Stateships v Lawson

Case [2009] FCA 59

FEDERAL COURT OF AUSTRALIA

Stateships v Lawson [2009] FCA 59

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – whether there was evidence before the Tribunal to support a finding that the respondent suffered a psychiatric disorder – no probative evidence – appeal allowed.

Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 24 and 26(1)
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Federal Court of Australia Act 1976 (Cth) s 28   

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55 cited
Collector of Customs (Tas) v Flinders Island Community Association (1985) 8 ALN N102 cited
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 cited
Repatriation Commission v Nation (1995) 57 FCR 2538 AAR 55 cited
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 cited
Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 cited
Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, (2008) 249 ALR 762 cited

STATESHIPS v BARRY LAWSON

WAD 175 of 2008

GILMOUR J
09 FEBRUARY 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 175 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP, DR D WEERASOORIYA, MEMBER
BETWEEN:

STATESHIPS
Applicant
AND:

BARRY LAWSON
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

09 FEBRUARY 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal dated 23 July 2008 be set aside.

3.The matter be remitted to the Tribunal, differently constituted, for determination according to law.

4.The respondent pay the applicant’s costs of the appeal. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 175 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP, DR D WEERASOORIYA, MEMBER

BETWEEN:

STATESHIPS
Applicant
AND:

BARRY LAWSON
Respondent

JUDGE:

GILMOUR J

DATE:

09 FEBRUARY 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant appeals from the decision or determination of the Administrative Appeals Tribunal (“Tribunal”) given on 23 July 2008 at Perth by which the Tribunal decided or determined that the applicant is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation, in accordance with the Act, to the respondent in respect of a psychiatric disorder which he contracted in or about June 2006. An appeal lies to this Court on a question of law, from any decision of the Tribunal: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

    BACKGROUND

  2. On 27 July 1991 the respondent, now aged 63, whilst working as a cook on a ship, the MV Roberta Jull, in the course of his employment with…

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Details
AGLC
Stateships v Lawson [2009] FCA 59
Case
[2009] FCA 59
Decision Date

CaseChat Overview and Summary

The applicant, Stateships, appeals a decision of the Administrative Appeals Tribunal (AAT) which found that the applicant was liable to pay compensation to the respondent, Mr Lawson, for a psychiatric disorder contracted in or about June 2006. The appeal was heard by the Court on a question of law concerning whether the AAT erred in finding that Mr Lawson had contracted a psychiatric disorder in or about June 2006. The central issue before the Court was whether there was sufficient evidence to support the AAT’s conclusion that Mr Lawson had contracted a psychiatric disorder in or about June 2006.

The Court considered the evidence presented before the AAT, particularly the evidence of Dr Knight, the respondent’s general practitioner, who referred Mr Lawson to a psychiatrist, Dr Wu, on 26 June 2006. Dr Wu diagnosed Mr Lawson with an adjustment disorder with anxious depressed mood and prescribed anti-depressant medication. However, Dr Wu noted that a single visit was insufficient for a conclusive diagnosis and follow-up visits were offered but declined by Mr Lawson. Dr Knight testified that one of the main reasons for referring Mr Lawson to Dr Wu was to assess his suicide potential. The Court noted that Dr Wu’s report was not provided to the AAT, and the appellant’s solicitors were unable to obtain a copy from Dr Knight.

The Court held that the AAT erred in finding that Mr Lawson had contracted a psychiatric disorder in or about June 2006. The Court found that there was no evidence to support this conclusion and that the relevant evidence contradicted such a finding. The Court emphasised that the AAT’s conclusion was not supported by the medical evidence before it and that the evidence of Dr Knight did not establish a psychiatric disorder contracted in or about June 2006. The Court also highlighted that Dr Wu’s report, which was not produced to the AAT, did not provide a conclusive diagnosis and suggested that further visits were necessary.

Consequently, the Court allowed the appeal, set aside the AAT’s decision, and remitted the matter to the AAT for determination according to law. Additionally, the Court ordered the respondent to pay the applicant’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal dated 23 July 2008 be set aside.

3. The matter be remitted to the Tribunal, differently constituted, for determination according to law.

4. The respondent pay the applicant’s costs of the appeal.

Note:

Background

Background to the litigation

The applicant appeals from the decision or determination of the Administrative Appeals Tribunal (“Tribunal”) given on 23 July 2008 at Perth by which the Tribunal decided or determined that the applicant is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation, in accordance with the Act, to the respondent in respect of a psychiatric disorder which he contracted in or about June 2006. An appeal lies to this Court on a question of law, from any decision of the Tribunal: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). BACKGROUND On 27 July 1991 the respondent, now aged 63, whilst working as a cook on a ship, the MV Roberta Jull, in the course of his employment with the applicant, slipped whilst carrying meat from the galley and badly twisted his right knee, causing the medial meniscus to tear. The respondent was medically assessed and declared unfit for sea duties. The respondent received worker’s compensation until 24 September 1991 when he returned to work. The respondent’s right knee continued to deteriorate and on 9 June 1994 he was certified as unfit for further sea duties. On 10 June 1994 the respondent submitted a claim for worker’s compensation to the applicant and he has been in receipt of ongoing compensation payments with effect from that date. On 27 February 2006, the respondent's treating orthopaedic surgeon, Dr Graham Forward stated that the respondent had a limited disability for heavy physical work but would be able to carry out a wide range of clerical duties and would be fit for light duties such as storeman or sedentary attendant. The respondent’s Progress Medical Certificate of 20 April 2006 stated that a vocational rehabilitation assessment was required. Such certificates had been issued in the past from 1991, but the respondent had not, between then and 2006, been requested by the applicant to attend a vocational assessment. On 20 April 2006 the applicant requested the respondent to advise whether he was available to attend a vocational assessment. The respondent responded on 24 April 2006 to the effect that whilst he found it intriguing that in 15 years when some twenty medical certificates suggesting vocational assessment had never been actioned, nonetheless, provided the applicant agreed to pay all costs, he would attend such an assessment. On 28 April 2006, the applicant’s solicitors informed the respondent that it had arranged for the respondent to attend at Herdsman for a vocational assessment. There was then disagreement between the applicant and the respondent as to where his vocational assessment should be carried out. The respondent did not accept the applicant’s choice of service provider, Mount Injury Management Service, he preferring the rehabilitation program to be conducted by the Commonwealth Rehabilitation Service at Fremantle believing that they had a greater knowledge of employment opportunities in the Fremantle area.

Evidence

Evidence Before The Court

The applicant submits that not only is there no evidence to support this but that the relevant evidence contradicts such a conclusion. Evidence as to injury Dr Knight, the respondent’s general practitioner since 2001, referred the respondent to a psychiatrist, Dr Wu. Dr Wu saw the respondent on 26 June 2006 and prepared a report dated 5 July 2006. Dr Knight said that one of the main focuses of sending the respondent to Dr Wu was to assess the respondent’s likely suicide potential. She did not state what, if any, were the other reasons. Dr Wu’s report was not provided by Dr Knight to the Tribunal although she had it with her whilst giving evidence. The Tribunal did not require that it be produced because it did not want her to feel “uncomfortable” about doing so. The appellant’s solicitors requested a copy of Dr Wu’s report from the respondent however the respondent was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the applicant. The examination of Dr Knight included the following: That would be the first one presumably. Let's say it would be shortly after --- ?---Yes, there was only the one visit that I'm aware of at that stage and as a result of that visit Mr Lawson started on some anti-depressant medication.All right, so you have a report of Dr Wu, have you, dated the 5tb of July 2006?---I do. Is it a very lengthy report?---A four page report.Right, so it is a very, well fairly lengthy report. Are you able to tell us what Dr Wu concluded, regarding say a diagnosis of Mr Lawson's mental condition?---Yes, his main problem was that he stated he's not able to make a definitive diagnosis at that stage because there had only been the one visit so he definitely felt that Mr Lawson had been suffering from an - well he stated just from the one-off visit an adjustment disorder with anxious depressed mood was the diagnosis that was made but he also documented in the letter that a one-off visit was not enough really for him to make a conclusive diagnosis.All right, and did he express any view about the causation of that condition?---Let's have a read for you. I've obviously sent him along because I was concerned about his risk of suicide so I - one of the main focuses of the visit with Dr Wu was to assess how likely he felt that suicide potential was.Yes, well it may well be that Dr Wu wasn't asked to express any opinion regarding the cause of this, I'm not sure?---Well he might have, it was more that my concernwas do I have a gentleman that is going to - that is actually suicidal and needing some care or not and Mr Lawson had been a referral back to me from his clinical psychologist who he'd been seeing, the clinical psychologist was concerned, I was definitely concerned with the information that Mr Lawson discussed with me and that's why he had an appointment within a week to see the psychiatrist, Dr Wu.Right, but no follow up--- ?---Dr Wu's concern was that he felt Mr Lawson was insightful and he did not feel at the time that he was seen that he was actually suicidal but certainly felt that he was at risk.But there were no follow up visits?---They were offered but Mr Lawson declined at that time.And are you aware of Dr Wu prescribing any medication for Mr Lawson?---That was he suggested to him commencing Lexapro and Mr Lawson and I followed up on that and we discussed the medication and commenced him on it and he remains on it to this day.Right, all right. Is there anything else in Dr Wu's report that you think is worthy of mention or not? For example, anything there that you have particularly followed upon yourself in your treatment of Mr Lawson apart from I suppose the prescribing of Lexapro?---It was I guess a number of things more trying to provide an environment of calm for Mr Lawson because we had a very angry and potentially suicidal man, very distressed and it was trying – my follow up afterwards was trying to create an environment in which he could be in this state.

Decision

Reasons for decision

GILMOUR J
The first question of law is supported by a ground of appeal in terms:(a)the Tribunal held that the respondent suffers from a mental ailment being a psychiatric disorder which he contracted in or about June 2006 when there was no evidence that the respondent contracted a psychiatric disorder in or about June 2006 or that he continued to suffer from a psychiatric disorder. The decision of the AAT The relevant findings of the AAT contained in its reasons are as follows: Does the applicant suffer from a mental ailment? 43.The medical evidence before the Tribunal supports the proposition that the applicant has been suffering from a mental ailment since June 2006, or, alternatively, that he has been suffering from a mental ailment since 1996 which was aggravated in June 2006. There is no medical evidence before the Tribunal which is inconsistent with either of those alternative propositions. Accordingly, the Tribunal finds, on the basis of the medical evidence before it, that the applicant suffers from a mental ailment and has been so suffering since at least June 2006. 44.As regards the nature and character of the mental ailment suffered by the applicant, the Tribunal finds, on the basis of the evidence of Dr Knight, that in or about June 2006 the applicant’s existing mental condition substantially deteriorated to the extent that he then contracted a psychiatric disorder. It is not necessary for the Tribunal to make a finding as to the precise diagnosis of that psychiatric disorder but the Tribunal is satisfied, on the basis of Dr Knight’s evidence (which included a reference to a provisional diagnosis of adjustment disorder with anxious/depressed mood made by Dr Wu, Psychiatrist, on 5 July 2006 and his suggesting anti-depressant medication for the applicant), that the applicant’s ongoing psychiatric disorder, which he contracted in or about June 2006, involves depression. In short the Tribunal was satisfied that the respondent suffered a “substantial deterioration in his mental health in or about June 2006 which … involved the contraction of a psychiatric disorder involving depression”: at [46] The applicant submits that not only is there no evidence to support this but that the relevant evidence contradicts such a conclusion. Evidence as to injury Dr Knight, the respondent’s general practitioner since 2001, referred the respondent to a psychiatrist, Dr Wu. Dr Wu saw the respondent on 26 June 2006 and prepared a report dated 5 July 2006. Dr Knight said that one of the main focuses of sending the respondent to Dr Wu was to assess the respondent’s likely suicide potential. She did not state what, if any, were the other reasons. Dr Wu’s report was not provided by Dr Knight to the Tribunal although she had it with her whilst giving evidence. The Tribunal did not require that it be produced because it did not want her to feel “uncomfortable” about doing so. The appellant’s solicitors requested a copy of Dr Wu’s report from the respondent however the respondent was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the applicant.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

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