Prowse and Comcare (Compensation) - [2019] AATA 411

Prowse and Comcare (Compensation) [2019] AATA 411 (14 March 2019)
Division:GENERAL DIVISION
File Number(s): 2016/6093
Re:Kim Prowse
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Mark Hyman
Date:14 March 2019
Place:Canberra

The decision under review is set aside and in substitution the tribunal decides that:
(a)Ms Prowse has an injury under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and is entitled to compensation; and
(b)the matter is remitted to Comcare to determine the compensation that is to be paid to Ms Prowse.

........................................................................
Member Mark Hyman

Catchwords
WORKERS’ COMPENSATION – denial of liability – psychological condition – diagnosis – whether contributed to, to a significant degree, by employment – whether one or more causal events were administrative action – whether causal administrative action was reasonable – whether taken in a reasonable manner – whether in the absence of the administrative action the condition would have arisen – date of injury – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975, ss 35, 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14, 16, 19, 71
Cases
Bailey v Broadsword Marine Contractors [2017] FCAFC 219
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi [1996] FCA 1587
Comcare v Power [2015] FCA 1502
Commonwealth Bank v Reeve [2012] FCAFC 21
Dean v Australian Postal Corporation [2010] FCA 680
Drenth v Comcare [2012] FCAFC 86
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare [2005] FCAFC 16
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lim v Comcare (2017) 344 ALR 499; [2017] FCAFC
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
State Transit Authority of NSW v Chemla [2007] NSWCA 249
Stewart and Comcare [2018] AATA 3685
Von Stieglitz and Comcare [2010] AATA 263
Wiegand v Comcare [2002] FCA 1464
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Mark Hyman, Member
14 March 2019

This decision is about whether the applicant, Ms Kim Prowse, is entitled to workers’ compensation. Ms Prowse was engaged in the Department of Prime Minister and Cabinet in the delivery of programs aimed at Australia’s Indigenous communities. She developed a psychiatric condition and lodged a claim for compensation with Comcare, the respondent. This claim was denied on application, and a second time on internal review, in a reconsideration determination. On 11 November 2016 Ms Prowse applied to this tribunal for review of Comcare’s decision.
The tribunal held a hearing over four days. The matter was heard first on 5 and 6 November 2018 but Ms Prowse was too unwell on the third day to continue; the hearing was vacated and resumed for two further days on 21 and 22 January 2019. Ms Prowse appeared in person and gave evidence. She was represented by Mr Karl Pattenden of Counsel, instructed by Mr Joshua Carroll of Slater & Gordon. Comcare was represented by Ms Sophie Callan of Counsel, instructed by Mr Bradley Dean of the Australian Government Solicitor. The tribunal had before it documents (the “T-documents”) provided by Comcare under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act; documents provided by Comcare under section 71 of the SRC Act; and additional documents tendered at the hearing as set out below (for documents with annexures the exhibit number is to be understood as including the annexures).

Document

Date

Exhibit number

Department of Education, Employment and Workplace Relations, Working Hours Policy

13 June 2012

A1

Swipe card activity report for Kim Prowse, Department of Prime Minister and Cabinet and digest of the same information

1 January to 27 February 2015

A2 and A2a

Leave record for Kim Prowse, Department of Prime Minister and Cabinet

Financial years 2013-14 to 2016-17

A3

Report by Dr Antonella Ventura, consultant forensic psychiatrist

22 May 2017

A4

Witness statement by Kim Prowse

16 March 2017

A5

Medical certificate by Dr Denise Kraus

30 January 2014

A6

Statement by Dr E K Rodrigo, Senior Staff Specialist in psychiatry, City Mental Health Team

7 November 2018

A7

Extract from personal diary of Kim Prowse

1 January to

28 February 2015

A8

Medical certificate by Dr Kraus

9 February 2015

A9

Email exchange between Terina Koch and Kim Prowse, also involving other addressees

1 December 2014 to 27 January 2015

A10

Records provided under summons by Dr Kraus and notes made by Dr John Saboisky

various

R1

Report of Dr Zeeva Cohen, consultant psychiatrist, with briefing letters

29 May 2017

R2

Supplementary report by Dr Cohen, with briefing letter

31 July 2017

R3

Email exchange between Terina Koch and Kim Prowse 25 November 2014 R4

Documents subject to confidentiality order made under section 35 of the AAT Act (including interpolations in red) 20 to 29 January 2015 R5

Witness statement of Mr Peter Miller 16 October 2017 R6

Supplementary witness statement of Mr Peter Miller 17 December 2018 R7

Witness statement of Elizabeth Hefren-Webb (tendered on the limited basis of the content put to Ms Prowse in cross-examination) Undated, but filed 23 October 2017 R8

Witness statement of Ms Terina Koch 17 October 2017 R9

The document identified as Exhibit A2, a record of Ms Prowse’s swipe card entries and exits from her workplace, was supplemented by a digest of the same information, provided by the respondent with the intention of making the information rather easier to understand. No exhibit number appears to have been assigned to that digest at the hearing, and for the purposes of this decision it has subsequently been identified as Exhibit A2a.
The document identified above as Exhibit R5 is subject to a confidentiality order under section 35 of the AAT Act. That order prohibits the publication or disclosure of any of the material in that exhibit other than to members and staff of the Tribunal in the course of performing their duties, as well as both parties, their legal advisors and other persons directly involved in the preparation and conduct of proceedings on their behalf. The basis for the order is that the content of the document may be sensitive from a government point of view. The document is part of a chain of emails. It is an extract from the document identified as Exhibit R4; that document is redacted to exclude matters considered sensitive. In Exhibit R5 the critical parts of Ex R4 have been extracted, and the redactions have been removed. Further, the email chain includes one email where interpolations have been made into the text of another; in order to understand the email and interpolated response, the interpolated material is in red. Pagination of the material has been left as it is in Ex R4 (thus the material in Ex R5 starts at folio 20 and runs to folio 33). Because the concern in this matter relates to how Ms Prowse’s work was managed, and not to the detailed substance of her work, the confidentiality order does not provide any constraint on how the material in the affected document is drawn on in this decision.
The amount of documentary material available to be called on, including the T-documents and the documents provided under section 71 of the SRC Act, was considerable. The parties agreed that the only documents to which I need have regard were those identified by them as bearing on the matters at issue. I am grateful to the parties for their assistance.
The tribunal heard evidence from Ms Prowse; from two other lay witnesses, Mr Peter Miller and Ms Terina Koch; and from two expert witnesses, Dr Zeeva Cohen and Dr Antonella Ventura. Ms Prowse and Ms Koch gave evidence in person; the other witnesses gave evidence by telephone.
ISSUES
The issues before the tribunal are:
·the diagnosis of Ms Prowse’s condition;
·whether Ms Prowse’s condition is an ailment;
·if so, whether Ms Prowse’s condition was contributed to, to a significant degree, by her employment;
·whether her condition was the result of reasonable administrative action taken in a reasonable manner;
·whether she suffered an injury under section 5A of the SRC Act;
·if so, the date of injury; and
·whether Comcare is liable to pay compensation to Ms Prowse.
THE LEGISLATIVE FRAMEWORK
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. Section 5A of the Act defines an injury for the purposes of the Act, as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B then reads as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.

Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.
THE FACTUAL CONTEXT - MS PROWSE’S EMPLOYMENT
The events for which Ms Prowse claimed compensation occurred, or began, in January 2015.[1] The claim was lodged on 1 July 2016. There was a significant lead up to the events of January 2015, detailed below, with Ms Prowse’s return from leave over the Christmas-New Year period on 13 January 2015 being a convenient punctuation point between the events of the last quarter of 2014 and the events of early 2015. Some additional information is provided below by way of introduction and context. The facts below are from Ms Prowse’s oral evidence except where some other source is indicated.
[1] T6, folio 137.
Ms Prowse’s personal history is that she was born in Vietnam. While she was still very small she left Vietnam for Norway with her father; her mother attempted to join them, but was unable to and passed away at about that time, when Ms Prowse was only four years old (the papers mention other ages but nothing turns on the difference). Subsequently, some years later, she and her father migrated to Australia. Ms Prowse completed her education in Australia, and married. In 2008 she fell pregnant but lost the baby in a stillbirth at seven months. That loss also appears to have occasioned the breakup of her marriage, and the evidence includes reference to family violence at about this time. Further tragedy came her way when her father – her only immediate family - died in 2014, after a period in which he was affected by Parkinson’s disease and dementia.
Ms Prowse began working in the Australian Public Service full-time in 2004 at APS5 level and was promoted to APS6 in November 2005. In June 2007 she was further promoted to Executive Level 1 (EL1), although she had had an extended period acting in the position prior to the promotion. These positions were in the then Department of Education, Science and Training, and in 2007 through a machinery of government change Ms Prowse’s area became part of the new Department of Education, Employment and Workplace Relations (DEEWR).
A further machinery of government change occurred in 2013, when the Department of Prime Minister and Cabinet (PM&C) took responsibility for the programs that Ms Prowse was engaged in; these programs were aimed at providing support for Australia’s indigenous people. Ms Prowse explained that this was a profound change because PM&C up to that time had been a small policy department of perhaps 500 staff, whereas the new functions taken on by the Department were focused on service delivery and involved perhaps 2000 staff. As I understand it, the staff undertaking these duties remained under the DEEWR Enterprise Agreement.
Prime Minister and Cabinet, August-December 2014
During the first part of 2014 Ms Prowse’s supervisor was Mr Peter Miller. That changed in August 2014, when there was a general rotation of supervisors and Ms Terina Koch took on that role. Ms Koch’s background was as a legal adviser; Ms Prowse said while giving evidence that Ms Koch’s previous experience had been in the Attorney-General’s Department.
Flexible work arrangements
Prior to this change, and indeed for some years, Ms Prowse had flexible working arrangements that allowed her to arrive late at work each day. The evidence varies to some degree about the basis for this arrangement and its parameters.
Ms Prowse’s oral evidence was that her flexible work arrangements dated from 2009; that she entered into them because she had a sleep problem that originated from her stillbirth in 2008; that her sleep problem or disorder caused her to get to sleep at a very late hour and to suffer disturbed sleep; and that she accordingly had entered into arrangements with multiple supervisors to arrive at work later than the standard starting time, making up the hours by working late, or by putting additional hours in on subsequent days. In other documents Ms Prowse appears to have suggested a different basis for her flexible working arrangements: Ms Hefren-Webb, her then Division Head, in Annexure A to a witness statement[2] (which appears to be undated but was filed with the tribunal on 23 October 2017) reported in an email to colleagues that the arrangement had begun in the context of Ms Prowse’s father’s final illness. Ms Prowse explicitly denied that version (and I note that Ms Hefren-Webb’s comment is very much – for present purposes - hearsay, recording her account at second hand in an email to which Ms Prowse was not a party). In the event not a great deal turns on the difference in origin of the flexible work arrangements.
[2] Exhibit R8, folio 10.
The arrangement was described by Ms Prowse as allowing her to come into the office as late as 11.30am, on the basis that she would stay longer if necessary or make up time another day, within the 7am to 7pm working day at the Department. But that description was called into doubt by other evidence: in a chronology of relevant events Ms Prowse drafted in support of her claim she gave the allowed start time as 10am[3]; she also referred to a window of 10am to 6pm in an email[4] sent on 28 July 2015 to Ms Elizabeth Hefren-Webb; and in other documentation (an email to Ms Koch dated 6 February 2015[5]) gave her starting time as 10.30am.
[3] T3, folio 31.
[4] T3, folio 98.
[5] T3, folio 53.
Ms Prowse acknowledged in her oral evidence that during the time in question (between August 2014 and March 2015) she might sometimes come in quite late but that the arrangement was a flexible one in which her lateness would not, or should not, be an issue, because she would work the number of hours needed to meet the attendance requirements and complete all her assigned work. But not everyone agreed with that perspective: Ms Koch said that Ms Prowse’s late arrival meant that she could not have the kind of exchange with colleagues that was needed within the team, because some of that exchange would take place before she arrived, and at a later time everyone might have left for the day when Ms Prowse needed to talk to colleagues.[6] Ms Koch also suggested that Ms Prowse’s attendance was not as conscientious and complete as she was suggesting – that she took unexplained absences during the day at times, and was away from her desk frequently enough and long enough for her colleagues to notice. Sometimes they would complain or be forced to take on some of her work.[7] She also noted that when Ms Prowse was running later than expected she did not make a practice of contacting someone to let them know.[8] Mr Miller made similar comments that Mr Prowse’s attendance was variable and that she did not keep him informed about changes.[9]
[6] Exhibit R9, paragraph 26.
[7] Exhibit R9, paragraph 15.
[8] Exhibit R9, paragraph 34.
[9] Exhibit R8, paragraphs 7, 8, 11.
Mr Miller asked Ms Prowse to provide medical evidence to support her request for the flexible working arrangements.[10] He reports that Ms Prowse said that such evidence was already to be found in DEEWR records[11], but after a further request some time later[12], Ms Prowse obtained a letter from her general practitioner, Dr Denise Kraus[13], stating that Ms Prowse suffered from “a sleep disorder” and requesting that she be allowed flexibility in her work hours. No specific starting time was specified as appropriate. Mr Miller found the letter to be sufficient and sought no further medical evidence.[14] The letter apparently remained a sufficient basis for Ms Prowse’s flexible work arrangements until the events of January 2015, as considered below.
[10] Exhibit R8, paragraph 3.
[11] Exhibit R8, paragraph 3.
[12] Exhibit R8, paragraph 6.
[13] Exhibit A6.
[14] Exhibit R8, paragraph 6, Exhibit R7, paragraph 4.
Workload issues
Although the evidence was not especially extensive, I gather that Ms Prowse’s usual duties were focused on grant administration, including assessing grant applications, selecting successful applications, negotiating contract arrangements with successful applicants, making payments under the relevant contracts or grant agreements, briefing the Minister and responding to ministerial correspondence. These duties would be carried out in a team arrangement, but each staff member would nevertheless have their own projects for which they had direct responsibility. All these duties were subject to the usual supervisory and approval processes.

Ms Prowse explained the events that raised workload issues for her during the relevant period in the following way:
·when Ms Koch moved into the area in August 2014 as the new Senior Adviser she (Ms Prowse) had responsibility for three Indigenous projects;
·these projects needed frequent attention, for example through contact with those to whom grants had been awarded - it was not possible to manage the projects effectively without that sort of involvement;
·a new set of priorities intervened, however, in the form of the Indigenous Advancement Strategy (IAS) Grants program, which required urgent attention as a full-time workload for her (Ms Prowse said that she was “seconded” to this work but conceded that that term might not be technically correct);
·in taking on the responsibilities for her share of the IAS Grants, Ms Prowse could not also continue to monitor her usual projects;
·indeed she was told not to do so, and encouraged to believe that other resources would be allocated to those projects (in her words, the projects would be “backfilled”);
·this continued until the Christmas-New Year break;
·when she returned from leave on 13 January 2015 she discovered that no work had been done on her three projects since she had taken up work on the IAS Grants;
·at the same time, she was given a further two projects to manage in addition to her other work; and
·all this together meant that she had a workload that went beyond what was reasonable and well beyond what her colleagues at the same level were expected to do.
The evidence of others, in particular Ms Koch, presented these events in a different light. In oral evidence, Mr Miller said that the workload for the team at the time Ms Prowse joined in about November 2013 was somewhat lighter than a normal or “full stretch” load, although after about six months when one or two other officers left it came back to be a normal load for a team of that kind and number. Ms Koch said that at the time she took charge of the team, the workload was unevenly spread, with some staff having responsibility for a single project but with multiple grants, and others having several projects but with smaller numbers of grants in each project, and sometimes only a single grant. Therefore the number of projects and grants that a staff member was allocated was not a reliable guide to that staff member’s workload. Staff members were expected also to pick up additional administrative and policy tasks, both within and outside particular projects, and staff could not expect to limit their responsibilities to the projects for which they had lead responsibility. Team members were expected to help each other with work-flow. All this was made clear to staff.[15]
[15] Exhibit R9, paragraphs 10-14.
During the period September-October 2014 the team began to deal with grant applications under the IAS. This required all members of the team to turn their hand from their usual responsibilities to processing the IAS grant applications. Ms Koch said that the share of the IAS process allocated to Ms Prowse did require her (and her colleagues) to arrive at work at 9.30am during a week in late November, but was in general not as onerous for her as for some other members of the team, and so it should have left her time to help with tasks outside the IAS grant applications.[16]
[16] Exhibit R9, paragraphs 16-23.
This was how things stood at the end of 2014, when Ms Prowse (and, naturally, a number of other staff) went on leave. Ms Prowse returned from leave on 13 January 2015.
The events of January-March 2015
Ms Prowse gave evidence that on return from leave she was given responsibility for two additional projects, identified as the Indigenous Youth Mentoring Program (IYMP) and the Indigenous Youth Leadership Program (IYLP). In both cases the task was to finalise the agreement underpinning the program, which involved incorporating material from other staff, amending the text in the light of comment from other parts of the Department (including from the part of PM&C providing legal advice and the PM&C Program Office, which had general oversight), and finalising funding allocations (Ms Prowse stated that her responsibilities extended to finalising and signing the contracts for multi-million dollar programs, but Ms Koch denies that that is the case). Ms Prowse was also responsible for finalising a brief to the Minister. These responsibilities came with particular deadlines and were treated as being of some urgency. It appears that there was some contribution from the time of year, in the sense that some – but not all – of the other staff were still away on leave.
Ms Prowse gave evidence that she was dismayed to find that nothing had been done on her three usual projects while she had focused her attention on the IAS grant applications in the last quarter of 2014. These were now behind schedule and “milestones” were not being met. Ms Prowse felt that, with the additional projects, her workload was unfairly high. She said that she was now managing multiple projects while others only had one, and had staff to assist them with that, where she had none. She also said that it was unreasonable to expect her to finalise the IYLP and IYMP projects, as she did not have the familiarity with them that others in the team were able to call on. She described these projects as “complex”, requiring corporate knowledge and specialist legal skills to complete, and asserted that they were 18 months behind schedule.
Ms Prowse gave evidence that she took this matter up with Ms Koch, and that the latter’s response was to say that she herself did not have the knowledge of the projects to assist Ms Prowse; that the responsibility rested with Ms Prowse; and that if anything were to go wrong it would be on her head. Ms Koch denies making those statements.
There was at this point a series of email exchanges between Ms Prowse and Ms Koch which appears to have brought matters to a head. On 20 January 2015 Ms Koch sent an email to Ms Prowse noting that some of the work deadlines were becoming more pressing; that various parties (colleagues and other parts of PM&C) still had to provide their input or clearance; and that it was important to finalise the tasks within the deadlines. Ms Koch noted Ms Prowse’s lack of familiarity with the projects but suggested that the tasks should not be onerous for her, and asked her to keep her informed if problems arose. Ms Prowse’s response noted that some problems had arisen because of “slipstream” (which I take to be the project management software the Department was using), but otherwise assured Ms Koch that the critical deadlines would be met.
Late on 28 January 2015 Ms Prowse sent an email to Ms Koch[17], bringing to the latter’s attention Ms Prowse’s feeling that she had insufficient knowledge of the two new projects that had been given her; providing some “feedback” that she (Ms Prowse) felt “concerned and perhaps even a little stressed” by the tasking she had been given; suggesting that corporate knowledge was needed to finalise the two projects; suggesting that the team as a whole felt that Ms Koch’s supervision had the effect of “overcomplicating matters”; noting Ms Koch’s desire that everyone on the team should be across each other’s projects, but suggesting that that was hindered by lack of a transition period and rushed deadlines.
[17] T3, folio 50.
Ms Koch responded early on 29 January 2015 with a brief overview message and by interpolating replies into Ms Prowse’s email.[18] The thrust of the interpolated replies was that the tasking imposed on Ms Prowse was not, or should not have been, challenging for a person working at the EL1 level (it was “far from complex”). Ms Koch went into some detail why that was so, and what each aspect of the task (of finalising the two new projects) involved. Ms Koch also pointed to various forms of support and assistance she had herself provided to Ms Prowse to enable the projects to be finalised. In the overview message Ms Koch expressed concern that Ms Prowse seemed unable to set priorities, and was inadequate in communicating with her on deadlines and whether they would be met or missed. She put in strong terms a preference to know that a deadline would be missed rather than allowing a deadline to pass unmet in silence.
[18] Exhibit R5, folios 25-27.
On 29 January 2015 Ms Koch held two relevant meetings: the first was a meeting with members of the team (all those not on leave at the time) to address the management issues raised by Ms Prowse in her email of the previous day, and a second a one-on-one informal meeting with Ms Prowse over coffee to discuss the email exchange of 28 and 29 January. Ms Koch stated[19] that at the first meeting none of the other team members understood why the meeting had been called and no-one made any criticisms of her management style. Ms Prowse’s statement is silent on this meeting and in her oral evidence said she had no recollection of it.
[19] Exhibit R9, folios 8-9.
At the one-on-one meeting, according to Ms Prowse, Ms Koch said that if Ms Prowse was unhappy in her work she “should find another job”, and requested that she arrive at work by 9am each day. Ms Prowse undertook to obtain a medical certificate from her doctor confirming the need for the flexible working arrangements. Ms Prowse was on leave on the following two working days (30 January and 2 February 2015), but on her return to work arrived on the next four working days (3, 4, 5 and 6 February) at 9.37, 9.48, 9.35 and 9.49am respectively. Ms Koch’s account of that meeting is rather different and is explored below.
On 4 February 2015 Ms Koch sent a brief email to Ms Prowse, noting that she (Ms Prowse) had not started at 9am, as requested, for the past two mornings. On 6 February 2015 Ms Prowse sent an email to Ms Koch, noting the longstanding arrangement that she had had hitherto, that it was instituted in relation to a medical condition on her doctor’s recommendation, and expressing concern that the arrangement had been changed without her having an opportunity to provide a further medical certificate. Ms Prowse noted she had tried to come in by 9.30am since the arrangement had changed, and that she had an appointment with her doctor on Monday 9 February, the earliest she had been able to obtain. Ms Prowse noted that her flexible work arrangements fell within the “acceptable bandwidth” of 7am to 7pm in the DEEWR Certified Agreement. Ms Koch replied within the hour, stating that the 9am start requirement had been imposed due to “operational needs”; that as the previous flexible work arrangements had been in place for seven months it was reasonable to review them; that that when she had imposed the 9am start she had also requested “formal advice” from a general practitioner or other appropriate professional regarding the medical basis for the flexible work arrangements; that on receipt of that advice she would reconsider a start time later than 9am; and that Ms Prowse had not taken issue with the change at the meeting on 29 January 2015. She also reiterated that the 9am start time remained in place, and noted that up to that time it had not been met.
Ms Prowse obtained a letter from Dr Kraus on 9 February 2015, stating that she suffered from a sleep disorder, and that she should be allowed to start later than the usual time and make up the time by staying later. Ms Prowse took personal leave on 9 and 10 February and annual leave on 11 February, then returned to work on 12 February, staying until the end of the next week (20 February). At that point she took a combination of personal and long service leave for about two months, not returning to work until 21 April 2015.
On 23 February 2015 Ms Prowse sent an email to Ms Koch (while working from home) attaching some “IAS templates”, noting that she had no background in the area concerned, and suggesting that the workload be more evenly shared. In her statement[20], Ms Prowse said that she sent an email of this kind on 23 January 2015; during cross-examination it was established to my satisfaction that that is a mistaken reference to this email of 23 February 2015. The email included the following:
I have concerns that there is an emerging pattern that I am being dumped with other people’s projects (including where the relevant project managers are at work) and the allocation of tasks are not proportionately assigned among the EL1s. I feel like more pressure is being put on me, for some reason.
[20] Exhibit A5.
Ms Koch’s account of the events of January to March 2015 is somewhat different from that of Ms Prowse and is broadly consistent with Ms Koch’s emails during this period. In her witness statement[21] Ms Koch explained that in her view allocations of work in January 2015 were appropriate and reflected staff availability; that work was distributed as evenly as possible; that staff were aware that they were expected to focus on the urgent and priority parts of their projects and not undertake all supporting and peripheral tasks; and that the work allocated to Ms Prowse should have been within her capabilities since it required applying general skills to new projects in ways consistent with her previous responsibilities.
[21] Exhibit R9.
Ms Koch said that Ms Prowse’s attendance was “inconsistent and unpredictable” and this had an impact on the team’s operations, as Ms Prowse was not present in the morning to action work; did not advise of her expected arrival times; and did not leave advice for other staff about what she had completed the previous evening, when she had been making up for a late start. Ms Koch said that she met with Ms Prowse on 20 January 2015 to discuss in particular an extended absence on Friday 16 January 2015, when Ms Prowse had left early for the day, without notice.[22] Ms Koch said that she also asked Ms Prowse to start earlier than had become her habit, as the team was short-staffed; that there was discussion of the medical basis of the flexible work arrangements; and that she raised what she saw as a lack of output from Ms Prowse since her return from leave.
[22] Exhibit R9, folios 7-8 and Annexure C.
Ms Prowse is adamant that the discussion outlined immediately above did not occur, and that the direction to arrive each morning at 9am, imposed on 29 January 2015, came with no prior warning. But Ms Koch made a record of the discussion on 20 January and that record aligns with her witness statement. Ms Koch’s account of the one-on-one meeting on the afternoon of 29 January 2015 is also different from that of Ms Prowse. Ms Koch recorded that she told Ms Prowse that each person was responsible for their own career development, and that “if a person was unhappy with their role they should consider looking for alternative work”.[23] She also recorded a discussion about work performance, the need to meet deadlines, and start times.
[23] Exhibit R9, folio 10; see also Annexure E.
Events later in 2015
Ms Prowse returned to work after her long service and other leave on 21 April 2015. She reported being further loaded with additional work; her problems with Ms Koch continued, and indeed appear to have worsened. Ms Prowse attempted to secure a move to a new area and was ultimately successful, but problems persisted. Matters were brought to a head once more by a performance assessment conducted by Ms Koch late in the year for the period January-June 2015, in which Ms Prowse received a negative assessment. Ms Prowse was hospitalised for more than a month in early 2016, unsuccessfully attempted a return to work in March 2016, left the workplace in May 2016 and lodged a claim for compensation on 1 July 2016.[24] Comcare rejected the claim on 6 September 2016[25] and affirmed that decision in a reconsideration determination on 28 October 2016.[26] Ms Prowse applied to this tribunal for review of Comcare’s decision on 14 November 2016[27]; she took a voluntary redundancy in December 2016.
[24] T6, folios 135-140.
[25] T58, folios 488-494.
[26] T1, folios 10-27.
[27] T1, folios 1-4.
Ms Prowse’s later work history at PM&C is of limited relevance to the present matter because the period which is at issue is in early 2015. An outline has been included above because much of the material was included in the accounts Ms Prowse gave to the psychiatrists and other health professionals whose reports are considered below.
THE MEDICAL EVIDENCE
It is not disputed that Ms Prowse has a history of psychological issues going back several years. Apart from anything else, she suffered a number of distressing events in the decade leading up to the events of early 2015, including the stillbirth, the breakdown of her marriage and the death of her father. For present purposes it is not necessary to recount the details of these issues, but the record[28] shows that Ms Prowse had a particular crisis in early 2009 following the stillbirth and around the time of the break-up of her marriage, being admitted to hospital for a period. She was assessed by a psychiatrist, Dr John Saboisky, as part of a Fitness for Duty assessment. In a report dated 25 August 2009[29] Dr Saboisky concluded that Ms Prowse did not have a significant psychological condition at the time of the consultation, but that earlier in the year, perhaps around March 2009, she had “developed symptoms of significant depression”. The loss of her baby, the breakdown of her marriage, and difficulties at work, especially with a particular supervisor, were all noted as contributing factors.
[28] Exhibit R1, folios 83-108.
[29] Exhibit R1, folios 98-9.
Expert reports prepared during 2015-2016
Over the course of this matter a number of reports have been obtained from a range of experts, especially but not only consultant psychiatrists.
·A report[30] from Dr Catherine Oelrichs, a consultant psychiatrist, dated 12 May 2016, notes that although a complete diagnosis could not be made because of the preoccupation with workplace factors displayed by Ms Prowse, there was no doubt that she still showed symptoms of ongoing anxiety and depression; the provisional diagnosis was “major depressive disorder on the background of personal vulnerabilities and the history of complex trauma in the last few years”.
·A treating psychologist, Mr Harold Bilboe, provided a report dated 27 July 2016[31], in which he advised that Ms Prowse had first needed medical help, in his judgment, on 8 February 2015; that workload issues, the change to flexible work arrangements and an inadequate response by the Department to Ms Prowse’s protests at her treatment had all contributed; that Ms Prowse’s diagnosis was major depression (recurrent); there was no pre-existing condition that contributed; and that this was a primary condition rather than an aggravation of an existing condition.
·A report by Dr Diana Kirk[32], a general practitioner at the practice attended by Ms Prowse, dated 1 August 2016, noted 9 February 2015 as the date of first consultation; diagnosed Ms Prowse’s condition as “severe depression and severe psychological distress as per her psychologist”; noted that although she had previously suffered significant trauma she had been able to survive those episodes and return to work; and identified the current condition as a primary condition rather than an aggravation of an existing condition.
·A report[33] by Dr Bree Wyeth, a consultant psychiatrist with the City Mental Health Team of the ACT Government, dated 14 August 2016, noted that issues began in about January 2015; that Ms Prowse had a diagnosis of major depression; that this was a new and primary condition; and that there were relevant background factors in Ms Prowse’s personality and family history.
·Dr Michael Hong, a consultant psychiatrist, provided a report[34] dated 23 August 2016 in which he noted that Ms Prowse reported her condition as having arisen around January 2015; diagnosed a chronic adjustment disorder (with major depressive episode being equally valid); and noted contributing factors in Ms Prowse’s personality.
·In a report[35] dated 24 August 2016 Dr Saddichha Sahoo, a consultant psychiatrist, made a diagnosis of major depressive disorder, moderate severity; that condition was not the result of a previously resolved injury; this condition reached clinical significance “probably around March, April or May 2015”; Ms Prowse does not have any personality disorder; rather the depression is the result of workplace factors.
[30] T5, folios 123-34.
[31] T25, folios 192-213.
[32] T32, folios 232-4.
[33] T40, folios 252-6.
[34] T56, folios 355-65.
[35] T47, folios 366-76.

Earlier, Ms Prowse was also sent to Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist, who prepared a report[36] dated 9 July 2015. The purpose appears to have been to determine the nature of Ms Prowse’s sleep-related issues. Dr Gorman determined that although Ms Prowse had longstanding problems with sleep, she did not have a primary sleep disorder. He thought that her sleep problems at that time arose from stress associated with the working environment. He also stated that in his view Ms Prowse did not have a diagnosis of anxiety or depression, but acknowledged that this should be checked through an independent psychiatric assessment.
[36] T3, folios 89-95.
With regard to sleep issues, no formal diagnosis of a sleep disorder appears to have been made at any time, but it is nevertheless clear that Ms Prowse has reported problems with sleeping over an extended period.[37] Dr Gorman, as noted above, agreed that despite the absence of any sleep disorder, Ms Prowse nevertheless had persistent difficulties with sleeping.
[37] See for example Exhibit R1, folios 33, 35, 37, 43, 50, 57.
The reports and evidence of the expert witnesses
Two expert witnesses, Dr Antonella Ventura and Dr Zeeva Cohen, prepared reports on Ms Prowse and gave evidence at the hearing. Both are consulting psychiatrists.
The report of Dr Ventura[38] is dated 22 May 2017. In that report Dr Ventura says that Ms Prowse suffered an adjustment disorder in 2009 (after the loss of her baby), but that, on the information available, this had gone into full remission by 2010. The psychiatric disorder developed by Ms Prowse in 2015 initially met the diagnostic criteria for major depressive disorder, but by the time of the consultation with Dr Ventura had improved, with treatment, so that the current diagnosis was of chronic adjustment disorder with anxiety and depressed mood. Ms Prowse’s employment was a significant contributing factor to that condition.
[38] Exhibit A4.
When she came to give oral evidence Dr Ventura had had access to additional material, including Dr Cohen’s two reports and Dr Kraus’s clinical notes. Dr Ventura said that she agreed, in general, with Dr Cohen’s reports. She gave evidence that in her opinion Ms Prowse was well when the incidents in her workplace occurred, leading to a new episode of major depressive disorder. Ms Prowse’s reaction to the events of 2009 had been more than a grief reaction; it was now revealed to be an earlier episode of major depression, but one that had subsequently resolved, so that the events of 2015 had brought about a new episode, not an aggravation of an existing condition. Between 2009 and 2015 Ms Prowse had shown fluctuating mood symptoms but there had not been a psychiatric disorder until 2015. The various anti-depressants that Ms Prowse had taken from time to time appeared to have been prescribed at times as sleeping aids, or for symptoms of anxiety or depressed mood, but Dr Ventura was not able to conclude from those prescriptions that Ms Prowse was suffering from depression. Sleeping difficulties are common among those with anxiety and depression, but again it was not possible to conclude that the sleep problems that Ms Prowse had been grappling with meant that she had a depressive disorder.
Dr Ventura said that it was clear that Ms Prowse valued the flexible work arrangements that had been instituted, as she had been angry when they had been changed. There was no doubt, more generally, that work had been important to her, and she had turned to her work when other aspects of her life had presented her with problems. A number of employment-related events had contributed to the development of her psychiatric condition, with workload issues, the perception of being bullied and the refusal to move her to another work area being most prominent among them. Changing the flexible work arrangements was a contributing component among a number of causal factors. Even if the flexible work arrangements had been left in place, in Dr Ventura’s opinion Ms Prowse would still have sustained the psychiatric disorder that she suffered in 2015.
Dr Cohen provided two reports, the first dated 29 May 2017[39] and a supplementary report dated 31 July 2017[40]. In the first report Dr Cohen diagnosed Ms Prowse as suffering from a major depressive disorder since January 2015. The causal factors were related to work, including the events of January-February 2015 but extending to those occurring later in 2015. In the absence of these work-related events it is unlikely that she would have suffered the psychiatric condition with which she presented; Dr Cohen declined to draw any conclusion regarding which event alone, or which particular combination of events, would have been sufficient to trigger the condition.
[39] Exhibit R2.
[40] Exhibit R3.
In her supplementary report, which was prepared with the benefit of additional material obtained under summons, Dr Cohen amended her earlier views to a limited extent, noting that with the additional information she now concluded that Ms Prowse had a depressive condition of longer standing, and that the depression that had come upon her in 2015 was an episode in a longer course of such episodes, and therefore an aggravation of that longstanding condition. Dr Cohen declined to identify a personality disorder or to be more precise about the date of onset of major depression in 2015.
When she gave evidence to the hearing, Dr Cohen had seen the transcript of the evidence given by Ms Prowse at the earlier stage of the matter; she said that her views had not changed as a result of seeing that transcript. Her opinions given at the hearing were based on the entirety of the material provided. The major change in her second report from seeing additional material was that she now made a diagnosis that Ms Prowse had earlier sustained a major depressive disorder and had an aggravation of that disorder in early 2015. Dr Cohen had not seen Dr Ventura’s report, but on explanation did not agree with the latter’s diagnostic approach, which concluded that Ms Prowse had depressive symptoms in earlier years but not a psychiatric disorder. Dr Cohen noted that the history showed that in 2009 Ms Prowse became quite decompensated at times as evidenced by a hospital admission, her need for medical leave, and her resort to treatment including anti-depressants. This was consistent with her having suffered a major depressive disorder at that time.
Dr Cohen noted that work was important to Ms Prowse and that the flexible work arrangements were of “intense personal significance” to her because of her sleep issues. Under sustained questioning, Dr Cohen said that the removal of the flexible work arrangements was a factor in her psychological condition but that the other issues confronting her – the workload issues and the sense of being discriminated against, on the material submitted, would have been enough for her to sustain the psychological injury even without the withdrawal of the flexible work arrangements. Again, under sustained questioning, Dr Cohen acknowledged that there were some inconsistencies in Ms Prowse’s account and that her self-report was the main source of information, but did not change her opinion, noting that there was other documentation on which she could draw. On questioning by Mr Pattenden, Dr Cohen agreed that Ms Prowse sustained her psychological disorder “by January 2015”.
THE ARGUMENTS OF THE PARTIES
The applicant’s case
Mr Pattenden put the case for the applicant along the following lines:
·Ms Prowse suffered a psychiatric injury, for which she first sought medical attention on 9 February 2015 (making that the date of the injury, applying subsection 7(4) of the SRC Act);
·her employment made a significant contribution to the injury, so that the nexus with employment required under subsection 5B(1) of the Act is met;
·the condition met the test set in Comcare v Mooi[41] (Mooi) before the events of 29 January 2015, so the exclusion for reasonable administrative action in subsection 5A(1) of the SRC Act cannot apply;
·in the alternative, the action by Ms Koch in unilaterally changing the flexible working arrangements was not “administrative action”, applying the criteria in Commonwealth Bank v Reeve[42] (in fact Mr Pattenden appears to have accepted that the action was administrative action in his opening statement but denied it in his closing submission);
·even if it was administrative action, the action taken was not reasonable;
·and whether or not the action was reasonable, it was not taken in a reasonable manner;
·but none of the above three points is critical, because the test in Comcare v Martin[43] (Martin) - that but for the events of 29 January 2015 (the purported reasonable administrative action) the psychiatric injury would not have occurred - is not met in this case, and therefore Comcare’s case must fail, regardless of whether the action in question was reasonable administrative action reasonably taken.
[41] [1996] FCA 1587.
[42] [2012] FCAFC 21.
[43] (2016) 258 CLR 467; [2016] HCA 43.
The respondent’s case
Ms Callan put the case for Comcare along the following lines:
·the psychiatric condition suffered by Ms Prowse is an ailment under the SRC Act;
·the major causative events were those of 29 January 2015, in particular the direction that she was to start work at 9am;
·it is not contested that the psychiatric condition was contributed to, to a significant degree, by Ms Prowse’s employment at PM&C, and the nexus with her employment, required under the SRC Act, is therefore established;
·but the condition is excluded under subsection 5A(1) of the SRC Act because it was caused by reasonable administrative action, taken in a reasonable manner;
·the direction to come in at 9am related to Ms Prowse’s working hours and was therefore administrative action aimed at her employment;
·it was reasonable of Ms Koch to make that direction given the difficulties with Ms Prowse’s attendance and wider problems of her performance;
·in all the circumstances, the action was taken in a reasonable manner, given that the direction to come to work at 9am was preceded by a warning, and accompanied by a request for further medical evidence and by an acknowledgement that if such evidence was provided flexible work arrangements could be reconsidered;
·the evidence of the psychiatrists should not be relied on for the Martin test; the experts’ guidance on diagnosis can be relied on but for causation the tribunal is better positioned to reach its own conclusions, based on the oral evidence and the clinical notes of Dr Kraus, which suggest that the condition did not arise until after 29 January 2015 and was caused by the events of that day: without those events the injury would not have occurred; and
·that understanding of causation would meet the Martin test, and the reasonable administrative action exclusion would apply.
CONSIDERATION
The evidence, its quality and relevance
Ms Callan emphasised inconsistencies in Ms Prowse’s evidence and between her evidence and some of the documentary material before the tribunal. It is indisputable that such inconsistencies exist. It was clear, for example, that Ms Prowse was at the very least imprecise when she referred to the flexible work arrangements. Thus her email to Ms Hefren-Webb seeking her assistance[44], dated 28 July 2015, describes the arrangement as requiring her to arrive at work by 10am and to leave as late as 6pm. In oral evidence she suggested the arrangement was that she could start as late as 10.30am and that the beginning and end was governed by the 7am to 7pm working day at PM&C; and at other times she said that the start and finish times were not specified and were left to her discretion, provided she was able to complete all her work. Another example is with regard to a performance appraisal that Ms Koch conducted for Ms Prowse in December 2014, covering July-December of that year. The rating arrived at was “consistently achieves”, awarded both for “key deliverables” and for “behaviours”. Ms Prowse described this outcome as “glowing” on more than one occasion, but that must be an exaggeration, given that there are only four rating points (“unsatisfactory”, “mostly achieves”, “consistently achieves” and “consistently exceeds”). Again, Ms Prowse’s account of being “seconded” to the IAS grant applications, and of her previous projects being “backfilled” has, as Ms Callan suggested “an air of unreality” about it; in an office environment, with emails continuing to arrive, and with only a limited number of personnel, it is hard to believe that Ms Prowse could have been so deceived about what was happening to her projects.
[44] T3, folio 98.
In giving evidence, and especially in cross-examination, Ms Prowse was frequently unable to remember relevant facts, and was often less than completely responsive to the questions put to her. Mr Pattenden suggested that Ms Prowse’s psychiatric condition affected her memory and made it difficult for her to recall matters that a person would normally remember.
Ms Koch, on the other hand, was an impressive witness, who made appropriate concessions and gave her evidence in a measured and careful manner. About her general skills as a manager I cannot speak with confidence, and do not need to. Ms Prowse suggested that on her arrival Ms Koch was unfamiliar with the kind of work the team was doing, and had the wrong background and skills for it. That may indeed be the case, or it may be wide of the mark. I have not formed a view on the point, and, once again, I do not need to do so.
As in most compensation cases this matter relies heavily on the medical evidence, and Ms Prowse’s evidence at the hearing is central only to a limited part of what I have to decide. Her credit, Mr Pattenden argued, was largely irrelevant to matters at issue. But the medical evidence is itself critically dependent on the self-report of Ms Prowse – that is, what the psychiatrists and psychologists know about Ms Prowse’s history and the course of her illness depends on what she told them in consultation. This is especially relevant to questions such as the date at which Ms Prowse’s condition reached clinical significance and the importance of different contributing factors. Matters are made more difficult in that no psychological evidence from specialist sources is available for 2015-16 from earlier than 2016. The contemporaneous records therefore assume particular importance, especially the clinical notes of Dr Kraus.
Much of the evidence, and especially that of Ms Koch, reflects on Ms Prowse’s performance as an employee of PM&C. I have not found it necessary, however, to make general findings on whether Ms Prowse was good at her work or was effective as an employee, or whether her attendance pattern was satisfactory. These questions are relevant only to the extent that they inform findings about whether Ms Koch’s actions at particular times, as Ms Prowse’s manager, were reasonable or not, and whether they were reasonably taken; and for that limited purpose it is the conclusions arrived at on those questions by Ms Koch, as illustrated by her contemporaneous emails and her oral evidence, that is most important.
What is the diagnosis of Ms Prowse’s condition?
There is general agreement among most of the medical specialists who have seen Ms Prowse that her condition is best characterised as major depressive disorder. Dr Hong diagnosed a chronic adjustment disorder but acknowledged that major depressive episode would be an equally valid diagnosis. Dr Ventura took the view that Ms Prowse’s condition met the criteria for major depressive disorder during 2015 and 2016 but had partly remitted by the time of their consultation, so that it was best described at that time as a chronic adjustment disorder. At the critical time for the determination of Ms Prowse’s diagnosis, in the early part of 2015, the preponderance of the medical evidence points very strongly to a diagnosis of major depressive disorder, and I find that to be the appropriate diagnosis.
It is not strictly necessary for present purposes to make a finding whether the condition is a primary condition or an aggravation of an existing condition (compensation is payable under either outcome), but the parties pressed me to do so, as if the condition is compensable it will be convenient to have that point decided. It was a matter of general agreement among the health professionals who have examined Ms Prowse that her disorder was a primary condition rather than an aggravation, but there was a dissenting voice from Dr Cohen, who was the only specialist to have access to the widest range of materials relating to Ms Prowse’s prior medical history. Dr Cohen disagreed with Dr Ventura, in particular, arguing that the latter had disregarded or downplayed the seriousness of the depressive symptoms that Ms Prowse suffered in 2009. But the evidence was not given concurrently; rather, Dr Ventura’s views given in oral evidence were explained second-hand to Dr Cohen by Ms Callan. I understood Dr Ventura to say that Ms Prowse was given to depression; that she suffered an episode in 2009 after the loss of her baby and the breakdown of her relationship; and that she then made a recovery from that condition. She was thus well when the events of early 2015 brought about a new episode that was itself a primary condition rather than an aggravation of the earlier depression. I am not sure that Dr Cohen would have been so much at odds if Dr Ventura’s opinion had ben outlined to her at that level of detail.
A clear difficulty is created by the absence of authoritative contemporaneous material about Ms Prowse’s psychological state between 2009 and 2015. There is, however, one report that throws some light on that period, namely that[45] by Dr John Saboisky, prepared as a Fitness for Duty assessment for DEEWR. That report, dated 25 August 2009, notes that Ms Prowse’s symptoms in late 2008 or early 2009 were “typical of a major depression”, but found that at the time of their consultation on 17 August 2009 she did not suffer from any significant psychological condition. Dr Kraus’s clinical notes report frequent comments by Ms Prowse about her mental state during the years from 2009 to 2015 – whether she was worried or upset, and what had brought that about – but I am unaware of anything in those notes that would lead me to conclude that Ms Prowse suffered from a diagnosable psychiatric condition during the period, and Dr Kraus does not seem to have recorded a conclusion along those lines.
[45] Exhibit R1, folios 98-9.
On the basis of the available evidence, and giving particular weight to the limited contemporaneous evidence, my conclusion is that Ms Prowse’s condition in early 2009 resolved over the next six months; and that the condition she sustained in early 2015 was a primary condition rather than an aggravation. I so find.
Is Ms Prowse’s condition an ailment?
As will be clear from the passage above setting out the relevant provisions of the legislation, the SRC Act divides injuries under the Act into “diseases” and “injuries other than diseases” (the latter sometimes referred to as “frank injuries” or “injuries simpliciter”); the terms “disease” and “injury” for the most part are used in contexts that imply that the relevant nexus with employment has been established. The word “ailment” is used for a disease where that nexus is yet to be established.
There is extensive case law dealing with the sometimes difficult distinction between an ailment and a frank injury (i.e. an injury other than a disease). Relevant cases include Military Rehabilitation and Compensation Commission v May[46] (May); Zickar v MGH Plastic Industries Pty Ltd[47]; Kennedy Cleaning Services Pty Ltd v Petkoska[48] (Kennedy Cleaning); Bailey v Broadsword Marine Contractors[49]; and Prain v Comcare.[50] Generally, a condition that is an injury (other than a disease) will involve “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)). In May Gageler J referred to an “injury in the ordinary sense” in the following terms: “An injury … is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’” (at [75]; citations omitted). The plurality in May (French CJ, Kiefel, Nettle and Gordon JJ) understood the drafting of section 5A of the SRC Act to imply that the first inquiry of the decision-maker is whether the employee suffered a disease; if the answer to that question is in the affirmative, no inquiry regarding an injury other than a disease is required (at [44]; at [73] Gageler J dissented from that construction, taking the view that the questions posed by the subsection did not need to be asked in statutory order).
[46] [2016] HCA 19; (2016) 257 CLR 468.
[47] (1996) 187 CLR 310.
[48] (2000) 200 CLR 286.
[49] [2017] FCAFC 219.
[50] [2017] FCAFC 143.

Most psychiatric conditions are characterised as ailments, implying that they will be compensable diseases under the SRC Act where they were contributed to, to a significant degree, by the employee’s employment (assuming none of the relevant exclusions apply). In Mooi Drummond J stated (at [12]):
... so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition.
The last phrase above is a reference to the definition in section 4 of the SRC Act: a mental ailment is “any … mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. Ms Prowse’s condition is diagnosed as a depressive disorder of various kinds; it appears to have arisen during the second half of January and the first half of February 2015. The condition continued to develop over the remainder of 2015 and reached crisis point in early 2016 when Ms Prowse was hospitalised. She received treatment from a psychologist and other health professionals.
Ms Prowse’s condition appears to be a mental disorder and has all the hallmarks of an ailment; there is nothing about the condition that suggests the definite or distinct change that characterises a frank injury. The parties have advanced their cases on the basis that Ms Prowse’s condition is an ailment, and I so find.
Was Ms Prowse’s psychiatric ailment contributed to, to a significant degree, by her employment?
The events associated with Ms Prowse’s employment that appear to have contributed to her condition include:
(c)the alleged increase in workload on her return from leave on 13 January 2015, including the discovery that no work had been done on her other three projects during the last part of 2014 while she had worked on the IAS grant applications;
(d)the tense relations that apparently developed between Ms Prowse and Ms Koch during the second half of January 2015; Ms Prowse perceived herself as having been singled out and treated differently from and worse than her colleagues; the papers disclose that Ms Prowse later said at various times that she had been bullied; that word appears in her witness statement but was not used during the hearing; and
(e)the withdrawal or amendment of the flexible work arrangements on 29 January 2015.
Dr Kraus’s clinical notes[51] show that Ms Prowse attended the surgery on 22 January 2015, but raised no concerns about her work. The visit is described as having been made for a “routine pap smear”. The notes record that Ms Prowse raised some personal matters, concerning a relationship issue, a “chinese girlfriend” (sic) with whom she had quarrelled, and a veterinary problem with her dog. The next visit to Dr Kraus was on 9 February 2015; it was made in order to obtain the medical certificate supporting the need for flexible work arrangements, and the notes deal in detail with and closely focus on Ms Prowse’s work issues and their effect on her (e.g. on her sleep). Dr Kraus notes a “seriously entrenched problem” and the need for a “serious treatment plan”. There is a reference to “stress at work new supervisor” and “being given tasks to complete immediately in topics she has no experience in”. There is a sense that a new and significant change in mental state has occurred, and that work is at the root of it. The only note not relating to work is a single reference to “her dogs health” [sic].
[51] Exhibit R1, folio 33.
Ms Prowse’s understanding and perception of what was happening to her at work assumes central importance here. It is inescapable that Ms Prowse and Ms Koch give radically different versions of what happened in January 2015. Ms Prowse presents herself as having been given not only a heavy workload, but one that she was unsuited to, as it involved new projects in unfamiliar areas requiring skills that she did not have. When the staff who usually managed those projects returned from leave, the projects were not passed back to them, but left with her. Ms Koch, by contrast, saw the work given to Ms Prowse as straightforward for an officer at her level; the workload was not excessive and required only of Ms Prowse that she transfer the skills she had developed on other projects into this new area. The management of the team’s tasks as a whole required that the more senior members, such as Ms Prowse, turn their hands to the tasks on which they were needed and not remain within the work areas where they had become comfortable and unchallenged. Ms Prowse thought she was being pushed into doing work she could not do; Ms Koch thought she was asking Ms Prowse merely to do work she ought to be readily capable of. The removal of the flexible work arrangements took place in that context, and in the context of Ms Prowse’s actual attendance pattern. The question then arises whether these events contributed, to a significant degree, to Ms Prowse’s condition.
In State Transit Authority of NSW v Chemla [2007] NSWCA 249 (Chemla) Spigelman CJ came to the conclusion that “a ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’” (at [53]-[54]). Although the causative test is different from that in section 5B of the SRC Act, the reasoning applies equally. That case also deals with the “eggshell psyche” concept, and reinforces the conclusion that a heightened susceptibility of an employee to psychological injury does not allow an employer to escape liability.
Similarly, in Wiegand v Comcare [2002] FCA 1464 (Wiegand) von Doussa J addressed at [31] a similar question to that in Chemla:
... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
The issue is also the focus of Perram J in Dean v Australian Postal Corporation [2010] FCA 680, where his Honour noted (at [17]) that the implication of the remarks of von Doussa J in Wiegand is that a three part test is to be applied in such cases: whether the events or state of affairs occurred; whether the events or state of affairs caused the perception in the employee’s mind; and whether the perception contributed to a significant degree to the ailment.
In Ms Prowse’s case, although the interpretation of the events of January 2015 varies considerably between her and her supervisor, there is no suggestion that those events did not occur, and the documentary evidence, including Ms Koch’s record of meetings, is persuasive that they did. Nor is there any doubt that these events caused certain perceptions in Ms Prowse’s mind: the record in clinical notes from 9 February 2015 quoted above is the first account, but those notes are followed by copious medical records thereafter.
That leaves the question whether the perception of these events, in Ms Prowse’s mind, contributed, to a significant degree, to her ailment. Critical in answering that question is that in the period in question there do not appear to be any other factors of the kind and scale that can explain the onset of her psychiatric condition. Earlier in her life, and especially in 2008 and 2009, Ms Prowse underwent traumatic events which were plainly challenging but from which she apparently recovered. The clinical notes maintained by Dr Kraus[52] suggest that Ms Prowse has a certain mental fragility, and that a good deal of this is focused on her work. Other causes of stress over an extended period appear to include her dog’s health, her personal life and relationships and her finances. But after the condition appeared in January-February 2015 Ms Prowse herself focused on her work, and it remained the most common focus of the mental health elements in Dr Kraus’s clinical notes throughout the rest of 2015.
[52] Exhibit R1, folios 33-69
In Comcare v Power[53] at [73-95] Katzmann J noted that the test of causation set in section 5B of the SRC Act requires a close causal connection between employment and the potentially compensable condition, and suggested the advisability of giving specific consideration to the matters enumerated in subsection 5B(2), despite the permissive language of the chapeau of that subsection. Each of those matters is examined below in turn.
(a) The duration of the employment: Ms Prowse had worked for more than ten years in a public service environment by the time of the events of early 2015. She was familiar with the kind of project management work that she was given, at least in a general sense. The project management work she undertook remained similar whether in DEEWR or, following machinery of government changes, in PM&C, and she must have become accustomed to its demands. Furthermore, the changes in machinery of government that had brought her into PM&C were more than a year old, so it is reasonable to expect her to have developed an awareness of the particular corporate culture of PM&C.
(b) The nature of, and particular tasks involved in, the employment: the main focus of the work appears to have been the management of projects and in particular awarding grants, involving assessing applications and undertaking the steps necessary to award the grants to successful applicants. This kind of work can be expected to impose demands on a worker relating to the need for vigilance regarding progress, involving monitoring of nominated milestones, liaison with those implementing the project and the like. No doubt the political visibility of work on indigenous programs increased the need for careful administration of the projects.
(c) Any predisposition of the employee to the ailment or aggravation: Dr Kraus’s clinical notes suggest a certain mental frailness, as noted above, but although some of the clinical evidence suggests a personal vulnerability (reports of Dr Oelrichs, Dr Wyeth, Dr Hong), none posits an underlying condition, and no submission has been made to me that such a condition is present in Ms Prowse’s case, beyond Ms Callan’s contention that Ms Prowse’s condition is an aggravation of a depressive disorder – a contention I have rejected.
(d) Any activities of the employee not related to the employment: again, Dr Kraus’s clinical notes point to Ms Prowse’s ongoing issues with other aspects of her life, such as her finances and her personal relationships, but no submission has been made to me that these matters have any bearing on the causation of her psychiatric condition. It is common ground among the parties that only workplace factors contributed significantly to the onset of Ms Prowse’s psychiatric disorder.
(e) Any other matters affecting the employee’s health: Ms Prowse’s health records note numerous issues related to her physical health, but no submission has been made that any of these other issues are relevant to the onset of her psychiatric condition.
(f) Any other issues: the enumerated list in subsection 5B(2) is specified as non-exhaustive. I am aware of no other relevant issue, and none has been put forward to me as warranting consideration.
[53] [2015] FCA 1502.
Mr Pattenden, as might be expected, was forthright in arguing that Ms Prowse’s condition was caused by her employment. More tellingly, Ms Callan conceded that no other causes at that time were apparent. It appears to be common ground that Ms Prowse’s employment contributed, to a significant degree, to her ailment. On the evidence available to me I agree that at that time there were no other events that provide an alternative explanation for the appearance of the condition. I find that Ms Prowse’s employment contributed, to a significant degree, to her psychiatric ailment. That ailment is a disease under the SRC Act (and therefore an injury under the Act) unless the exclusion for “reasonable administrative action taken in a reasonable manner” in subsection 5A(1) applies.
Does the exclusion for reasonable administrative action apply to Ms Prowse?
The reasonable administrative action exclusion in section 5A(1) of the SRC Act applies where an action that contributes causally to a disease meets certain tests:
·the action must be administrative action taken in respect of Ms Prowse’s employment;
·it must be reasonable;
·it must have been taken in a reasonable manner; and
·while it need only be one of several causal actions, it must be a necessary cause, in the sense that in its absence the condition caused would not have arisen.
The exclusion operates only where the injury under the SRC Act is suffered “as a result of” the reasonable administrative action. If the injury can be demonstrated to have arisen before the action identified for the purposes of the exclusion, then the exclusion cannot apply, as the action cannot have the causal effect required. Mr Pattenden therefore contended that Ms Prowse’s injury was sustained and apparent before 29 January 2015, which is when the flexible work arrangements were removed or amended – and it is that action which is the prime candidate for applying the exclusion. He argued, further, that the condition met the test in Mooi, i.e. that it was “outside the boundaries of normal mental functioning and behaviour” (at [12]). Ms Prowse gave evidence at the hearing that she was suffering severe migraines and spending time crying in the toilet during this period, but that evidence is completely unsubstantiated. There was also reference to hair loss, identified initially by Ms Prowse’s hairdresser and subsequently by her doctor, but the timing of when this symptom appeared is quite unclear. Mr Pattenden asked Dr Cohen if Ms Prowse’s injury was apparent “by January 2015” and she agreed that it was. I am not sure what the precise meaning of that phrase might be in the present circumstances; the preposition “by” seems to me to introduce a confusion regarding the time of onset. But, putting aside Dr Cohen’s comment, I cannot find any evidence, beyond that of Ms Prowse herself at the hearing, that she was displaying symptoms until after 29 January; Dr Kraus’s clinical notes do not give any indication of such symptoms, and Ms Prowse did not visit a psychologist or psychiatrist until considerably later. Her emails at PM&C in this period do not suggest someone who is mentally unwell. I cannot conclude that Ms Prowse met the test set in Mooi; I am not persuaded that her condition was outside the bounds of normal mental functioning and behaviour before 29 January 2015.
Was the causal action administrative action?
What constitutes administrative action has been the focus of a number of decisions by the courts. Mr Pattenden took me to Stewart and Comcare[54], in which Senior Member (SM) Kirk summarised the leading cases. In Commonwealth Bank v Reeve[55] (Reeve), the Full Court of the Federal Court held that “administrative action” is focused on the employer-employee relationship and action under the contract of employment; the phrase does not extend to the content of the employee’s work or the general performance of his or her functions as an employee. In that case Rares and Tracey JJ stated (at [60]):
… the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
[54] [2018] AATA 3685.
[55] [2012] FCAFC 21.
Their Honours went on to note (at [74]):
It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression “administrative action in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not “administrative action”.
Their Honours further pointed out that the list of “reasonable administrative actions” set out in subsection 5A(2) does not have the effect of constraining or limiting the operation of the exclusion at subsection 5A(1); rather they illustrate and give an indication as to the width of the exclusion (at [62]).
In the same case Gray J drew attention (at [31]) to the importance of the word “administrative” and contrasted it with “operational” action. His Honour went on to note (at [33]) that the intention of Parliament was to limit the scope of claims under the SRC Act in a certain way and only to a certain extent:
… the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. … matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
In Drenth v Comcare[56] the Full Federal Court (Rares, McKerracher and Murphy JJ) found (at [22]) that a decision that an employee was not fit to resume work, based in that instance on medical advice, was “quintessentially an action directed specifically to the employee”. This was a decision about the employment relationship, and fell within administrative action taken in respect of the employee.
[56] [2012] FCAFC 86.
In Comcare v Drinkwater[57] the Full Federal Court (Kenny, Flick and Perry JJ), drawing on Reeve, pointed to the distinction between action directed specifically to an employee’s employment and taken in respect of that employment, and action defining an employee’s duties or directing the employee in what to do and how to do it (at [69-75]). That an action is taken under an employment-related policy does not disqualify it from being administrative action.
[57] [2018] FCAFC 62
Ms Callan noted, reflecting comment in more than one of the above cases, that there is no bright line between administrative and operational actions. While I accept that point, in this case at least one of the actions identified as causal clearly falls into the category of administrative action. Of the actions identified above as contributing to the onset of Ms Prowse’s major depressive disorder, the increase in workload would be regarded as operational rather than administrative. The breakdown in the general relationship between Ms Prowse and Ms Koch does not seem to me to be an action at all: rather, it appears to me that as Ms Koch became increasingly troubled by what she saw as inadequate performance by Ms Prowse, she took a variety of actions as her supervisor – closer supervision, one-on-one meetings, reprimands and exhortations to improve performance, and, ultimately, the change to flexible working arrangements. Ms Prowse might have suggested, on various occasions in the past, that that constituted bullying; but bullying is in itself not an action in these circumstances, but an accumulation of actions, carrying, as it does, the sense of an ongoing process rather than a single event.

The change to the flexible working arrangements, on the other hand, is an action, and in my view an administrative one, dealing with the employment relationship. Mr Pattenden argued that Ms Koch had stopped the arrangements because of operational reasons, and that this was simply a direction to Ms Prowse to undertake her duties in a certain way, i.e. by coming in to work at a particular time in order to meet the needs of the team and the Department. For that reason, in his submission, the action was operational rather than administrative. I do not accept that argument: the direction to arrive at an earlier time was directed to Ms Prowse in particular – indeed it was the particularity of the direction that she found to be one of its upsetting aspects. Further, it was not instituted to address a critical operational need but because of what Ms Koch saw as a problem with Ms Prowse’s work - an unacceptably wayward pattern of attendance and performance that did not meet the standard she expected. The action therefore was somewhat akin to disciplinary action, although it is not apparent to me that it was presented in that way or would readily fall under paragraph 5A(2)(d) of the SRC Act (“a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment”). I also note that working hours is one of the fundamentals of an employee’s relationship with an employer. Taking all of these matters into account, I find that the change to Ms Prowse’s flexible work arrangements was an administrative action taken in respect of her employment.
Was the change to flexible working arrangements reasonable?
The reasonable administrative action provision refers to “reasonable administrative action taken in a reasonable manner”. With any action identified as administrative, this test in subsection 5A(1) of the SRC Act therefore requires that a distinction be made between the action and the manner in which it is taken. That is not always straightforward. In the current instance, I have identified the action as the cessation of the flexible work arrangements (the arrangements), temporarily or otherwise; the manner in which they were taken includes when they were taken; the cessation of those arrangements orally, at a meeting; and the immediate change to the arrangements pending receipt of medical confirmation of Ms Prowse’s need for them. There is an artificiality to the distinction, but since the same test applies to both action and manner of taking (a test of reasonableness), the outcome will generally be the same or similar, no matter how the distinction is drawn.
In Von Stieglitz and Comcare[58] SM Creyke noted that reasonableness was highly dependent on the particular facts of each matter:
Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’. [citations omitted]
[58] [2010] AATA 263.
The Senior Member quoted Georges and Telstra Corporation,[59] where soundness of judgment, good sense, moderation, keeping expectations within reasonable bounds, tolerability and fairness are identified as among dictionary meanings of reasonableness.
[59] [2009] AATA 731.
Ms Prowse operated under the DEEWR Enterprise Agreement. A Working Hours Policy[60] with date of effect 15 August 2013 (the Policy) gave effect to the relevant part of that Agreement. The Policy set ordinary hours for each day at 7 hours and 30 minutes and set a “Bandwidth” of 7am to 7pm.[61] The purpose of the Bandwidth appears to be to define the hours within which the flextime system operated.[62] Flextime was available to “APS level employees” which I understand to be employees in the APS1-APS6 range. Above that range are the “Executive Level employees”, occupying EL1 and EL2 positions. Such employees were able to work flexible hours, but on a less formal basis. Flexible work arrangements were to be “designed and agreed by the manager and the Executive Level employee taking account of the need to balance the achievement of organisational outcomes and individuals’ personal commitments”.[63] Ms Prowse’s flexible work arrangements, it seems, reflected the provisions of the Policy: it was an arrangement between her and Ms Koch (and before her Mr Miller) and the intent was that it represented a balance between the requirements of the work environment and Ms Prowse’s individual needs. The action Ms Koch took asserted the needs of the Department and was consistent with the Policy. I find it to have been lawful.
[60] Exhibit A1.
[61] Id, folio 2.
[62] Id, folio 6.
[63] Id, folio 12.
The context for Ms Koch’s action has been explained above, but particular point is given by the details of Ms Prowse’s attendance during January 2015. A record of Ms Prowse’s entrances into and exits from her building is at Exhibits A2 and A2a; the documents show her start times on 13, 14 and 15 January 2015 as 11.28am, 11.19am and 10.42am respectively. On 16 January (a Friday) she is recorded as arriving at 9.32am, having a break time of 37 minutes (I assume a lunch break) and leaving at 2.26pm, for a total work day of 4 hours and 17 minutes. Ms Callan acknowledged that the records at PM&C may not always present the complete picture because two people may enter the building together with the system registering the pass of only one of them; and there are exits from the building where the passes are not monitored. Thus the record cannot be regarded as firm evidence, with respect to exit times in particular. Ms Prowse’s personal diary[64] records her arrival and departure times at work, and there is reasonable alignment with the swipe card records, with the exception of 14 January 2015, when Ms Prowse’s diary records that she began work remotely at 9.50am. But the failure of Ms Prowse to return to the office after her departure at 2.26pm on 16 January 2015 (which was not contested) was noticed, and that day is recorded as a half day on her leave record. Between 20 and 29 January Ms Prowse’s attendance was somewhat more regular, with arrival times mostly between 10am and 11am (none is earlier; only one is later).
[64] Exhibit A8.
As Ms Prowse’s supervisor, Ms Koch was entitled to take an interest in her attendance record, as well as in the standard of her work. I do not propose to make a finding about whether or not Ms Prowse performed adequately at the EL1 level, but it is certainly plain that Ms Koch thought she did not, and it was open to her to form that view. It was therefore equally open to her to take action aimed at improving Ms Prowse’s performance. Getting her to be at work for the expected hours is not an unreasonable start in such a process. I therefore take the view that the action of changing the arrangements was a reasonable one, in all the circumstances.
Was the change to flexible working arrangements reasonably taken?
I am not so sure that Ms Koch’s action was taken in a reasonable manner. Ms Prowse had, it appears, performed satisfactorily during the last quarter of 2014, as witnessed by Ms Koch’s rating of her as “consistently achieves”. She had been back from leave for a total of 11 working days when Ms Koch and Ms Prowse met on 29 January 2015 and the direction to begin work at 9am was put in place. Ms Koch was aware that the basis for the arrangements was that Ms Prowse suffered from a problem with her sleep – that is, she was aware that the reason was a medical one. It is not clear that Ms Prowse was ever diagnosed formally with a sleep disorder, and Ms Callan suggested that her sleep issues resulted from her depression. That may be the case, but there is no doubt from the medical records that Ms Prowse told her doctor repeatedly that she was having problems sleeping; and that formed the basis for the application for flexibility in working arrangements. Ms Koch had been advised of this reason at the handover from Mr Miller.
Ms Koch consulted her Human Resources area for guidance on how the matter should be handled. But on 29 January 2015, without waiting for the medical justification, she instituted the direction to attend each morning at 9am, rather than allow perhaps a week for medical certification to be provided or until Ms Prowse was able to attend her doctor. And the direction took effect on the next working day (Ms Prowse was on leave on 30 January and 2 February).
What influence does the meeting of 20 January 2015 have on this question? Ms Prowse denies that it occurred, but Ms Koch has provided her record of the meeting, which on her account dealt with Ms Prowse’s absence for much of 16 January, her start times, and her failure to produce the outputs expected of her. That meeting seems to have had little or no impact on Ms Prowse: no mention is made of the issues in Dr Kraus’s notes for the consultation on 22 January; and although Ms Prowse reports that she had severe migraines and was “crying in the toilet” during this period, she does not appear to have any memory of the meeting, nor did she report any of the symptoms of stress to her doctor. I cannot take anything of evidentiary value for present purposes from Ms Koch’s meeting record.
Mr Pattenden submitted that Ms Koch was upset because Ms Prowse had raised issues about her (Ms Koch’s) supervisory skills in her email of 28 January 2015. The inference he would have me draw is that when she withdrew the flexible work arrangements Ms Koch was engaging in a form of retaliation. Ms Prowse gave evidence that she herself saw the action in that light. I do not believe, however, that the evidence as a whole would allow me to arrive at that conclusion. Although it is certainly the case that Ms Prowse had raised suggestions regarding Ms Koch’s supervision for the first time on 28 January 2015, there is nothing that allows me to tie Ms Koch’s actions on the following day to that specific issue as raised by Ms Prowse. It seems more likely to me that Ms Koch, growing impatient with Ms Prowse, took action perhaps more precipitately than was reasonable; and she gave the direction orally, at the meeting, without the reflection that perhaps should have preceded a decision of that kind.
I note here that Ms Koch’s actions do not have to be the most reasonable available in the situation in which she found herself. In evidence Ms Koch conceded that it might have been more reasonable if she had waited for the medical certificate before taking a decision about start times. But the legislation only requires that the action be reasonable, not that it be the most reasonable available. In Comcare v Martinez (No 2)[65] Robertson J noted that while administrative actions alternative to those actually employed might be a relevant consideration in assessing the reasonableness of those actions, it did not follow that the exclusion required that the most reasonable alternative be that adopted (at [81]).
[65] [2013] FCA 439.
I am inclined therefore to conclude that the administrative action, while itself reasonable in all the circumstances, was not taken in a reasonable manner. For the reasons advanced below, I do not need to be more definitive in my conclusion.
Was the change to flexible working arrangements a necessary cause of Ms Prowse’s condition?
Hart v Comcare[66] established that where there is more than one contributing factor to an injury under the SRC Act, it is only necessary for one of the significant contributing factors to be identified as reasonable administrative action, reasonably taken, for the exclusion in subsection 5A(1) to apply, disentitling the claimant to compensation (Branson, Conti and Allsop JJ, at [20-25]). Thus in this case, while only one of the identified causative factors can be regarded as administrative action, this would be sufficient to trigger the exclusion provided all the other criteria were met. But in Martin the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) held that for the exclusion to apply, the administrative action must have been a necessary cause (at 480 [47]):
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
[66] [2005] FCAFC 16.
A similar issue was considered by the Full Federal Court in Lim v Comcare.[67] In that case the only causative factors contributing to the applicant’s condition were employment-related. Kenny, Tracey and Bromberg JJ, upholding the appeal, concluded (at 509 [43]) that:
Given that the only causal factors identified in Dr Lim’s case are employment-related factors, the exclusion in s 5A(1) will only be satisfied in her case if the Tribunal is satisfied that Dr Lim would not have suffered her adjustment disorder if the performance appraisal had not been made.
[67] (2017) 344 ALR 499; [2017] FCAFC.
In the present instance, where the only causal factors identified are employment-related, the critical test is whether Ms Prowse would have suffered her depressive disorder if the identified administrative action, namely the removal of the flexible work arrangements, had not been taken. That question was put to both Dr Ventura and Dr Cohen, and both answered very plainly that Ms Prowse would have suffered her condition in the absence of that administrative action. On the basis of that evidence, Mr Pattenden urged me to find that the exclusion did not apply, and that Ms Prowse was entitled to compensation under section 14 of the SRC Act.
Ms Callan, however, urged a different path, pointing out that a careful reading of Dr Kraus’s notes shows that there was no indication of the condition arising until after the crucial meeting of 29 January 2015. The focus of that meeting was the withdrawal of the flexible work arrangements, and the basis for Ms Prowse attending on Dr Kraus was to obtain a medical certificate justifying the arrangements. It seems, therefore, that that meeting was the trigger for the condition’s onset, and, it follows, without that meeting the condition would not have arisen. In Ms Callan’s contention Drs Ventura and Cohen can be relied on for matters diagnostic but not for matters relation to causation; I am better placed to decide such matters because I have seen and heard from the witnesses and have heard all the evidence. The opinions of the two doctors are limited by what Ms Prowse told them and by their limited exposure to the totality of the evidence.
There appears to be some disparity between the amount of material that Dr Ventura has seen and what Dr Cohen has seen. Dr Ventura was sent those reports available in mid-2017, when she examined Ms Prowse. Dr Cohen, on the other hand, was sent a wider range of material, was sent supplementary material at the time of the request for a supplementary report, including material obtained under summons, and was sent a transcript of the first two days of the hearing, including of the examination-in-chief and cross-examination of Ms Prowse, before giving evidence.
The question of whether a psychological condition would have arisen in the absence of a particular stressor does not seem to me to be one on which an expert’s view should be lightly set aside. With two firm views put by the psychiatrists, one appearing for the applicant and one for the respondent, and those views in agreement and tested in cross-examination, a certain weight must be accorded them. And in forming a view about the weight to be accorded Dr Cohen’s evidence, I cannot be absolutely certain what Dr Cohen took into account, or what weight she might have given to the various materials.
Ms Callan’s contention is plausible, but the evidence is less than overwhelming. Dr Kraus’s notes for Ms Prowse’s visit on 9 February 2015 begin:
stress at work with new supervisor
being given tasks to complete immediately in topics she has no experience in
…
Was on an arrangement where she had flexible working hours and wold liek to continue this [sic]
As can be seen, it is not as if Ms Prowse appears to have approached Dr Kraus with an account focused entirely on her flexible work arrangements: her commentary on work also included workload issues and general relations with Ms Koch. Similarly, the email exchanges at the time do not focus only on flexible work arrangements. Ms Koch’s witness statement[68] identifies start times, Ms Prowse’s general standard of work and her issues with Ms Koch’s management as the focus of the meeting on 29 January 2015, so once again, it does not seem as if the flexible working arrangements were the single or even dominant focus of the meeting that is identified by Ms Callan as the trigger for Ms Prowse’s condition.
[68] Exhibit R9, folios 9-11.
I do not believe that the evidence before me is sufficiently persuasive that I should prefer Ms Callan’s explanation of events and put aside the professional opinions of Dr Ventura and Dr Cohen. Accordingly, I find that Ms Prowse’s condition would have arisen even without the removal of her flexible work arrangements. Her condition, therefore, did not arise “as a result of” administrative action. The exclusion in subsection 5A(1) does not apply; Ms Prowse suffered an injury under section 5A of the SRC Act, being a disease as set out in section 5B. Because the reasonable administrative action exclusion does not apply for the reasons set out in Martin, I do not need to form a concluded view about whether the change to the flexible work arrangements was taken in a reasonable manner.
What is the date of injury?
Mr Pattenden was eager to urge on me an earlier date than 9 February 2015 as the date of injury, although that is the date on which Ms Prowse went to see Dr Kraus. For the reasons advanced above, I do not accept his contention. Ms Prowse did not see a specialist psychiatrist or psychologist until a considerable time had elapsed – indeed until 2016. The expert reports are therefore handicapped by the need to reflect back on earlier events, based on Ms Prowse’s report. Further, at the time the various doctors saw Ms Prowse, including Drs Ventura and Cohen, the ambit of the present matter had not narrowed to a focus on January-February 2015, and some of their comments appear to relate to later events. Mr Pattenden points to a report[69] by Dr Kirk, a general practitioner at the same practice as Dr Kraus, but that report is dated 1 August 2016 and is no more contemporaneous than the rest of the medical evidence; nor is it noticeably precise about the date of onset.
[69] T13, folio 161.
The date of injury should reflect when Ms Prowse’s condition first met the test in Mooi, that is, when her condition went outside the bounds of normal mental functioning and behaviour. The condition clearly worsened over 2015 and reached a point where hospitalisation was necessary in early 2016. The evidence is somewhat mixed on when the point of medical significance was reached, but Drs Kirk, Wyeth and Hong accepted Ms Prowse’s report that it was in early 2015, as did Mr Bilboe; Drs Cohen and Ventura also accepted January-February 2015. Dr Sahoo suggested March, April or May 2015.
Dr Kraus’s notes for 9 February 2015 include the following:
I think is is a seriously entrenched problem and would like to have a serious treatment plan for relaxing about sleep
…
See again for mental health referral and ref to psychologist for treatment regarding this [sic]

Given these notes and the expert opinion, dependent as it is on Ms Prowse’s self-report,, the evidence seems to me to point to a conclusion that at 9 February 2015 Ms Prowse’s condition had reached a point of clinical significance; it warranted referral to a specialist health practitioner and struck her general practitioner as serious. I find that the date of injury, in accordance with the evidence and with subsection 7(4) of the SRC Act, is 9 February 2015.
Entitlement to compensation
Ms Prowse has an injury under the SRC Act and is entitled to compensation under section 14 of that Act. The matter is remitted to Comcare for determination of the amounts of compensation that may be payable to Ms Prowse.

117.

118.

119.

120.    ………………………………………

121.    Associate

122.    I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.

Dated: 14 March 2019
Date of hearing: 5 - 6 November 2018 and resumed on 21 – 22 January 2019
Counsel for the Applicant: Mr Karl Pattenden
Solicitor for the Applicant: Mr Joshua Carroll, Slater and Gordon Lawyers
Counsel for the Respondent: Ms Sophie Callan
Solicitor for the Respondent: Mr Bradley Dean, Australian Government Solicitor

Document	Date	Exhibit number
Department of Education, Employment and Workplace Relations, Working Hours Policy	13 June 2012	A1
Swipe card activity report for Kim Prowse, Department of Prime Minister and Cabinet and digest of the same information	1 January to 27 February 2015	A2 and A2a
Leave record for Kim Prowse, Department of Prime Minister and Cabinet	Financial years 2013-14 to 2016-17	A3
Report by Dr Antonella Ventura, consultant forensic psychiatrist	22 May 2017	A4
Witness statement by Kim Prowse	16 March 2017	A5
Medical certificate by Dr Denise Kraus	30 January 2014	A6
Statement by Dr E K Rodrigo, Senior Staff Specialist in psychiatry, City Mental Health Team	7 November 2018	A7
Extract from personal diary of Kim Prowse	1 January to 28 February 2015	A8
Medical certificate by Dr Kraus	9 February 2015	A9
Email exchange between Terina Koch and Kim Prowse, also involving other addressees	1 December 2014 to 27 January 2015	A10
Records provided under summons by Dr Kraus and notes made by Dr John Saboisky	various	R1
Report of Dr Zeeva Cohen, consultant psychiatrist, with briefing letters	29 May 2017	R2
Supplementary report by Dr Cohen, with briefing letter	31 July 2017	R3
Email exchange between Terina Koch and Kim Prowse	25 November 2014	R4
Documents subject to confidentiality order made under section 35 of the AAT Act (including interpolations in red)	20 to 29 January 2015	R5
Witness statement of Mr Peter Miller	16 October 2017	R6
Supplementary witness statement of Mr Peter Miller	17 December 2018	R7
Witness statement of Elizabeth Hefren-Webb (tendered on the limited basis of the content put to Ms Prowse in cross-examination)	Undated, but filed 23 October 2017	R8
Witness statement of Ms Terina Koch	17 October 2017	R9