Dunstan and Comcare [2012] AATA 567 (28 August 2012)

ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023

The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:

ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023

The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:

ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449
GENERAL ADMINISTRATIVE DIVISION ) A 200700023

Tribunal: Deputy President S A Forgie
Dr B Hughson, Member
Date: 28 August 2012
Place: Melbourne

(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;

(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.

(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.

(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

(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;

(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.

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.

2. 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:

(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.”

3. 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

4. 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

5. 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.

6. 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]

OUTLINE OF FACTS

7. 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

8. 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.

9. 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.

10. 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.

11. 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

12. 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

13. 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.

14. 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.

15. 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.

16. 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

17. 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]

18. 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]

19. 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]

20. 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.

21. 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]

22. 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.

23. 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]

24. 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]

25. 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.

Events from January 1991 to May 1992

26. 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.

27. 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]

28. 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.

29. 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.

30. 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]

31. 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]

April to September 1992

32. 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]

33. 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]

34. 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]

35. 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]

36. 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.

October 1992 to December 1992

37. 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.

38. 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.

39. 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]

Mr Seymour’s decision to transfer Mr Dunstan and Ms X from DBA in December 1992

40. 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

41. Mr Dunstan’s transfer occurred by mid February 1993. He went to the Client Consultancy Section (CCS).^[38]

42. Mr Dunstan consulted Dr Tym, who prescribed him antidepressant medication.

43. 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]

44. 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]

45. 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.

46. 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.

May 1994 to December 1995

47. 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]

48. 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]

49. 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]

50. 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.

51. 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. 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.

January to December 1996

53. 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. 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.

55. 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]

56. 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]

57. 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]

January to October 1997

58. 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.

59. 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.

60. 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]

61. 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.

62. 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.

63. 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.

64. 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]

65. 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]

66. 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]

67. 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]

After 1997

68. 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.

69. 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]

Mr Dunstan and his transfer from the DBA

70. 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]

71. 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]

72. 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

The relevant legislation

73. 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.

74. 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

75. 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.”

76. 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”:

(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.

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.”

78. 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;

Entitlement to compensation

79. 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.

80. 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]

81. 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.

82. 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.

83. 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.”

B. Not incapacitated for work as a result of an injury

84. 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.

“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:

(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.”

“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:

(c) the extent of the incapacity ... would have been significantly less.”

MEDICAL EVIDENCE

87. In this section of our reasons, we summarise the medical evidence that has been given to us.

88. 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]

89. 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.

90. 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.

91. 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]

“... 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]

92. 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]

93. 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]

94. 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]

95. 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]

96. 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]

97. 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]

98. 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]

99. 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]

F. Dr Greenway

101. 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]

G. Dr Champion

102. 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.

103. Dr Champion obtained an extensive history from Mr Dunstan. He concluded that his examination revealed no current evidence of depression, anxiety or any other psychiatric disorder. Mr Dunstan had suffered from feelings of depression in the past but they had waxed and waned and did not of themselves correlate to a recognisable psychiatric illness. The history he had taken revealed “... a considerable investment in seeing himself as an innocent victim. It seemed to me that Mr Dunstan possessed little or no insight into the role that his own actions undoubtedly had in encouraging and perpetuating this relationship.”^[115] His depressive symptoms related to his relationship in terms of his perceptions of himself as a victim in it. They related to his work environment only in terms of his maladaptive perceptions about his relationship with Ms X and they related directly to his relationship and not with the work environment. Mr Dunstan was fit for his normal duties. At the same time, Dr Champion wrote, Mr Dunstan had a paranoid personality structure that would make him vulnerable to the development of anxiety depression and maladaptive response to situations which most people would consider normal.^[116]

105. Between January 1999 and September 2000 Dr Veness prepared six reports in connection with the charges brought against Mr Dunstan and his subsequent sentencing. We do not have the reports themselves but reference was made to them in the evidence he gave at the second hearing in 2010.

106. Mr Veness agreed that he had spent a good deal of time exploring the relationship between Mr Dunstan and Ms X. He did so because, as he had said in his first report dated 8 January 1999, “... not only had it been Mr Dunstan’s chief preoccupation for almost a decade but I sensed that he saw it as central to the charges he is now facing.”^[117] That remained his opinion at the time of the second hearing as did his report of the second matter that had preoccupied Mr Dunstan i.e. “... the complexity of the litigation processes that ensued when the volatile relationship spilled into the workplace, involving the management and administration.”^[118]

107. At the time of his first consultation, Mr Dunstan “... appeared neither anxious nor depressed.” but he assumed that his depression and anxiety were being controlled by drugs.^[119] At the time that he posted the packages, though, Dr Veness was of the opinion that Mr Dunstan was suffering a major depressive illness and that his depressed state of mind was an essential ingredient in his offending behaviour. It was a biological illness. He was treated with Parnate and rapidly recovered.^[120] His illness is a chronic illness. He had a genetic propensity to suffer from it but an intervening stress, be it physical or mental, was needed before he developed the condition. In Mr Dunstan’s case, it was the melee of events that led to his developing major depression. It took quite a bit of stress to do that but, having suffered a major depressive episode, lesser stresses bring them down. A person does not simply return to the way he or she was before the episode. Mr Dunstan’s first major depression resulted in an ongoing chronic state with variable changes depending on the circumstances.^[121]

108. In cross-examination by Mr Dunstan at the second hearing, Dr Veness said that his illness was consistent with a build up of stresses over a period of time such as a number of years rather than through a very short, sharp, external event. He agreed with the proposition that his continuing a relationship with Ms X in circumstances in which, if he did, his marriage would be at an end, would place him under intense stress and cause anxiety and depression. It was a dysfunctional relationship.^[122]

109. Dr Veness did not agree with the proposition that Mr Dunstan might have been suffering from paranoid personality disorder as described in DSMIV.^[123] The fact that somebody persists in a course of action is not an indicator that the person suffers from a paranoid personality disorder.^[124]

110. Once the decision had been made that both Ms X and Mr Dunstan would be removed from DBA, Dr Veness agreed that Mr Dunstan’s focus appeared to be getting himself back to that area.^[125]

J. Dr Rose

111. Dr Rose examined Mr Dunstan in July 2009 and wrote his first report on 7 July 2009. A supplementary report followed on 22 March 2010. He noted that he had reviewed the earlier reports of Dr Tym, Dr Greenway, Dr Champion, Dr Feltham, Dr Mackay, Dr Nimmo and Dr Veness as well as those of Mr Sutton and Ms Langford. He set out the history that he had obtained from Mr Dunstan.

112. Dr Rose concluded that Mr Dunstan suffered from Chronic Major Depression within the meaning of DSMIV.^[126] There was evidence of depression at the time of examination in the form of considerable restriction in the range of affect and there was a presence of an ever present sadness and preoccupation. Mr Dunstan’s:

“... Social judgement was very poor. His view of the world was a decidedly paranoid one in which he saw other people as having control over his life. He had no sense of being able to control his own destiny.”^[127]

In his second report dated 22 March 2010, Dr Rose repeated that Mr Dunstan’s personality exhibits paranoid traits and added that it also exhibits obsessional traits. Dr Rose explained in his oral evidence that:

“... it’s well-known that people with obsessional personality characteristics are much more pone [sic] to depression than other individuals. I think that’s part of it. And they become – often become more depressed because their own obsessional demands can’t be fulfilled. And when they can’t be fulfilled, it’s devastating for the self esteem. And I think that’s what has happened to Mr Dunstan.”^[128]

113. Dr Rose considered that Mr Dunstan also had absolutely no insight into any contribution his own personality or behaviour might have to his plight. In response to Dr Hughson, Dr Rose elaborated upon his opinion:

“I would suggest that there was little or no insight. Like most paranoid obsessives, he is self-righteous. And he would have no insight. He would have a tendency to externalise everything. By externalisation, I mean he would attribute everything to outside factors rather than himself. He would see himself predominantly as a victim.”^[129]

114. Mr Dunstan, in Dr Rose’s opinion, believes what he is saying. His exchange with Dr Hughson on this point reads:

“.... what he was saying was an honest account as he perceive [sic] things?--- I think he probably believed what he was saying.

No. So he was not---? But it’s in accordance with his psyche at [sic] how it’s constructed.

Yes--- So he was not, to your mind, deliberately dissembling or misleading you? --- No. I don’t think so. In fact, he is so obsessional that one would think that that would be the last thing that one would think.

Yes?---He’s meticulously detailed about it. And everything would be correct, but only in accordance with his fantasy mind.”^[130]

115. With regard to the cause of Mr Dunstan’s condition, Dr Rose considered the enmeshed relationship with Ms X as the precipitant of his depressive illness. In oral evidence, he agreed that, other than during his school years, there was no history of Mr Dunstan’s suffering from previous episodes of depression. In Dr Rose’s opinion, Mr Dunstan’s personality problems left him vulnerable to depression in response to the particular relationship difficulties he and Ms X experienced.

“... An enmeshed relationship occurs between two people who share a lack of adequate sense of self and who surrender that sense of self to the other. This relationship could just as well have occurred out of work and it was not caused by work.”^[131]

117. All the periods to which Mr Dunstan’s claims related, including the four with which we are concerned, resulted from his relationship with Ms X. None appeared to result from any “... valid conflicts with management and/or other matters except for possible aggravation due to Mr Dunstan being disciplined and suspended from duties in 1997 in relation to alleged computer abuses and a number of other computer system violations.”^[132] After 1997, the criminal charges against him would have also contributed to his condition to a degree.

118. The contribution of Mr Dunstan’s relationship with Ms X to his condition was explored further in oral evidence. The following exchange took place between him and Mr Crispin of counsel representing Mr Dunstan:

“You said in your report that he met this other person when he was at work? --- That’s correct.

And that at least some of the contact between him and that person took place as part of his work duties?---Yes.

I note in your report that you expressed a view that employment was not the factor which caused his decline?---Yes, because I believe that this relationship, although it was with somebody he met at work, could well have occurred outside of work.

So even if it was not what you might call the factor, it at least contributed, didn’t it?---Certainly.”^[133]

119. In cross-examination, he told Mr Dubé that we needed to look at what was happening in relation to each discrete period for which compensation was claimed. Each had to be examined in terms of the relationship he had with Ms X and in terms of what was happening administratively in the ATO and his reaction to that because the ATO separated Mr Dunstan and Ms X during part of this time. Dr Rose said that it was difficult for him to comment on how Mr Dunstan was feeling during these periods as he was not there. What he could suggest was that Mr Dunstan’s underlying depression was waxing and waning in accordance with his hopes and the degree to which he thought that his hopes might be fulfilled or otherwise. It was waxing and waning in relation to what was happening with Ms X, with his own family and with his perception of how the ATO was dealing with these problems.^[134]

120. As to prognosis, Dr Rose said that Mr Dunstan is severely disabled as a result of his major depression. His condition is stable and Dr Rose saw no prospect for either deterioration or improvement. When asked by Mr Crispin whether it had stabilised at a stage of significant incapacity, Dr Rose replied: “I think he’s – well, he’s on the disability pension and I think that’s well deserved because he’s incapable of working.”^[135]

CONSIDERATION

121. In considering this matter, we have had regard to the provisions of the SRC Act and the findings of fact we have set out above. We have also had regard to the Background Facts at Attachment D and our understanding of the extent to which we should have regard to findings of fact or decisions made in unrelated court proceedings initiated by Mr Dunstan. At Attachment A is our analysis of the judgments of the Federal Court to which Mr Crispin and Mr Dubé referred in their submissions and which bind us in our interpretation of the SRC Act.^[136] Our role on remittal is determined by the Full Court of the Federal Court and we examine that at Attachment B. below. Having done that, we have:

(1) followed the steps at [283] in Attachment E below in deciding whether Mr Dunstan has an “injury” within the meaning of the definition of that term in s 4(1) of the SRC Act in relation to each of the two claims;

(2) if we decide that there is an injury, we have then considered whether the injury has resulted in incapacity for work in those particular periods or some of them;^[137] and

(3) if we decide that the injury has resulted in incapacity for work in a particular period, decide whether that is also a period during which he was imprisoned in connection with his conviction for an offence.^[138]

First claim: 11 to 16 July 1991 and 3 to 10 April 1992

122. The condition for which Mr Dunstan has claimed compensation for is a condition he has described as depression. On the basis of the evidence of the majority of the medical practitioners, we are satisfied that his condition has involved a disturbance of the normal functioning of Mr Dunstan’s mind. They have variously described it as depression, Major Depressive Disorder, Chronic Major Depression and a major depressive illness but they are consistent in their opinions that Mr Dunstan is suffering from a disease. Even Dr Champion and Dr Tym, who disagreed with others as to the cause of the depression, acknowledged that Mr Dunstan had suffered from depressive symptoms in the past. All that Dr Champion concluded was, that at the time he saw him on 15 February 1996, Mr Dunstan was not then suffering from symptoms of any psychiatric disorder. Despite his treatment of Mr Dunstan with anti-depressant medication, Dr Tym attributed Mr Dunstan’s condition to his having an “ADD type brain”.^[139] His opinion did not find support with the other expert medical witnesses, he did not refer us to any medical research or studies supporting his opinion and did not support it with soundly based reasons. In view of that, we do not accept his evidence in that regard. For the moment, we will adopt the descriptor of “depression” and find that Mr Dunstan’s condition is an “ailment” as that term is used in the definition of “disease” in s 4(1) of the SRC Act.^[140]

123. The next step is to decide whether Mr Dunstan’s depression was contributed to in a material degree by his employment.^[141] There is no doubt that the relationship between Mr Dunstan and Ms X was established long before she was transferred to the ATO. So too was its pattern with its periods of hostility, periods of what might broadly be described as “appeasement” and others of relative calm. It had moved from a relationship of social exchange to one of petting and, later, to sexual intercourse. By the time Ms X transferred to the ATO in or about mid April 1990, sexual intercourse had been taking place for the previous 12 months or so.

124. On the evidence, we find that Mr Dunstan’s employment had nothing to do with his commencing the relationship with Ms X in one form or another in 1987 and with his continuing the relationship. What changed for Mr Dunstan was his ability to cope with the relationship or, perhaps, with his being involved in the relationship. On his evidence given to the first Tribunal in 1996, Mr Dunstan’s view was that he was not having any lasting problems arising from the relationship. When he was with Ms X, he was affected, but not when he returned to his family. His ability to cope with what he saw as Ms X’s anger and hostility changed towards the end of 1990. He became depressed and the comfort of his family could not remove his feelings of depression and sadness.

125. No reference is made to Mr Dunstan’s state of mind in Dr Nimmo’s clinical notes until July 1991 even though she had seen him earlier in the year in February. Dr Nimmo referred to Mr Dunstan’s being profoundly depressed and suicidal and Dr Tym, to whom she referred Mr Dunstan, referred to his depressive illness. In his report of 15 February 1995, Dr Tym attributed the psychological stress experienced by Mr Dunstan solely to sexual harassment by a colleague at work. In his earlier report of 22 July 1991, he had recognised the wider context in which the stressors were being experienced. He had noted that Mr Dunstan’s emotional immaturity had made him ill-equipped to deal with the situation and he had manipulated himself into a situation in which he could not live without his wife or Ms X, but could not live with both. Dr Tym’s description of that situation and its accompanying stressors is consistent with the description later given by Dr Veness of the build up of stresses over a period of time. It is also consistent with the history given to Ms Langford in 1992 and 1993 and later to Mr Sutton and psychiatrists who wrote reports at a later time.

126. Mr Sutton has clearly stated that Mr Dunstan’s depression is not related to his work. Rather, it is related to his relationship and that was in place before any work issues arose. Dr Rose lies at the other end of the spectrum of evidence acknowledging in his oral evidence that what happened at work certainly contributed to Mr Dunstan’s depression. At the same time, Dr Rose said that what happened could easily have happened outside work. We agree with that and we have found that the relationship itself started for reasons unconnected with Mr Dunstan’s employment.

127. Work was, though, a contributing factor. It was a contributing factor not because of anything that the ATO or Mr Dunstan’s work colleagues and supervisors did but because it provided the opportunity for Ms X’s presence at his place of work. That enabled her to be a presence in his life during his working hours at the ATO and a presence that was not confined to their weekly lunch time meeting at the TAFE or, up until April 1990, some other venue. This placed her in a position where she could engage with him in work or social interchange as was to be expected but it also placed her in a position where she could engage in, from Mr Dunstan’s point of view, demanding, belligerent and sexually provocative behaviour.^[142] It was part of the conditions in which Mr Dunstan worked. This was not the work environment in which the ATO had intended Mr Dunstan to work. Had Mr Dunstan told his supervisors of his relationship with Ms X, it is undoubtedly a situation which the ATO would have managed in a way directed to minimising their contact. Sadly, he did not do that but his actions in that regard and the opportunities that the ATO could not take to manage the situation because they did not know they had a situation to manage do not determine whether Mr Dunstan’s depression was contributed to in a material degree by his employment.

128. In view of the greater contact the ATO unwittingly afforded to Ms X to have with Mr Dunstan and in view of our finding that he was managing the relationship and not suffering ill effects before that time, we have concluded that Mr Dunstan’s depression was contributed to in a material degree by his employment with the ATO. Therefore, it is a “disease” within the meaning of the definition of that term in s 4(1) of the SRC Act.

129. That means that Mr Dunstan’s depression will be an “injury”, as that term is defined, unless it is excluded by the exclusionary clause to that definition.^[143] During the period from 11 to 16 July 1991, we are satisfied that the exclusionary clause does not apply. There was no disciplinary action of any sort being taken against Mr Dunstan and he had not failed to obtain a promotion, transfer or benefit in connection with his employment. Therefore, we conclude that he had suffered an “injury” within the meaning of s 4(1) and was entitled to compensation if he suffered incapacity.

130. A reference is made in Dr Nimmo’s clinical notes on 4 May 1994 that Mr Dunstan was “off work” from 11 to 16 July 1991.^[144] The note appears against her note that Mr Dunstan had made a claim to HREOC seeking compensation for harassment and another against Comcare. He had not done so in 1991 on our findings. We have not found a certificate relating to these days but, Dr Nimmo’s note taken with her earlier note as to Mr Dunstan’s condition in July 1991 and the treatment both she and Dr Tym prescribed at the time, leads us to conclude that Mr Dunstan was incapable of engaging in any work either at the same level as he was engaged by the ATO or at all as a result of his depression. Therefore, we also find that he was suffering an incapacity for work as a result of an injury and is entitled to be paid compensation for the period from 11 to 16 July 1991.

131. The same considerations apply to this period as they do to the former. Our reasoning is the same and leads us to conclude that Mr Dunstan is entitled to be paid compensation for this period also.

Second claim: 1 November 1998 to 2 December 1999 and since 3 January 2008

132. The second claim, made on 30 January 1996, sought compensation for “exacerbation of recurrent depressive disorder” in respect of the periods from 16 May 1994 to 1 June 1994 and from 1 January 1996 without limitation. We are concerned only with the periods to which we have referred. Unlike the first application to the Tribunal arising from Mr Dunstan’s first claim, the matter has not been remitted to be heard and decided again in its entirety. The second application, arising from the second claim, has been remitted only in so far as it relates to claimed incapacity from 1 November 1998 to 2 December 1999 and the period since 3 January 2008. That means that we start from the finding of fact made by the second Tribunal to the effect that the aggravation of Mr Dunstan’s depression was a “disease” within the meaning of s 4(1) of the SRC Act. The Full Court did not disturb that finding and nor did it disturb the second Tribunal’s decision that Comcare was liable to pay compensation to Mr Dunstan for the period up to December 1996.

133. The fact that Mr Dunstan is entitled to compensation for part of the period does not detract from the need for us to consider the matter according to the steps we have set out. We must first decide whether or not he is, in the relevant periods, suffering from the recurrence of his depressive order for which he has claimed depression and, if he does so, whether it was contributed to in a material degree by his employment.

134. For the reasons that we have given earlier, we find that depression is an ailment. It was an ailment from which Mr Dunstan suffered at an earlier time and which we found to be an injury at that earlier time. We have described it as depression. That was sufficient to decide the first claim but we now need to consider it more carefully. As we noted, there have been various diagnoses but all of the medical evidence supports our finding that Mr Dunstan has suffered from depression from time to time and for extended periods. Consistently with the evidence of Dr Tym, Mr Sutton and Dr Champion, both Dr Veness and Dr Rose regarded Mr Dunstan as a person whose personality problems left him vulnerable to depression. All of the medical evidence supports our finding that his depression exhibited variable changes according to the circumstances in which he found himself.

135. Where Dr Veness and Dr Rose differ a little from the others is in their opinion that his underlying depression was ongoing or chronic. It was not an episodic condition. Rather, it was an ongoing condition whose symptoms manifested themselves in varying degrees and in response to stressors at the time. It had been ongoing since it had been precipitated by the relationship difficulties that he had with Ms X. Certainly, the condition became symptomatic more regularly and for increasing periods of time. The symptoms could be said to be more severe and serious but the underlying condition did not become more serious and was neither accelerated nor made more serious by the stressors. It remained the same condition of chronic depression and it was a condition that would take its course. That course involved its becoming symptomatic more regularly and for increasing periods of time. This view is consistent with the evidence of the other medical practitioners who also reported on the fluctuations in the symptoms of Mr Dunstan’s depression.

136. We accept the evidence of Dr Veness and Dr Rose. Unlike the other medical practitioners and professionals, they have seen him at various times during the period with which we are concerned. Given that his opinion was sought in the pre-sentencing stages of the criminal proceedings, Dr Veness has had the most extensive opportunity to consider Mr Dunstan’s state of mind. Both he and Dr Rose have had the advantage of considering all of the earlier medical opinion and the historical events.

137. In view of our having already found that his depression had been contributed to in a material degree by his employment in 1991, we do not regard Mr Dunstan as having suffered from an aggravation of his depression in 1994 as asserted in his second claim. He has suffered neither an acceleration nor an increase in the severity of his condition, and so not an aggravation of his condition, as the term “aggravation” is defined in s 4(1) of the Act.^[145] It is not a case of Mr Dunstan’s chronic depression being aggravated by stressors of whatever sort. Rather, it is a case of further stressors acting upon his existing chronic depression and giving rise to his suffering symptoms of depression from time to time.

138. We find that, in the period from 1 November 1998 to 2 December 1999 and in the period since 3 January 2008, the further symptoms that Mr Dunstan experienced have resulted, at least in part, from the stressors he experienced as a result of the disciplinary action taken against him by the ATO and by his failure to obtain a benefit. It could be expected that they might also have resulted from stressors he imposed upon himself on 1 December 1998 or very early on 2 December 1998 when he posted the letters containing explosive devices and for which he was arrested a few days later. Be that as it may, the definition of an “injury” in s 4(1) excludes, among others, an “... aggravation ... suffered by an employee as a result of reasonable disciplinary action ... or failure by the employee to obtain a ... benefit in connection with his or her employment.” (emphasis added). The aggravation of the disease itself has not been as a result of that action or failure; only the exacerbation of its symptoms. Therefore, Mr Dunstan’s injury does not come within the scope of the exclusionary clause and he continues to suffer from an injury being the disease of chronic depression from which he has suffered since 1991.

139. The next issue to consider is whether he has suffered from incapacity as a result of his injury in the relevant periods. The medical evidence of Dr Veness and Dr Rose is again that which relates to the period. On the basis of that, we are satisfied that Mr Dunstan did suffer from symptoms of depression to the extent that he was incapacitated for work at all relevant times from 1 November 1998 and ongoing.

140. Mr Crispin submitted that we are bound to follow and apply the decision of Senior Member Constance, as he then was, in Re Dunstan and Comcare^[146] to the effect that he did not have jurisdiction to decide that compensation for incapacity was payable for periods between 3 December 1999 and 3 January 2008 inclusive when he was imprisoned following his convictions. We have decided that we are not so bound and have set out our reasons in Attachment B at [192] to [224].

141. In this section of our reasons, we consider the submissions directed to whether compensation is not payable to Mr Dunstan during any of those periods because he was “... imprisoned in connection with his ... conviction of an offence.” Within the meaning of s 23(2) of the SRC Act.

B.2 The decision

142. Senior Member Constance separated the whole period into three distinct periods in considering the application of s 23(2).^[147] He considered the two periods during which Mr Dunstan was in prison, although for different reasons, under the one heading. He considered the period in which he was not in prison under a separate heading. The parties did not dispute Senior Member Constance’s decision in relation to the first period he identified and nor do we. On behalf of Comcare, Mr Dubé submits that we should not accept his decision in relation to the second and third periods and we will return to that below.^[148]

143. We have maintained Senior Member Constance’s original separation of the three periods and his precise identification of them in summarising his reasons

(1) Did the Tribunal have jurisdiction to decide that compensation for incapacity was payable to Mr Dunstan for periods between 1 November 1998 and 3 December 1999 when he was refused bail and held in custody?

(a) Comcare had submitted that the period for which incapacity had been claimed was after Comcare had made its reviewable decisions. Therefore, as Comcare had not considered any claim as to its liability to compensate Mr Dunstan, the Tribunal did not have jurisdiction to consider the claim. Comcare relied on Lees v Comcare^[149] (Lees) in support of its argument but Senior Member Constance rejected that argument saying:

“... In my view it is clear that the Court [in Lees] is not excluding the jurisdiction of the Tribunal to deal with a period for which compensation is claimed after the reviewable decision, provided that compensation of that type had been claimed and considered. Rather it is making clear that the Tribunal does not have jurisdiction to deal with a type of compensation which had not been considered by Comcare in accordance with the processes set out in the Act.”^[150]

(2) Did the Tribunal have jurisdiction to decide that compensation for incapacity was payable for periods between 3 December 1999 and 3 January 2008 inclusive when he was imprisoned following his conviction?

(a) Senior Member Constance stated that Mr Dunstan had been convicted on 3 December 1999.^[151] That was the day on which he pleaded guilty and, for the reasons set out at [163]-[165] below, we find that he was convicted not on that day but on 26 April 2000.

(b) Mr Dunstan argued that the exclusion in s 23(2) applies only in circumstances in which an injured employee is prevented from working because of his or her imprisonment. The exclusion did not apply to him, Mr Dunstan had submitted, because he was held in prison, rather than released on bail, only because he was suffering from the depressive illness to which his claims related.

“... In this case the words of the section are unambiguous and there is no reason to look to determine the intention of Parliament other than by interpreting the words used in accordance with their ordinary meaning. Had Parliament intended to provide for the situation put forward by Mr Dunstan it would have been a simple matter for it to say so.

I note that the Tribunal has previously decided that it does not have jurisdiction to deal with a claim for incapacity payments for the period during which the claimant is imprisoned: Re Trow and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees.^[152]”^[153]

(3) Did the Tribunal have jurisdiction to decide that compensation for incapacity was payable for the period between 1 November 1998 and 3 December 1999 when he was held in custody prior to his conviction?

(a) Comcare argued that s 23(2) denies the Tribunal jurisdiction to decide incapacity entitlement during the periods in which he was held in custody prior to his conviction.

“... The subsection specifically refers to a period of imprisonment ‘in connection with his or her conviction of an offence.’ Again the words are unambiguous. A person cannot be imprisoned in connection with a conviction of an offence prior to the conviction taking place. Even if there was ambiguity (which in my view there is not) this is beneficial legislation and in case of ambiguity should be interpreted in favour of the injured worker.”^[154]

B.3 The distinction between jurisdiction and limits on decision-making powers

144. We find ourselves in disagreement with Senior Member Constance in two aspects of his decision. The first relates to his categorisation of his task as one of determining jurisdiction. It is, to our minds, one of determining a claimant’s entitlement to compensation rather than one of jurisdiction. We will explain why we have reached that view.

145. A reference to a court or tribunal’s jurisdiction is a reference to its authority to consider and decide matters that come before it. In exercising its jurisdiction, each has powers that it may exercise. In the case of a court or tribunal established by statute, its powers are limited to those that are given to it expressly by statute or by necessary implication.

“ In our opinion a court exercising jurisdiction conferred by a statute expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of the opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.”^[155]

146. The same is true of a tribunal such as this Tribunal. Its authority, and so its jurisdiction, to review decisions comes from a reading of s 25(1) of the AAT Act together with provisions of particular enactments providing that an application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by those enactments or by other enactments having effect under those enactments.

147. The Tribunal’s powers come from those same statutory sources. Its powers and discretions are those that are conferred by any relevant enactment on the person who made the decision. This is the effect of s 43(1) of the AAT Act but s 25(6) permits an enactment empowering the Tribunal to review a particular decision to modify or exclude its application. The Tribunal must examine the powers for they include not only the powers as expressed but those incidental to their exercise.^[156]

148. Determining that a tribunal has authority or jurisdiction to review an administrative decision is different from working out what that decision should be whether it is a decision affecting entitlements or obligations. Identifying entitlements and obligations depends upon the particular provisions of the enactment establishing them but they are different provisions from those conferring jurisdiction upon the Tribunal to review decisions.

B.4 The distinction between jurisdiction and limits on decision-making powers in the SRC Act

149. The Tribunal’s jurisdiction to review a decision made under the SRC Act is found in s 64 of that legislation. Section 64(1) provides that those persons it identifies may make an application to the Tribunal for review of a reviewable decision. A “reviewable decision” is a decision made, in the context of this case, s 62. Again in the context of this case, it is enough to note that s 62 provides that a determining authority, including Comcare, may reconsider a determination it has made. A “determination” means a “determination, decision or requirement made under section ... 14 ...”.^[157] That means that a determination includes a determination or decision under s 14 whether Comcare is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee. That incorporates within it a decision whether the employee suffered an “injury” within the meaning of s 4(1) or, as has been the case more recently, s 5A. It also includes within it a decision whether Comcare’s liability to pay compensation is qualified by any provision of the SRC Act for its liability is only ever a liability to pay compensation in accordance with the SRC Act. That would bring into play s 23 which provides that compensation is not payable under certain provisions in certain circumstances.

150. In making each of these decisions, the Tribunal is exercising its authority or jurisdiction to review a reviewable decision. It has jurisdiction regardless of whether or not it decides that an employee has suffered an injury. Even if it were to decide that the employee has been injured but has not died, been incapacitated for work or impaired so that Comcare has no liability to pay compensation under the legislation, the Tribunal continues to have jurisdiction to review the reviewable decision. Comcare’s liability and an employee’s correlative entitlement are not determinative of the Tribunal’s jurisdiction or even relevant in considering it.

151. Therefore, while we would agree with the decision reached by Senior Member Constance that the Tribunal has jurisdiction to consider whether Mr Dunstan is entitled under s 19 of the SRC Act to compensation for an injury resulting in incapacity, we do not agree with the basis on which he made the decision. Section 23(2) plays no part in the reasoning leading to that decision. We have jurisdiction because Comcare made a reviewable decision covering Mr Dunstan’s claim for compensation in respect of this period. Whether Comcare is liable to pay compensation to him as a result of s 23(2) is another matter to which we will now turn.

B.5 What is the meaning of s 23(2)?

152. Before s 23(2) comes into operation, we must be satisfied that Mr Dunstan has been “imprisoned” “in connection with” his “conviction of an offence”. Compensation will not be payable under ss 19, 20, 21 or 21A “in respect of”, and so referable to,^[158] any period during which Mr Dunstan has been so imprisoned.

153. Beginning with the word “imprisoned”, its ordinary meaning is that of “... to put in prison ... to confine or restrain as if in prison ...”^[159] but it has acquired particular meanings in particular contexts. When used as part of the expression “term of imprisonment”, it:

“... has a well established meaning which equates with the normal meaning of the expression, that is to say, that it denotes the term of imprisonment that is imposed by the sentencing judge and not the period for which the prisoner is in fact detained. That follows from the decision of the High Court in Winsor v Boaden [1953] HCA 46; (1953) 90 CLR 345. See also Husson v Slattery [1983] 3 NSWLR 389 at 393 and Smith v Queensland Community Corrections Board [2001] QCA 30 at [1] per McPherson JA.”^[160]

As Dixon CJ explained in delivering the judgment of the High Court in the earlier case of Winsor v Boaden:^[161]

“... The word ‘sentence’ connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence.”^[162]

154. A distinction is drawn between imprisonment imposed by a judicial order and the detention of a person under executive, rather than judicial power. The latter when exercised by, for example, a police officer arresting a person for an offence or a Customs or Migration officer detaining a person under statutory authority may well be lawful but it is not imprisonment. Like imprisonment, it takes away a person’s liberty but, unlike imprisonment, it is not “... seen by the law as punitive or as appertaining exclusively to judicial power.”^[163] Involuntary detention in cases of mental illnesses or infectious diseases can also be seen as not being punitive and not necessarily requiring the exercise of judicial power. Again, it is not imprisonment as it is understood in the criminal law.^[164]

155. The ordinary meaning of “connection” is, in a context such as this, that of the “... state of being connected. Something that connects; a link ...”.^[165] When used in the sense of “in connection with something”, the word means “... to do with it; concerning it.”^[166] In that sense, there is no causal link between the “something” and another “thing” whatever form it may take. This is the sense in which the expression is understood by the courts. In Our Town FM Pty Ltd v Australian Broadcasting Tribunal,^[167] Wilcox J said:

“ I have come to the conclusion that this question should be answered in the affirmative. The words ‘in connection 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: see Commissioner for Superannuation v. Miller [1985] FCA 445; (1985) 8 FCR 153 at 154, 160, 163. They may be used to describe a relationship with a contemplated future event: see Koppen v Commissioner for Community Relations (1986) 11 FCR 360 at 364, Johnson v Johnson (1952) P 47 at 50-51. In the latter case the United Kingdom Court of Appeal applied a decision of the British Columbia Court of Appeal, In Re Nanaimo Community Hotel Limited (1945) 3 DLR 225, in which the question was whether a particular court, which was given ‘jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act’, had jurisdiction to deal with a matter which preceded the issue of an assessment. The trial judge held that it did, that the phrase ‘in connection with’ covered matters leading up to, or which might lead up to, an assessment. He said, at (1944) 4 DLR 639:

‘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.’

This statement was upheld on appeal.”^[168]

156. This statement was approved by the Full Court in Perrett v Commissioner of Superannuation^[169] when it decided that psoriatic arthritis might be connected with psoriasis notwithstanding the lack of any causal relationship between the two conditions.^[170] The Full Court referred to a similar interpretation adopted by a differently constituted Full Court in Commissioner for Superannuation v Benham.^[171]

157. What amounts to a “conviction” was considered by Dawson and McHugh JJ in Maxwell v The Queen^[172] when they said “‘[t]he question of what amounts to a conviction admits of no single, comprehensive answer.” Justice Hayne, with whom the other Justices agreed on this point referred to this passage in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd^[173]:

“... The word has long been recognised as being used in various ways. In particular, there may well be a question whether conviction depends upon verdict or plea, or upon the sentence of the court.”^[174]

This had been explained by what was then the Victorian Full Court of the Supreme Court of Victoria in the earlier case of R v Tonks:^[175]

“... A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’, for the latter term may be used in a particular context as meaning not merely conviction by verdict when no judgment is given, but conviction by judgment. ...; that there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction account to which the accused pleads guilty until by some act on the part of the court it has indicated a determination the question of guilty. ...”^[176]

158. What amounts to imprisonment depends on the sentence imposed by a court and the law under which it is imposed. In the Australian Capital Territory, for example, if a term of imprisonment is provided for a particular conviction, imprisonment may be imposed for the whole or part of the term of a sentence.^[177] The court may order that all or part of the term be served by periodic detention.^[178] It may order that all or part of the sentence be suspended.^[179] Where the law allows, a court may impose a term of imprisonment in combination with other sentences.^[180]

159. There is a distinction in the criminal law between a person’s being held in custody in respect of an offence and in respect of a conviction. That is apparent in the terms of s 63 of the CS Act. Section 63(1) provides that “The court may direct that a sentence of imprisonment is taken to have started on a day before the sentence is imposed.” Section 63(2) provides that:

“For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.”

While ss 63(3), (4) and (5) qualify the application of s 63(1) in particular instances, they do not alter it in circumstances of the sort considered by Higgins J when he passed sentence on Mr Dunstan. The period for which a person has been held in custody in respect of an offence is clearly not a period of imprisonment in connection with a conviction for an offence unless the court says it is in the exercise of a power of this sort. The distinction between the two is clear.^[181]

160. The link that is made in s 23(2) is that between an employee’s being “imprisoned” and his or her “conviction”. It is not between a “term of imprisonment” imposed on the employee and his or her “conviction”. The distinction is important for s 23(2) has clearly focused on the fact that an employee is imprisoned. It is not focused on whether he or she has been sentenced to a term of imprisonment which, by reason of other orders made by a court, he or she never serves or serves only a part.

161. Bearing this qualification in mind, we have concluded that Parliament has used the words “imprisoned” and “conviction” in the sense in which they are understood in the criminal law. There seems to us to be no ambiguity in the provision but, if there were, we would reach the same conclusion. We would do so on the basis that, assuming a person has an entitlement to compensation within the meaning of s 14 of the SRC Act, s 23(2) removes that entitlement. As Dixon CJ said in delivering the judgment of the High Court in Winsor v Boaden:

“... The section is one which destroys accrued rights. It is a principle of construction that a provision of that kind is not to be given a wider more ample operation than the literal, natural or grammatical meaning of the words conveys unless there is a context of a subject matter which so demands. ...”^[182]

The context does not require us to adopt any meaning other than the literal, natural or grammatical meaning of the words.

162. Section 23(2) requires us to come to a decision whether Mr Dunstan has a conviction for an offence in the sense in which that word is explained in the authorities to which we have referred. We must also decide whether he has been detained or held in custody on the order of a court and so imprisoned. Then we must decide whether there is a link or relationship between the period of detention or custody and the conviction so that it can be said that he has been imprisoned in connection with his conviction. That link or relationship is not fixed to any period of time be it before or after the conviction is recorded. That is inherent in there being a “connection” between the imprisonment and the conviction.

B.6 Was Mr Dunstan imprisoned in connection with his conviction of an offence?

163. For the reasons we will give, we agree with Senior Member Constance’s conclusion that Mr Dunstan was imprisoned in connection with a conviction of an offence for the period from 3 December 1999 to 3 January 2008. We also agree that he was not so imprisoned during the period from 1 November 1998 to 25 May 1999 but have reached a contrary conclusion in respect of the period from 26 May 1999 to 2 December 1999. We have concluded that he was imprisoned in connection with a conviction of an offence during the period from 26 May 1999 to 2 December 1999.

164. The starting point must always be found in the court in which an employee was convicted. Mr Dunstan was found guilty in the Supreme Court of the Australian Capital Territory on 2 December 1998 of nine counts all arising from his having constructed various devices and having sent them through the post to various addressees. One exploded in the Canberra Mail Room, 21 other intact devices were located in that Mail Room and six were delivered to their addressees at earlier times. Justice Higgins formally recorded convictions on each of those counts on 26 April 2000 when he sentenced Mr Dunstan. He was not convicted, therefore, until 26 April 2000.

165. The effect of Higgins J’s sentence was that Mr Dunstan was sentenced to terms of imprisonment totalling 11 years with a period of five years fixed as the period that had to expire before Mr Dunstan became eligible for parole. His Honour ordered that the term commence on 26 May 1999. Therefore, Mr Dunstan’s term of imprisonment began on 26 May 1999 and he was in fact in custody from that time. Therefore, he was “imprisoned” from that day as that term is used in s 23(2) of the SRC Act. Clearly, his being imprisoned from that day is “in connection” with his convictions of offences. Therefore, the effect of s 23(2) is that compensation is not payable to him under ss 19, 20, 21 or 21A of the SRC Act for the period 26 May 1999 to 3 January 2008.

The first claim for compensation

166. Mr Dunstan lodged a claim for compensation on 26 May 1994 for depression which he had first suffered in June 1991 and for which he had sought treatment in July 1991. His claim was made on the basis that he had suffered the injury at his desk and at his usual place of work in the ATO. Attached to his claim was a Medical Certificate covering two periods of absence from work: 11 to 16 July 1991 and 3 to 10 April 1992. The Medical Certificate described Mr Dunstan as suffering from depression caused by “several years of harassment by a subordinate female in his section.”^[183] The female person has been described as “X” or “Ms X” at all stages of the proceedings relating to Mr Dunstan’s claims. On 12 July 1994, Comcare refused Mr Dunstan’s claim on the basis that he had not, at any time since February 1987 suffered an ailment that was contributed to in a material degree by his employment with the ATO. It affirmed its decision on 7 June 1995. Mr Dunstan applied to the Tribunal for review on 4 August 1995: application No A199600040.

Tribunal’s hearing of application No A199600040

167. On reviewing that decision, Senior Member Bayne affirmed it in a decision given on 28 June 1996.^[184] His reasons for doing so were summarised on appeal by Mansfield J in Dunstan v Comcare:^[185]

“... In my view, the AAT – having in essence assumed the factual picture to be as Mr Dunstan asserted – directed itself that the harassing conduct of the female employee which caused Mr Dunstan’s depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression. That view results from an analysis of the whole of its reasons, but in particular the concluding sentence in the passage referred to in [22] above.^[[186]] It is fortified by the AAT’s comments about there being no need for expert medical evidence on the issue of causation, as the irrelevance of such evidence could only be on the basis that an expert medical opinion on the part played by certain (assumed) conduct of the female employee at work in her dealings with Mr Dunstan to the onset of his depression could not assist.”^[187]

Federal Court appeal No ACD47 of 1996 from Tribunal’s decision in application No A199600040

168. Justice Mansfield decided that the approach taken by the Tribunal in reviewing the decision made by Comcare on Mr Dunstan’s first claim involved an error of law. He continued:

“... Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That Act was replaced by the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act).

33 The requirement of a ‘material’ contribution to the onset or aggravation of a disease was introduced in 1988 in the definition of ‘disease’ in the now SRC Act. In Treloar, the Full Court (Sweeney ACJ, Sheppard and Foster JJ) at 323 said that the word ‘material’:

‘... served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.’

34 Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch. That accords with the words of the definition itself. ...

35 As I have found that the AAT did not regard the state of affairs to which Mr Dunstan claimed to have been exposed in employment, and to which on his evidence he would not otherwise have been exposed, as capable in law of materially contributing to his condition, in my view its conclusion reflects an error of law in its approach. It did not, by reason of that error, assess whether his exposure to that state of affairs in fact materially contributed to that condition. The question of whether that claimed state of affairs in fact materially contributed to his condition involved the AAT making findings about the state of affairs. Also, the question of whether that state of affairs in fact materially contributed to his condition may have been informed by medical evidence supporting the necessary link, but as I have observed such evidence was not considered. It is, of course, a separate question as to whether such medical evidence is based upon a proper factual foundation, and is in proper form.^[188]

169. His Honour allowed the appeal, set aside the Tribunal’s decision and remitted the matter for reconsideration. He did not impose any restrictions on the Tribunal’s reconsideration but noted that:

“... Events subsequent to April 1992 concerning Mr Dunstan’s employment are discussed at length in Dunstan (No 2). It would seem unlikely, in the light of those events, that any fresh adjudication by the AAT (or any reconsideration of the subject claim by Comcare) could have any real significance to any later period of time, although of course I cannot foreclose such an assertion being made by Mr Dunstan.”^[189]

The second claim for compensation

170. On 30 January 1996, Mr Dunstan lodged a further claim for compensation for “exacerbation of recurrent depressive disorder” in respect of the periods from 16 May 1994 to 1 June 1994 and from 1 January 1996 without limitation. A delegate of Comcare refused Mr Dunstan’s claim on 16 April 1996 and that decision was affirmed by another delegate on 3 September 1996.

Tribunal’s hearing of application No A199600449 and remitted application now numbered A200700023

171. Mr Dunstan applied to the Tribunal for review of the reviewable decision on 3 September 1996. This was his second application and was numbered A199600449. His second application raised his entitlement to compensation for two separate periods. The first was for a defined period in 1994 and the second for an undefined period from 1 January 1996. The fact that it was undefined necessarily took in the period during which he was in custody as a result of his being refused bail (1 November 1998 to 2 December 1999) and during the period in which he was imprisoned following his conviction in the Supreme Court (3 December 1999 to 3 January 2008).

172. The second application travelled through its preliminary stages with the remitted application in the Tribunal. At the time, the practice of the Tribunal was to give remitted matters a new file number. Therefore application No A199600040 now became application No A200700023.

173. The preliminary points in Re Dunstan and Comcare were decided by Senior Member Constance as he then was.^[190]

174. The remitted application and the second application were heard by a Tribunal constituted by Deputy President Handley and Dr Alexander, Member. Their decision was expressed as:

(b) varies the decision under review dated 3 September 1996 by determining that Comcare is liable to pay Mr Dunstan compensation for incapacity for the period commencing after 2 January 1996 when he became incapacitated for work and ending on his return to work in December 1996.

175. In their reasons for reaching this decision, the members constituting the Tribunal referred to the history of the matter to date and set out Senior Member Constance’s decision on the preliminary issues. They also considered procedural matters (that are not relevant in this case) before discussing the evidence under five headings:

(3) “Did Mr Dunstan’s employment contribute to the ailment in a material degree?”

(4) “Did Mr Dunstan’s employment contribute to the aggravation of his ailment in a material degree?”

(5) “Was the aggravation of Mr Dunstan’s depression in 1994 and 1995 the result of reasonable disciplinary action taken against Mr Dunstan or his failure to obtain a transfer or benefit in connection with his employment?”

176. The Tribunal found that Mr Dunstan suffers from a chronic major depression, which is an ailment as that term is defined in s 4(1) of the SRC Act.^[192] It found that clinical onset had occurred in 1991 when he first received treatment for it.^[193] As to whether Mr Dunstan’s employment contributed to the ailment in a material degree, the Tribunal found:

“122. In the Tribunal’s view, the ATO did not become aware of Mr Dunstan’s personal relationship with Ms X until about mid-1990 when Ms Hand told Mr Dunstan’s supervisor, Mr Bartley, of the jokes circulating about this. There is no evidence that the ATO was aware of what Mr Dunstan describes as ‘his psychological ailments and pre-dispositions’ until he took sick leave from 11 to 16 July 1991, the first period in respect of which he seeks incapacity payments.

123. The Tribunal finds that the relationship between Mr Dunstan and Ms X developed outside Mr Dunstan’s work environment in the ATO and was established well before Ms X transferred to the ATO in about April 1990. ...

124. Thus, while their relationship continued to develop after Ms X transferred to the ATO, the Tribunal is not satisfied that Mr Dunstan’s employment was anything more than part of the setting in which this took place and is not satisfied that his employment contributed in a ‘material degree’ to the clinical onset of his ailment. Mr Dunstan’s depression arose from his relationship with Ms X and not by reason of any aspect of his employment other than their being employed in the same workplace. Comcare is not, therefore, liable for Mr Dunstan developing this ailment and is not liable for his incapacity for work during the period 11 to 16 July 1991.”

177. The Tribunal’s reasoning separated the periods for which compensation was claimed in each of the claims. The first extended from 3 to 10 April 1992. There were two periods claimed in the second claim: 16 May to 1 June 1994 and 1 January 1996 and continuing.

178. In relation to the period from 3 to 10 April 1992 under the first claim, the Tribunal was:

“... not satisfied on the evidence before it that Mr Dunstan’s employment contributed in a ‘material degree’ to an aggravation of his ailment in April 1992. Again, it was his relationship with Ms X which was the cause of the aggravation of Mr Dunstan’s depression, including incidents such as the liaison in Sydney and the stress caused by his wife discovering the relationship. ...”^[194]

179. In relation to the period from 16 May to 1 June 1994 under the second claim, the Tribunal noted:

“127. ... that Mr Dunstan was at this time pursuing a complaint of sexual harassment in the workplace and had also lodged a personal grievance against Ms X. Further, following a direction by Mr Seymour that he attend a meeting with him on 21 April 1994, he made a grievance complaint against Mr Seymour for workplace harassment. While this complaint was later found to be baseless, Mr Dunstan states that these events were the reason for the stress reaction which gave rise to his claim for compensation lodged on 26 May 1994.

128. Mr Dunstan referred the Tribunal to the decision of Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464, at [31]:

31 ... [T]here is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.

129. In the Tribunal's view, Mr Dunstan’s evidence indicates that his perception of these events, which arose out of his employment, contributed to an aggravation of his depression to a material degree. Thus, the aggravation falls within the definition of disease in s 4 (1) of the Act.”

180. The Tribunal then turned to the second period claimed in Mr Dunstan’s second claim: from 1 January 1996 and continuing. It summarised the evidence that had been given regarding events that had occurred from the beginning of Mr Dunstan’s beginning long service leave on 31 May 1995 and ending with his return to work on 2 January 1996. It then looked to the events between 2 January 1996 and 30 January 1996 when Mr Dunstan lodged his second claim for compensation for the period beginning on 2 January 1996. Over the following months, Mr Dunstan attended medical practitioners, was involved in discussions about returning to work and commenced legal proceedings against various ATO employees. He also instituted proceedings in what was then the Australian Industrial Relations Commission alleging wrongful dismissal on the basis of his understanding that he had been told that there was no job for him in the ATO. In mid December 1996, Mr Dunstan returned to work at the ATO. The Tribunal concluded:

“ In the Tribunal’s view, Mr Dunstan’s ongoing dispute with the ATO over his employment contributed in a material degree to what appears to have been an ongoing incapacity for work through this period. While the ATO had discussions with Mr Dunstan about options for his return to work, Mr Dunstan found those options unacceptable (Mansfield J at [175]). The incapacity resulting from the aggravation of Mr Dunstan’s depression came to an end when he returned to work in December 1996. The Tribunal concludes that the aggravation of his depression in the period commencing after 2 January 1996 and ending when he returned to work in December 1996, when he was no longer incapacitated, falls within the definition of disease in s 4 (1) of the Act.”^[195]

181. The Tribunal then considered the final issue i.e. whether Mr Dunstan’s depression was the result of reasonable disciplinary action against him or his failure to obtain a transfer or benefit in connection with his employment. In relation to the period from 16 May to 1 June 1994, it decided that events centring on Mr Seymour’s wishing to speak with Mr Dunstan on his return to work:

“... are covered by the exclusion applicable where an employee fails to obtain a transfer in connection with his employment. Mr Dunstan was seeking a transfer back to the DBA subsection [Database Administration subsection] and whilst in his closing submissions he states that he suffered further stress from a chance encounter with Ms X, he also implicitly acknowledges that events connected with his pursuit of his transfer, contributed to am [sic] material degree to his stress reaction. The aggravation is thereby excluded from the definition of injury in s 4 (1) of the Act and is non-compensable.”^[196]

Federal Court appeal No ACD28 of 2010 from Tribunal’s decision in application No A199600040 and remitted application now numbered A200700023

A. The judgment of the Full Court of the Federal Court

182. On 24 August 2011, the Full Court of the Federal Court delivered its judgment on an appeal from the Tribunal’s decision on the remitted matter and on Mr Dunstan’s second application relating to his second claim.^[197] The Full Court allowed the appeal in part by setting aside the Tribunal’s decision to the extent that it had:

(b) affirmed the decision of Comcare to reject 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.”

“... remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and decided again, in respect of:

184. The Full Court identified three issues on the appeal but, in view of its judgment, only the first and third remain relevant:^[198]

(1) whether the Tribunal had failed to take account of the judgment of Mansfield J and had, in coming to a decision regarding the two periods referred to in Mr Dunstan’s first claim, omitted to make findings of fact about the claimed state of affairs in the ATO and omitted to decide whether the state of affairs as found had materially contributed to Mr Dunstan’s condition; and

(3) whether the Tribunal erred by failing to make any determination concerning Comcare’s liability for the period from 1 November 1998 to 2 December 1999 and from 3 January 2008, when he was released from prison, and ongoing.^[199]

185. After referring to various authorities, to which we will return, the Full Court turned to the first two periods that were the subject of Mr Dunstan’s first claim i.e. 11 to 16 July 1991 and from 3 to 10 April 1992. It referred to the Tribunal’s having found that the employment was no more than the “setting” in which the relationship between Mr Dunstan and Ms X had led to his depression and decided that it had adopted too narrow an approach. The Tribunal had done so because it was required to consider whether the proximity of Mr Dunstan to Ms X in the workplace facilitated their relationship. The Full Court canvassed evidence relevant to that issue and to the issue of the manner in which the ATO had attempted to deal with the relationship. It also set out an extract from a report of Dr Tym dated 15 February 1995, in which he had said:

“In summary, 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.”^[200]

“... misdirected itself by focussing on a false distinction between a cause and the setting for the relationship. The evidence was capable of disclosing a stronger connection between the employment and the relationship that led to [sic] applicant’s disease than simply regarding the employment as background to the relationship. The Tribunal needed to explore that evidence. As Mansfield J said, the Tribunal needed to assess whether his employment exposed the applicant to a state of affairs that materially contributed to his condition. The Tribunal did not do that.

If the Tribunal had accepted that the applicant’s employment did contribute in a material degree to the onset of his condition, and therefore to his incapacity during the period 11 to 16 July 1991, the Tribunal would then have had to consider the second period of the first claim, 3 to 10 April 1992. This would have involved the Tribunal dealing with different issues of causation. It would have to have considered whether it was the same disease that led to incapacity during that period, in which case the same causes would have continued to be operative. It would have had to consider whether the onset of another, unrelated disease, due to different factors not associated with the applicant’s employment, caused the incapacity in that period. It would have had to consider whether the original disease had been aggravated and, if so, whether the requisite causal relationship between employment and the aggravation existed. Because of its approach to the first claim, the Tribunal did not consider any of these issues.”^[201]

187. Particular questions that the Tribunal should have explored were also identified. Those identified in relation to the period from 11 to 16 July 1991 were:

188. Had the Tribunal accepted that Mr Dunstan’s employment had contributed in a material degree to the onset of his condition, and so to his incapacity, during the period 11 to 16 July 1991, the issues that the Tribunal would have had to consider in relation to the period from 3 to 10 April 1992 involved a different issue of causation. The Full Court said:

“... It would have to have considered whether it was the same disease that led to incapacity during that period, in which case the same causes would have continued to be operative. It would have had to consider whether the onset of another, unrelated disease, due to different factors not associated with the applicant’s employment, caused the incapacity in that period. It would have had to consider whether the original disease had been aggravated and, if so, whether the requisite causal relationship between the employment and the aggravation existed. Because of its approach to the first claim, the Tribunal did not consider any of these issues.”^[205]

189. In relation to the periods after 1 January 1996 and the subject of part of Mr Dunstan’s second claim, the Full Court stated that:

“... The Tribunal was bound to deal with the application for review on the basis of the material before it. It was not restricted to material, or to events, that Comcare had available to it at the time of its rejection of the second claim.”^[206]

190. The Full Court considered the evidence and the Tribunal’s reasoning and concluded:

“... [I]t is strange that the Tribunal did not refer directly to the medical evidence about the applicant’s condition after December 1996, and did not make any attempt to determine whether the applicant remained incapacitated due to events the subject of the first and second claims during the period in respect of which it did have jurisdiction to deal with the claim, 1 November 1998 to 3 December 1999.

There is no reasoning disclosed by the Tribunal’s reasons for decision to support the supposed finding, expressed at [141], that the incapacity ended when the applicant returned to work in December 1996. It would be strange if such a crucial finding were to be made without any expressed reasoning. This Court should draw the inference that, in fact, the Tribunal did not deal with the issue of any ongoing claim after December 1996: see Applicant WAEE at [47].

By failing to deal with that matter, the Tribunal erred in law. ...”^[207]

191. The Full Court also recognised that “... To the extent to which any such periods of incapacity are said to be due to an aggravation of the applicant’s condition by reason of events subsequent to December 1996, it is open to the applicant to make a further claim to Comcare.”^[208]

192. We have considered the Tribunal’s role and powers on a remittal from the Federal Court in view of two submissions made by Mr Crispin on behalf of Mr Dunstan. The first was to the effect that the Full Court had “essentially” endorsed Senior Member Constance’s decision that a person cannot be imprisoned in connection with a conviction prior to the conviction’s taking place. The majority, Gray and Cowdroy JJ, with whom Reeves J agreed on the substantive issues,^[209] had done so when, at [55] of their judgment, it set out in full [11] of the reasons of Deputy President Handley and Dr Alexander. In that paragraph, they had summarised Senior Member Constance’s approach. We would refer also to [8] of the judgment when the majority referred to the Tribunal’s having considered “a jurisdictional question”.

193. The second submission made by Mr Crispin was to the effect that we should treat findings of fact made by the second Tribunal, which were not disturbed by the Full Court on appeal, as having the same force as if we had made them. Those findings relate to the period from 2 January 1996 to December 1996. Only the High Court can impugn the findings that were not disturbed by the Full Court, Mr Crispin submitted, and they had not been disturbed by the Full Court’s judgment in this case.

INSTITUTION OF AN APPEAL AND THE FEDERAL COURT’S POWERS

The legislative provisions

194. Sections 44(1) and (2) provide avenues of appeal to appeal from a decision of the Tribunal to the Federal Court. Section 44(2) is concerned with a decision by the Tribunal that the interests of a person are not affected by a decision when that person has applied for review of that decision or has applied to be made a party to the proceeding for its review. That is not the case here.

“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”

The word “proceeding” is given a very wide interpretation in s 3(1) to include not only an application to the Tribunal for review of a decision but also incidental applications made in the course of, or in connection with, such an application.

196. Despite that, an appeal may not be made on every decision made in a proceeding. The majority of the Full Court of the Federal Court has read the word “decision” much more narrowly. Subject to a qualification, “... an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. ...”.^[210] Ordinarily, that decision is the final decision formulated in accordance with s 43 of the AAT Act. The qualification comes about if “... the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent ‘decisions’ may properly be given.”^[211]

197. The Federal Court has jurisdiction,^[212] and is required, to hear and determine an appeal.^[213] As will become apparent at [211] to [215] below, the nature of its power becomes important in this case because there is a discrepancy between the Order made by the Full Court and its Reasons for Judgment. In determining an appeal, the Federal Court “... may make such order as it thinks appropriate by reason of its decision.”^[214] Section 44(5) expands upon s 44(4) when it provides:

“Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.”

198. Section 44(6) is concerned with the constitution of the Tribunal if the Federal Court makes an order remitting a case to be heard and decided again by the Tribunal:

“(a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and

(b) whether or not the Tribunal is reconstituted for the hearing – the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as the doing so is not inconsistent with the directions of the Court.”

199. Division 3 of Part 3 of the AAT Act regulates the constitution of the Tribunal. Section 20B(1) provides that the President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding. Other provisions of the Division are concerned with revocation of those directions and the Tribunal’s constitution for the exercise of particular powers.^[215]

Potential differences between remitting the case and remitting the matter

200. On the remittal of a matter from the Federal Court, the Tribunal is bound to decide what has been remitted to it and cannot reconsider what has not been remitted. There may be a difference between remitting “the matter” and remitting “the case”. This arose for consideration in Repatriation Commission v Nation.^[216] On appeal to Mansfield J, his Honour had ordered that the Tribunal’s decision be set aside and the matter be remitted to the Tribunal to be heard and determined according to law. On appeal from that judgment to the Full Court of the Federal Court, Beaumont J, with whom Black CJ and Jenkinson J agreed, noted that the order was made within the power conferred by s 44(4) of the AAT Act even though it referred to the “matter” rather than the “case” as provided for by s 44(5). Justice Beaumont observed that, in his opinion:

“... the language of the order of remitter was susceptible of more than one meaning. The word ‘matter’ could have meant the whole question being the determination of the respondent’s claim for a further pension. But it could also have meant the specific dispute then agitated before the Court, that is, the sequelae issue. Although ‘matter’ is sometimes used, in the constitutional sense, to describe the whole of the dispute dealt with by the judicial process, the language of the Veterans’ Act indicates that, in other contexts, ‘matter’ can have a narrower meaning. For instance, as has been noted, by s 18(1), it is provided that it is the duty of the Commission, inter alia, to determine all ‘matters’ relevant to the determination. By s 18(2), certain provisions are made where the Board, the Tribunal or a court makes a decision remitting to the Commission ‘a matter’ being the assessment of the rate of the pension, or the fixing of the date from which a decision is to operate.”^[217]

His Honour did not discuss the meaning of the word “case” and how it differs from a reference to “matter”.
B. What is a “case”?

201. The meanings of the word “case” are varied. The word may refer to “the argument for or against something, presented as a set of arguments, statements, etc, with the relevant facts fully stated. ...”.^[218] That is a sense that is consistent with the meaning given to the more technical expression “case stated” used in the courts.^[219] Where:

“It is long since established, subject of course to the requirements of any particular statute, that in the case of each procedure it is essential that the ‘case’ state the decision (if any) below, the question and the ultimate facts found by the court below, including those found by inference, but not the evidence upon which the ultimate facts were found.”^[220]

202. Less restricted meanings of the word “case” are those of “... 1 a particular occasion, situation or set of circumstances. ... 4 a matter requiring investigation. 5 a matter to be decided in a court of law. ...”^[221] The relevant meanings of the word “matter” would seem to be “... a subject or topic; a concern, affair or question ...”.^[222] These meanings of “case” seem more appropriate in the context of s 44(5) of the AAT Act under which the Court has made its order. It has heard and determined an appeal on a question of law from “a decision of the Tribunal” made after reviewing a decision made in a proceeding. Where that proceeding is an application for review of a decision, the decision is made under s 43. It is made, by necessary implication from s 43(2B), only after considering the evidence and making findings of fact. Although not stated in s 43, the Tribunal must also come to a view of the law that binds it and that shapes the issues on which it must make those findings and ultimately come to a decision.

203. It follows that, where the decision under review is that reviewing a decision, s 44(5) intends the word “case” to be a reference to the whole body of evidence, issues and law which the Tribunal had before it in reviewing that decision. The Court may expand or reduce the parameters of that “case” by giving directions. As stated in s 44(5), it may direct that the Tribunal hear, or not hear, further evidence but its discretionary power is not limited to that direction. The Tribunal must observe its directions and apply the law that it has found. We will now consider the parameters of the Court’s power and the Tribunal’s role on remittal in a little more detail.

The Court’s powers on remittal

204. In the case we must consider, the Full Court’s order adopts the language of s 44(5) of the AAT Act when it includes among the orders that the Federal Court might make on an appeal, “an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.” (emphasis added).

205. The powers of the Federal Court when hearing an appeal from the Tribunal were considered by the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Gungor:^[223]

“... Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court’s view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section.

“... There is certainly no power to supervise the Tribunal in any other way and in particular to deal with the merits of the review. The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law, and not to the decision under review by the Tribunal.”^[224]

206. The Tribunal’s role in considering a case that has been remitted was considered by the Full Court of the Federal Court in Blackman v Commissioner of Taxation^[225] (Blackman). On appeal from a decision of the Tribunal, Jenkinson J had decided that the decision was based upon an error of law in that it was inconsistent with a concession made in the hearing by Mr Blackman’s counsel and upon which the Commissioner for Taxation (Commissioner) had conducted his case. His Honour had remitted the case to the Tribunal which accepted the Commissioner’s submission that it should rehear the matter entirely. On appeal a second time, Mr Blackman submitted that the Tribunal had erred in law in concluding that it was open to it to make such findings of fact as appeared to it to be correct and without regard to the findings of the first Tribunal.

207. The Full Court rejected Mr Blackman’s submission and accepted instead that of the Commissioner. Sweeney J, with whom Keely J agreed, said:

“ In my opinion this proposition is not well founded. The history of the matter shows clearly that the second Tribunal was free to decide the case upon the material put before it in accordance with the law including, of course, the propositions of law in the reasons for judgment of Jenkinson J.”^[226]

208. The essential reasoning underpinning a conclusion of this sort when no order is made other than that to remit a matter is found in the judgment of the Full Court in Morales v Minister for Immigration and Multicultural Affairs^[227] when it said:

“The order setting aside the AAT decision meant that there was no operative AAT decision and that a determination had to be made by the AAT. The remittal order required ‘the matter’ to be dealt in accordance with law. The reference to ‘law’ is of course a reference to the judgment of his Honour together with the relevant statutory and common law.”^[228]

209. The judgment of Gray J in Blackman expands upon this reasoning and sets out some of the principles that underpin it:

“... The Tribunal stands in the place of the original decision maker, to make the ‘correct or preferable decision’ on the material before the Tribunal. See Drake v Minister for immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. The Tribunal has the responsibility of ascertaining the facts necessary for the making of the decision. By s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned Senior Member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon the case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts.”^[229]

210. We will not canvass other authorities that are relevant. Instead, we summarise what seem to us to be the particular propositions they establish:

(1) the Tribunal must determine the scope of its powers on a remittal by reference to the order made by the remitting Court:^[230]

(a) where the order is ambiguous or vague, it is permissible to have regard to extrinsic material including the reasons for judgment;^[231]

(2) the Tribunal is bound by the law as determined by the remitting Court;^[232] and

(3) unless the terms of the Federal Court’s remittal require otherwise, the Tribunal is not bound by the findings of fact or concessions made by the Tribunal which heard the application on an earlier occasion:^[233]

(a) the Tribunal may choose to adopt findings of fact made by an earlier Tribunal or as stated by the Federal Court if to do so is not contrary to its fact finding duty;^[234] and

(b) consistent with its duty to find facts, the Tribunal may accept facts as agreed between the parties or conceded by one or other of them.

DISPARITY BETWEEN FULL COURT’S ORDER AND REASONS FOR JUDGMENT

211. The effect of the Full Court’s formal order is that the second Tribunal’s decision was set aside in so far as it considered the periods from 11 to 16 July 1991 and from 3 to 10 April 1992, which were the subject of Mr Dunstan’s first claim and so his first application to the Tribunal. That is consistent with the Full Court’s judgment and the majority’s conclusion at [69].

212. The Full Court’s formal Order also remits the claim, which was the subject of his second claim, in so far as it relates to the period from 1 November 1998 to 2 December 1999 and the period since 3 January 2008. This meant that the Tribunal’s decision that Mr Dunstan was entitled to compensation for the period from 2 January 1996 to December 1996 continued to stand as did its decision that he was not entitled to compensation for the period from 16 May 1994 to 1 June 1994.

213. We note that the Full Court’s formal Order in relation to the second claim is not consistent with the Reasons for Judgment of the majority at [69] when they decided that so much of the second claim as related to the period after December 1996 should be remitted. That is a more extensive period. There is nothing in the separate judgment of Reeves J that suggests that a separate period was considered.

214. We have considered whether we should identify the boundaries of the remittal by reference to the formal Order or by reference to the Reasons for Judgment. Had either Comcare or Mr Dunstan wanted to institute an appeal, it or he would have had to apply to the High Court for special leave to appeal to the High Court from the Full Court’s “judgment”. That is provided for in s 33(3) of the Federal Court of Australia Act 1976 (FCA Act). The word “judgment” is defined in s 4 to mean “... a judgment, decree or order, whether final or interlocutory, or a sentence.” It is distinct from its Reasons for Judgment as Barwick CJ made clear in The Queen v Ireland:^[235]

“... In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the court’s reasons for decision and thus form a precedent. ...”^[236]

215. It would seem that the word “order” is being used in the same sense in s 44(4) and (5) of the AAT Act. We have set them out above. No reference is made to Reasons for Judgment in the AAT Act but there is no need to for it is an obligation imposed under the general law.^[237] While we may refer to the Reasons for Judgment if the Order is ambiguous or vague, the Order does not have that quality in this case. It is clear and we are bound to follow it. Had the parties wished to do so, they could have approached the Court for its amendment. There is no suggestion that they have and the Order as we understand it to be is the same as that published on the Commonwealth Court’s Portal.

FINDINGS OF FACT MADE BY THE SECOND TRIBUNAL

216. Mr Crispin submitted that we were bound by the findings of fact made by the second Tribunal. First, we have considered the findings to which he referred and then whether we may disturb them. Before we do that, we note that there is no question that we cannot disturb the decision made by the second Tribunal in relation to the second application for the periods from 16 May 1994 to 1 June 1994 and from 1 January 1996 to December 1996. The Full Court found no error of law in the second Tribunal’s reasons or decision and affirmed its decision in relation to those periods.

217. It seems to us that the findings of fact on which the second Tribunal made its decision in relation to these two periods are the only findings of fact to which Mr Crispin could be referring. He could not be referring to the findings of fact made by the second Tribunal in respect of the periods from 11 to 16 July 1991 and from 3 to 10 April 1992 referred to in Mr Dunstan’s first claim or for the periods 1 November 1998 to 2 December 1999 and since 3 January 2008, in respect of the second claim. They are the periods in respect of which the case has been remitted to us.

218. In considering Mr Crispin’s submission, we have been careful to bear our role in mind. It is not that of a court deciding a matter between two parties engaged in adversarial proceedings in which the issues have been defined by pleadings lodged on their behalf and referred to in determining the relevance and admissibility of evidence at the trial.^[238] It is an administrative tribunal which must decide an issue (or issues) that is defined not by the parties but by the legislation under which the administrative decision it is reviewing was made and, in the case of a remittal, by any directions given by the remitting Court.

219. We have read the judgments of Gray and Cowdroy JJ, and of Reeves J carefully. At [184] to [191], we have set out passages from those judgments to show their reasoning. The majority set out a number of questions that need to be addressed in relation to the periods in issue. Their orders do not express any restrictions. Answering their questions and others that may be relevant in reviewing Comcare’s decision in relation to those periods seems inconsistent with a requirement that we are bound in some way to act in accordance with findings of fact made by an earlier Tribunal. It seems inconsistent with the role of the Tribunal as Gray J described it in Blackman and as we understand it to be. There is the possibility that our findings of fact and our decision may be at odds with those of the second Tribunal. That would be an unfortunate outcome given that consistency in administrative decision-making is understandably encouraged and highly desirable. The possibility of inconsistency on this occasion – and we would see it as an isolated occasion brought about by the history of the matter – cannot make us set aside what we see as the task required of us by law.

IMPRISONMENT IN CONNECTION WITH A CONVICTION

220. We have looked separately at whether we are, in some way, constrained by the decision of Senior Member Constance in relation to s 23(2) of the SRC Act. The periods with which he was concerned lie squarely within two of the periods in respect of which the Full Court has remitted the case. The periods remitted by the Full Court include that from 1 November 1998 to 2 December 1999 when Mr Dunstan was in custody and which was, in part, the subject of Senior Member Constance’s decision. Senior Member Constance’s decision does not touch on any of the other periods in respect of which the Full Court remitted the case. Those periods are 11 to 16 July 1991, 3 to 10 April 1992 and from 3 January 2008 onwards.

221. Had the Full Court affirmed the Tribunal’s decision in relation to whole or part of the period considered by Senior Member Constance in the context of s 23(2), we would have regarded it as an indication that it was endorsing his interpretation of the law. As it is, the Full Court did not do so. It affirmed the decision of the second Tribunal only in relation to the periods from 16 May 1994 to 1 June 1994 and from 1 January 1996 to December 1996. None of those periods came within the period that Senior Member Constance considered in his earlier decision.

222. We have looked also at the Full Court’s reasons for judgment and they lead us to conclude that we are not constrained by the earlier decision. Certainly, the Full Court has referred to Senior Member Constance’s decision on two occasions in its reasons but it has done so in the course of reciting the history of the matter in [11]. The same is true of [55]. The Full Court has set out the findings made by Deputy President Handley and Dr Alexander. At no stage has the Full Court given any indication that it has turned its mind to the substance of what Senior Member Constance decided. It had no need to do so as Mr Dunstan had not challenged Senior Member Constance’s decision in his appeal and Comcare had not done so in a cross appeal. As the issue was not raised as a ground of appeal, the Full Court had no jurisdiction to consider the matter. Therefore, its silence should not be read as its necessarily endorsing the conclusion of law on which that decision was based.

223. The terms of the order remitting the case are also very relevant. The Full Court has remitted the matter to the Tribunal without restriction. It has done so against a background of authority that recognises that, once a decision of the Tribunal has been set aside by an appellate court, the role and function of the Tribunal is to make that decision afresh bound only by the directions the Court makes and the propositions of law that it sets out. Making a decision afresh entails its making decisions on preliminary issues afresh as well.

224. Having regard to all of these matters, we have concluded that we are not bound to follow the decision made by Senior Member Constance on the issues arising under s 23(2) of the SRC Act.^[239]

225. Mr Dubé submitted that we could have regard to the findings of fact made by Mansfield J in Dunstan v Human Rights and Equal Opportunity Commission (No 2)^[240] in deciding Mr Dunstan’s application involving three claims. The first was against the Human Rights and Equal Opportunity Commission (HREOC) regarding aspects of the way in which it had handled his complaint under the Sex Discrimination Act 1984 (SDA) and dismissed his complaint. That claim was made under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) (ADJR claim). The second claim was made against four officers, or former officers, of the ATO for damages at common law for defamatory publications and gestures distributed with express malice by each of them (defamation claim). The third claim was against three officers, or former officers, of the ATO for damages at common law for misfeasance in public office in that they published misleading information to HREOC and two of the other respondents concerning Mr Dunstan and his employment and concerning his sex discrimination complaint (misfeasance in public officer claim).

226. In making that submission, Mr Dubé referred to a decision made in Re Rana and Military Rehabilitation and Compensation Commission^[241] (Rana). In that case, one of the members of this Tribunal had directed that, the Tribunal would inform itself as to the circumstances of and events arising during the applicant’s employment and of the conditions that he has suffered apart from paranoid schizophrenia and diabetes by reference to the findings of fact made by differently constituted Tribunals in earlier proceedings. She had made the direction under s 33(1)(c) of the AAT Act.^[242] The earlier Tribunals had reviewed separate claims for compensation made by Mr Rana. Unlike this case, the decisions made by those earlier Tribunals did not form part of the chain of events leading to a remittal of the matter by the Federal Court for rehearing. The respondent was different in each case but only in so far as it was the Commonwealth in one and Comcare in the other. The similarities among the cases lay in the fact that they all arose from the same set of circumstances. Those circumstances had been canvassed at length in the two earlier decisions. Having regard to the power given to the Tribunal in s 33(1)(c) of the AAT Act and s 2A, the direction was made that the Tribunal would inform itself as to the circumstances of, and events arising during, Mr Rana’s employment and of all but one condition from which he suffered by reference to the findings of fact made by the earlier Tribunals. They had not considered the condition excluded from the effect of the direction.^[243]

227. A fair comparison cannot be made between the circumstances in Rana and those in this case. A closer comparison lies with cases such as Saffron v Commissioner of Taxation^[244] (Saffron)and Minister for Immigration and Multicultural Affairs v Ali (Ali)^[245] even though we are not concerned with convictions and the essential facts upon which those convictions were necessarily based. What is of importance are the principles they establish.^[246]

228. In Ali¸ Branson J decided that an administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.^[247] In Saffron, Davies Jdistinguished between the situation in which an administrative decision is made in light of a legislative provision operating by reference to the fact of a conviction and a situation in which a conviction is merely one aspect of the evidence. His Honour observed that:

“... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.”^[248]

“... between the two categories is, of course, that in the first of the categories the exercise of the power arises out of, and is founded on, the conviction. The power conferred is not a power to reconsider that matter or the essential facts on which the conviction was based but a power to consider matters of discretion and like consequential matters which flow from the established fact of conviction. When the power is not so founded, then all relevant matters, including the facts on which the conviction was based, are open.”^[249]

229. This rationale is equally applicable in circumstances in which a conviction is not in issue but a finding of fact made by a court. If the fact that a court has come to a particular decision is a necessary element in founding the legislative power under which an administrative decision may be made, the Tribunal is bound to accept it and may not challenge it. At the same time, it must accept the findings of fact on which it is necessarily made. If the court’s decision is not a necessary element in founding that legislative power, the Tribunal is free to make its own findings of fact on all matters including those on which a court has made a decision. This case falls into the latter category.

230. Despite that, we are free to make a direction of the sort that was made in Rana to inform ourselves as to the circumstances of, and events arising during, Mr Dunstan’s employment by reference to the findings of fact made by Mansfield J in the Federal Court proceedings. We have decided that we should not exercise that discretion except in relation to the ultimate findings made by his Honour on the ADJR claim alleging sex discrimination, the defamation claim and the misfeasance in public officer claim. These are not matters that found our jurisdiction but they are matters that fall squarely within the Court’s jurisdiction to decide and not the Tribunal’s. They are matters that have been agitated in detail before the Federal Court in proceedings to which Mr Dunstan was a party and the circumstances of the employment were examined.

231. That leads us to the further conclusion that we should not make findings of fact that do not support the ultimate findings of fact which were made by Mansfield J and which formed the ingredients in the claim relating to, for example, sex discrimination. We are free to make our own findings of fact on those made by Mansfield J on subsidiary or collateral issues leading to his ultimate findings.^[250]

232. That would still leave us free to consider the issues pertaining to Mr Dunstan’s employment. We think that it is important that we do so for the proceedings had a different focus from those in this Tribunal for review of a compensation decision. Mr Dunstan was the applicant in both cases but Comcare was not a party to those in the Federal Court. It has not been in a position to test the evidence by cross-examination just as Mr Dunstan has not been able to lead it or cross-examine it in the context of his claim for compensation. The variation in context can shape the course of the questions and emphasise some points rather than others. With these matters in mind, it is not appropriate to make a direction under s 33(1)(c) of the AAT Act to give any special status or standing to the findings of fact made by Mansfield J.

Date		Fact
25 October 1975		Colin Dunstan (the applicant) commences employment with the Commonwealth Public Service in the Department of Defence. The applicant is thereafter employed by the Australian Bureau of Statistics, the Department of the Capital Territory, the Department of Housing and Construction and the Patent, Trade Marks and Design Office.
Jun 1982–Dec 1983 June 1985–Mar 1986		The applicant was X’s supervisor whilst working together at the Department of Housing and Construction.
February 1987		The applicant commences working in the Australian Taxation Office (the ATO). By the time of the events referred to below the applicant has attained the level of Assistant Director in the Database Administration subsection (DBA) which is part of the Data Services Section of the IT Services Groups of the ATO. The applicant applies for and is appointed to the position of Assistant Director in the Database Administration subsection (DBA) at the ATO in February 1987, reporting directly to Don Bartley (Bartley), Director in the Database Administration section (DA) of the IT Services Group of the ATO.
April 1990		X joins the ATO and commences working in the same area as the applicant and under his supervision. At this time and for some years prior, X and the applicant have been involved in a relationship with each other. X joined the ATO under the supervision of Rob Ey (Ey), Assistant Director of the Data Products Support subsection (DPS) in DA section.
June 1992		The applicant and X decide to end their relationship and to stop all contact between them.
August 1992		The applicant is hospitalised as a result of a suicide attempt.
30 August 1992		The applicant and X decide to end their relationship and to stop all contact between them. An agreement to that effect is signed by both of them and their spouses. The agreement includes terms that, amongst other things, X will seek a transfer from the ATO while the applicant takes 3 weeks’ leave.
Late August 1992		Donald Bartley (Bartley), Director of Database Services and the applicant’s direct supervisor at this time, first learns of the applicant’s relationship with X, and that it has broken down. He also learns that these events affected the applicant’s health, that he was consulting counsellor Ms Sue Langford of EASACT, and that X is also undergoing counselling.
31 August 1992		X gives Bartley a letter requesting a transfer and seeking his assistance in arranging a transfer within the Commonwealth Public Service. X addresses the letter to Pam Foely, ATO Personnel, and Bartley seeking a transfer within the Commonwealth Public Service, copied Geoffrey Seymour (Seymour), First Assistant Commissioner and head of the IT Services Group.
30/31 August 1992		Geoffrey Seymour (Seymour), First Assistant Commissioner and head of the IT Services Group, first becomes aware of the relationship between the applicant and X when X requests transfer to another department in the Commonwealth Public Service due to potential ongoing difficulties in working with the applicant in the DBA (see entry above). He is informed of the agreement between them. No complaint is made to Seymour regarding the applicant’s behaviour at this time.
18 November 1992		X withdraws her request for a transfer by letter to ATO Personnel and Bartley, copied to Seymour, and asks to return to the DBA subsection, claiming that she would not have further difficulty in working with the applicant.
20 November 1992		Linda Higginson (nee Millar) (Higginson), the ATO’s Equal Employment Opportunity advisor, writes to X’s husband, ..., warning that senior ATO managers can make X’s working life miserable to force her to leave the ATO.
20 November 1992		The applicant writes to Seymour (copied to Bartley) requesting that X be transferred to another area in the IT Services Group. The letter refers to the history of the relationship and to the agreement reached on 30 August 1992. He expresses anger for what X did to him in the past and fear for what she might do to him in the future. In the view of Mansfield J in Dunstan v HREOC and Ors (No.2) (Dunstan v HREOC) the letter did not represent a formal complaint about sexual harassment by X, rather, it identified a serious concern of the applicant and the way he thought it should be addressed.
24 November 1992		Seymour and Bartley meet with the applicant and his counsellor Ms Langford. She advises them that the applicant is severely depressed (suicidal) and that she believes that, for the sake of the applicant’s psychological well-being, he not work in the same vicinity as X.
February 1993		X and the applicant are transferred from the DBA subsection. The applicant is transferred to the Client Consultancy Section (CSS) and later in November 1993 to the Iris Project team.
9 May 1993		The applicant receives advice from a solicitor regarding certain aspects of his past relationship with X. This involves three claims: the return of a ring, defamation action against X and obtaining a restraining order. A copy of that advice is provided to Seymour. Seymour also receives an unsigned memo from the applicant setting out at length his version of his experiences with X and her harassing contact towards him.
10 May 1993		X lodges with the ATO a grievance complaint of workplace harassment against the applicant in respect of his contact with her during April 1993.
7 August 1993		The applicant writes to ATO Personnel (copies to Seymour and Bartley), to discuss the options available to him to review the decision of Seymour on 10 December 1992 to transfer him from the DBA subsection on the ground that the decision may have been technically flawed. He indicates that he commenced civil proceedings in the ACT court for damages from X for harassment.
11 August 1993		X lodges an application for restraining order against the applicant.
Mid-August 1993		The applicant sends a formal request to return to work in the DBA subsection. Bartley discusses this request with Seymour.
2 September 1993		Higginson writes a minute alleging the applicant is harassing X and she is suffering as a result.
6 September 1993		The applicant sends to Mr Tony Butterfield of ATO Personnel (copied to Seymour) an official complaint of sexual harassment against X, concerning her behaviour towards him.
8 September 1993		The applicant sends a letter to Mr Butterfield indicating that he wishes to have no further contact with Seymour concerning his dealings with X nor with X herself, and that he intended to resolve any ongoing issues by legal proceedings.
Mid-October 1993		The applicant is handed a copy of X’s grievance.
10 November 1993		The applicant is transferred out of the CCS Section to IRIS Project.
March 1994		Ms Petherbridge obtains new legal advice from HREOC asserting it may be difficult to prove sexual harassment if the conduct arose out of a relationship. She then opens a complaint file with respect to the applicant’s complaint lodged 17 September 1993.
29 March 1994		The applicant is informed by Acting First Commissioner Mobbs that the complaint of sexual harassment of 1 November 1993 could not reasonably be sustained.
June 1994		The applicant returns to CCS under Bartley’s supervision.
12 July 1994		Comcare issues a determination denying liability for the applicant’s claim for depression. The applicant then seeks reconsideration of the claim.
12 July 1994		Comcare sends a copy of a confidential psychological report on the applicant prepared by Tom Sutton to Ursula Billings, the ATO’s EEO advisor and Grievance officer.
July 1994		Billings arranges for the applicant’s fitness for duty to be assessed by the AGMO, and asks Bartley to prepare a report on the applicant’s work performance that is to be provided to the AGMO.
5 September 1994		After the failure of John Wilkinson to respond to written requests for advice, the applicant lodges a grievance against John Wilkinson in relation to information that he has given to Tom Sutton, allegedly denying the applicant natural justice.
August 1994		Bartley prepares a report regarding the applicant’s work performance for the period 7 June 1994 to 22 August 1994. The applicant is reported as performing satisfactorily.
28 October 1994		The Commissioner of Taxation Michael Carmody (Carmody) writes to the MPRA asking that they deal with any and all further grievances made by the applicant. Ursula Billings is given as the contact officer.
22 November 1994		Bartley engages EASACT, effectively Henry Price (Price), to explore the prospect of mediation between the applicant and the others in DBA subsection with a view to the applicant being able to return to work there.
30 November 1994 – 22 December 1994		Price interviews the applicant regarding returning to work in DBA subsection.
1 January 1995		The applicant lodges with HREOC a complaint, alleging disability discrimination by Comcare arising out of its rejection of his claim.
25 January 1995		Price interviews a group of staff that worked in the vicinity of the DBA subsection.
11 May 1995		A letter is sent by Price to Bartley listing the concerns of staff expressed on 25 January 1995.
7 June 1995		Comcare affirms by reconsideration its determination dated 12 July 1994 and the applicant applies to the AAT to review the decision.
12 October 1995		Mr Magdulski, another EASACT counsellor, has a meeting with four staff members each of whom had worked with the applicant and been invited by the applicant to attend. These people regarded the applicant as helpful, patient and as having strong technical expertise. The four people that met with Mr Magdulski had worked in the DBA subsection with the applicant and were still working in the DBA subsection.
6 November 1995		Mr Magdulski writes to the applicant to indicate that a meeting of staff, to be facilitated by Price, is to take place on 27 November 1995.
16 November 1995		The applicant writes to Bartley requesting to be returned to the DBA subsection. In his letter the applicant requested that Bartley disclose the conditions for his return to the DBA subsection, and with whom he had discussed the conditions under which the applicant’s future return could occur.
27 November 1995		Price meets with a group of staff about the applicant. Bartley is also present at the meeting.
21 December 1995		John Growder (Growder), Assistant Commissioner in the IT Services Group, who is Bartley’s supervisor, writes to the applicant informing him of a new work placement and location of the IT Services Costing Project.
30 December 1995		The applicant’s long-service leave finishes.
2 January 1996		Apart from 2 January 1996, the applicant is absent from work until 15 December 1996.
25 January 1996		The applicant lodges a grievance under Regulation 83 against Bartley in relation to the decision made in writing on 4 January 1996 that is signed by Bartley.
30 January 1996		The applicant lodges a second compensation claim for exacerbation of recurrent depressive disorder, exacerbation of mental disorder (depression/anxiety), the subject of AAT no. A96/449.
21 February 1996		The ATO arranges for an Initial Rehabilitation Assessment of the applicant that is conducted on this day.
16 April 1996		Comcare denies liability in respect of the second claim for compensation. The applicant seeks reconsideration of this decision. The ATO responses are sent to Comcare on 5 July 1996.
28 June 1996		The AAT affirms Comcare’s reviewable decision dated 7 June 1995. This AAT decision is later set aside by the Federal Court.
July 1996		The applicant lodges an appeal in the Federal Court against the AAT decision of 28 June 1996. The appeal is later upheld and the Federal Court remits the matter to the AAT to be determined according to law.
16 September 1996		The ATO arranges for the applicant to undergo another assessment of fitness for duty by the AGMO, Dr R Feltham.
23 September 1996		The applicant commences legal action in the ACT small Claims Court after his paid leave entitlements are exhausted: Firstly against Betty Hand, later joining David Hall (Hall) and Thomson as respondents. A separate action against Peter Shields (Shields) is commenced.
Mid December 1996		The applicant returns to work from leave in a position of Senior Information Technology Officer Grade B under the supervision of Growder. This followed further reports on the applicant by Dr Roger Feltham, AGMO. Dr Feltham reports he will reassess the applicant’s medical condition in 3 months. The ATO fails to arrange for this assessment.
5 February 1997		HREOC receives from the ATO a submission concerning the applicant’s sex discrimination complaint. A copy is sent to the applicant but only as part of a response to a Freedom Of Information request the applicant made in December 1996. The submission HREOC received was the ATO response to the request of Deb Tyler for information made in September 1996.
2 April 1997		HREOC writes to the applicant concerning the sex discrimination complaint against the ATO, X and others advising that it will not continue to inquire into his allegations but that he has a right to refer the complaint to the President of HREOC for review within the time specified.
5 April 1997		The applicant sends a letter to HREOC in response to its 2 April 1997 letter, pointing out mistakes in its contents. HREOC responds by letter dated 16 April 1997. The applicant also requested additional time in which to seek a review of the decision by the President of HREOC.
16 April 1993		HREOC writes to the applicant that there can be no extension of time.
22 April 1993		The applicant files Federal Court proceedings ACD30, ACD31 and ACD32 of 1997 in relation to HREOC’s failure to conduct a hearing into his complaints, lodged firstly with HREOC in September 1993. The applicant had regard to the failure of HREOC to give him any answer to his earlier request to refer a complaint to HREOC’s President for review.
30 April 1997		HREOC sends a letter to the applicant advising that the time limit for review has expired and that his file has been closed.
13 May 1997		The applicant serves the ATO, Seymour, Growder and Bartley with originating documents in Federal Court proceedings ACD30, ACD31 and ACD32 of 1997. (Filed 22 April 1997, first directions hearing 22 May 1997.)
22 May 1997		Whilst applicant is absent on recreation leave a further leave application is rejected by new supervisor, Geoff Best (Best).
27 May 1997		Applicant’s supervisor reverses his rejection of a leave application made on 22 May 1997. Growder sends an email to the applicant’s supervisor containing advice that Seymour and Growder have instructed Best not to approve paid leave to the applicant for the purpose of taking legal action against ATO officers.
12 June 1997		At the request of the ATO Mr David Pasch, an employee at the time of IBM Australia and New Zealand, prepares a report about a number of apparent system violations of the ATO’s mainframe computer by the applicant for the period January to May 1997.
21 August 1997		Mr Murray McInnis of Counsel provides advice to Mr Molineux that there is prima facie evidence of misconduct by the applicant and the charge should be prepared.
14 October 1997		The applicant attends a meeting with Growder, Orr and others at Growder’s request. Orr advises the applicant that she does not know where the authorised officer is up to.
17 October 1997		The applicant is notified by Higham that he has laid charges against him and is notified by Orr that his salary is stopped. On 24 October 1997 the applicant is notified by Growder that his position has been identified as excess and he may apply for voluntary redundancy.
17 October 1997		Ms Erin Holland is appointed inquiry officer under the Public Service Act 1922 but an inquiry is not held.
4 December 1998		The applicant is arrested and charged with a number of offences. The applicant is in custody until 19 March 1999 when he is released on bail.
9 April 1999		The applicant is in custody until 7 July 1999 when he is released on bail, upon the Full Federal Court finding that the revocation of his bail by the ACT Supreme Court on 9 April 1999 was contrary to law.
2 May 1999		The applicant writes to Farr to ask why his salary has been ceased as of 1 April 1999.
7 July 1999		As a result of a decision of the Full Court of the Federal Court the applicant is freed on bail. Mr Monaghan from the ATO writes to the applicant suspending him under s. 63B of the Public Service Act 1922 and also requests that submissions be made to him regarding payment of salary on hardship grounds.
July (?) 1999		The applicant lodges a Federal Court proceeding in respect to the failures of Farr and Monaghan to make decisions on payment of salary on grounds of hardship.
28 September 1999		Mr Monaghan writes to the applicant deciding to make hardship payment under s. 63C(2)(a)(ii) of the Public Service Act 1922 in the form of a part payment of salary fixed at $35,000 per annum. Monaghan also writes that he accepts that hardship is being inflicted upon the applicant’s dependants and his decision has taken this into account.

234. In this section of our reasons, we will set out our understanding of the legal principles that have been identified by the High Court and the Federal Court as relevant to the interpretation of the legislation in so far as it provides for compensation for a disease.

General principles

235. In Canute v Comcare^[251] (Canute), the High Court made three general observations regarding the concept of “an injury” appearing in the SRC Act. They are:

(1) The SRC Act obliges Comcare or a licensee to pay compensation in respect of “the injury”.

(2) The term “injury” is defined in terms of a “workplace accident” and not in terms of the resultant effect of an incident or ailment upon the employee’s body or, we would add, mind.

(a) “ The fact that the two injuries were caused by a single event ... is not a relevant question under the Act. The act is concerned with injuries, not incidents.”^[252]

(3) “... the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury. The use in s 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.”^[253]

A disease: what is an ailment?

236. The word “disease” is defined, in part, by its being an ailment or the aggravation of an ailment. It is a definition that was reviewed by Drummond J in

“... the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).”^[255]

237. His Honour went on to consider the ordinary usage of the word “disease” and to conclude that:

“ Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”^[256]

238. Justice Drummond distinguished between conditions involving a disturbance of that sort amounting to a disease and other conditions that do not involve such a disturbance, and so are not diseases, even though they impair an employee’s capacity to work. He said:

“... the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee’s capacity to work is not more compensable than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness.”^[257]

What is an aggravation of an ailment?

239. As defined in s 4(1) of the SRC Act, the word “aggravation includes acceleration or recurrence.” The words have been considered by Hill J in Casarotto v Australian Postal Commission^[258] when he said that, on the ordinary English meanings of the words:

“... ‘aggravation’ connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.”^[259]

“Contributed to ... by the employee’s employment”

240. We note that the concept of an employee’s employment having contributed (in a material degree) to his or her injury is confined to an injury that is a disease for the purposes of the SRC Act. It does not apply to an injury that is not a disease.^[260] This distinction was noted by the majority of the Full Court of the Federal Court in Canute:^[261]

“... In respect of injuries other than diseases the injury, whether it be physical or mental, must be one ‘arising out of or in the course of the employee’s employment. This does not always necessitate a causal connection between injury and employment. As appears from s 6(1)(b)(i), where an injury which is a disease, a causal connection is always necessary between the employment and the contraction of the disease. That causal connection is defined by the words ‘contributed to in a material degree by the employee’s employment by the Commonwealth’ (s 4). ...”^[262]

241. We will return to the need for the contribution to be in a material degree but, for the moment, we will consider what is meant by “employment” and what is meant by the requirement that the ailment or aggravation be “contributed to ... by the employee’s employment”.

242. This question was answered by the High Court in Federal Broom Co Pty Ltd v Semlitch^[263] (Federal Broom) in the context of a similar requirement in the Workers’ Compensation Act 1926 (NSW). Justice Windeyer explained:

“... When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which the work was performed. ...”^[264]

243. It is not enough that “... a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. ...”^[265] At the same time, the event or occurrence that is the contributing factor does not require the further characteristic that it is an event or occurrence that is out of the ordinary or that it is an event or occurrence that is not part of the person’s normal work or of the conditions in which it is normally performed. As Davies J said in Westgate v Australian Telecommunications Commission^[266] (Westgate):

“... It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself. His Honour [Pincus J] said at 159 [in O’Neill v Commonwealth Banking Corporation^[267]]:

‘ It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment.’

244. More recently, the majority judgment of Rares and Tracey JJ in Commonwealth Bank of Australia v Reeve^[269] (Reeve) considered the meaning of “employment” in the context of the exclusionary clause to the definition of “injury” as it appears in s 5A since the 2007 Amendment Act. While that is a different definition from that with which we are concerned, their Honours adopted the meaning given to the word “employment” in the unrelated context of s 8 of the SRC Act. That meaning had been given in John Holland Group Pty Ltd v Robertson^[270] by Dowsett J, with whom Spender J agreed:

“... [I]t seems to be more consistent with the purpose of the Act to treat the word 'employment', when used in the Act, as describing rather more than a trade, calling or classification of employees. The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified....”^[271]

245. Federal Broom provides an example of the way in which an employee’s employment, or the sequelae of that employment, may be a contributing factor to a disease or to its aggavation. Ms Semlitch had a history of functional mental illness predisposing her to delusions. She lifted a tea chest in the course of her work and suffered a minor physical strain. As a result of her mental illness, she magnified that physical strain into a serious and continuing derangement of her internal organs. Windeyer J said:

“... Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.”^[272]

246. In Australian Telecommunications Commission v Tzikas^[273] (Tzikas), Ms Tzikas had been found to be entitled to compensation from 1971 to 1976 on the ground that noise and discipline stress had contributed to the aggravation and acceleration of her suffering from psychoneurosis and aggravation of that disease had led to her being totally incapacitated for work. In 1983, a decision was made under the predecessor of the SRC Act, the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act), that she remained totally incapacitated by that illness but that her incapacity was no longer the result of aggravation by her employment. The Tribunal set aside that decision saying that it:

“... was satisfied on a balance of probabilities that the following consequences of the aggravation and acceleration of the [respondent’s] mental illness by her employment are continuing to play a part in that illness:

(1) the change in the [respondent’s] status within her family which has resulted from her ceasing to bring money into the house;

(2) the secondary gain in the form of attention from her family which has resulted from that aggravation and acceleration’;

(3) the fact that work as an employee was distasteful to her because of her background and upbringing in Greece and she found the aggravation and acceleration of her illness as a ‘reason’ for her being able to avoid having to do such work;

(4) the resentment towards Telecom which has resulted first from the actual aggravation and acceleration of the illness, then from the loss of her previous income and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation.

Consequently by virtue of the provisions of s 27(1) of the Act, as read with s 29, [Telecom] remains liable to pay compensation to the [respondent] for her total incapacity for work and has done so at all times since 20 June 1983.”^[274]

247. The majority of the Full Court, Sweeney and Woodward JJ, identified two flaws in this passage of the Tribunal’s reasons. The first related to whether employment by the Commonwealth was still a contributing factor to any relevant aggravation or acceleration of Ms Tzikas’s disease bearing in mind that its former aggravation or acceleration had resulted from noise and stress. The Tribunal was required to consider whether the factors it had listed were truly the results or consequences of that former aggravation and acceleration or the manifestations or results of her underlying disease. Their Honours went on to consider the four factors identified by the Tribunal:

“... The first three factors listed flow not from the respondent’s employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on a person of her temperament, background and family circumstances. The fact that she feels her status has decreased as a result of lower earnings, but she finds not working congenial, and enjoys the increased attention from her family, can hardly be said to flow from, or have been contributed to by, her employment by the Commonwealth. This issue of causation was simply not considered by the Tribunal, which assumed a causal connection because these things flowed, in a medical sense, from the cessation of work, which was in turn contributed to bite employment factors.

The fourth factor listed by the Tribunal is more difficult to resolve than the others. In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.”^[275]

248. The second error of law identified in Tzikas related to what the majority described as the Tribunal’s:

“... glossing over of the difference between the so-called sequelae playing a part in the respondent’s illness and their contributing to the incapacity. Section 5(11) of the Act requires that the aggravation or acceleration must have contributed to the incapacity for the respondent to succeed in the present case. There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to the incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to the existing incapacity. Since it tended to refer interchangeably to the sequelae contributing to the illness and contributing to the incapacity, we think it is likely that the distinction we have referred to was not always borne in mind by the Tribunal....”^[276]

249. A few months after Tzikas was decided, a differently constituted Full Court of the Federal Court decided Kirkpatrick v Commonwealth of Australia^[277] (Kirkpatrick). The headnote summarises the essential facts:

“ The applicant suffered a back injury at work. Subsequently, he developed leg pain, which he believed to be related to his injury, though it was not. When his claim was rejected, he developed a compensation neurosis, based on his belief and resentment at the rejection of his claim.”

250. The Full Court referred to passages from those cases to which we have referred and decided that they:

“... support, as available in law, the approach of the Tribunal in the present case in so far as it treats the belief that the leg disability was attributable to a work incident as an inert focus for a neurosis determined by other factors. Whether that approach was correct upon the facts of this case was for the Tribunal (cf Aafjes v Kearney [1976] HCA 5; (1976) 8 ALR 455), there certainly being evidence to sustain it.”^[278]

251. An illustration of this principle comes from Westgate. The Tribunal had found that Mr Westgate’s depression was endogenous and that he was prone to, and had a history of suffering, that illness. It had said that “... We consider that some factor in his personal life or circumstances might just as readily have triggered the depression from which he now suffers, as did working for Telecom, or working generally. ...”^[279] On appeal, Davies J observed:

“... That is not a statement that the employment with Telecom did not materially contribute to the applicant’s depressive state. Rather it is a statement that it did so but that there was nothing special about the employment with Telecom and that other forms of employment or even incidents in the applicant’s ordinary personal life might just as readily have brought on the applicant’s depression.

If this was the approach of the Tribunal, and I believe it to be so, the Tribunal was in error. Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant’s developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was a contributing factor. It was sufficient that the employment positively contributed to the development of the applicant’s depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.”^[280]

“Contributed to in a material degree by the employee’s employment”

252. Whether before or after the 2007 Amendment Act, an employee will not be entitled to compensation simply because his or her employment contributed to the disease. The employee must establish not only the contribution but that it was a contribution to “a material degree” if that employee sustains the disease or aggravation before 12 April 2007 and to “a significant degree” if sustained on or after that day. Putting aside the qualifying provisions in ss 5A(2) and (3) and the substitution of “a significant degree” for “a material degree”, the structure of the definition of “disease” remains the same. Therefore, cases considering the definition in its later form continue to have relevance both to diseases, or aggravations of diseases, sustained before 12 April 2007 but also to the nexus or chain of causation that must be established between the disease, or its aggravation, and the employee’s employment in order for a disease to have been contributed to by the employee’s employment; only the degree of that contribution has changed.

253. In Treloar v Australian Telecommunications Commission^[281] (Treloar), the Full Court of the Federal Court noted that the word “material” did not appear to qualify the expression “contributing factor”. In working out what the expression signified, the Full Court derived considerable support from the judgments of the High Court in Federal Broom. Having regard to, among others, the passage we have reproduced above from the judgment of Windeyer J in Federal Broom, the Full Court in Treloar said:

“21. In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a ‘contribution’. Consistently with what was said by Windeyer J ‘contribution’ does not require that the contributing factor be a causa sine qua non: the ‘but for’ test is not appropriate nor is the causa causans or ‘real effective cause’ or ‘proximate cause’ formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not ‘contribute’.

The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that this section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, IT matters not that the contribution be large or small.^[282]

254. The Full Court did not need to consider the meaning of the word “material” as it does not appear in s 29 of the 1971 Act. Therefore its consideration of the word was obiter dicta and not binding on a single Judge of the Federal Court. It was persuasive, though and, in Wiegand v Comcare Australia^[283], von Doussa J was persuaded and applied Treloar^[284] in considering the meaning of the expression “contributed to in a material degree” as it appears in the SRC Act. The approach in Treloar did not, however, persuade a differently constituted Full Court of the Federal Court when it heard Canute. The majority considered the legislative history of the SRC Act in detail:

“...[T]he observations of the Full Court in Treloar at FCR 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to [sic] said about this issue.”^[285]

255. Finn J has also considered Treloar and the meaning of “material contribution” in Comcare v Sahu-Khan^[286] (Sahu-Khan). He did not mention von Doussa J’s judgment in Wiegand v Comcare Australia but agreed with the Full Court’s conclusion in Canute that the inclusion of the word “material” imposes an evaluative threshold below which a causal connection may be disregarded. His Honour was not persuaded by the reasoning of the Full Court in Treloar that, once employment was found to be a contributing factor in the sense that it was not a de minimis factor or one which did not influence the course of events, it did not matter whether the contribution was of any particular size or degree.^[287]

256. Consistently with the principles set out in CIC Insurance Ltd v Bankstown Football Club Ltd,^[288] his Honour looked to the context and legislative purpose and then to the meaning of the word “material” saying:

“ There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –

An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, “of substantial import or much consequence” [rather than the] legal sense of “pertinent” or “likely to influence”’.”^[289]

“ Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:

(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);

(iii) whether this will be so in a given case will be a matter of fact and degree.”^[290]

Second injury caused by initial injury: impairment or separate compensable injury

257. In Canute, the majority canvassed the history of the SRC Act and analysed its scheme and the scheme of the compensation it provides. They had concluded that, where a condition could be characterised under the SRC Act as either an impairment arising from an injury or as a consequential injury arising from a single initial compensable injury, it was to be treated as an impairment and not as a separate injury attracting its own entitlement to compensation.^[291] On appeal,^[292] the High Court rejected this analysis finding that there is no foundation for any distinction between “an injury” and a consequential or secondary injury. It said:

“... It is the occurrence of ‘an injury’ which both actuates and defines the ambit of Comcare's duty pursuant to s 24 of the Act. Once that duty has been performed, sub-ss (3) and (4) of s 24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare's liability which arises ‘in respect of the injury’ under s 24(1). The Act only adopts the ‘whole person impairment’ approach with respect to permanent impairments resulting from each ‘injury’. That ‘whole person’ approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an ‘injury’. The statutory criterion of an ‘injury’ is antecedent to the concept of ‘whole person’ impairment, not the other way around.”^[293]

Incapacity for work

258. Section 4(9) makes it clear that incapacity to which reference is made in the SRC Act is a reference to incapacity to engage in any work or in work at the same level as that in which the employee was engaged by the Commonwealth or a licensee immediately before the injury happened. It is clear, therefore, that:

“... Incapacity for work is not to be ascertained simply by finding that the workman is suffering from a continuing physical injury; it is to be ascertained by reference to his incapacity to earn wages. If his wage-earning capacity is diminished he is suffering a partial incapacity for work: if, on the other hand, his wage-earning capacity has not been affected in the least, then notwithstanding the fact that he may be suffering the consequences of a physical injury, he is not incapacitated for work and he is not entitled to compensation.”^[294]

“The relevant question in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained. Thus... the possible effect of a pre-existing condition upon the amount of an award of damages in such an action ... [is] not in point in connexion with a claim under the Workers’ Compensation Act.”^[295]

259. “Whether incapacity for work ‘results from’ an employment injury is a question of fact ...”.^[296] It is a question “... to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.”^[297] There must be a chain of causation between the injury and the incapacity that has not been broken by the intervention of a new cause of that incapacity. Furthermore:

“ The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be. ... Secondly, it has been considered that if an injury is such that it may be remedied or alleviated by a surgical operation and that operation is reasonably undertaken by the injured person, secondary consequences, adverse to the injured person, caused by that operation may be regarded as consequences resulting from the initial injury ...”^[298]

Exclusionary provisions

260. Of the cases cited to us, only Reeve has been decided in relation to the definition of “injury” after it was amended by the 2007 Amendment Act. The others all referred to the SRC Act as it applied before that date. We will begin by briefly setting out the relevant amendments made by the 2007 Amendment Act for we found it important to understand the differences in order to understand the judgment.

261. After the 2007 Amendment Act came into operation, the statement of Comcare’s liability to pay compensation to an employee remained unchanged as s 14 was not amended. Therefore, it remained liable to pay compensation in accordance with the SRC Act “in respect of an injury” if that “injury results in death, incapacity for work or impairment”.

262. The extent of its liability, however, was varied by amendment of provisions of the SRC Act for Comcare’s liability continues, as before, to be constrained by the provisions of the SRC Act. The word “injury” is no longer defined in s 4(1) of the SRC Act but in s 5A.^[299] The opening three paragraphs of s 5A specifying the conditions or events that are regarded as an “injury” remain the same. Where the difference lies between the two definitions is in the description of what is excluded as an “injury”. The words following paragraph (c) in the definition now provide that an “injury”:

“... does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”^[300]

The expression “reasonable administrative action” is not defined as such but s 5A(2)

“For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”

263. A “disease” is now defined in s 5B. Although s 5B(1) is in very similar terms to the previous definition in s 4(1), there is a difference of note. That difference is that the employee’s employment must contribute to the disease to “a significant degree” rather than to “a material degree” as was the case under the earlier definition. Section 5B(3) makes it clear that a “a significant degree” is a degree substantially more than material. Section 5B(2) sets out matters that may be taken into account in determining whether the contribution was to “a significant degree” but does not limit the matters to which regard may be taken. We will set it out in full in order to see the pattern of the definition as it now stands:

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

significant degree means a degree that is substantially more than material.”

264. The excluding provisions in s 23(3) were not amended by the 2007 Amendment Act and nor was s 23(9), which provides for the meaning of “incapacity for work”.

Pre 2007 injury: “failure ... to obtain a promotion, transfer or benefit in connection with his or her employment”

Post 2007 injury: “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”

265. There has been some disagreement amongst single Judges of the Federal Court as to whether the exclusionary causes specified in the definition of an “injury” in s 4(1) of the SRC Act before the 2007 Amendment Act and in s 5A(1), as expanded upon in s 5A(2), apply only when an injury is suffered solely as a result of that exclusionary cause or not. Justice Drummond had canvassed it in Mooi^[301] but had not had to reach a decision for Mr Mooi had not suffered an “injury” at all. Had he had to decide the issue, his approach to it would have been as summarised later by Heerey J in Trewin v Comcare:^[302]

“ It is implicit in Drummond J’s reasoning that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of ‘injury’ were satisfied, the claim would succeed.”^[303]

266. Justice Heerey did not comment upon this approach for he found that it had been open to the Tribunal to find that all employment related factors were caused by Ms Trewin’s failure to obtain permanent employment. He went on to consider whether the Tribunal had erred in treating permanency as a benefit for the purposes of the exclusionary provision in the definition of “injury”. We will return to that below.^[304]

267. The Full Court did consider the approach taken in Mooi when it decided Hart v Comcare^[305] (Hart). The Tribunal had found that Ms Hart’s adjustment disorder, in respect of which she had claimed compensation, had two concurrent causes. The first was the failure to obtain a promotion, which was excluded by the qualifying words to the definition in s 4(1). The second cause was founded in the events connected with the process of promotion. That cause was not excluded by s 4(1).^[306] The Full Court accepted the contention put forward by Comcare in its notice of contention.^[307] That contention had been:

“... [I]f, as here, there were findings sufficient to meet the words of the provision (that the disease or injury suffered by the appellant was as a result of the failure of the appellant to obtain a promotion) there was no injury as defined. This was so, it was said, even if the disease or injury within paras (a) or (b) of the definition was as a result of other employment related factors for the purposes of the definition of ‘disease’ in s 4(1) or para (b) of the definition of ‘injury’.

This latter argument approached the resolution of the matter by asking the question posed by the definition:

Was the disease or injury (otherwise falling within the confines of the definition of ‘disease’ and para (a) or within the confines of (b)) suffered by the appellant as a result of failure by the appellant to obtain a promotion?”

If the answer was ‘yes’ that was the end of the inquiry. There was no ‘injury’ as defined.”^[308]

268. In explaining its reasons for accepting this argument, the Full Court said that:

“ The task is one of statutory construction. This is a beneficial statute. Nevertheless, conformably with that, it is necessary to construe the words used by the Parliament.

The so-called proviso in the definition does not exclude causes. It provides that if a disease or injury which would otherwise fall within the definition (‘any such’) is one which answers a description (relevantly here: ‘suffered as a result of ... the failure to obtain a promotion’), the disease or injury is not an ‘injury’ as defined. The words are satisfied here. There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.”^[309]

“ 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]

270. 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]

271. 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.

272. 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]

273. 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]

“... 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]

275. 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”:

“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] FCA 301; (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] HCA 56; (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] FCA 1340; (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates [1985] FCA 96; (1985) 7 FCR 271 at 275.”

276. 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]

277. 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]

“... 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] FCAFC 88; (2010) 185 FCR 566 at 586 [72]–[73] per Dowsett J, with whom Spender J agreed....”^[319]

E.2 Reasonable administrative action

279. 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.

280. 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.

281. 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]

The approach required by the SRC Act having regard to the authorities

282. 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.

283. 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:

(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]

(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]

(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]

(ii) an “injury” for the purposes of an “injury” within the meaning of s 4(1); and

(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]

(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]

(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:

∙ 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”.

∙ 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

∙ 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”.

(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.

284. 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.

285. 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.

286. 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.

287. 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

Administrative Appeals Tribunal of Australia

Dunstan and Comcare [2012] AATA 567 (28 August 2012)