Burke v Comcare

EX TEMPORE REASONS FOR JUDGMENT 1 These proceedings concern an application under r 33.13 of the Federal Court Rules 2011 by which Mr Burke, the applicant, seeks an extension of time for the commencement of an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). Mr Burke was, between 2001 and 2009, an employee of the Australian Quarantine and Inspection Service ("AQIS"). Mr Burke, on 1 August 2012, lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the "SRC Act") in respect of a condition which he described as depression and anxiety. I will return to the principal document in a moment in relation to aspects of that matter. Before doing so, I will mention some aspects of the legislative regime. 2 Section 14 of the SRC Act provides that subject to Part 2, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee, relevantly, where incapacity for work, or impairment arises. 3 Under that Act an injury is defined to mean, among other things, "a disease suffered by an employee" (s 5A(1)(a)), and the definition contains qualifying words not presently relevant. The term "disease" is defined to mean: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. 4 Aggravation is defined to include acceleration or recurrence (s 4), and an ailment means (s 4): any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 5 Section 7(4) of the SRC Act is in the following terms: 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 6 I note, of course, that that position would apply, "for the purposes of [the] Act", and one question alive in relation to the proceedings before the Administrative Appeals Tribunal (the "Tribunal") and in respect of which the application for an extension of time is sought concerned the question of whether the Act applied in relation to Mr Burke's contended injury. 7 Section 53(1) of the SRC Act relevantly provides: This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority: (a) as soon as practicable after the employee becomes aware of the injury … [emphasis added] 8 Section 53(3) of the Act, however, is in these terms: Where: (a) a notice purporting to be a notice referred to in this section has been given to the relevant authority; (b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and (c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause; the notice shall be taken to have been given under this section. [emphasis added] 9 Claims for compensation under the SRC Act are made under s 54 of that Act. Part VI of the SRC Act deals with the question of reconsideration and review of determinations. In this particular case, a determination was made. It was challenged under Part VI, and a reconsideration decision was reached, and then an application for review of the reconsideration decision was made by Mr Burke before the Tribunal. It is not necessary to set out the provisions of the legislation which provide for that mechanism. 10 Under the AAT Act, s 25 provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. Section 25(4) makes it clear that the Tribunal has power to review any decision in respect of which application is made to it under any enactment. Section 43 of the AAT Act makes it clear that for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by the relevant enactment upon the particular decision-maker. 11 Section 44(1) of the AAT Act provides that: 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. [emphasis added] 12 Of course, it is clear law that the appeal to this Court is on a question of law, not a question of mixed fact or law, and it is not the function of the Federal Court in entertaining an appeal on a question of law to engage in a hearing de novo or engage in a reassessment or reconsideration of the merits determined by the Tribunal in the exercise of its jurisdiction and powers. 13 Section 44(2A) of the AAT Act provides that an appeal by a person under s 44(1) of the AAT Act shall be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the relevant person. 14 In this particular case, Mr Burke attempted to file an application enlivening the original jurisdiction of this Court to entertain an appeal on contended questions of law, and he sought to do so on or about 27 September 2013. It seems to be common ground that the filing of the application did not occur until 14 October 2013 and that the application was out of time. However, r 33.13 of the Federal Court Rules 2011 provides that a person who wishes to apply for an extension of time within which to start an appeal mentioned in s 44(2A) of the AAT Act (being the relevant provision) must file an application in accordance with Form 67. The application must be accompanied by a number of things including an affidavit stating briefly, but specifically, the facts on which the application relies and why it is that the appeal was not filed within time. 15 One of the documents, of course, that needs to be attached to the affidavit is the proposed notice of appeal. Mr Burke, in his affidavit, gives a short, brief explanation of the circumstances which caused him to be unable to file his application within time. For present purposes, I propose to consider the application on the merits, and I do not propose to determine Mr Burke's application on the footing that there is a failure to explain the period of the delay adequately. The affidavit, in my view, does not properly or specifically set out the circumstances explaining the delay, but more fundamental questions arise in relation to the application. 16 The proceeding before the Tribunal raised a number of questions, but the Tribunal notes at para 2 that Mr Burke's claim failed before Comcare because Comcare determined that notice had not been given "as soon as practicable" after Mr Burke became aware of the injury, for the purposes of s 53 of the SRC Act, which is the subject of the claim. Although there were a number of matters alive before the Tribunal, it became common ground between the parties in consultation with the Tribunal's conference registrar that the issue of the s 53 question ought to be decided as a preliminary question. That followed because if Comcare was correct about its contentions on that matter, that would, in effect, be the end of the matter. 17 I have reviewed the legislative provisions already, and I do not wish to say any more about those matters. 18 Before the Tribunal, Comcare contended that Mr Burke first became aware of the injury in August 2003 when he consulted a general practitioner, and that first notice in writing of the injury was given to Comcare in August 2012. That delay of nine years led to the conclusion that the notice was not given by Mr Burke "as soon as practicable" after he became aware of the injury. Mr Burke, before the Tribunal, contended that he did not become aware of his injury or, at least the severity of it, until 2012 when he became aware of the contents of a report of Dr Gary Larder, a consultant psychiatrist, and Dr Larder's opinion in that report demonstrated factors suggesting attribution to Mr Burke's employment with AQIS of factors contributing to his condition. 19 That remains the contention that Mr Burke makes before this Court because he says that he was not astute to the relevant matters until he received Dr Larder's report. It is now necessary to turn to some of the documents, although it is not necessary to review all of the documents before the Tribunal simply because this Court does not exercise a re-hearing power or engage in merits analysis. However, it is important to contextualise the contest between the parties before the Tribunal. Mr Burke completed a document called "Claim for Workers Compensation Part 1 - Applicant to Complete" and signed that document on 1 August 2012 (Document T44). 20 In that document Mr Burke is asked: "For what injury or illness are you claiming workers' compensation? He answered: "Depression & anxiety". 21 The content of that matter in terms of medical attesting would be the subject of further information from Mr Burke, taking account of privacy considerations. At Question 11, Mr Burke was asked: "What part(s) of your body has been most affected by your injury or illness?" He answered: "Mental State". 22 At Question 12, Mr Burke was asked: "When were you injured or when did you first notice you were ill?" Mr Burke answered: In 2003 I had been treated for depression in regard to being targeted & bullied at work. Councelling [sic] was also undertaken to combat the effects of the bullying I was subject to on a never ending basis since the first threat was issued by AQIS management. 23 At Question 13, Mr Burke was asked: "When and where did you first seek medical treatment for your injury or illness?" He answered: "2002. Dr Spork". 24 Mr Burke was also asked whether he had been referred to a specialist for any diagnostic tests, and he answered: "Michelle Choma". 25 Question 25 was is in these terms: "What action, exposure or event happened to cause your injury or illness?" 26 In answer, Mr Burke recites a very extensive and quite comprehensive narrative of the sequence of events, both in terms of the content of the conduct of particular individuals, and the chronological sequencing of that conduct. In that answer, Mr Burke describes events in/on 2003, 2002-2003, 14 August 2006, 19 June 2006, 4 September 2007, 7 September 2007 and 13 November 2006. 27 At Question 26, Mr Burke was asked: "What actually injured you, or made you ill?" Mr Burke answered: 8 years of continuous and relentless bullying directed towards myself which included threats and violent rages of shouting and screaming obscenities at myself from none other than the QLD Regional Manager Rick Hawe and management bullying. 28 Part 2 of this document is then signed by Mr Andrew Christie, the "Director - People Services" for AQIS on 16 August 2012. It can be seen from this narration of that primary document that Mr Burke set out quite an extensive set of events which go back to 2003. The second document which warrants some examination is the report of Dr Spork, dated 13 September 2012 (Document T49). Dr Spork wrote a report which said these things: On 28 Aug 2003, [Mr Burke] presented in a depressed state. He related that he was having problem with his boss at work, and considered that he was being victimised and bullied. He relates that the work problem[s] began about December 2002, and were continuing. He was withdrawn and never felt happy, with poor sleep. He said that he was seeing a counsellor to deal with the work stresses. He said he was having mediation at work. He was prescribed [a particular drug]. He was depressed and angry as he was engaged in a legal conflict with his employer. He was unable to work for 1 week in August 2003 and 2 weeks in Nov 2003. He was next reviewed in June 2005, was depressed and angry about his treatment by his employer. He was taking Endep. Again in October 2005 he was depressed, which he relatied [sic] to work stress. In March 2007 he was admitted to Royal Brisbane [Hospital] after an overdose of medication. 29 Dr Spork goes on to identify other things in specific response to particular questions asked of him. Dr Spork notes that Mr Burke had said that in September 2007, he had been verbally abused by the AQIS Regional Manager, Mr Rick Hawe, and was told that "he would never be promoted". The report from Dr Spork deals with aspects of the injury which is the subject of Mr Burke's claim for compensation. In considering the reasons of the Tribunal, it is important to note a number of things. At para 9, the Tribunal analysed the question of when Mr Burke became aware of the injury. At para 9 of the Tribunal's reasons, the Tribunal turns to the records of Dr Spork, some of which I have just mentioned. At para 9, the Tribunal said this: Mr Burke's general practitioner records show an attendance on 28 August 2003 with complaints of "having confrontation with boss at work", "poor sleep", "becoming withdrawn" and "never feels happy". Unsurprisingly the doctor made a provisional diagnosis of depression and prescribed a mild dose of an anti-depressant medicine. There was a further consultation, with similar complaints, on 17 November 2003. In a report to Comcare of 13 September 2012 the general practitioner referred to Mr Burke presenting "in a depressed state" on 28 August 2003 and that Mr Burke was unable to work for one week in August 2003 and two weeks in November 2003. Mr Burke was recorded as "depressed and angry about his treatment by his employer" in June 2005 and depressed, a condition he related to work stress, in October 2005. [footnotes omitted] 30 At paras 10, 11 and 12, the Tribunal notes aspects of the engagement between Mr Burke and medical practitioners, and at para 12, in light of that analysis, the Tribunal finds in these terms: It is impossible to conclude other than that Mr Burke became aware of his condition certainly by March 2007 and, more likely, by late 2003. There was nothing in Dr Larder's report that could possibly have conveyed to Mr Burke anything that he did not already know about his depression. 31 The Tribunal, at para 13, then goes on to consider the factual question of when notice was given. The first notice given by Mr Burke to Comcare was his claim of August 2012. The Tribunal notes claims made by Mr Burke that notice was given earlier, and at para 13, the Tribunal says this: … I do not accept Mr Burke's claims that notice was given by means of the provision to AQIS of medical certificates or because AQIS employees were said to have been made aware of his hospitalisation in March 2007. 32 At para 14 of the reasons, the Tribunal notes that "notice" for the purposes of s 53 of the SRC Act is required to be given to a body described as the "relevant authority". I will return to that point in a moment. The relevant authority from as early as 2001 is Comcare. At para 14, the Tribunal observes that the medical certificates which Mr Burke relied upon as written notice of injury "… at best gave notice of the existence of an illness sufficient to warrant time off work". 33 At para 14, the Tribunal observes that the medical certificates relied upon by Mr Burke do not speak to any relationship between the contended illness and Mr Burke's employment. At para 14, the Tribunal makes that point a second time by saying that there is "no evidence that any employee of AQIS was made aware of any causal relationship between the hospital admission and employment with AQIS". 34 At para 15, the Tribunal says this: Given that the purpose of the giving of notice is to enable Comcare, with the assistance of the employer, to determine whether a claim should be met such information as was provided prior to August 2012 did not articulate a claim, much less provide information to allow it to be investigated. [citations omitted] 35 In para 16, the Tribunal reaches its ultimate conclusion on this question by finding as follows: It follows that notice in writing of the injury was not given to Comcare as soon as practicable after Mr Burke became aware of his condition and that accordingly the SRC Act does not apply to that condition … 36 The Tribunal, in that paragraph, then goes on to observe that, of course, that result might not arise if s 53(3) of the SRC Act is relevantly engaged. That provision, as quoted earlier, turns upon the question, at least at one level, of whether prejudice arose in Comcare. At para 17 of the reasons, the Tribunal says this: What must be found is the absence of prejudice, that is, that Comcare would not, as a result of Mr Burke's failure to give timely notice, be prejudiced if the notice in August 2012 was treated as sufficient notice. I am, in fact, satisfied that there would be considerable prejudice to Comcare in treating the August 2012 claim as sufficient notice. 37 At paras 18 to 22, the Tribunal then sets out the factors which suggest to the Tribunal that on the facts, Comcare would suffer prejudice by reason of the failure to give timely notice. The first factor weighed in the balance by the Tribunal is the notion that the claim for compensation made by Mr Burke is one which arises from "… interactions in the workplace between Mr Burke and other employees of AQIS". 38 The Tribunal observes that AQIS witnesses would be required to turn their minds to events which are now about nine years old. The Tribunal also observes that inquiries made by Comcare's Solicitor demonstrated to the Tribunal that some potentially relevant witnesses could not be located and that one witness at least could no longer recall his interactions with Mr Burke. The Tribunal observes at para 18 that this is: … quintessentially the type of case where it is likely that the issue that would arise is whether the claimed condition was the result of reasonable disciplinary action taken against Mr Burke, thus excluding the condition from the definition of injury in the SRC Act. 39 The Tribunal further observes at para 18 that where all necessary witnesses are not available and where recollections can be shown to have faded there is "clear prejudice" to Comcare. 40 At para 19, the Tribunal notes that Comcare made submissions that it had been prejudiced because there was now no way of verifying the accuracy of the diagnosis of the General Practitioner in 2003. The Tribunal placed some weight upon that matter. At para 20, the Tribunal notes that Mr Burke has had a considerable history of psychiatric treatment and more importantly, the Tribunal said that there have been numerous events from 2007 that have caused significant worsening of Mr Burke's condition. The Tribunal then, at para 20, sets out aspects of that matter and it is not necessary to repeat the content of that here. 41 At para 20, however, the Tribunal said this: The overlay of other events and conditions, together with the pre-existing condition of alcohol abuse, presents significant problems in investigating the extent, if at all, that matters arising from Mr Burke's workplace contributed to his present condition. Whilst that presents an obvious difficulty for Mr Burke it plainly prejudices the position of Comcare as well. 42 The Tribunal at para 20 directs its statutory mind to aspects of the evidence of Dr Lockwood and ultimately concludes at para 22 that there is "thus real prejudice to Comcare". 43 In the remainder of the reasons of the Tribunal, and particularly paras 23 to 27, the Tribunal analyses aspects of Mr Burke's contentions before it. The Tribunal said that it found some difficulty in distilling precisely the contentions of Mr Burke, but did observe that in the written material, Mr Burke asserted that he had been pressured not to make a claim by threats from his Supervisor at AQIS. 44 The Tribunal expressed some reservation about the acceptance of that proposition, but in any event, said this: I find this assertion to be fanciful and inherently incredible. It would not amount in any event to a reasonable cause because it could not reasonably have prevented Mr Burke from making a claim. 45 In other words, the Tribunal was not satisfied on the facts that the matters relied upon by Mr Burke had operated to prevent him from giving notice of injury within the time required by the Act. At para 24, Mr Burke submitted to the Tribunal that his cognitive abilities had been impaired such that he was simply not capable of making appropriate decisions. The Tribunal observed that there was no evidence from which it could reasonably draw that conclusion and observed that on the contrary, it was demonstrated to it by the material relied upon by Mr Burke, that he was able to commence and prosecute proceedings against AQIS for wrongful dismissal, both at first instance and on appeal. 46 In the result, at para 27, the Tribunal rejected Mr Burke's claim that his failure to give notice to Comcare resulted from ignorance, mistake or other reasonable cause enlivening s 53(3). 47 Mr Burke makes an application for extension of time on the footing that a question of law is properly raised by his application. When the notice of appeal is examined closely, it can be seen that in some respects, it seeks to agitate questions of fact going to the conduct of individuals within AQIS which are said to constitute bullying and other conduct. The grounds relied upon by Mr Burke simply do not identify grounds which are related to a properly enlivened question of law. 48 Much of the material Mr Burke relies upon simply seeks to agitate questions of the merits which were determined before the Tribunal. The Tribunal, in its reasoning, took into account the matters that Mr Burke seeks to rely upon before this Court. There are some other matters that should be mentioned in the context of Mr Burke's contentions before this Court. 49 Mr Burke seeks to rely upon a number of documents in the form of emails, some of which were before the Tribunal and some were not. Mr Burke contends that in relation to those emails, they represent the provision of notice to his employer and he would say, no doubt, that those emails giving notice to the employer of relevant matters represent effective notice to Comcare on the footing that the employer is, or was, relevantly acting for Comcare. 50 I mentioned earlier that the Tribunal had observed that Mr Burke had not given notice to the relevant authority. There is some discussion in the authorities in this Court about whether giving notice to the employer is sufficient on the footing that the employer is acting for Comcare in the relevant matters. Without descending into a determination of whether that is good or bad, it is sufficient to say that when one reads the emails that Mr Burke relies upon, the emails are directed to facts about allegations of unfairness in conduct towards Mr Burke, bullying, harassment, the use of inappropriate language and other such things. There is simply no clear written notice in any of these emails of injury in the sense that Mr Burke contends for as the subject of his claim for compensation. 51 It is right to say, as the Tribunal found, that the first notice of injury is made as late as August 2012 and Mr Burke was astute to the injury at least by March 2007. In any event, the Tribunal has considered these matters and has reached a finding on the merits on it. As to the emails, I should say a couple of things. 52 Mr Burke sought to rely upon an email from him to Mr Howell dated 21 February 2003 at 11.50am, which is contained in the bundle of documents marked Exhibit 2. I have read that email carefully. It is a lengthy email. It sets out a range of contentious matters in relation to bullying and unfair treatment in relation to shifts and working conditions and questions of harassment and other matters. It simply does not give notice of an injury relevantly. As to the other emails, it is virtually impossible to determine their status. It is clear that none of the emails that Mr Burke relied upon are reflected in the T documents and they do not appear in the Exhibit 2 documents. Mr Burke is not in a position to establish that they were before the Tribunal. The best position is that they were not before the Tribunal and, therefore, any question of the Tribunal not turning its mind to these documents simply does not arise. In any event, if they had been before the Tribunal, they do not give notice of injury. They talk about the contextual employment circumstances and the various allegations about inappropriate language, harassment and bullying. 53 The result of all this analysis is that there is no basis upon which it can be said that there is even an arguable question of law raised and there is not even an arguable point to be agitated on the appeal or proposed appeal. There is simply no point granting leave to extend time to file a notice of appeal to agitate the questions as framed by Mr Burke because any such appeal would necessarily fail. 54 Accordingly, the application must necessarily be dismissed with an order for costs. I certify that the preceding fifty-four (54) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.