Re Dunstan and Comcare
[2012] AATA 567
•28 August 2012
ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023Re:COLIN DUNSTAN
Applicant
And:COMCARE
Respondent
CORRIGENDUM TO DECISION [2012] AATA 567
The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:
1.In footnote 304 of its decision it deletes […] and inserts [273]; and
2.In the heading above:
(a)[90] it deletes A. and inserts B.;
(b)[97] it deletes B. and inserts C.;
(c)[98] it deletes C. and inserts D.;
(d)[99] it deletes D. and inserts E.;
(e)[100] it deletes E. and inserts F.;
(f)[101] it deletes F. and inserts G.;
(g)[102] it deletes G. and inserts H.;
(h)[104] it deletes H. and inserts I.;
(i)[105] it deletes I. and inserts J.; and
(j)[111] it deletes J. and inserts K..
S A Forgie
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023Re:COLIN DUNSTAN
Applicant
And:COMCARE
Respondent
CORRIGENDUM TO DECISION [2012] AATA 567
The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:
3.In paragraph (1)(a) of its decision deletes 2005 and inserts 1995; and
4.In the last sentence of [68] of its reasons deletes 2007 and inserts 1997.
S A Forgie
Deputy President
CATCHWORDS – COMPENSATION – whether suffered a disease – nature of disease – whether change in severity and repetition of symptoms consistent with the course of the disease or an aggravation, acceleration or recurrence of the disease – whether disease contributed to in a material degree by employment.
COMPENSATION – exclusionary clause in definition of “injury”– distinction between suffering symptoms as a result of an event specified in exclusionary clause and suffering a disease or its aggravation or acceleration as a result of that event – symptoms suffered but did not aggravate or accelerate underlying disease – exclusionary clause inapplicable.
COMPENSATION – exclusionary provision in s 23(2) - meaning of “imprisoned in connection with his or her conviction of an offence” – distinction between imprisonment and being held in custody – distinction between judicial and administrative acts – date of conviction may be later than date of plea of guilty –period of imprisonment determined by reference to sentence imposed by a court - compensation not payable for period during which imprisoned.
PRACTICE AND PROCEDURE – role of Tribunal on remittal – discrepancy between reasons for judgment and order made on remittal - Tribunal to follow order.
PRACTICE AND PROCEDURE – findings of fact made by earlier Tribunal whose decision subject of earlier appeal – consideration of relevant principles.
Allen v Tinsley Park Collieries Ltd (1944) 37 BWCC 28
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 91 ALD 552; 80 ALJR 1578
Canute v Comcare [2005] FCA 299; (2005) 40 AAR 327; 87 ALD 11
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161; 201 ALR 1; 77 ALJR 1629; 53 ATR 788
Cheung v Administrative Appeals Tribunal [2009] FCA 241; (2009) 176 FCR 201
Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Commissioner for Superannuation v Benham (1989) 22 FCR 413; 10 AAR 288
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Darling Island Stevedoring & Lighterage Co. Ltd. v Hankinson (1967) 117 CLR 19
De Simone v Bevnol Constructions and Developments Pty Ltd [2010] VSCA 348
Deputy Commissioner of Patents v Board of Control of Michigan Technological University [1979] FCA 84; (1979) 43 FLR 9
Director-General of Social Services v Chaney (1980) 31 ALR 571
Director-General of Social Services and Health v Hangan (1970) 70 FLR 212
Drenth v Comcare [2012] FCAFC 86
Dunstan v Comcare [2006] FCA 1655; (2006) 93 ALD 390; 44 AAR 359
Dunstan v Comcare [2011] FCAFC 108
Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284
Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Dunstan v Orr [2008] FCA 31
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626; 38 ALJR 64
Fletcher v Commissioner of Taxation (No 2) (1990) 23 FCR 134
Gant v Commissioner of Australian Federal Police [2006] FCA 1475
Golds v Comcare [1999] FCA 1481
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29; 87 ALD 341
Hepples v Commissioner of Taxation [1991] HCA 39; 102 ALR 497; 22 ATR 465; (1991) 65 ALJR 650
Jackson v Sterling Industries Limited (1986) 12 FCR 267; 69 ALR 92
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; 62 ALR 533
Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84
Martino Developments v Doughty [2008] VSC 517
Maxwell v The Queen (1996) 184 CLR 501; 135 ALR 1
Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29
Migge v Wormald Bros Industries Ltd (1973) ALJR 236
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673
Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475; 81 ALD 588
Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374; 154 ALR 51; 51 ALD 519; 26 AAR 548
O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154; 13 ALD 234
Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465; 77 ALR 577; 13 ALD 740
Parson v Martin (1984) 5 FCR 235
Perrett v Commissioner of Superannuation (1991) 13 AAR 440
R v Tonks [1963] VicRp 19; VR 121
Re Dunstan and Comcare [1996] AATA 213
Re Dunstan and Comcare [2008] AATA 1064; (2008) 106 ALD 206; 49 AAR 92
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 48 AAR 385; 104 ALD 595
Re Toohey and Tax Agents’ Board [2009] AATA 142; (2009) 49 AAR 427; 75 ATR 460
Re Trow and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1992] AATA 566
Re Wang and Comcare [2012] AATA 242
Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351
Repatriation Commission v Yates (1997) 46 ALD 487
Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72
Saffron v Commissioner of Taxation (1991) 30 FCR 578; 102 ALR 19
The Queen v Ireland (1970) 44 ALJR 263
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Trewin v Comcare (1998) 84 FCR 171; 156 ALR 615; 27 AAR 423
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235; (1987) 14 ALD 367; 7 AAR 529
Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795
Winsor v Boaden [1953] HCA 46; 90 CLR 345
Administrative Appeals Tribunal Act 1975, ss 3, 4, 20B, 25, 33, 43, 44, 45
Administrative Decisions (Judicial Review) Act 1977
Compensation (Commonwealth Government Employees) Act 1971
Crimes (Sentencing) Act 2005 (ACT), ss 10, 11, 12, 29, 63
Federal Court of Australia Act 1976, ss 4, 33
Safety, Rehabilitation and Compensation Act 1988, ss 2A, 4, 5A, 6, 7, 14, 16, 19, 20, 21, 21A, 22, 23, 60, 62, 64
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, s 2 and item 2, items 6 and 11 of Sch 1, s 3 and Sch1, Part 2 and item 42 of Sch 1, s 2 and item 8
Sex Discrimination Act 1984
Workers’ Compensation Act 1926 (NSW)
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
DECISION AND REASONS FOR DECISION [2012] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023
ReCOLIN DUNSTAN
Applicant
AndCOMCARE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Dr B Hughson, Member
Date: 28 August 2012
Place: Melbourne
Decision:
In relation to Application No. A199600040 (No A200700023):
(1)the Tribunal:
(a)sets aside the decision of the respondent dated 7 June 2005; and
(b)substitutes a decision that:
(i)the applicant has suffered a disease, namely chronic depression (disease), that was contributed to in a material degree by his employment with the Commonwealth;
(ii)the disease is an injury and is not excluded by the exclusionary clause to the definition of “injury” in the Safety, Rehabilitation and Compensation Act 1988; and
(iii)the applicant is entitled to compensation for periods of incapacity he suffered as a result of that injury during the period from 11 to 16 July 1991 and the period from 3 to 10 April 1992;
(c)remits the matter to the respondent to calculate the amount of compensation to which he is entitled in respect of those periods.
In relation to Application No. A1996000449:
(1)the Tribunal notes:
(a)that the judgment of the Federal Court delivered on 24 August 2011 did not affect the decision of the Tribunal made on 17 June 2010 varying the respondent’s decision made on 3 September 1996 to the effect that the applicant was entitled to compensation for incapacity for periods of incapacity from 2 January 1996 until his return to work in December 1996; and
(b)its decision relates only to the period from 1 November 1998 to 2 December 1999 and the period since 3 January 2008 remitted to the Tribunal by the Federal Court.
(2)in relation to the decision of the respondent dated 3 September 1996:
(a)sets aside that part of the decision relating to the period from 1 November 1998 to 2 December 1999 and the period since 3 January 2008; and
(b)substitutes a decision that:
(i)the applicant has suffered a disease, namely chronic depression (disease), that was contributed to in a material degree by his employment with the Commonwealth;
(ii)the disease is an injury and is not excluded by the exclusionary clause to the definition of “injury” in the Safety, Rehabilitation and Compensation Act 1988; and
(iii)the applicant is entitled to compensation for periods of incapacity he suffered as a result of that injury during the period from 1 November 1998 to 2 December 1999 and the period since 3 January 2008 other than the period from 26 May 1999 to 3 January 2008;
(c)remits the matter to the respondent to assess the periods (other than 26 May 1999 to 3 January 2008) during which the applicant suffered incapacity as a result of his injury and to calculate the amount of compensation to which he is entitled in respect of those periods; and
(d)otherwise affirms the respondent’s decision as varied by the Tribunal on 17 June 2010.
(sgd) S A Forgie
Deputy President
REASONS FOR DECISION
Mr Dunstan was an employee of the Australian Taxation Office (ATO) from 1987 until May 2001. Under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), he made two separate claims for compensation in respect of seven different periods beginning in July 1992 and ongoing.[1] During periods from November 1998 to December 1998 he was in custody on charges until he pleaded guilty. He was sentenced to a term of imprisonment and released on 3 January 2008. Earlier, on 21 May 2001, he had been found in breach of the Australian Public Service’s Code of Conduct (Code of Conduct) and his employment terminated.
[1] We have set out the history of the claims, decisions and appeals in more detail in Attachment A.
Comcare refused his claims and its decisions have been reviewed by two separate Tribunals. The first Tribunal affirmed Comcare’s first. After the matter was remitted on appeal, a differently constituted Tribunal decided what it described as a jurisdictional issue. What I will refer to as the second Tribunal then heard the matter on remittal. It also affirmed Comcare’s first decision but varied its second by deciding that Mr Dunstan was entitled to compensation for the period from 2 January 1996 until he returned to work in December 1996. A further appeal to the Federal Court from the second Tribunal’s decision has been allowed in part and the matter remitted. [2] The third order made by the Court was that:
“The case be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and decided again, in respect of:
(a)the Applicant’s claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 26 May 1994; and
(b)the Applicant’s claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), made on 30 January 1996 in respect of the period 1 November 1998 to 2 December 1999 and the period since 3 January 2008.”
[2] Dunstan v Comcare [2011] FCAFC 108; Gray, Cowdroy and Reeves JJ
We have decided that Mr Dunstan has suffered a disease, namely chronic depression, to which his employment with the Commonwealth contributed in a material degree. It is not excluded from the definition of an “injury” by the exclusion clause to that definition as it appears in s 4(1) of the SRC Act. In so far as he has suffered incapacity as a result of that injury, he is entitled to compensation but is not entitled to it in respect of the period from 26 May 1999 to 3 January 2008. That is the period during which he was imprisoned in in connection with his conviction of various offences.
THE STRUCTURE OF THE REASONS
We have set out the legislation that is applicable to our review at [234]-[287] below and have followed it with our consideration of the evidence in light of that legislation. Our consideration is underpinned by our analysis of the legal principles relevant to the interpretation of the legislation, the background facts agreed upon by the parties and our summary of the evidence. They are found in the following Attachments that form part of our reasons:
| Paragraphs | Attachment | Subject |
| [166]-[191] | Attachment A | History of claims, reviews and appeals. |
| [192]-[224] | Attachment B | The scope of the Tribunal’s role on remittal. |
| [225]-[232] | Attachment C | Findings of fact made by court in unrelated proceedings. |
| [233] | Attachment D | Table of background facts. |
| [234]-[287] | Attachment E | Consideration of legislative framework. |
BACKGROUND
The parties attempted to reach agreement upon a number of the facts in this matter. Acting for Comcare, Mr Dobelsky prepared a chronology of events that he understood to have been agreed upon between his client and Mr Dunstan. We have reproduced that document at Attachment D to these reasons as we have referred to it in making our findings below. We have checked it against Mr Dunstan’s response to the Key Facts identified by Comcare in its Statement of Facts and Contentions. His response is set out in his Statement of Facts and Contentions. Attachment D omits some detail but seems consistent with the position adopted by both parties.
Regard has also been had to the evidence given in this case and to the transcripts of the evidence given in earlier proceedings by Mr Dunstan, Ms Betty Hand and Dr Rose as well as their statements and reports and the documents (T documents) lodged in each of the earlier applications under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). At Attachment C, we have considered the limited extent to which, in our view, we can have regard to the findings of fact by Besanko J in Dunstan v Orr[3] and Mansfield J in Dunstan v Human Rights and Equal Opportunity Commission[4] and Dunstan v Human Rights and Equal Opportunity Commission (No 2).[5]
[3] [2008] FCA 31
[4] [2004] FCA 284
[5] [2005] FCA 1885
OUTLINE OF FACTS
In this section, we have not attempted to address every contact between Mr Dunstan and Ms X but have instead attempted to give a flavour of their contacts and relationship.
Early career and family life
On the basis of his evidence, we find that Mr Dunstan was the middle of five children. He was the only male child and he and his sisters spent a lot of time with his five female cousins and their parents. He showed his academic talent at an early age obtaining a bursary at primary school and excelling both academically and in sport at high school. He also achieved success as an air cadet and was dux of the Senior Non-Commissioned Officers Course in his year. Mr Dunstan spent his school holidays on training courses at various RAAF bases in New South Wales. While at high school, he experienced some symptoms like those of depression but there is no evidence to suggest that they were anything more than mood changes within the limits of normal human function and experience. They lasted for short periods but he did not seek treatment and was not diagnosed as suffering from depression or any other illness prior to 1991.
Mr Dunstan worked as a labourer for a few months before he began his tertiary studies in 1974. After two years of full time study at the Australian National University, he joined the Commonwealth Public Service (CPS) in 1975. This was two years before he completed his Bachelor of Arts in Computer Science, Sociology, Human Sciences and Asian Civilisations but he completed that degree in 1977 after two years of part-time study.
In 1975, Mr Dunstan commenced a stable relationship with the woman who was to become his first wife. They married in January 1977 and, in 1979, the first of their three daughters was born.
Mr Dunstan continued his studies gaining Course Awards in Basic Electronics and in SemiConductor Electronics from the Canberra College of TAFE (TAFE) in 1979 and 1980.
Commencing work in the CPS
Mr Dunstan worked first for the Department of Defence and then moved to other Commonwealth agencies as he was progressively promoted to positions of greater responsibility.
1982 to 1986: meeting and first working with Ms X
Mr Dunstan first met Ms X when she was an applicant for a position at the Australian Bureau of Statistics (ABS) and he was a member of the selection committee. The committee did not rank Ms X as suitable for the position. Mr Dunstan met Ms X again when he went to work for the Department of Housing and Construction (DHC) in August 1982 and he was her supervisor. His recollection of his perception of her at the time was that she was rather hostile towards him. He also recollected that she made difficulties for him at work during 1982 and 1983 by making dismissive remarks to him. Mr Dunstan was then seconded to another agency from December 1983 to June 1985 but returned to DHC in July 1985.
Ms X was still with DHC and remained there until March 1986. There were no difficulties between Mr Dunstan and Ms X at this time. He feels that she became resentful of his nominating her for a skills development course at the end of 1985 when she commenced acting in a team leader position. They spoke about her acting in that position and he encouraged her in it.
In March 1986, Ms X was promoted to a permanent position of team leader in the Department of Administrative Services (DAS) in March 1986. She told him that she had enjoyed working with him and admired his technical skills. He did not expect to hear from her again but he did when she began to telephone him asking for assistance. His view is that she did so because she could not cope with the work in her new position. He met her and explained his doing so on the basis that he was prepared to help anyone in need. They did not meet at their workplaces but outside them. By late 1986, he told her that he could no longer see her again. This occurred after he had told his wife of their meetings and they had decided that Ms X was trying to develop a personal relationship with him. His wife had been very upset by the state of affairs. Ms X’s response to that news that he would no longer see her was, on Mr Dunstan’s view of events, to harass him, to make abusive comments and to threaten to disrupt his marriage. His wife began to receive telephone calls at her workplace from a caller who would not speak with her. The calls stopped when he asked Ms X why she was doing that but, by that time, they had continued for two years.
In these early years, Mr Dunstan felt that Ms X was placing demands upon him whether it was to be demanding that he be available on the telephone or in their relationship. She was persistent in wanting him to extend their lunch time meetings.
1987 to 1990: Mr Dunstan and Ms X meet and work together again
In January 1987, Mr Dunstan was promoted to the position of Senior Information Technology Officer Grade B in the Australian Taxation Office (ATO). Ms X continued to telephone him during 1987 and 1988.[6] When, in 1989, Mr Dunstan was appointed to a position as a part-time tutor for a computer programming course conducted at TAFE, he continued to work as an ATO officer. Ms X visited him at the TAFE once each week. She usually did so at lunch time when she would wait for him in the car park until he finished his tutoring. His view is that she did so without his requesting or inviting her to do so. A relationship of intimacy developed between them and they engaged in sexual activity, but not intercourse, at their lunch time meetings on at least 20 occasions. During the whole of 1989, they had engaged in some form of sexual activity on over 50 occasions.[7] This has been described as “petting” or “heavy petting”.[8]
[6] Transcript 13 March 2012 at 27
[7] Transcript 13 March 2012 at 15
[8] Report of Dr Chamption, T documents, A1996/449 at 391 and Transcript 2 May 1996 at 55-58, 62 and 70.
Towards the end of 1989, we find that Mr Dunstan had become hopeful that his relationship with Ms X was coming to an end. She had told him that it was all over but they turned out to be short-lived breaks. While her expressions of hostility unsettled him, he recovered quickly from the disturbance they caused him by going home to the support of his wife and children.[9]
[9] Transcript 2 May 1996 at 59
By the time Ms X transferred to the ATO in early 1990, she and Mr Dunstan had been engaged in a sexual relationship for 12 months. He did not know that she had applied for the transfer or that she had applied on an earlier occasion and withdrawn her application when she had found out that he was on the interview committee.[10] On the basis of Mr Dunstan’s oral evidence, we find that, when asked for his opinion when she applied, he described only his relationship with her as a supervisor in 1981 and again in 1982 and 1985 and 1986. He gave an objective assessment of her capabilities as a public servant.[11]
[10] Transcript 13 March 2010 at 17
[11] Transcript 13 March 2012 at 18
Ms X was transferred to the ATO and it was a month or so before she was assigned to the Database Administration section (DBA) where Mr Dunstan was team leader and again her supervisor.[12] In that month, she spoke with Mr Dunstan once about a work-related topic but they saw each other at lunch time on one occasion each week.[13] Mr Donald Bartley was the Director of Databases Services and Mr Dunstan’s immediate supervisor. On the basis of Mr Dunstan’s evidence, we find that his perception of his working relationship with Ms X was that it was very troubled. He found her behaviour threatening and she showed anger and hostility towards him. It is his view that his mental health declined reasonably sharply at this time as a result of Ms X’s moodiness.[14] He did not make the ATO aware of his difficulties and problems but tried to cope as best he could.
[12] Transcript 2 May 1996 at 62
[13] Transcript 2 May 1996 at 64
[14] Transcript 13 March 2012 at 10
From mid 1990, Mr Dunstan’s perception is that the nature of Ms X’s threats to him changed. She would park opposite his house and threaten to drop in and have breakfast with him and his family. The time he spent with his family was an issue and she demanded that he spend less time with them and more with her. Every lunchtime he had coffee with her and the time she spent with him increased. Mr Dunstan became emotionally dependent upon her. When she was angry, he felt bad and only she, and not his family, could ease that feeling. He benefitted from her support and his emotional distress was alleviated when she stopped being angry. At times, he would deal with her demands rationally but, at others, he would collapse into what he felt was a very deep suicidal depression. In 1990, his emotional stability would disappear very quickly when she would go to his desk and just be angry.[15]
[15] Transcript 2 May 1996 at 66 and 68 and see also 59
On the basis of the statement of Ms Betty Hand dated 16 October 2009, we find that she was told of jokes circulating in DBA regarding Mr Dunstan and Ms X and was asked to talk with Ms X.[16] Ms Hand’s work was focused on designing working databases but she spent periods of time in a position that was within Mr Dunstan’s area of responsibility. Feeling very reluctant to become involved but after seeking advice and direction from Mr Bartley, Ms Hand spoke with Ms X. We accept Ms Hand’s evidence, which is not contradicted, that Ms X became “incredibly upset”, denied any relationship, stated that Mr Dunstan liked to talk with her about technical matters and spoke of the need for her to resign. Ms Hand told her resignation was not necessary but that, once in a while, they could take someone else with them to talk about technical issues.[17] Mr Dunstan’s understanding, gained from his conversation with Ms X, is that Ms Hand raised the question of her resignation. That may be so but it does not detract from Ms Hand’s recollection of the conversation that she had with Ms X.
[16] Statement of Ms Hand at [12]
[17] Statement of Ms Hand at [15]
Ms Hand recalled that Mr Dunstan was very angry with her on the following day because she had caused one of his best team members to want to walk out. Ms Hand herself became very upset at his reaction to her actions to try to protect Ms X’s good name and career. Her memory of his reaction was that he was angry and aggressive and wanted to know who had made the jokes.[18] Mr Dunstan’s recollection is that he took a number of steps in relation to his being told of the jokes but none of them involved his telling Mr Bartley anything about his relationship with Ms X.[19]
[18] Statement of Ms Hand at [16]
[19] Transcript 13 March 2012 at 20
Mr Dunstan and Ms X continued to work together and, in his view, they worked productively and well. He regarded her problem-solving skills as equal to his own and her skills complemented his. On the basis of his oral evidence, we find that Mr Dunstan considered that he and Ms X considered that they were a productive and effective working team in the periods in which they were not in emotional upheaval. Ms X’s moods would go up and down and they determined when they were a productive team and when they were not.[20]
[20] Transcript 13 March 2012 at 23-24 and see also Transcript 5 February 2010 at 218-219
Their physical relationship during 1990 was one in which Ms X would ask for sexual intercourse on occasion. Mr Dunstan refused in some instances and met with her on others. Some meetings took place in the car and others at a motel. Mr Dunstan felt that he responded positively to her requests because he was emotionally distraught and unable to function when Ms X was angry. When she stopped being angry, he became rational and could function again. It seemed to him that anything that made her feel good was necessary for his emotional well-being, his ability to live and to his being rational.[21] Sexual intercourse first occurred at the end of 1990 in the car.
[21] Transcript 2 May 1996 at 69
Events from January 1991 to May 1992
Mr Dunstan’s perception of Ms X’s behaviour in 1991 was that she had quite abrupt changes in her behaviour in January, April and October of that year. Early in 1991, Mr Dunstan’s youngest children started school when they turned six. Ms X demanded that he take her to pick them up at the end of the school day.
From April 1991 until the end of October 1991, Ms X would sit on the edge of the visitor’s chair at Mr Dunstan’s desk and lean towards him. He found her manner of dress and behaviour sexually provocative and one that she adopted only when she was speaking with him. She told him that she and her husband had sexual intercourse that morning. When he avoided answering her question to the effect of whether he still liked making love to her or answered in the negative, she would accuse him of only wanting her for sex and call him a “bastard”.[22]
[22] Transcript 13 March 2012 at 27
It was at the time of these changes in Ms X’s behaviour that Mr Dunstan felt that he became co-dependant on her.[23] When he felt all right, Mr Dunstan felt that she would not let him live without her but when he felt suicidal, he felt that only some positive input from her would assist.
[23] Transcript 13 March 2012 at 27
Mr Dunstan arranged counselling for himself and Ms X with the Employee Assistance Service of the ACT (EASACT), which is the ATO’s employee assistance provider. He began to explore alternative employment arrangements for himself in order to distance himself and his family from Ms X. Counselling was conducted by Ms Sue Langford. At about the same time, Ms X was having marriage counselling with a separate counsellor, Ms Lorraine Fox.
In July 1991, Mr Dunstan consulted his general practitioner, Dr Angela Garrett who, we find on the basis of her handwriting, is later known as Dr Angela Nimmo.[24] He had been experiencing prolonged periods of sadness when once he had always been optimistic and happy to go to work. Dr Garrett referred him to Dr Robert Tym, who is a consultant psychiatrist. She described Mr Dunstan as “profoundly depressed & … suicidal …”.[25] Dr Tym reported back to her on 22 July 1991 when he noted: Mr Dunstan had manipulated himself into a situation in which he could not live without his wife or his paramour, Ms X, but could not live with both; Ms X was ruthlessly manipulative and histrionic and Mr Dunstan is distressingly emotionally immature and so ill-equipped to deal with her manipulations; Mr Dunstan had a pre-disposition to depressed mood, poor self-image and poor self-confidence which appeared to have originated in a childhood in which he regarded his father as always negative towards him. He increased Mr Dunstan’s dose of dothiepin (Prothiaden).[26] It is Mr Dunstan’s recollection that he was absent from work for a few days or up to two weeks.[27]
[24] T documents, A1996/449 at 16 and 348
[25] T documents, A1996/449 at 16
[26] T documents, A1996/449 at 24-25
[27] Transcript 13 March 2012 at 11
Mr Dunstan and Ms X had sexual intercourse from the end of 1990, then three or four occasions up to April 1991 and then in October 1991.[28] In November 1991, Ms X invited Mr Dunstan to join her in Sydney at a conference she was attending. He accepted and they spent the night together. At the conclusion of the night, Ms X told Mr Dunstan that she no longer wanted a physical relationship and that she would not leave her family for him.[29]
[28] Transcript 2 May 1996 at 69
[29] T documents, 1996/449 at 421 and 595
April to September 1992
Mr Dunstan’s recollection is that he was away from work in April 1992 when he could not cope with going to work. He had found that working with Ms Langford to solve the problems he had with Ms X led to more stresses for him.[30]
[30] Transcript 13 March 2011 at 11
In June 1992, Mr Dunstan and Ms X decided to end their relationship and to stop all contact between them.[31] They found it difficult with Mr Dunstan describing the situation as akin to their breaking an addiction.[32]
[31] T documents, A1996/449 at 426
[32] T documents, A1996/449 at 16 at 605
Mr Dunstan made a suicide attempt on 14 August 1992 and was hospitalised for a few days.[33] When Ms X telephoned Mr Dunstan at home the next week, his wife answered. As a consequence, Mrs Dunstan visited Ms X at her home and Ms X told her of her affair with Mr Dunstan.[34]
[33] T documents, A1996/449 at 612 (statement of Ms X)
[34] T documents, A1996/449 at 613 and statement of Ms X at 427
On 30 August 1992, Mr Dunstan, his wife and Ms X drafted and signed an agreement to the effect that Mr Dunstan and Ms X would not contact each other and Ms X would request an immediate transfer from the ATO to another department. This was to happen while Mr Dunstan took three weeks’ leave.[35]
[35] T documents, A1996/449 at 46-47
On the basis of Mr Bartley’s statement and Mr Dunstan’s oral evidence,[36] we find that Mr Bartley did not know that Mr Dunstan and Ms X had been in a relationship involving, at different times, a sexual relationship up until this time.
[36] Statement of Mr Bartley at [24]; Transcript 13 March 2012 at 19
October 1992 to December 1992
On the basis of his statement dated 26 October 2010, we find that Mr Geoffrey Seymour, the First Assistant Commissioner and head of the IT Services Group, first became aware of the relationship between Mr Dunstan and Ms X when he read a letter that Ms X had sent to the ATO’s Personnel Section requesting a transfer to another Department. He spoke with Mr Bartley who told him of the negative impact that the deteriorating relationship between Mr Dunstan and Ms X was having on the workplace. Ms X was moved to another section in the ATO while attempts were made to meet her request for a transfer and Mr Dunstan took some leave.
In a letter dated 18 November 1992, Ms X withdrew her request for a transfer and wanted to return to DBA. Mr Dunstan was not of the same mind. In a letter dated 20 November 1992, Mr Dunstan indicated that he did not want to leave DBA and that he supported Ms X’s transfer away from it. Mr Seymour and Mr Bartley spoke almost daily about how to proceed. They decided to consult Ms Langford and later Ms Fox and came to a tentative conclusion that the only equitable solution was to move both Mr Dunstan and Ms X from DBA. Mr Seymour arranged a meeting on or about 9 December 1992 with the counsellors and with Mr Bartley as Ms Fox had said that Mr Dunstan and Ms X could work together but Ms Langford had said that they could not.
Ms Langford later wrote to HREOC on 9 May 1994 at Mr Dunstan’s request. She referred to opinions she had previously given on 24 November 1992 in a joint session with Mr Seymour and Mr Bartley and on 9 December 1992 with those two gentlemen and with Ms X. On both occasions she had said that, in her opinion, Mr Dunstan was severely depressed and that, for his psychological well-being, it was advisable that he did not work in the same vicinity as Ms X.[37]
[37] T documents, A1996/449 at 151
Mr Seymour’s decision to transfer Mr Dunstan and Ms X from DBA in December 1992
Mr Seymour made the decision to transfer both officers from DBA on or about 9 or 10 December 1992. He advised them that neither would be able to return to the section without the consent of the other but that their transfers were not permanent and one or both could return under certain circumstances at a later time.
February to May 1993
Mr Dunstan’s transfer occurred by mid February 1993. He went to the Client Consultancy Section (CCS).[38]
[38] Statement of Mr Bartley at [43]
Mr Dunstan consulted Dr Tym, who prescribed him antidepressant medication.
On an understanding that Ms X was no longer hostile to him and that, if that were the case, they could both return to DBA, Mr Dunstan contacted Ms X. Ms X took the call badly and complained to Mr Seymour who told him to make no further contact.[39]
[39] Mr Seymour’s statement at [47]
When Mr Dunstan wrote to Ms X[40] on 26 April 1993, Mr Seymour became aware of it. Mr Seymour arranged to meet Ms Langford and asked Mr Dunstan if he could approach Dr Tym. Mr Dunstan gave him written consent to do so.[41] Mr Seymour had a number of meetings with Mr Dunstan at which they discussed his request to return to DBA. One of those requests had been made in writing on 14 May 1993. Mr Bartley met with Mr Dunstan on 6 September 1993 to discuss another of his requests and to advise him of the objection to his return made by DBA staff.[42] Ms Hand had told Mr Bartley of the staff’s concerns.[43]
[40] Mr Seymour’s statement at [48] and see GRS3
[41] T documents, A1996/449 at 59
[42] Statement of Mr Bartley at [58]
[43] Ms Hand’s statement at [33]-[36]
On 10 May 1993, Ms X lodged a grievance complaint against Mr Dunstan for workplace harassment in respect of his contact with her in April 1993. She followed that with an application for a restraining order on 11 August 1993.[44] Mr Dunstan responded with a complaint of sexual harassment against Ms X and, later, with further complaints and lodged his first claim for compensation.
[44] T documents, A996/449 at 80-81
In November 1993, Mr Dunstan was transferred to the IRIS Project Team but returned to the CSS Section under the supervision of Mr Bartley in June 1994.[45] Mr Bartley spoke with him on several occasions about his possible return to DBA. He saw the return as a goal to be achieved after the workplace tensions were resolved and if the opportunity were to arise.
[45] Statement of Mr Bartley at [43]
May 1994 to December 1995
In or about early May 1994, Mr Dunstan asked for a transfer from the building in which he was working because he found the possibility that he would encounter Ms X in that building to be stressful. Mr Seymour was contacted regarding his request for a transfer as he was responsible for transfers in the area. He asked Mr Dunstan for a meeting to talk about work locations but Mr Dunstan declined saying that contact should be through his supervisor, Ms Jeanette Dunkley. Mr Dunstan did agree to attend the meeting but asked Ms Dunkley to record his view that he considered Mr Seymour’s actions in asking to talk with him to be deliberate workplace harassment.[46]
[46] T documents, A1996/449
On 16 May 1994, Dr Tym signed a Medical Certificate stating that Mr Dunstan had suffered an injury on 21 April 1994 in the form of an exacerbation of his recurrent Depressive Disorder. He certified that he was unfit for work from 16 May 1994 until 1 June 1994.[47]
[47] T documents, A1996/449 at 155
Mr Dunstan was referred to Dr Mackay, who was a Commonwealth Medical Officer, for a Health Assessment “… to provide independent medical advice on the effect of the officer’s condition on his or her capacity to perform current or other duties.”[48] Dr Mackay examined Mr Dunstan and reviewed reports by Dr Tym and Mr Sutton and noted that he had seen Ms Langford and a psychologist, Ms Jubb. Mr Dunstan did not appear to be clinically depressed on examination and Dr Mackay concluded on 26 August 1994:
“Mr Dunstan appears to have suffered an exacerbation of depression in May 1994 due to a number of factors which were discussed in the body of this report. Currently his depression appears well controlled and he continues to receive appropriate management.
In my opinion he is fit to continue in his current position. The selection of his current position was ideal in that the work does not bring him into regular contact with a colleague he claims has harassed him. He also works to a supervisor he has no interpersonal difficulties with and the potential for management conflict has been reduced as his position is not a supervisory one.
I anticipate that Mr Dunstan will continue to suffer from a degree of depression which may be exacerbated by future events however current work arrangements appear to be ideal from the viewpoint of minimising the impact of work in his condition. It is possible that future work arrangement will not be as ideal and he may develop difficulties as a result. Mr Dunstan does not require review unless there are ongoing difficulties.”[49]
[48] T documents, A1996/449 at 232
[49] T documents, A1996/449 at 234-235
Mr Dunstan’s compensation claim and grievances followed their courses. On 5 September 1994, he lodged a grievance against another officer who had provided information to Mr Tom Sutton, who is a psychologist. Mr Sutton had referred to that information for the purposes of preparing a psychological report for Comcare.[50] On 16 November 1994, Mr Dunstan lodged another grievance. It was to the effect that Mr Bartley’s refusal to allow him to attend a training course amounted to discrimination and victimisation.[51] He took proceedings against Ms X in the Small Claims Court in the ACT for damages for psychological injury, pain and suffering caused by her harassment of him.
[50] T documents, A1996/449 at 238-239
[51] T documents, A1996/449 at 249
In the meantime, discussions occurred at various levels and in various contexts about Mr Dunstan’s return to DBA. Mr Henry Price from EASACT was engaged to explore whether there was a prospect of conducting mediation between Mr Dunstan and the staff in DBA with a view to his returning to it. Mr Price met with Mr Dunstan separately from other staff but also spoke with staff of DBA generally. He concluded that it would not be appropriate to proceed with any form of mediation.[52]
[52] Mr Bartley’s statement at [91]-[98]
Towards the end of 1995, Mr Dunstan became concerned about the way in which his salary was being paid and the fact that it had ceased in December 1995.[53] At the time, he was on long service leave. That continued into the new year when he also became concerned about where he was being located.
[53] Transcript 13 March 2012 at 37
January to December 1996
Mr Dunstan was sent a plan of his new location.[54] His supervisor was located in another building. The nature of his accommodation was such that Mr Dunstan felt that it had been chosen to make him feel as uncomfortable as possible so that he would leave.[55] He described it as set up as a storeroom without windows and with several desks and cardboard boxes piled up on them. As far as he was aware, it had never been used as a workstation either before or since that time because there was no natural light. Other people were located down the corridor from him but their work was unrelated to his.[56]
[54] T documents, A1996/449 at 174
[55] Transcript 13 March 2012 at 29
[56] Transcript 13 March 2012 at 35-36
Mr Dunstan returned to work and to this workstation on 3 January 1996. He spent the morning taking prints of the transactions relating to his concerns about how his salary had been processed and the afternoon gathering information. Mr Dunstan came to the view that his location had been as a result of a hastily made decision. In addition, he concluded that the ATO’s salary system had been manipulated to process in mid November 1995 the transactions that led to the cessation of his salary in December but about which he had not been advised until two days before it came into effect.[57] During the entire day, he was located at the workstation. On the following morning, he obtained a medical certificate from his medical practitioner, Dr Nimmo.
[57] Transcript 13 March 2012 at 37-38
Mr Dunstan commenced sick leave on 3 January 1996. Some time in that year, Mr Dunstan received copies of documents lodged by Ms X in HREOC. They included documents that he thought should not have been in her possession in the first place. Among them was the revelation, to him at least, that a grievance lodged against him in 1993, had been dismissed in October 1993. His impression was that information he had given to Ms Langford had found its way to Ms X.[58]
[58] Transcript 13 March 2012 at 30
Mr Dunstan was assessed by Dr Roger Feltham, a Commonwealth Medical Officer, on 16 September 1996 regarding his fitness to return to work. In summary, Dr Feltham recommended that Mr Dunstan was fit for work as a Senior Information Technology Officer Grade B. He should return to work as soon as possible but not before there had been a round table conference among Mr Dunstan, a rehabilitation provider, his supervisor, officers from the Personnel Section and any other interested party. The conference should be presided over by an independent person and seek to find a way to solve the impasse that existed. When he did return to work, he should do so as a member of a team, as such an officer would in normal circumstances, and with ready access to his supervisor. Dr Feltham saw Mr Dunstan’s prognosis as depending in large part on the outcome of this mediation process.[59]
[59] T documents, A1996/449 at 970-972
Mr Dunstan commenced further legal actions in the Small Claims Court against officers of the ATO after he no longer had any paid leave entitlements and before he returned to work at the ATO on or about 16 December 1996.[60] He returned in the position of Senior Information Technology Officer Grade B under the supervision of Mr John Growder, who gave him a single project to work on.[61]
[60] Transcript 13 March 2012 at 33
[61] Mr Growder’s statement at [46]-[60]
January to October 1997
In early February 1997, Mr Dunstan asked for leave after advising Mr Growder that he felt quite upset and stressed and needed some leave. Mr Growder granted the leave and Mr Dunstan was away for a day or two. At the same time, Mr Growder had become concerned about the progress of the project he had given Mr Dunstan. He talked with him about it on most days. Mr Dunstan completed it in late April 1997 but, before that, in March or early April, Mr Growder talked with him about the next project.
Having talked about the matter with Mr Dunstan, Mr Growder arranged for him to return to work in DBA on a short assignment to work with Mr Frank Ryan, a senior officer in that area. That was in early or mid April 1997 but Mr Dunstan had not taken him seriously and had not made contact with Mr Ryan.[62] He agreed to make the contact.
[62] Statement of Mr Growder at [68]-[71]
Mr Dunstan instituted further legal proceedings against officers in the ATO and, specifically, in DBA, in either late April or early May 1997. There were various directions hearings and other proceedings that followed in 1997 and 1998.[63] On learning of that, Mr Growder spoke with him about whether they were enhancing his prospects of reintegration in DBA. When Mr Dunstan told him that they had to be done, Mr Growder reconsidered the wisdom of allowing Mr Dunstan to continue to work on the project in DBA in close proximity to officers against whom he had instituted legal proceedings. He told Mr Dunstan that he would have to find him another project in another area. Mr Dunstan’s response was to the effect that he had known Mr Growder was not serious about the project and, a few minutes later, give him a written request under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) for reasons for his decision.[64]
[63] Transcript 13 March 2012 at 34
[64] Statement of Mr Growder at [72]-[76]
At the beginning of May 1997, Mr Growder assigned Mr Dunstan to work with Mr Geoff Best to investigate the feasibility of, and security issues arising from, ATO officers’ having a “single sign on” password to access the mainframe rather than a separate password for each task. Mr Growder wanted Mr Dunstan to develop a brief to give to a specialist security consultant who would undertake the project.
The ATO maintains logs of the work undertaken on its mainframes. Mr Growder asked for an audit of any unauthorised access Mr Dunstan had to the mainframe. He was given a report commencing in December 1996 and recording the time and nature of any system violations. Violations include incorrect password and insufficient authority. Details were given in relation to the latter showing what Mr Dunstan was attempting to do at the time the violation occurred. We find that system violations are not uncommon and may occur simply through, for example, forgetting or mistyping a password. The ATO investigates them, though. If they occur in relation to a file on which an officer would be expected to be working in the normal course of his or her duties, they do not cause concern. If they do not, they are a cause for significant concern. Mr Dunstan’s violations were made in relation to files that caused Mr Growder concern. In May 1997, he took steps to ascertain whether his violations were consistent with those of his peer group. He found Mr Dunstan’s explanations unsatisfactory and he arranged to meet with him.
Mr Growder arranged the meeting held on 4 June 2007 in consultation with two officers, Ms Orr and Mr Molineux, from ATO’s Human Resources area.[65] They agreed that they would not give Mr Dunstan notice of the meeting so that, if he were minded to do so, he could not interfere with, or compromise, information stored on the computer. If Mr Dunstan’s explanations were satisfactory, all would be well but, if they were not, consideration would have to be given to suspending him from duty pending a full investigation.
[65] Mr Dunstan sought judicial review of Mr Growder’s decision to inform him that he was of the opinion that he, Mr Dunstan, might have failed in his duty as an officer: see Dunstan v Orr [2008] FCA 31
Mr Growder was not satisfied with the answers Mr Dunstan gave in response to a list of questions he had prepared before the meeting and relating to the violations. He was concerned about the security of the ATO’s mainframes and considered him a potential risk to them until he and the ATO had a better understanding of what Mr Dunstan had been doing. Therefore, he thought it inappropriate for him to continue to have access pending an investigation. As he could have used another officer’s computer and he did not know what Mr Dunstan had been doing and so could not assess his ability to access the mainframes without his password, Mr Growder thought that he should not remain at work pending the investigation. It was not his decision to make but Ms Orr did have authority to make it and suspended Mr Dunstan pending the investigation.[66] Mr Dunstan applied for judicial review of her decision under the ADJR Act.[67]
[66] Mr Growder’s statement at [83]-[120]
[67] Part of the claim considered by Besanko J in Dunstan v Orr [2008] FCA 31
Mr Growder arranged for further investigation of the matter. That resulted in his writing to Mr Dunstan on 16 June 1997 with the original questions and seven further questions for his response and comment together with a record of the violations and of the interview. Mr Growder acknowledged that there might be feasible explanations for each of the actions recorded as violations and he invited him to explain his actions.[68] Mr Dunstan was charged with misconduct under the Public Service Act 1922 (PS Act) following receipt of his response. That decision was made on 13 October 1997 and Mr Dunstan applied for its review in the Federal Court under the ADJR Act.[69]
[68] Mr Growder’s statement at [127] and JG24. We note that each incorrectly refers to 16 June 1996 rather than 16 June 1997.
[69] This became the ADJR claim referred to by Besanko J in Dunstan v Orr [2008] FCA 31
In mid 1997, the IT Services Line was restructured and reduced in size. Mr Dunstan’s position was identified as excess to requirements as were those of other officers. On 24 October 1997, Mr Growder wrote to Mr Dunstan setting his options for voluntary retrenchment or redeployment within the ATO or the CPS. Mr Dunstan did not exercise either of his options although some of the other officers affected did find positions in other areas of the ATO where their computing skills were sought after.[70]
[70] Mr Growder’s statement at [134] and JG26
During 1997, Mr Dunstan was absent from the ATO on sick leave for the following periods: 5 and 7 February 1997; 22 and 23 April 1997 for “fatigue” and a “mental condition”;[71] and 21 May 1997. At this time, Mr Dunstan was continuing to take his medication and his moods waxed and waned. He did not deny that, but for his having been suspended in June 1997, he would have been fit to continue his duties.[72]
[71] Transcript 13 March 2012 at 33
[72] Transcript 13 March 2012 at 33
After 1997
Mr Dunstan enquired about his position towards the end of 1998. His understanding is that he would not be entitled to receive a redundancy package while he continued with legal proceedings against ATO officers. He described his mood at this time:
“…I went through phases of intense suicidal depression, periods of extreme rage that I had trouble coping with, and, then, occasionally – it was episodic – there would be times when I didn’t feel quite so bad when I focussed on preparing documents for the court cases in the Federal Court against senior Tax Officers, and I was able to focus on that, but there were times when my mood was just so – so – there were times I wasn’t able to do that as a way of, sort of, suppressing the feelings, just hopelessness.”[73]
At the time, Mr Dunstan continued to take 20mg of Parnate but he had reduced his consultations with his psychiatrist as he no longer had an income after 2007.
[73] Transcript 13 March 2012 at 11
On 21 May 2001, an investigation conducted under the Public Service Act 1999 and independently of the ATO was completed. It found that Mr Dunstan had breached the Code of Conduct as a result of the conduct leading to his pleading guilty to the various charges in the Supreme Court and his subsequent convictions. His employment was terminated as a consequence.[74]
[74] Mr Growder’s statement at [136]
Mr Dunstan and his transfer from the DBA
In his oral evidence on 13 March 2012, Mr Dunstan agreed with Mr Dubé that it was emotionally important to him to return to work but that the emotional aspects waxed and waned with his moods. He felt that the ATO seemed to have all sorts of problems with him and did not want him to have any job at all.[75]
[75] Transcript 13 March 2012 at 24
Initially, Mr Dunstan disagreed with Mr Dubé’s suggestion that, from the time he was transferred from DBA, one of his objectives was to achieve a situation where he could return to it. He clarified this by stating that, at different times in the period from 1992 to 1998 that had been his objective. It had not been an obsessive need but it was emotionally important to return to the work that he had been removed from. He did not accept the reasons that he had been given as sensible reasons. Had they had a good reason, he thought that he would have agreed with them that it was a good reason too. In the absence of having any productive work to do, he spent his time investigating why the ATO was acting as it was and working through what he saw as the puzzles presented by its behaviour. He would look for motives in the evidence. This was a product of the fact that he copes with emotional problems by working on some intense intellectual activity. He was not obsessed so much as simply engaging in his characteristic way of dealing with both emotional stress and in his way of working.[76] The litigation he undertook was commenced in that vein.[77]
[76] Transcript 13 March 2012 at 24-25 and see also Transcript 5 February 2010 at 203
[77] Transcript 13 March 2012 at 28
A second objective after he had been transferred from DBA, Mr Dunstan agreed, had been to have acceptance of his claim that he had been sexually harassed by Ms X. A third had been to demonstrate that Mr Seymour and, at Mr Seymour’s direction, Mr Growder, had acted contrary to his interests and in support of Ms X. A fourth objective was to free himself from a situation in which he felt that Ms X had control over where he worked. That was an emotional need that he had but it was not a persistent need and its strength fluctuated.[78]
LEGISLATIVE BACKGROUND
[78] Transcript 13 March 2012 at 20-22
The relevant legislation
The definitions of an “injury” and of “disease” in the SRC Act were amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (2007 Amendment Act).[79] Transitional provisions regulated the time at which the amended definitions were to take effect.[80] Item 42 of Part 2 of Schedule 1 provided that:
“The definition of injury in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent.”
The amended definition of “disease” applied in relation to an ailment, or an aggravation of such an ailment, suffered on or after the 2007 Amendment Act received Royal Assent.[81] That day was 12 April 2007.
[79] Act No 54 of 2007; s 3 and Schedule 1, items 5, 6, 8 and 11-14
[80] Act No 54 of 2007; s 2 and Schedule 1, item 8 applying to the transitional provisions set out in items 41, 42 and 44.
[81] Act No 54 of 2007; s 3, Schedule 1, Part 2, item 41 applying to those suffered “… on or after the day after this Act receives the Royal Assent.” (emphasis added). We note that the entry in Column 3 in the commencement provision in s 2 against item 8 (which applies to Part 2, item 41) shows the commencement date as 13 April 2007. This is incorrect and, in any event, Column 3 is not part of the enactment: Act No 54 of 2007; s 2(2).
This case concerns two claims made by Mr Dunstan for compensation. Each relates to a condition, an injury or disease, or an aggravation of them, that were suffered before 12 April 2007. Certainly, his claim is that he is entitled to compensation for periods after 12 April 2007 but, as his conditions were suffered before that date, his claim for all periods is determined by the law as it was in force before that date. Therefore, in this part of our reasons we have set out the relevant provisions from the SRC Act as it was in force before the amendments effected by the 2007 Amendment Act.[82]
Statement of Comcare’s liability to pay, and so of an employee’s entitlement to be paid, compensation
[82] At FN [262]-[263] below, we have also set out the relevant amendments made by the 2007 Amendment Act. They are relevant in understanding the context in which the Full Court of the Federal Court decided Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181; Gray, Rares and Tracey JJ. That case, which was cited to us by Mr Dubé, focused on the amended definition of “injury” and, in particular, on the exclusionary clause to the definition of “injury” in the SRC Act for it considers it in its forms both before and after its amendment.
Section 14(1) establishes the broad parameters of Comcare’s liability to pay compensation. It provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
When is an employee entitled to compensation?
The Part to which s 14(1) refers is Part II. It contains a number of qualifications to a person’s entitlement to compensation. The first are found in ss 14(2) and (3) but they are not relevant in this case. The next are found in s 4(1) when it defines the word “injury”:
‘injury’ means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”[83]
Section 6 of the SRC Act sets out particular circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, employment.
[83] SRC Act, s 4(1)
The word “disease” is defined in s 4(1) to mean:
“(a) any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
As defined in s 4(1), the word “‘aggravation’ includes acceleration or recurrence.”
Section 7 sets out particular provisions relating to diseases. Section 7(4) relates to the time at which an employee is taken to sustain an injury that is a disease. It provides:
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
Entitlement to compensation
An employee might have suffered an injury but s 14(1) makes it clear that compensation is only payable in accordance with the Act and then only if it results in death, incapacity for work or impairment. The compensation that is payable is dealt with separately by reference to each outcome. Divisions 2, 3 and 4 of Part II of the SRC Act contain the relevant provisions. Division 3, which comprises ss 19 to 23A, provides for compensation for incapacity and we will focus only on those provisions in this case.[84] There is no need to have regard to Division 6, which provides for the redemption of weekly payments of compensation payable under ss 19, 20, 21 or 21A.
[84] We note that Division 4 provides for compensation where “an injury to an employee results in permanent impairment” (s 24 and see also ss 25-28) and Division 5 for compensation where, “as a result of an injury”, the employee obtains household services or attendant care services that the employee reasonably requires (s 29).
In addition to the particular provisions for each type of compensation, Division 1 provides for compensation in the form of reimbursement of certain medical expenses or payment for certain medical treatment where an employee suffers an injury. Compensation of that sort applies whether or not the injury results in an employee’s death, incapacity for work or impairment.[85]
[85] SRC Act, s 16(2)
Exclusion from entitlement to compensation for incapacity
A.Express exclusions
The definition of “injury” incorporates exclusions in two sets of circumstances. It does so by excluding from the meaning of the word “injury” those injuries suffered “as a result of”, in summary, reasonable disciplinary action or failure to obtain a promotion, transfer or benefit.[86] Exclusion of those injuries means exclusion from entitlements to compensation under the SRC Act.
[86] SRC Act, s 4(1)
Section 7(7) excludes as an injury any disease (or aggravation of a disease) about which the employee has, at any time for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensee, made a wilful or false representation that he or she did not suffer, or had not previously suffered, from it.
Section 23 also provides for exclusions from entitlements to compensation under the SRC Act but does it in a different way. It sets out three circumstances in which compensation is not payable under sections 19, 20, 21, 21A or 22 and so in circumstances where an injury has resulted in incapacity for work. Each has modifications that are not relevant and we will set out only their broad flavour. The first occurs when an employee reaches the age of 65. Compensation ceases to be payable by that reason alone.[87] Another occurs if Comcare has redeemed its liability to make further payments of compensation by paying the employee a lump sum under s 30.[88] Of relevance in this case is the third. It is found in s 23(2), which provides that compensation is not payable under ss 19, 20, 21, 21A or 22 “…. in respect of any period during which the employee is imprisoned in connection with his or her conviction of an offence.”
[87] SRC Act, s 23(1) and see also s 23(1A) relating to an employee who suffers an injury after reaching 63 years of age.
[88] SRC Act, s 23(3) and see also s 31
B. Not incapacitated for work as a result of an injury
When regard is had to each of the sections, it is clear that an employee’s entitlement to compensation is excluded when he or she is not incapacitated for work as a result of that injury. This is implicit in the way in which each of the sections is drafted. Section 19(1) provides that the section “… applies to an employee who is incapacitated for work as a result of an injury …” and ss 20, 21 and 21A adopt the form that “Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section…”.[89] The requirement is implicit in s 22 for it applies to an employee, other than an employee to whom ss 20, 21 and 21A applies, who is maintained as a patient in a hospital, nursing home or similar place as a result of an injury.
[89] SRC Act, ss 19(1), 21(1) and 21A(1)
The term “incapacity for work” is defined in s 4(9) of the SRC Act:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Section 7(6) is also relevant providing that:
“An incapacity for work … of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a)the incapacity … would not have occurred;
(b)the incapacity would have commenced … at a significantly later time; or
(c)the extent of the incapacity … would have been significantly less.”
MEDICAL EVIDENCE
In this section of our reasons, we summarise the medical evidence that has been given to us.
A.Dr Nimmo
We have Dr Nimmo’s clinical notes for the period from 24 September 1990 to January 1996.[90] On a date that is difficult to read other than that it occurred in 1990, Dr Nimmo had recorded that Mr Dunstan had been given advice about genital herpes. His next consultation was on 18 February 1991 when he presented with acute low back pain and a painful shoulder. In July 1991, Mr Dunstan was recorded as profoundly depressed and suicidal. He was prescribed medication and referred to Dr Tym. Mr Dunstan presented again on 4 March 1992 for a bad head cold with chest complications. No mention is made of his being depressed but, on 3 April 1992, Dr Nimmo notes that he is still depressed and suicidal although less suicidal then. On 4 May 1994, Dr Nimmo records the Mr Dunstan has lodged harassment claims with HREOC seeking compensation and a claim with Comcare in relation to harassment at his workplace. A note was made on 4 May 1994 that he had been absent from work from 11 to 16 July 1991.[91]
[90] T documents, A1996/449 at 7-13
[91] T documents, A1996/449 at 12
On an indeterminate date in January 1996, Mr Dunstan again consulted Dr Nimmo who noted “Longstanding harassment by work place colleagues.” and that he was seeing Dr Tym.[92] After seven months of long service leave, Mr Dunstan had received a letter dated 24 December 1995 informing him of a change of duties and change of location. Mr Dunstan had returned to work on 2 January 1996. His previous colleagues had thought he was returning to them and his new colleagues wondered what he was doing there. His anxiety had increased and his depression exacerbated.
[92] T documents, A1996/449 at 13
A.Dr Tym
Until recently, Dr Tym was a practising clinical psychiatrist. He first saw Mr Dunstan on 17 July 1991 and continued as his treating doctor at intervals until he retired from practise. Dr Tym has provided several written reports and given oral evidence in this case as well as in the earlier hearings. We have referred to his first report dated 22 July 1991 at [30] above. His clinical notes written in connection with his first consultation record that Mr Dunstan had told him that he had been depressed for the previous three months. Before that, he had been depressed in high school but had experienced mood fluctuations in the previous two years.[93] In his first report, Dr Tym had not diagnosed Mr Dunstan as suffering from depression. Rather, he had described him as having a pre-disposition to depressed mood, poor self-image and poor self-confidence which appeared to have originated in his childhood. His description and absence of a diagnosis is inconsistent with his having increased Mr Dunstan’s dose of dothiepin (Prothiaden) at that time. In his later reports and with a variation of expression, Dr Tym has consistently maintained that Mr Dunstan’s primary underlying illness has been a recurrent depressive condition, however described.
[93] T documents, A1996/449 at 17 and see our finding at [8] above.
With regard to the cause of that condition, Dr Tym wrote in his report dated 15 February 1995 that:
“… when I first saw him on 17.07.91, and on every occasion since then, I have treated him for a depressive illness that was, in my clinical judgement, engendered solely by the psychological stress experienced by him initially at work from sexual harassment by a colleague at work, initially restricted to the work environment in which he was trapped”.[94]
Earlier in his report, Dr Tym had said that, in his clinical judgment, the attacks that Mr Dunstan perceived had been made by Ms X were work-related and the actions of some of his superior officers had tended at times to compound the severity of his depressive illness.[95]
By “psychological stress”, Dr Tym meant:
“… significant degrees of perceived loss or humiliation to one’s self or to anyone closely bonded to one’s self causing self-experience of profoundly depressed mood; and/or significant self-experiences of fear from perceived threat to physical or mental health, or to means of continuing to earn a livelihood, of one’s self or of anyone closely bonded to one’s self.”[96]
[94] T documents, A2007/23 at 125
[95] T documents, A2007/23 at 124
[96] T documents, A2007/23 at 125
In a further report dated 22 February 1996, Dr Tym wrote that Mr Dunstan’s recurrent depressive disorder “… has mostly, but never absolutely, or completely, been controlled with various antidepressant regimens …”.[97]
[97] T documents, A1996/449 at 384
In his report dated 4 February 2010, Dr Tym wrote a letter in support of Mr Dunstan’s application for an adjournment of an earlier proceeding in the Tribunal. He had found that Mr Dunstan was mentally incapacitated by anxiety. He did not:
“… consider Mr Dunstan to be mentally ill but to be prone to high levels of anxiety and depressed moods with occasional suicidal ideation … due to a somewhat amplified but normal and to-be-expected reaction to difficult and longer-persisting life circumstances and adverse life events as he experiences them.
In my opinion he has the Attention Deficit Disorder (ADD) type brain, but ADD is not a disorder per se; ADD is common to one person in 10 worldwide. The ADD-type brain mostly stands Mr Dunstan in good stead because ADD-related increased abilities associated with lateral thinking, creativity, observation and problem solving in persons of high intelligence. Mr Dunstan is certainly well above average intelligence. Unfortunately, ADD can give rise to … extreme and dangerous emotional difficulties with severely depressed moods and anxiety under certain circumstances.”[98]
[98] Exhibit A7 in 2010 Tribunal proceedings at 1
Dr Tym addressed his understanding of an ADD brain further in his oral evidence[99] and in his report dated 11 March 2010.[100] Usually, he reported, it can be managed without intervention but adverse life experiences make it difficult to manage and treatment then becomes necessary. Antidepressant drugs double for the treatment and management of both Major Depressive Disorder (MDD) and ADD. “Categorical MDD implies a temporary abnormality of brain chemistry brought about by prolonged stressors and or genetic factors”, Dr Tym wrote. In his opinion, where there is no response to the medication, “… the probability is that the depressed mood is not due to a mental illness of categorical MDD.” Rather, the alternative explanation for Mr Dunstan’s persisting profoundly depressed mood is, was and still is that he is suffering from “a non-chemical-abnormality disorder, a psychological disorder, of Dysthymic disorder (DD) DSMIV with atypical features TR 300.4.”[101] That is the condition from which Mr Dunstan now suffers and that continues to cause his psychological stress and incapacity. There was no improvement because:
“… There was no improvement in the psychological stressors which, as per evidence shown to me, he was continuing to experience – this included losing his job, a refusal of his employer to make a redundancy payment whilst he was still taking legal action and, financial stress associated with his own necessary legal actions. Eventually there was a significant exacerbation of those psychological stressors when he behaviour led to a criminal conviction – and the same stressors continued whilst in jail.”[102]
[99] Transcript 13 March 2012 at 42-45
[100] Exhibit A8 in 2010 Tribunal proceedings
[101] Exhibit A7 in 2010 Tribunal proceedings at 2
[102] Exhibit A8 in 2010 Tribunal proceedings at 2
Mr Dubé explored this aspect of his report further in cross-examination of Dr Tym who said that the significant exacerbation had occurred over an extended period of time. By the second half of 1998, though, he agreed with Mr Dubé that there had been a significant exacerbation in Mr Dunstan’s clinical presentation. It was an exacerbation that matched the exacerbation of his stressors, he noted. He confirmed that the stressors that he had identified in this paragraph of his report were the difficulties in Mr Dunstan’s life.[103]
[103] Transcript 13 March 2012 at 43
In his report, Dr Tym also stated that, in his clinical judgment, Mr Dunstan:
“… does not suffer from nor has he ever suffered from any form of categorical-type mental disorder in the form of Major Depressive Disorder, Bipolar Disorder, Schizophrenia or Paranoid Delusional State. I do not believe that he has any form of personality disorder, including Paranoid Personality Disorder. It is my opinion that he is psychologically vulnerable by virtue of difficulties associated with his ADD-type brain in the context of contending with the adverse life events and adverse circumstances persisting for the past 20 or more years.”[104]
Although Dr Tym makes no reference to it in his report, this would seem to be a further contradiction of a report written on 28 June 1994 by psychologist, Mr Tom Sutton.[105] Dr Tym had referred to it in his report of 15 February 1995 when he rejected Mr Sutton’s diagnosis that Mr Dunstan suffers from mild Paranoid Personality Disorder that predated his work at the ATO and “… depression as a result of his perceptions of others persecutory and attacking relationships. …”.[106]
[104] Exhibit A7 in 2010 Tribunal proceedings at 2
[105] T documents, A2007/23 at 60-62
[106] T documents, A2007/23 at 62
B.Ms Langford
We have already referred to Ms Langford’s opinion at [39] above. She also wrote a further report dated 18 August 1994 at Mr Dunstan’s request. In that report, she referred to having seen him first in March 1992 when he asked for assistance for difficulties he was experiencing in his relationship with a female work colleague. She saw him every few weeks throughout 1992 and 1993. She had two joint sessions with him and his first wife. Mr Dunstan had asked her to comment on the “validity of his perceptions” which she did in the following way:
“From clinical notes, during counselling sessions, it is my opinion that Colin was able to understand quite clearly at a cognitive level his relationship with this female work colleague. He could describe its dysfunctionality and its effect upon his emotional state very lucidly.
Colin frequently described being acutely responsive to some of the things his work colleague would do or say and could clearly see that the intensity of his response was disproportionate to the event, but he felt helpless to modify his response by more rational means.”[107]
[107] T documents, A1996/449 at 227
C.Mr Sutton
Mr Sutton is a clinical psychologist, who saw Mr Dunstan on 18 June 1994 and subsequently provided a report dated 28 June 1994.[108] He reported a history that in all material respects is consistent with other examiners, and he administered a psychometric test, called the Minnesota Multiphasic Personality Inventory version 2 (MMPI2) together with projective tests. Despite finding that the MMP12 did not show any clinical elevations of depression and that there was no evidence of depression at the time of his examination, to his mind “There is no doubt that depression has been paramount.”[109] In his opinion Mr Dunstan was “… suffering mild Paranoid Personality Disorder”. Mr Sutton’s evidence for his conclusion was based on Mr Dunstan’s historical relationships with his parents, perceptions in his written accounts of his interactions with Ms X as opposed to reports of other opinions of Ms X, the MMP12 result, reports of his interactions with other staff and his behaviour as exhibited in the amount of written material he had gathered on the subject. At the same time, Mr Dunstan genuinely believes his perception of Ms X’s behaviour and, as a result, suffers from depression. In Mr Sutton’s opinion:
“ His significant depression is related to his perceived attacks and emotional disruptions caused by his female colleague and is not work related. Despite his perceiving the ATO as favouring the female (which may in fact be the case), this is not causal in time of his depression. Rather the relationship issues came first.”[110]
[108] T documents, A1996/449 at 193-195
[109] T documents, A1996/449 at 195
[110] T documents, A1996/449 at 195
D.Ms Jubb
Ms Annemarie Jubb, a counselling psychologist, was consulted by Mr Dunstan on 29 July and 5 August 1994 for an independent assessment of his mental state. In her detailed report of 21 August 1994, she set out details of her assessment. She referred to the history detailed in other psychological reports and noted only a depression in 1970-1972 and severe depression with suicide attempts in 1992. Ms Jubb administered the Occupational Stress Inventory to identify any negative effects of what Mr Dunstan had described to her as harassment at work. The test showed that Mr Dunstan had a poor sense of how he is evaluated at work, a lack of clarity about authority lines and a feeling that the quality of his work is suffering. His psychological Strain score and an Interpersonal Strain Score were well within normal limits. The Impact of Event Scale administered during the consultation showed that Mr Dunstan was still feeling moderately stressed by recalling the events. There was no evidence that he suffered from any psychological impairment at the time.[111]
[111] T documents, A2007/23 at 84-85
E.Dr Mackay
We have referred to Dr Mackay’s report at [49] above.
F. Dr Greenway
Dr Greenway is a Consultant Psychiatrist, who, after seeing Mr Dunstan on one occasion, provided a report dated 20 November 1995.[112] He was not required to give evidence in person to this or the previous Tribunal. The factual content of his report is consistent with those of Dr Veness and Dr Rose. Dr Greenway was of the opinion that Mr Dunstan was depressed as a result of his relationship with Ms X. While Dr Greenway reported that Mr Dunstan was quite convinced that he had nothing at all to contribute to the relationship between him and Ms X, he also noted that Mr Dunstan’s response to Ms X and his later behaviour was foolish. His attempt to placate, rather than to hold a hard line against, Ms X had obviously been wrong. Whatever Mr Dunstan’s feelings had been in 1986, Dr Greenway found that, by 1991, he was frightened and unable to cope sensibly with Ms X’s behaviour as he saw it to be.[113]
[112] T documents, A1996/449 at 304-308
[113] T documents, A1996/449 at 308
G. Dr Champion
Dr Champion, a psychiatrist, examined Mr Dunstan on 15 February 1996, reviewed earlier reports of Dr Tym and Mr Sutton and wrote a report dated 20 March 1996.[114] He was not called to give evidence at this or at the previous hearings.
[114] T documents, A1996/449 at 389-399
The Full Court decided:
“ In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that inquiry.
It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and that there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.
To the extent that Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 448 took a different view as to the operation of the definition, we respectfully disagree. To the extent that his Honour did, it was clearly obiter.”[310]
[310] [2005] FCAFC 16; (2005) 145 FCR 29 at [22]-[24]; 33
The approach taken in Hart was considered by a differently constituted Full Court in Reeve. It was concerned with a disease that Mr Reeve had suffered on 21 July 2008 and so after the amendments made by the 2007 Amendment Act had come into operation. Justice Gray said:
“… [I]t is necessary to bear in mind the principle that is taken to have been established by Hart v Comcare [2005] FCAFC 16 (2005) 87 ALD 341 at [21]-[23]. That principle is that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury. …”[311]
[311] [2012] FCAFC 21; (2012) 199 FCR 463, 125 ALD 181 at [24]; 472; 190
In Reeve, Gray J noted that the Full Court in Hart had not attempted to offer a way in which the words “as a result of” in the exclusionary clause to the definition of “injury” might be confined to a causal relationship of sufficient proximity to prevent the exclusion’s capturing, for example, administrative action appointing Mr Reeve to manage a particular branch of the bank.[312] His Honour found the limits to lie in the words “employment” and “administrative” as they are used in the exclusionary clause. We will return to this below.
[312] [2012] FCAFC 21; (2012) 199 FCR 463, 125 ALD 181 at [24]; 472; 190-191 and see also [29]; 473; 191
The majority in Reeve, Rares and Tracey JJ, took the view that the words “as a result of” applied to any “operative cause”. Relying on Hart, they too came to the view that the exclusion applied so long as the injury was suffered “as a result of” an excluded cause even if there were other causes operating.[313]
C.Pre 2007 injury: the meaning of “failure … to obtain a promotion, transfer or benefit in connection with his or her employment”
[313] [2012] FCAFC 21; (2012) 199 FCR 463, 125 ALD 181 at [55]; 481-482; 199-200
In Trewin, Heerey J considered whether Ms Trewin’s failure to obtain permanency in her employment was a “benefit in connection with … her employment.” He acknowledged that it was something desirable, good or beneficial from Ms Trewin’s point of view but her counsel had submitted that permanency was a right and not a benefit. His Honour decided that the word “benefit”, as it is used in the definition of “injury”, means “… anything that is for the good of a person or thing”. Therefore, it does not necessarily exclude something obtained as a matter of right. He illustrated his point by reference to a medical benefit to which a person is entitled under a contract and then in the broader context of public administration where:
“…. The concept of ‘failure … to obtain a promotion, transfer or benefit in connection with… employment’ has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injury so arising were, for policy reasons, not to be compensable.”[314]
[314] (1998) 84 FCR 171; 156 ALR 615; 27 AAR 423 at 177; 620
In the following year, Cooper J agreed with this analysis saying:
“… The phrase ‘failure … to obtain a promotion, transfer or benefit in connection with… employment’ must be read in the context of Commonwealth employment, which involves the creation of positions within a classified hierarchy. A promotion need in this context means no more than to advance to a higher position in the bureaucratic structure. It is not necessary that the phrase be limited to a failure to be promoted to a specific position for which the person was an applicant. The legislative intention identified by Heerey J both permits and requires that disappointed hopes of advancement by promotion within the system which cause or contribute to a disease or illness be excluded circumstances giving rise to compensable injury.”[315]
D.Pre 2007 injury: the meaning of “failure … to obtain a promotion, transfer or benefit in connection with his or her employment”
[315] Golds v Comcare [1999] FCA 1481 at [42]
Mr Dubé referred us to the judgment of Collier J in Gant v Commissioner of Australian Federal Police[316] (Gant) in which she summarised previous authorities considering the expression “in connection with”:
[316] [2006] FCA 1475
“42 The expression ‘in connection with’ is a commonly-used legislative expression. It has been the subject of extensive judicial comment. A useful commentary on the expression in the context of the ADJR Act can be found in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 577 where Wilcox J, in considering the meaning of ‘in connection with’ in s 5(1)(b) of the Act, observed that:
‘The words “in connexion with” have a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things… They may be used to describe a relationship with a contemplated future event.’ (at 591-592)
43 His Honour also adopted comments of MacFarlane J in Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638:
‘One of the very generally accepted meanings of “connection” is “relation between things one of which is bound up with or involved in another”; or again “having to do with”. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase “having to do with” perhaps gives as good a suggestion of the meaning as could be had.’ (at 639)
44 The width of the meaning of the words ‘in connection with’, and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68], Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.”
E.Post 2007 injury: the meaning of 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”
E.1Administrative action
The only Federal Court case that has considered the exclusionary clause as it is now drafted is Reeve. Justice Gray analysed it in this way:
“ The limits of the exclusion therefore appear to lie in the word ‘employment’ and the word ‘administrative’. In the context of the exclusion, the word ‘employment’ appears to be used in the sense of the ‘action or process of employing; the state of being employed’ (Oxford English Dictionary) or ‘the act of employing’ or ‘the state of being employed’ (Macquarie Dictionary), rather than ‘that on which one is employed’ (an alternative meaning given in both dictionaries). The history recounted in the Explanatory Memorandum to the amending Bill, and the identification in that Explanatory Memorandum of the mischief to which the amendment was directed, support this proposition. It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
The use of the word ‘administrative’ in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word ‘administrative’ must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not ‘administrative’ could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as ‘administrative’ action, but as operational action with respect to the employee’s employment.
…
In the case of s 5A(1) of the SRC Act, 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. … [M]atters 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.”[317]
[317] [2012] FCAFC 21 at [30]-[33]
The majority took a slightly different path but to similar effect. They decided that the first step was to decide whether the disease satisfied the requirements of the definition of “disease” in the SRC Act or an injury or aggravation of an injury met the requirements of paragraphs (b) or (c) of the definition of “injury” as the case might be. This first portion of the definition of “injury” in s 5A(1), they said:
“… applied to circumstances of the aetiology of the disease, injury or aggravation that are ordinary incidents of the employment: i.e. of the employee performing his or her work or as a part of his or her duties or activities as an employee. Thus, s 5B(2) referred to ‘the nature of, and particular tasks involved in, the employment’ as relevant to the question whether the disease was contributed to, to a significant degree, by the employment.”[318]
[318] [2012] FCAFC 21 at [56]
In contrast:
“… the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
…
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken ‘in respect the employee’s employment’. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that 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: cf John Holland group Pty Ltd v Robertson (2010) 185 FCR 566 at 586 [72]–[73] per Dowsett J, with whom Spender J agreed.…”[319]
[319] [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 at [57]-[60]; 482-483;200-201
E.2 Reasonable administrative action
Relying on Corporation of the City of Enfield v Development Assessment Commission,[320] the Full Court in Drenth v Comcare[321] (Drenth) said that “Whether something is reasonable or not is ordinarily a question of fact.…”[322] The ordinary meanings of the word “reasonable” are:
“… 1 sensible; rational; showing reason or good judgment. 2 willing to listen to reason or argument. 3 in accordance with reason. 4 fair or just; moderate; not extreme or excessive … 5 satisfactory or equal to what one might expect. …”[323]
Taken in its context, these meanings are apt. What amounts to “reasonable administrative action” must be assessed by reference to the particular employment relationship between the employee and the employer and by reference to objective notions of what is sensible and rational, fair and just and not extreme or excessive etc., and so reasonable, in that relationship.
F.No room to read further criteria of material/significant contribution into exclusionary clause
[320] [2000] HCA 5; (1999) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ
[321] [2012] FCAFC 86; Rares, McKerracher and Murphy JJ
[322] [2012] FCAFC 86 at [26]
[323] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
We have decided that there is no room to read into the exclusionary clause in the definition of “injury” any requirement that the contribution of the specified events have been to a significant degree or, in accordance with the earlier drafting, to a material degree. Our first reason for reaching this conclusion is that it is consistent with the ordinary meaning of the expression “as a result of”. As decided in Reeve, it applies to any operative cause without reference to the degree of that operative cause.
Our second reason is that to come to that conclusion would be contrary to the authorities of Hart and Reeve, to which we have already referred. They are judgments of the Full Court of the Federal Court as is Drenth, which has been decided since the hearing. We have decided that there is no need to refer it to the parties for further submissions for it is to the same effect as Hart and Reeve. In so far as this issue is concerned, the Full Court simply stated that “… [I]f any ‘reasonable administrative action’ were found to be an operative cause of the aggravation of Ms Drenth’s pre-existing condition, she was not entitled to compensation as explained in Reeve at 481-482 [54]-[56].”[324] No mention was made of the need to establish that any reasonable administrative action had to be a significant operative cause of the aggravation of Ms Denth’s pre-existing condition and none is to be found elsewhere in that section of the Court’s judgment.[325]
[324] [2012] FCAFC 86 at [29]
[325] [2012] FCAFC 86 at [32]-[33] In reaching this view, we note that our view, and reasons for it, is contrary to that reached by Deputy President Constance in Re Wang and Comcare [2012] AATA 242 at [53]-[56].
The approach required by the SRC Act having regard to the authorities
Having regard to the SRC Act as it has been interpreted by the High Court and the Federal Court, we found it of benefit to identify the separate steps that we must take when an employee claims compensation for an injury but Comcare contended that the injury is not compensable by reason of the exclusionary clause of the definition of “injury”. We will start with the provisions of the SRC Act before its amendment by the 2007 Amendment Act and when the relevant definitions were found in s 4(1). The steps take us through to the point at which we are able to decide whether there is an “injury” in respect of which Comcare or a licensee is liable to pay compensation as provided in s 14(1). They do not go beyond that point to consider whether, for example, compensation is not payable because compensation is excluded by one of the events specified in ss 14(3) and 23. They do not follow through the steps to ascertain whether, for example, an employee has suffered incapacity or an impairment.
The steps in determining whether an employee has an “injury” as defined by s 4(1) of the SRC Act before its amendment by the 2007 Amendment Act are:
(1)Identify the condition for which compensation is claimed:
(a) the categorisation of the condition as either a disease or as an injury under the SRC Act is irrelevant at this stage.
(2)Identify whether the condition is a disease or an injury (other than a disease), or an aggravation of an injury, without regard to factors relating to nexus with employment specified in the definitions of those terms in s 4(1):
(a) a disease is “any ailment suffered by an employee … or the aggravation of any such ailment”:
(i)it is essential for an employee to demonstrate that he or she is in a condition that is outside the boundaries of normal mental functioning and behaviour; but
(ii)it is not essential that the employee be able to subscribe a name or diagnosis.[326]
[326] See Mooi at [236] above.
(b) an injury is a physical or mental injury (other than a disease) or an aggravation of a physical or mental injury.
(3)If a disease, decide whether it was contributed to in a material degree[327] by the employee’s employment by the Commonwealth:[328]
[327] having regard to the meaning of “material contribution” given in Canute, Suha-Khan and Wiegand at [253]-[256] above.
[328] Definition of “disease”: SRC Act, s 4(1).
(a) the question is asked in relation to:
(i)if there is one cause of the disease, that cause;
(ii)if there is more than one cause of the disease, all or any of those causes;
∙a disease may have been contributed to in a material degree by an employee’s employment even if there are other causes that do not come within that description.[329]
[329] See Treloar at [253], Wiegand v Comcare Australia at [254] and Sahu-Kahn at [255]-[256] above.
(b)if the answer is “yes”, the disease is:
(i)a disease for the purposes of the definition of “disease”;
(ii)an “injury” for the purposes of an “injury” within the meaning of s 4(1); and
(iii)go to step (5).
(c) if the answer is “no”, the disease is neither:
(i)a disease for the purposes of the definition of “disease”; nor
(ii)an “injury” for the purposes of an “injury” within the meaning of s 4(1); and
(iii)the employee is not entitled to compensation in accordance with the SRC Act.
(4)If an injury decide whether it (or its aggravation if an aggravation of an injury) arose out of, or in the course of, the employee’s employment:[330]
[330] See SRC Act, ss 6 and 6A addressing “injury arising out of or in the course of employment”. See also High Court and Federal Court authorities relating to these concepts. We have had no need to address them in this case.
(a) if yes, it is:
(i)an injury for the purposes of the definition of “injury”; and
(ii)go to step (5).
(b) if no, it is not:
(i)an “injury” for the purposes of an “injury” within the meaning of s 4(1); and
(iii)the employee is not entitled to compensation in accordance with the SRC Act.
(5)If an injury within the meaning of the definition of “injury” in s 4(1), decide whether the disease, injury or aggravation of an injury was suffered by the employee as a result[331] of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit[332] in connection with[333] his or her employment.[334]
[331] See Reeve at [272] above.
[332] We have referred only to a “promotion … or benefit in connection with … employment”: see Trewin at [273] and Golds v Comcare at [274] above. Reference should be made to relevant Federal Court authority in relation to transfer and reasonable disciplinary action.
[333] See Gant at [275] above.
[334] See Reeve at [244] above.
(a)this step is taken at this time, and not at earlier time, because:
(i)the reference in the exclusionary clause is to “any such disease, injury or aggravation” and so to the “disease, injury or aggravation” to which reference is made in paragraphs (a), (b) and (c) of the definition of “injury” in s 4(1); and
(ii)is not a reference to a “disease, injury or aggravation” simpliciter.
(b)if the disease, injury or aggravation of an injury was as a result[335] of any one of the events specified in the exclusionary clause, it is not an “injury” for the purposes of the SRC Act and compensation is not payable:
[335] This is a reference to any “operative cause”: see Hart at [267]-[269]; Reeve at [270]-[272] and Drenth at [281] above.
(i)in the case of an injury (other than a disease), this is so if:
∙that was the sole event that led to the finding that the injury had arisen out of, or in the course of, the employee’s employment and brought the condition within the definition of paragraphs (b) or (c) of the definition of “injury”; or
∙there were other causes (not falling within the exclusionary clause) that led to the finding that the injury came within the definition of paragraphs (b) or (c) of the definition of “injury”.
(ii)in the case of a disease, this is so if:
∙that was the sole event that led to the finding that the disease was contributed to in a material degree by the employee’s employment and so a “disease” as defined;[336] or
[336] That might be because there were other employment-related events but they did not contribute in a material degree or there were other non-employment related events that contributed (whether in a material degree or not) or there was a mixture of the two groups.
∙there were other events that led to the finding that the disease came within the definition of that term and so within the definition of an “injury”.
(c) if the answer to the question posed at (5) is “yes”, the disease, injury or aggravation of an injury is:
(i)excluded from the definition of “injury”; and
(ii)the employee is not entitled to compensation.
(d) if the answer to the question posed at (5) is “no”, it:
(i)is not excluded as an “injury” for the purposes of the definition of an “injury” within the meaning of s 4(1); and
(ii)the employee is not excluded from entitlement to compensation by reason of the exclusionary clause.
After its amendment, when the relevant definitions were found in ss 5A and 5B rather than in s 4(1), it is arguable that the same steps could be followed safely to achieve the answer provided the necessary amendments are made to step (5) to change the exclusionary test.
We think, though, that the better view is that the amendments made by the 2007 Amendment Act altered the order in which the steps are undertaken. This arises from the fact that the reference in the exclusionary clause is no longer drafted by reference to “any such disease, injury or aggravation” (emphasis added). Instead, it is drafted in s 5A(1) by reference to “a disease, injury or aggravation”. That reference can only be read as a reference to the “disease, injury or aggravation” (referred to earlier in paragraphs (a), (b) or (c) of the definition in s 5A(1)) that was contributed to in a material degree by the employee’s employment in the case of a disease or arose out of or in the course of the employee’s employment in the case of an injury (other than a disease) or its aggravation.
By removing the word “such” and referring only to “a disease, injury or aggravation” (emphasis added), the nexus between an “injury”, or an aggravation of an injury, and the particular injury or aggravation specified in paragraphs (b) and (c) is broken. The reference is to an injury simpliciter. That means that regard can (and perhaps even should) be had to the exclusionary clause before consideration is given to whether or not the injury, or an aggravation of an injury, comes within paragraphs (b) or (c) i.e. whether it arose out of or in the course of employment.
A disease is in a different position. The former order of steps continues to apply for the exclusionary clause applies in relation to a “disease”. It is not a reference to any disease, regardless of the nexus between it and an employee’s employment but to a “disease” as separately defined in s 5B. That definition includes a nexus between it and the employee’s employment. Therefore, a decision must first be made as to whether an employee has a “disease” as defined in s 5B before deciding whether the exclusionary clause applies. The exclusionary clause only arises if there is such a disease.
I certify that the preceding two hundred and eighty seven paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and
Dr B Hughson, Member
Signed: ....(sgd)............................................................
Leah Berardi Associate
Dates of Hearing 13, 14 and 16 March 2012
Date of Decision 28 August 2012
Counsel for the Applicant Mr T Crispin
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Mr L Dobelsky
DLA Piper Australia
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