp.258-261, 268 and 270).
It was argued that the matters to be taken into account when assessing a person's attitude to a rehabilitation program "extend to matters which occured well before the actual determination" (see Slater v Telstra [2004] FCA 476 (Slater v Telstra) at [65]-[66] where the court relevantly states as follows:
“65Notwithstanding Mr Slater’s assertion that ‘I have a right to a rehabilitation program under Section 37’, subsection 37(3)(f) of the Act requires the Tribunal, in considering whether to make the rehabilitation program available, to consider the employee’s attitude to the program. The Tribunal found as a fact that Mr Slater was unwilling to complete the assistance plan put in place for him by WDA in 1997. The Tribunal regarded Mr Slater’s attitude to that assistance plan as a highly relevant factor in whether a rehabilitation program should or should not be made available to the applicant by the respondent.
66In my opinion, no error of law attends the exercise of discretion conferred by s 37 where the Tribunal found at par 85 of its reasons:
‘On balance, I am satisfied that a rehabilitation program should not be made available to the applicant by the respondent.’”
Although it was conceded that the rehabilitation program may only have been formulated on 27 January 2005, "insofar as the setting out of a final s 37(1) determination about the rehabilitation program in a document is concerned" it was further submitted there was evidence that it was before the Tribunal the same substantive proposals had been discussed with the Appellant prior to that date. That evidence, it is argued, is more important for the purpose of the s.37(1) decision-maker being able to take into account the employee's attitude. Reference was made to the matters to be taken into account pursuant to s.37(3) and it was argued that many of those factors, which a decision-maker is required to consider under s.37(1) would have occurred "well before the final documentation is prepared and sent to an employee".
The extract of the exchange in the transcript at page 153 of the Appeal Book, set out earlier, demonstrates it was argued the Appellant was "cognisant" at the 5 January 2005 meeting of the particulars of the RTW plan and that Centrelink was proposing that the Appellant should return to work pursuant to a "rehabilitation program, shortly after the
5 January 2005 meeting".
The evidence also demonstrates the Appellant's attitude to the rehabilitation program, as at 5 January 2005. The same substantive program, it was argued, had been under consideration for the Appellant for some time "prior to 27 January 2005". Reference was made to the determination dated 30 January 2004 (Appeal Book p.27) which refers to a "graduated return to work program commence with effect from Tuesday, the 11 January 2005 (mistakenly shown as ‘11 January 2004’)” with the hours proposed.
Paragraph 6 of the Tribunal's decision, as set out earlier, reveals, according to the Respondent's submission, that the Tribunal made a finding that the return to work plan was discussed with the Appellant at the meeting on 5 January 2005 and it was submitted the Tribunal is entitled to make that finding. The Tribunal had evidence before it of the Appellant's return to work proposal, set out in the determination made 30 November 2004 and the Appellant had articulated her attitude, amongst other things, to the return to work program in her letter dated 21 December 2004. Accordingly, it was open for the Tribunal to find that Centrelink had regard to the Appellant's attitude.
It was further submitted that there was evidence before the Tribunal which disclosed that there was at least one document in existence before 27 January 2005 that related to the return to work. The Appellant, in evidence, had acknowledged in the extract set out above the existence of a "work plan" document which had been discussed at the 5 January 2005 meeting.
The evidence before the Tribunal, including discussions that took place at the meeting on 5 January 2005, it was submitted, demonstrated that Centrelink knew of the Appellant's attitude to the return to work plan.
It was argued that the Appellant, in support of submissions concerning this ground, "seeks to transform the meaning of 37(3)(f) so as to require consultation with the Appellant regarding a specific document”. The section does not provide, it was submitted, for any "formal consultation with an employee, nor that it consult by way of presentation, in essence, of a draft determination". It was submitted that "section 37(3) of the SRC Act does not require a rehabilitation authority to 'consult' a worker, let alone consult an employee in a particular way or at a particular time".
Instead, it was submitted, that s.37(3)(f) "like the other components of s 37(3), point to factual matters which a decision maker must consider."
It was further submitted that the 'attitude of the employee' may be apparent to the decision-maker from a number of sources – s.36 assessment, medical reports, discussions and correspondence. It was submitted that, "So long as the decision-maker (in this case, the Tribunal) ascertains from the available material what the attitude of the employee is, then takes that attitude into account, the requirements of s 37(3) are met."
It was argued that there is nothing in the plain terms of s.37(3)(f) which suggests a construction of the kind the Appellant suggests, namely consultation or dialogue with the employee by presentation of a draft determination.
In the present case it was submitted that reliance by the Appellant on authorities, including Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 (Dennis Willcox) does not assist the Appellant as it does not apply because in this case the Tribunal did consider the submission and dealt with it in paragraph 8 of its reasons set out earlier in this judgment.
In the alternative, it was submitted, in any event the submission put by the Appellant was not a serious submission "because it was a submission which invited the Tribunal to stray in areas of decision making which were unnecessary to discharge its task, namely: whether the original decision maker had failed to take into account a relevant consideration.”
It was otherwise submitted that in any event if the case of Dennis Wilcox stands for the proposition which the Appellant submitted, it is in any event inconsistent with the later High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf). Reference was made to a decision of the Federal Court in Secretary Department of Employment & Workplace Relations v Barrington (2006) FCA 527 where the court relevantly states the following:
“27On the present appeal Senior Counsel for the Secretary relied on a line of authority commencing with Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267. At the time of that decision s 43(2) was in substantially the same terms as the present subs (2B). Jenkinson J, with whom Woodward and Foster JJ agreed, said at 276-277
"There is also the further possibility that the Tribunal’s failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent’s decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this Court from affording the parties a determination whether the tribunal’s decision was vitiated by error of law: see Pettit v Dunkley [1971] 1 NSWLR 376.
28This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
29In Yusuf the High Court was concerned with s 430(1) of the Migration Act 1958 (Cth) which requires the Refugee Review Tribunal (RRT), when it makes a decision on review, to prepare a written statement that :
"(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based."
The obligation imposed on the RRT is substantially the same as that under s 43(2) of the Administrative Appeals Tribunal Act.
30As part of her claim for a protection visa the respondent in Yusuf had alleged that her husband had been attacked in the family home in Somalia and driven away by members of a rival clan. The RRT affirmed the refusal of a protection visa without expressing any finding about the alleged attack on the husband. The High Court reversed the Federal Court’s decision that the RRT had failed to comply with s 430(1).
31The High Court held that s 430(1)(c) only required the RRT to set out the findings which it did make and which it considered material to the decision to be made; the section did not oblige the setting out of findings which the Tribunal had not in fact made: per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [68]. A failure to make a finding may reveal another error, such as failure to take account of relevant considerations: [73]-[75], but that is a distinct and different ground.
32In the present case the argument said to be left unconsidered would not be a relevant consideration in the sense expounded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, that is to say a consideration the Tribunal was bound by the Social Security Act to take into account. On the appeal to this Court senior counsel for the Secretary did not so contend. At best, Mr Barrington’s purchase of the house after awareness of the preclusion period was a part of the factual matrix of this particular case, the setting in which s 1184K(1) had to be applied. The reasoning in Yusuf rather suggests the Tribunal made no legal error simply by failing to refer to one argument advanced, so long as it otherwise complied with s 43(2B) of the Administrative Appeals Tribunal Act.”

Reasoning

In my view, the Tribunal standing in the shoes of the decision-maker clearly is required to decide for itself whether the reviewable decision was the correct or preferable decision. The Tribunal is entitled to take into account the material provided by the parties at the hearing of the matter and in the Tribunal documents.
However, I accept, as submitted the Appellant, that the Tribunal is required to take into account as part of its decision-making whether there is indeed a rehabilitation program in existence when considering a determination by a rehabilitation authority that the Appellant should undertake such a program. I accept that it is a mandatory requirement for the rehabilitation authority pursuant to s.37(3) to have regard to the “employee’s attitude to the program”. One can only express an attitude to a program if a program actually exists.
One can then only make a determination having, as it clearly does under the SRC Act, significant consequences regarding the undertaking of a program if one exists prior to that determination.

The rehabilitation provisions of the SRC Act are an integral part of the legislative scheme designed to restore injured workers to their fullest pre-injury capacity (see Department of Defence v Fox (1997) 24 AAR 171 (Fox)).
In the present case I accept that by its letter dated 27 January 2005, that is the day before the first reviewable decision, Centrelink provided what is described as a return to work plan and the schedule for the Appellant. However, it is clear as submitted by Counsel for the Appellant that there was no rehabilitation program in existence before 27 January 2005 and I accept therefore the determination made on 27 January 2005 was not a valid decision under s.37(1) of the SRC Act. It could not have had regard to the mandatory criteria, namely the employer’s attitude to the program having regard to the chronology of events.
These submissions were clearly made to the Tribunal in the relevant extracts referred to during the course of submissions by Counsel for the Appellant. They were relevant submissions worthy of serious consideration. I accept, as submitted by the Appellant, the Tribunal did not deal with the submissions when it reached the decision that the program of 27 January 2005 was a program within the meaning of s.37 of the SRC Act.
Whilst the Tribunal, in performing its merits review function, does not have to correct the determination made by Centrelink, it does nevertheless have to take into account those matters which by law Centrelink would be required to take into account in its determination. The Tribunal, in my view, committed an error of law by not taking into account the submissions to which reference has been made and/or failing to have regard to the absence of evidence of the existence of a program which met the requirements of legislation, namely one which had taken into account the views of the employee before its commencement.
The mere reference by the Tribunal to the employee’s attitude to various proposals and/or evidence given before the Tribunal does not retrospectively correct the fundamental flaw in the process leading up to the creation of the program, namely that it had not been finalised after compliance by the rehabilitation authority with the requirement of s.37(3)(f) of the SRC Act by having regard to the employee’s attitude to the program. If the employee’s attitude to the program was negative, it does not mean that the program therefore fails, but simply that the attitude is taken into account and appropriate weight given to the attitude. It is conceivable that an employee, supported by a treating doctor may be opposed to a program but having determined the attitude and given appropriate weight to that attitude then the rehabilitation authority, in my view, has discharged the mandatory requirements of s.37(3)(f) of the SRC Act. That provision does not mean that the employee’s attitude should be the determining factor as to whether a program is approved and/or whether the employee is required to undertake the program.
On my reading of the Tribunal’s decision there was certainly evidence concerning the Appellant’s attitude toward returning to debt recovery work but that is not the same in my view as determining, pursuant to s.37(3)(f), the rehabilitation authority having regard to the employee’s attitude to the program (emphasis added).
I accept the submissions of the Appellant and, in particular, reference to the evidence of Ms Hadya that there was no rehabilitation program in existence on 5 January 2005 and that the only return to work program purporting to be formulated pursuant to s.37 of the SRC Act was the one proposed on 27 January 2005.
The submissions of the Respondent suggesting that the Tribunal had found Centrelink was cognisant at the time of the return to work program plan was forwarded to the Appellant on 27 January 2005, the Appellant’s attitude does not in the absence of evidence and mere receipt by the Appellant of the program, provide sufficient evidence to discharge the statutory obligations arising under s.37(3) of the SRC Act nor in my view does it matter that what might be described the “same substantive proposals” have been discussed with the Appellant prior to that date. It is important that the Appellant’s attitude to “the program” has been taken into account, rather than her general attitude to similar or substantially similar programs or plans discussed in the passed.
I do not accept in this case that the Tribunal has dealt with relevant submissions worthy of serious consideration and otherwise accept the submissions made for and on behalf of the Appellant to this ground of appeal, hence this ground succeeds, accepting as I do the Respondent’s reliance upon the High Court decision in Yusuf and the principles set out in that judgment. I am satisfied that there has been an error of law in this instance and that this ground should succeed.
I was not assisted by reference to the decision of the Federal Court in Slater v Telstra. In that case, the employee had sought a rehabilitation program and the comments of Spender J in that case refer to the employer’s attitude to previous assistances being relevant. The relevance in that case was whether, according to His Honour, a rehabilitation program should or should not have been made available to the employee in that case. It does not assist me in determining whether a failure to take into account the mandatory matters set out in s.37(3) of the SRC Act should result in a finding that there has been no relevant program established.

First Reviewable Decision - Ground 4.2

Appellant's Submissions

The Appellant submitted that when determining under s.37(1) of the SRC Act that an employee should undertake a rehabilitation program. The Respondent was "required to have regard to the seven matters specified in s 37(3) of the SRC Act, together with any other relevant matter."
In the present case it was argued that if Comcare did not have regard to each of the specified matters then it failed to determine a rehabilitation program in the manner "demanded by s37(3)". It was submitted that any program that Comcare purported to determined could not therefore be a "rehabilitation program provided for the employee under the section so as to provide a basis for suspension of the employee's rights to compensation under s 37(7) of the SRC Act.”
In the present case it was argued that "the Tribunal looked at the content of the program determined by Centrelink on 27 January 2005, and noted that an assessment had been made under s 36". It was argued that it might be said that "the Tribunal considered whether Centrelink had regard to the matter specified in paragraph (a) of section 37(3)”. It was submitted that the Tribunal "did not ask whether the Comcare had regard to other matters specified in s 37(3)". An example was given that the Tribunal did not ask whether Centrelink had regard to the employee's attitude to the program or the relative merits or alternatively a more appropriate rehabilitation program. The finding that "on 5 January 2005 Ms McGuinness was consulted about alternative duties contained in the program" it was argued could not address s.37(3)(f) "because the uncontradicted evidence was that the program had not been formulated on 5 January 2005 but was formulated on 27 January 2005". Reference again was made to the evidence of Ms Hadya.
It was argued that the Tribunal's omission to ask "whether Centrelink had regard to those matters in making its determination meant that the Tribunal failed to have regard to relevant consideration” which it was bound to have regard to under the statute when it found that the rehabilitation program determined on 27 January 2005 was a rehabilitation program for the purposes of the SRC Act.

Respondent's Submissions

It was argued that this ground "misconstrues s 37(1) in a fundamental way". The question, it was submitted, which s.37(1) asks is "whether a determination should be made that an employee undertake a rehabilitation program". It was in answering this question, namely, whether a determination should be made, that the decision-maker must take into account the factors set out in s.37(3). It was submitted that while a failure "to take into account the matters in s 37(3) might vitiate a determination made under s 37(1), it is not because something that was intended to be a rehabilitation plan ceases to be one". It was argued a rehabilitation plan need only meet the non-statutory definition described by the court in Wilkinson, to which reference was made by the Tribunal in paragraph 5 of its decision set out earlier in this judgment.
The Respondent submitted that the "fact that the original determination might be unlawful because of such a failure to take a relevant consideration into account does not affect the jurisdiction of the Tribunal to conduct a review of the determination and make its own decision". (See Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338)

Reasoning

The reason already given in relation to ground 4.1, I conclude that the Tribunal has erred by relying upon the program determined by Centrelink on 27 January 2005, also relied upon in the reviewable decision and for the reasons advanced earlier, the Tribunal has failed to have regard to a relevant consideration which it was bound to have regard to under the statute as submitted by the Appellant by finding that the program determined on 27 January 2005 was a rehabilitation program for the purpose of the SRC Act. It did this by failing to have regard to whether the Respondent had regard to the employee’s attitude to the program.
I should stress, however that having regard to mandatory matters does not mean that any decision-maker should not then be able to give appropriate weight to each of the matters. Conversely the decision-maker should not simply give what might be described as “token” or “nominal” regard to those matters (see Fox).
In my view this is not simply a matter of the Tribunal dealing with the determination which was unlawful, but rather itself standing in the shoes of the decision maker undertaking merits review has failed to take into account a requirement made mandatory by s.37(3) of the SRC Act and significantly failing to then determine properly before it that the foundation stone of a “rehabilitation program” for the purpose of the Act was in place. It would only be in place if regard to the employee’s attitude to the program had occurred.
Accordingly, this ground should succeed.

First Reviewable Decision - Ground 4.3

Appellant's Submissions

The Appellant submitted that on the evidence the Tribunal could only have determined that the program of 27 January 2005 was not a rehabilitation program for purposes of s.37 of the SRC Act. It was argued that Centrelink made no attempt to solicit or consider the Appellant's attitude to the program and this was supported by the evidence of the rehabilitation case manager referred to earlier in submissions concerning ground 4.1.
It was argued that "the power conferred by s 37(7) of the SRC Act to suspend for refusing or failing to participate in a rehabilitation program can only be exercised if there is a valid program authorised by the SRC Act." In the absence of a valid program it was submitted the Tribunal ought to have set aside the suspension on the grounds that it was a decision outside the power of the decision-maker and the failure of the Tribunal to do so constituted an error of law.

Respondent's Submissions

The Respondent repeated that there was substantial evidence before the Tribunal concerning the Appellant's attitude to the rehabilitation program set out earlier in relation to ground 4.1. It was submitted that if the court "finds any error of law in the Tribunal's decision and further decides the error is one which justifies the Tribunal's decision being set aside, then the only course is remittal to the Tribunal for determination according to law". It is for the Tribunal, it was argued, to decide for itself whether a determination under s.37(1) should be made.

Reasoning

I accept the Respondent’s submissions that having found an error of law in the Tribunal’s decision which justifies a decision being set aside, that it is appropriate that the application should be remitted to the Tribunal for determination according to law. It may well be that upon remittal, a closer analysis is taken of the chronology of events and other evidence when considering whether a rehabilitation program existed at the relevant time. Accordingly, I do not accept the Appellant’s submissions in relation to ground 4.3 as there may be other material to be considered by the Tribunal upon remittal.

Second Reviewable Decision Ground 4.4

Appellant's Submissions

It was submitted that the essential question for the Tribunal was whether the Appellant had a "reasonable excuse" for failing to undertake the rehabilitation program. In considering that question it was argued the Tribunal was bound to have "regard to the explanation advanced by and on behalf" of the Appellant and to determine whether the explanation was "a reasonable excuse". By misstating the relevant evidence it was argued the Tribunal failed to have regard to that explanation. The Appellant's explanation for not starting work at the Box Hill office on 15 February 2005 included reference to her injuries, but resulting in "such an incapacity for work that she could not attempt the duties offered to her" and further that "her treating medical practitioner, Dr Hogan, advised against attempting those duties".
It was submitted that, "Incapacity for work must be capable of qualifying as a reasonable excuse in the context of s 37(7) of the SRC Act for not participating in the rehabilitation program constituted by return to work, whether on a graduated basis or otherwise." Likewise, it was submitted, following the advice of a treating medical practitioner as to when and under what conditions there should be a return to work "must be capable of qualifying as a reasonable excuse".
It was argued the Tribunal missed that in the evidence relevant to the explanation advanced by the appellant and reference was made by the Tribunal to Dr Hogan, the treating psychiatrist, preferring "initiating rehabilitation only when treatment was concluded".
Specific reference was made to the evidence of Dr Hogan accurately summarised in the Appellant's submissions as follows:
·“A return to work program was advisable when the person is sufficiently recovered from her or his illness where it becomes realistic to consider reintroducing them to the workforce: AB 243
·It was not possible at a particular point in time to state a future date when sufficient recovery would take place. It was not possible to predict response to treatment at the time of an initial assessment because the clinical course could fluctuate: AB 243
·There had been no improvement in Ms McGuiness’ condition within the time frame suggested by Dr Botvinik in his assessment in late November 2004: AB 243
·In January and February 2005, Dr Hogan thought that there were problems with the duties suggested ‘but over and above that she was too sick to be working anywhere’: AB 244
·The report written by Dr Hogan on 7 February 2005 (AB 73-74) clearly stated that further improvement under the drug Fluoxetine would in the coming weeks see Ms McGuiness as capable of resuming work in a non-stressful environment.
·When it was put in cross-examination to Dr Hogan that his view was that rehabilitation could only commence after treatment was finished, he denied that this was his view: AB 250.” (sic)
It was argued that the misstatement of Dr Hogan's views led the Tribunal to erroneously conclude the Appellant "seems to have interpreted Dr Hogan's view on her fitness to work as a reason not to make any attempt to return to work". It was further argued the Tribunal misstated the evidence by finding the Appellant had not brought the program to Dr Hogan's attention or discussed the contents with him "in any way". There was evidence before the Tribunal that Dr Hogan recalled "talking to Ms McGuinness about the return to work proposal of January 2005". Reference was made to the evidence of Dr Hogan in re‑examination which appears in the transcript as follows:
“… I know it was discussed, your Honour, and I know that considerable time at various points of time were given over to discussing it, because there was an initial proposal much earlier that she return to work in November and then the January proposal. And I know that we did discuss it, I can certainly recall that. Why there’s not a note about it I think that I probably didn’t feel a need to record it because the notes were for my own purposes and what I knew, I already knew.”
(Appeal Book pp.267-268)
It was argued that the Tribunal "did not evaluate the explanation offered" by the Appellant in coming to its conclusion. The finding by the Tribunal that the Appellant "had a responsibility to make an attempt to undertake the program, and her failure to do so was not reasonable" represented a failure on the part of the Tribunal to decide whether Dr Hogan's advice to his patient meant that her explanation for not undertaking the program was reasonable.
It was noted that Dr Hogan's evidence included the assertion that the Appellant was undergoing treatment for major depressive disorder and was suffering from a major psychiatric illness and that debt recovery work was "totally inappropriate". It was noted that Dr Botvinik's evidence, who was the psychiatrist consulted by Centrelink, conceded the Appellant may have major depression and that a return to work involving debt recovery would be stressful. This was summarised in the Tribunal's decision in paragraph 19 and it was argued this was relevant to any assessment of the reasonableness of the explanation given by the Appellant for not undertaking the program.

Respondent's Submissions

As I understood the submissions on behalf of the Respondent it was claimed that the questions of law in support of this ground, as submitted by the Appellant, appear to be recast when compared with the notice of appeal (paragraph 2.6). To that extent it was argued no leave has been sought to argue a new ground and in any event, misstatement of evidence leading to a wrong finding of fact does not constitute an error of law "unless the Appellant can prove that the finding of fact was so critical to the decision that the mistaken finding vitiates the decision and further that the finding was not available on the evidence before the Tribunal". No attempt has been made by the Appellant, it was submitted, to advance arguments in this manner.
Reference was made to the evidence of Dr Hogan in the submissions arising from that evidence by the Appellant in support of this ground. It was submitted that the views of Dr Hogan were relevant and were treated as relevant by the Tribunal. The views of the doctor, however, it was submitted should not be elevated "to the status of being determinative of a question arising under s 37(7)". It was submitted that no authority has been identified suggesting that the views of a treating doctor or psychiatrist "must always provide a reasonable excuse for the purpose of s 37(7)." Selective reference was made to the evidence before the Tribunal to support the contention advanced in relation to this ground. Reference was made, however, to other evidence before the Tribunal which relevantly included the following:
“a) Dr Hogan’s evidence:
Q And I take it that in January and February (2005) when she was consulting you, you wouldn’t have considered her then fit for any kind of return to work under any circumstances?
A Yes, that is correct (AB 247)
Q Is it true that throughout the course of your involvement with her that you have never encouraged her to return to any form of work, essentially because you don’t think she is fit to, but that is the situation, you have never …?
A Yes, that is correct (AB 257)
b) Ms Guinness’ evidence
Q Has there ever been a time this year [2005] when you have considered that you were fit to go back to Centrelink in any location, in any capacity and under any conditions. Is there any possibility?
A No, I’ve just gone on what the doctor has told me. (AB 176)
Q Did he [Dr Hogan] ever suggest to you: look, just see what it is?
A No. He suggested to me that I don’t go back to work until he tells me I am well enough to do so.

The Respondent submitted that the Tribunal considered the Appellant's explanation for failing or refusing to undertake the RTW plan, including her reliance on what Dr Hogan had told her. It was submitted that that was all that was required of the Tribunal. Reference was made to Australian Postal Corporation v Forgie (in her capacity as Deputy President of the Administrative Appeals Tribunal) and Another (V128 Of 2003) (2003) 202 ALR 63 where the court relevantly stated the following:
“40 The way in which s 37(7) must operate also suggests that a “determination” is required. The inclusion of the words “without reasonable excuse” introduces a distinctive requirement for some deliberative human action. An assessment needs to be made at some point — by a person — as to a refusal or failure to undertake a rehabilitation program, and to the reasonableness or unreasonableness of that refusal or failure. Such a process requires that the person at least consider the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances. This intellectual process involves matters of judgment and degree. The suspension of rights under s 37(7) can only occur by force of law once some such assessment has been made. The process cannot be conducted in a manner analogous to the mechanistic operations of a sorting machine. The process that is required would seem unequivocally to fall, at least, within the s 3(3)(g) AAT Act definition of “decision” as “doing or refusing to do any other act or thing” and hence within the definition of “determination” under the SRC Act.”
It was argued that the Tribunal was entitled on the evidence before it "to find that the appellant did not have" reasonable excuse.
It was submitted that whether the Tribunal might have arrived at a different decision by making a different finding of fact, which was also open on the evidence does not constitute an error of law (see Waterford v Commonwealth of Australia (1987) 163 CLR 54).

Reasoning

Having upheld earlier grounds of the appeal, it is probably unnecessary for the Court to further consider this ground. However, in the event that I am in error in relation to the earlier grounds, I regard it as appropriate to consider this ground.
In my view the Respondent’s submissions in relation to this ground are correct. The Tribunal did consider the evidence of the treating doctor. Having considered that evidence as submitted by the Respondent, I am satisfied the Tribunal has properly assessed relevant evidence and has done so in a manner free of error. I accept the submission of the Respondent that evidence of the treating doctor should not be elevated to the status of being determinative of the question arising for the Tribunal under s.37(7) of the SRC Act.
When providing an excuse for the purpose of s.37(7) it is always open to an employee, supported by appropriate evidence. A provision of that evidence, however does not automatically result in an outcome that the excuse will be deemed “reasonable” for the purpose of s.37(7). On my reading of the evidence and having regard to the extracts of the evidence relied upon by the Respondent, the Tribunal has properly embarked on it merit review process and taken into account the relevant evidence of the Appellant and her treating doctor. The Tribunal has made an assessment of the kind anticipated in the Australian Postal Corporation v Forgie decision to which the Respondent refers.
I accept, as submitted by the Respondent, that the Tribunal was entitled on the evidence to find that the Appellant did not have a reasonable excuse. I stress, however that the decision in relation to this issue by the Tribunal depends upon the existence of a rehabilitation program which has been dealt with earlier in this judgment.

Second Reviewable Decision - Ground 4.5

Appellant's Submissions

The Appellant submitted that the Tribunal could only have determined the Appellant had a reasonable excuse for refusing or failing to undertake that program on 27 January 2005 based on the evidence and including the evidence of her treating psychiatrist who regarded as "totally inappropriate and was beyond her capacity" a program involving debt recovery. The assessment of that program being stressful, it was argued, was supported by the evidence of Dr Botvinik.

Respondent's Submissions

This ground, it was submitted, seeks to encourage the court to undertake a decision on the merits. The reasonableness of the Appellant's reliance on the psychiatrist's views is a question of fact for the Tribunal and the weighing up of the various medical opinions, including the evaluation and the explanation by an Appellant for her conduct, it was argued is "the core of a merits review function".

Reasoning

Again, although probably unnecessary to do so, out of an abundance of caution, I deal with this ground in brief terms. I accept, as submitted by the Respondent, that this ground cannot be sustained as the assessment made the Tribunal of the evidence is clearly an assessment reasonably open to it. I cannot discern any error of law on the part of the Tribunal in the manner in which it has dealt with this decision.

Conclusion

It follows for the reasons given earlier in this judgment that the decision of the Tribunal should be set aside and the matter remitted to a differently constituted Tribunal to be determined according to law. The Respondent should pay the Appellant’s costs of and incidental to the Appeal.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 31 August 2007