McHugh and Comcare (Compensation) - [2025] ARTA 1419

McHugh and Comcare (Compensation) [2025] ARTA 1419 (19 August 2025)
Applicant:Christopher McHugh
Respondent: Comcare
Tribunal Number: 2022/8595

Tribunal:Senior Member Tavoularis
Place:Brisbane
Date: 19 August 2025

Decision:Pursuant to s 105(a) of the Administrative Review Tribunal Act (2024) Cth, the Tribunal affirms the decision under review.

...............................[SGD].............................
Senior Member Tavoularis

Catchwords
COMPENSATION – review of decision declining liability for ‘severe depression and anxiety’ – whether the Applicant suffers from an ‘ailment’ – whether the ailment was contributed to, to a significant degree, by the Applicant’s employment – whether reasonable administrative action exclusion applies - decision under review affirmed
Legislation
Administrative Review Tribunal Act (2024) Cth
Safety Rehabilitation and Compensation Act 1988
Cases
Drinkwater v Comcare [2018] FCAFC 62
WNBR v Comcare [2021] AATA 32
Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth)
Statement of Reasons
THE DELEGATE’S DECISION UNDER REVIEW

On 7 September 2022 a delegate of the Respondent affirmed[1] an earlier determination made on 1 July 2022 which declined liability to the Applicant for a claimed condition of “severe depression and anxiety”. This denial of liability was made pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.[2]
[1] Hereinafter referred to as “the decision under review”.
[2] Hereinafter referred to as the (“SRC Act”).
THE RELEVANT FACTS
The Applicant is a 36-year-old man who commenced employment with NBN Co-Ltd in September 2013. He was engaged as a construction supervisor and was based in Townsville. He then moved to Melbourne to perform the same role there. There followed a move to Sydney in August 2017 where he was employed as a Field Engineer. In turn, there followed a move in the early part of 2019 to northern New South Wales. This was the result of the Applicant successfully applying for the role of Field Engineer servicing the Ballina/Byron Bay area.
Two letters dated 16 April 2019 set out specific terms of the Applicant’s role as a Field Engineer in the northern New South Wales area. The first of them confirmed the relocation to be permanent, it outlined the Applicant’s relocation benefits and, in particular, that he would receive a relocation allowance in the amount of $15,000. The second of these letters told the Applicant he would be required to participate in a call / call out Roster at least one week in every five. This second letter explained to the Applicant that the abovementioned roster would require him to attend emergency call outs as and when required to do so.
The Applicant’s new role commenced on 23 May 2019 and, in anticipation of the move, the Applicant secured a rental property in Kingscliff. Importantly, Kingscliff is located about an hour’s drive north of Ballina and some 80 km away. This repeated failure or refusal to reside in the Ballina area seems to lie at the heart of this matter. The Applicant’s stay at this Kingscliff property was for a leasing period of three months at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McHugh and Comcare (Compensation)

Details

AGLC: McHugh and Comcare (Compensation) [2025] ARTA 1419
Case: [2025] ARTA 1419
Decision Date: 19 August 2025

CaseChat Overview and Summary

The case of McHugh and Comcare (Compensation) involved a claim by a former employee of NBN Co-Ltd for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a condition of severe depression and anxiety. The claim was rejected by a delegate of Comcare, who affirmed an earlier decision on 7 September 2022. McHugh appealed this decision, arguing that his condition was significantly contributed to by his employment. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision to determine whether McHugh’s employment contributed to his condition to a significant degree and whether the exclusion for reasonable administrative action applied.

The AAT found that while McHugh did suffer from severe depression and anxiety, these conditions were not contributed to by his employment to any significant degree. The Tribunal examined the evidence, including the nature of McHugh’s role as a Field Engineer, which required him to be in the field and respond to network faults within specific timeframes. McHugh's refusal to reside in the Ballina area, where his role was based, created tension with his employer. However, the Tribunal concluded that the connection between McHugh's employment and his mental health condition was not substantial enough to satisfy the significant degree requirement under the SRC Act. Additionally, the Tribunal determined that the exclusion for reasonable administrative action applied, as Comcare had acted reasonably in declining the claim.

Consequently, the AAT affirmed the decision under review, holding that Comcare was not liable to pay compensation to McHugh for his claimed condition of severe depression and anxiety. The AAT's decision was based on the evidence presented and the statutory criteria outlined in the SRC Act, specifically regarding the degree of contribution by employment to the condition and the applicability of the reasonable administrative action exclusion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 7 September 2022 a delegate of the Respondent affirmed[1] an earlier determination made on 1 July 2022 which declined liability to the Applicant for a claimed condition of “severe depression and anxiety”. This denial of liability was made pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.[2][1] Hereinafter referred to as “the decision under review”.[2] Hereinafter referred to as the (“SRC Act”).THE RELEVANT FACTS The Applicant is a 36-year-old man who commenced employment with NBN Co-Ltd in September 2013. He was engaged as a construction supervisor and was based in Townsville. He then moved to Melbourne to perform the same role there. There followed a move to Sydney in August 2017 where he was employed as a Field Engineer. In turn, there followed a move in the early part of 2019 to northern New South Wales. This was the result of the Applicant successfully applying for the role of Field Engineer servicing the Ballina/Byron Bay area. Two letters dated 16 April 2019 set out specific terms of the Applicant’s role as a Field Engineer in the northern New South Wales area. The first of them confirmed the relocation to be permanent, it outlined the Applicant’s relocation benefits and, in particular, that he would receive a relocation allowance in the amount of $15,000. The second of these letters told the Applicant he would be required to participate in a call / call out Roster at least one week in every five. This second letter explained to the Applicant that the abovementioned roster would require him to attend emergency call outs as and when required to do so. The Applicant’s new role commenced on 23 May 2019 and, in anticipation of the move, the Applicant secured a rental property in Kingscliff. Importantly, Kingscliff is located about an hour’s drive north of Ballina and some 80 km away. This repeated failure or refusal to reside in the Ballina area seems to lie at the heart of this matter. The Applicant’s stay at this Kingscliff property was for a leasing period of three months at the end of which he was compelled to seek alternative accommodation. During the period from August 2019 until December 2021, there followed a series of at least seven properties at which the Applicant resided none of which were in the Ballina area. He went to live at a property in Tweed Heads South (some 90 km from Ballina), Banora Point (some 84 km from Ballina), Coombabah (some 130 km from Ballina) and Mermaid Waters (some 110 km from Ballina). This refusal to reside either in Ballina or sufficiently close enough to Ballina became the subject of tension between the Applicant and his employer. This tension resulted in symptoms first noticed by the Applicant in December 2021 for which he sought treatment in February 2022. These symptoms manifested in a claim for workers compensation on 4 May 2022. This claim propounded symptoms in the realm of “severe depression and anxiety”. The claim attributed these symptoms to “excessive workplace bullying, intimidation, harassment and negligence.” This initial decision was the precursor to the decision under review.

Evidence

Evidence Before The Court

Section 5B(3) of the SRC Act defines “significant degree” to mean “a degree that is substantially more than material.” Importantly for present purposes, it should be noted that the Parliament’s incorporation of s 5B into the SRC Act was intended to require a claimant to demonstrate a stronger connection between that claimant/employee’s employment and a disease which is asserted to result from that employment.[7] HOW THE EVIDENCE TALKS TO THE THREE QUESTIONS COMPELLED BY SECTION 14 OF THE SRC ACT. [7] See: Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth)The nature of the Applicant’s role with NBN Co-Ltd It is not in dispute that the Applicant applied for and accepted an offer to fill the position of Field Engineer in Ballina. By its very definition, this role required the Applicant to be, as it were, “in the field” and located such that he could restore network faults within mandated timeframes. This is clear from the evidence of Mr Gibbs:Mr Clark: “…His position….was a field engineer. Was it designed to, as it were, be in a position to respond to faults in the NBN system?Mr Gibbs: That’s correct. So under the Wholesale Broadband Agreement we need to be able to meet timeframes to respond and restore network faults and to ensure that communications is upheld to the communities, which is part of the reason why the business case got across the line to have another position in that Ballina-Byron Bay area. Mr Clark: That proposition which you’ve just spoken to, can you say as to whether or not Mr McHugh understood that business imperative?[8] Transcript: p 101, lines 10-21.Mr Gibbs: Well that was the basis of the position that was advertised, he applied for and then was subsequently successful.”[8] It is not unreasonable or unfair for the Tribunal to infer that the location of where the Applicant resided was a matter of concern for NBN Co-Ltd. As pointed out by Mr Gibbs, NBN Co-Ltd was bound to meet responsive timeframes stipulated in the Wholesale Broadband Agreement. It follows that the Applicant’s capacity to properly discharge his work duties was critically contingent upon the length of any travel time between his home or residential base and the site of a network fault requiring repair. A further contingency referable to the Applicant’s capacity to properly discharge his role involved a requirement for compliance with NBN Co-Ltd’s Fatigue Management Procedure.[9] Its purpose was “….to define the requirements for the identification and management of fatigue-related risks facing nbn employees.”[10] The orientation of this Procedure was that the lesser the distance between (a) where the Applicant resided and (b) the location of a given network fault requiring repair, the lower the prospect of any breach of that Procedure. [9] See Exhibit 1, pp 143-151.[10] Exhibit 1, p 143. The terms of this Procedure put the Applicant on notice that NBN Co-Ltd would “Monitor workloads and work priorities of employees and ensure fatigue-related risks are discussed regularly and adequately addressed or controlled.”[11] It stipulated clear guidelines for work scheduling and planning such that “Total work time should not exceed 12 hours in a 24 hour period for field and shift workers. Individual Fatigue Risk Assessment is required if this is exceeded” and “Total work time should anticipate both work time and driving time. Total work time (including driving) should not exceed 12 hours in a 24 hour period. Individual Fatigue Risk Assessment is required if this is exceeded.”[12][11] Exhibit 1, p 150.[12] Exhibit 1, p 150.

Decision

Reasons for decision

In short order, the three relevant questions can be answered thus:1. Yes, the Applicant suffers from a mental ailment or disorder constituting ‘ailment’ pursuant to s 4(1) of the SRC Act;2. No, this ailment was not contributed to, to any significant degree, by the Applicant’s employment; and3. Yes, the reasonable administrative action exclusion applies.CONCLUSION The Respondent is not liable pursuant to s 14 of the SRC Act to pay compensation in respect of the Applicant’s claimed condition of ‘severe depression and anxiety.’ DECSION Pursuant to s 105(a) of the Administrative Review Tribunal Act (2024) Cth, the Tribunal affirms the decision under review. I certify that the preceding seventy-three (73)paragraphs are a true copy ofthe reasons for the decision herein of Senior Member T Tavoularis..............[SGD]..............AssociateDated: 19 August 2025.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.