Clement v Comcare

The rehabilitation program provided 11 The first of the two issues identified by the Tribunal sought to focus attention upon the statutory requirements to provide a rehabilitation program to an employee who has suffered an injury. 12 Where an employee suffers an injury resulting in incapacity, the employee may be assessed with a view to determining the employee's "capability of undertaking a rehabilitation program": Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36(1) ("Safety Rehabilitation and Compensation Act"). Section 37 thereafter provides in relevant part as follows: (1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. (2) If a rehabilitation authority makes a determination under subsection (1), the authority may: (a) provide a rehabilitation program for the employee itself; or (b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee. 13 In the present case, the relevant facts before the Administrative Appeals Tribunal at the date of hearing in July 2013 were that: Comcare had accepted liability in January 1992 for an injury Ms Clement had suffered in September 1991, namely "work related stress"; a case management program had been approved in February 1993, with one part of that program being the attendance by Ms Clement for counselling with a clinical psychologist of Health Access Pty Ltd; and the original acceptance of liability remained operative and in force. Given the challenge being mounted by Ms Clement to the initial selection of Health Access Pty Ltd, the Tribunal addressed both: the reasonableness of the initial decision; and the prospect of rehabilitation being provided by a different provider, the purpose of rehabilitation being said to be "prospective, not retrospective": [2013] AATA 638 at [31]. The Tribunal ultimately concluded that "it would not be reasonable to support Ms Clement's request for the provision of an alternative rehabilitation provider": [2013] AATA 638 at [36]. 14 In doing so, the Tribunal rejected at least some of the bases upon which Ms Clement sought to challenge the initial selection of Health Access Pty Ltd. The Tribunal thus concluded in part as follows: [26] Ms Clement provided no evidence at the hearing to dispute that Health Access Pty Ltd met the requirements in Pt III of the Act. In other words she did not challenge the fact that Health Access Pty Ltd met the formal statutory criteria to be an "approved program provider". Nor did she raise specific facts in her letter of complaint about Health Access Pty Ltd to indicate why she had lost confidence in the provider nor explain why the choice was having "an adverse effect". In respect to submissions made by Ms Clement as to "illegalities", the Tribunal concluded: [27] At the hearing, however, Ms Clement amplified her refusal to accept Health Access Pty Ltd as her rehabilitation provider in her complaint that Ms Gorgenyi's counselling was contrary to medical advice in that she had provided a report on Ms Clement's mental health, the truth of which Ms Clement denied, and that the meeting on 6 April 1993 was designed, she suggested, to persuade Dr Ostberg not to support Ms Clement. No evidence in support of either assertion was provided and in the absence of such evidence, the Tribunal is not satisfied of the truth of either assertion. ….. [29] In her statement of facts, issues and contentions and her submissions Ms Clement made a number of assertions concerning intentional breaches by ABS of the Crimes Act 1914 (Cth), conspiracies by some personnel involved in the matters the subject of her claims, and the making of false report by Health Access Pty Ltd and the ABS with a view to concealment of unlawful conduct. The Tribunal rejects these assertions as unsubstantiated. 15 Notwithstanding the terms of paragraph [26], the legal representative for Comcare maintained that Ms Clement did not seek to challenge before the Tribunal the status of Health Access Pty Ltd as an "approved program provider". That paragraph of the Tribunal's reasons, in his submission, was no more than the Tribunal "working its way through" the statutory regime rather than addressing any argument that had been advanced by Ms Clement. Before this Court there was no uncertainty. Ms Clement sought to establish by way of a Notice to Admit served on Comcare that Health Access Pty Ltd was not "approved". 16 Whatever may be the status of the Tribunal's findings expressed at paragraph [26] of its reasons, there was no basis upon which the Tribunal could conclude that Health Access Pty Ltd had not been "approved". Even if it were open to this Court to re-examine any such finding, there is no material now available to this Court to reach any contrary conclusion. 17 The Tribunal thus rejected Ms Clement's challenge to the reasonableness of the initial choice of Health Access Pty Ltd as the "approved program provider". It then turned its attention to the "prospective" nature of rehabilitation programs and the "practicalities" to be confronted as follows: [28] In response to a question from the Tribunal as to whether if an alternative rehabilitation provider was now to be provided by the ABS Ms Clement would be prepared to go back to employment with the ABS, Ms Clement's response was equivocal. She said "I would do what is right I suppose. However, I can't be responsible for the problems". Ms Clement acknowledged that she had not worked since 1994, although she had been doing some study since…. …. [30] The purpose of the rehabilitation provisions in Part III of the Act "is to restore an injured individual to their fullest physical, psychological, social and vocational capabilities". A rehabilitation program aims to achieve these objects. As Comcare's Agency Advice No 9 states, the purpose of such a program is "to facilitate a quick and effective return to productive work" and "to create an environment conducive to an amicable return to work". At the same time, as Advice No 9 acknowledges, achievement of that goal requires that the employee has confidence in the provider and where that confidence is absent, the employee can request an alternative provider. [31] Nonetheless, that advice does not mean that there is any obligation on the rehabilitation authority to provide an alternative provider. All the circumstances, and in particular the goals of producing an environment conducive to an amicable, quick and effective return to work, must be borne in mind. The Tribunal also accepts that the purpose of the rehabilitation provisions is prospective, not retrospective. 18 In resolving this question, the Tribunal went on to conclude: [32] The Tribunal considers there are practical barriers to the achievement of the goals of rehabilitation in relation to Ms Clement. Ms Clement is ambivalent as to whether she would be prepared to return to work. That is not surprising. Ms Clement has not participated in the workforce for nearly 20 years. The goal of a "quick and effective" return to work can certainly not be realised in Ms Clement's case since her injury occurred in 1991. [33] The Tribunal acknowledges that there were unacceptable delays by Comcare and the agency in responding to her request in 1993 for an alternative provider. However, she too contributed to that delay by not pursuing her claim for some seventeen years (between 1993 and 2010). Her motivation to participate in an effective rehabilitation program must be doubted in those circumstances. So it would not be reasonable to require ABS to choose a rehabilitation provider to assist her to return to employment which she is unlikely to accept. [34] Another practical barrier would be finding a suitable workplace for someone like Ms Clement, given her history of difficulties in her previous workplace. Her interactions with the ABS, other agencies and with medical experts over the long course of her various claims in this matter, justified though on occasions those interventions may have been, raise understandable doubts about the possibility of her achieving an amicable return to work. [35] In addition, her length of time away from a workplace means that Ms Clement would need to update her skills as a database administrator to a significant degree. The rapidity of change in technology, including the databases she would be required to use if she were to attempt to return to employment in her previous field, would entail a significant commitment on the part of Ms Clement and her rehabilitation provider to enable her to regain her competence in her chosen field. The alternative approach, which is that she retrain for an alternative position, given her length of time out of the workforce, is likely to take even longer to achieve and is not a viable option. [36] In those circumstances the Tribunal considers there is no utility in requiring ABS to take steps at this time to find an alternative rehabilitation provider who would be acceptable to Ms Clement and who would be able to achieve the goals of a rehabilitation program, namely, to enable Ms Clement to attain her "fullest physical, psychological, social and vocational capabilities". The rehabilitation provider has a discretion as to whether to institute a rehabilitation program. If the overall goals of that program are unlikely to be met, that discretion can be exercised unfavourably. In these circumstances, the Tribunal considers it would not be reasonable to support Ms Clement's request for the provision of an alternative rehabilitation provider. This means that the decision under review is affirmed. 19 Upon the limited materials available to the Court, it is not possible to conclude other than that each of the findings made by the Tribunal were findings of fact open to it. Indeed, given the findings made, the ultimate conclusion of the Tribunal would seem inevitable that "it would not be reasonable to support Ms Clement's request for the provision of an alternative rehabilitation provider" ([2013] AATA 638 at [36]). No question of law arises and no error of law is otherwise apparent on the face of the reasons for decision of the Tribunal.

The closure of the rehabilitation plan - continuing injury? 20 Separate from any question as to the validity of the rehabilitation program offered to Ms Clement is the second of the two issues identified by the Tribunal. 21 The rehabilitation plan in respect to Ms Clement was implemented in February 1993. In May 1993 she was advised that the plan had been closed. 22 The challenge to the closure of the rehabilitation plan now being advanced some twenty years later has a number of aspects to it, including: an assertion that Health Access had never been "approved" so that (variously expressed) there could be no "reconsideration of the decision to appoint Health Access Pty Ltd as rehabilitation provider because there was no primary decision" and that any "closure" was a "nullity"; an assertion that various criminal conduct had been engaged in in effecting the closure - including submissions that a requirement that Ms Clement undergo counselling "constituted, inter alia, assault and attempted assault" and a submission that a report obtained from a clinical psychologist was "obtained by unlawful and unfair means"; and a submission that the Tribunal had made an error of law in applying the decision of the Full Court in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, (2011) 55 AAR 300. 23 The previous April 2010 decision of the Tribunal concluded that Ms Clement's "incapacity and [her] requirement for medical treatment does not arise from a compensable injury under the Act": [2010] AATA 296 at [39]. 24 The Tribunal whose decision is now under appeal: "note[d] that the previous decision by the Tribunal referred to earlier found that Ms Clement's condition of reactive depression is not an injury since it did not arise out of or in the course of her employment" ([2013] AATA 638 at [40]); and went on to refer to the decision in Rana, supra, and ultimately concluded that it: saw "no need to make further or different findings of fact, nor to reconsider the decision made by the previous Tribunal" ([2013] AATA 638 at [43]). It is this conclusion which now most immediately affects Ms Clement. It is a finding that any present incapacity of Ms Clement is not compensable under the Safety, Rehabilitation and Compensation Act. 25 And it is the last of her submissions as to the application by the Tribunal of the decision in Rana, supra, which may have the greatest potential for exposing appellable error. Her challenge to the "approval" of Health Access has been unsuccessful and there is an absence of evidential support for the other assertions or submissions set forth in the Statement of Real Issues in Dispute. But the application by the Tribunal of the decision in Rana, supra, at least potentially could give rise to a "question of law" for the purposes of s 44 of the Administrative Appeals Tribunal Act. 26 The Tribunal whose decision is now under appeal concluded that it could - but should not - depart from the earlier finding. In doing so, the Tribunal concluded: [41] A decision by this Tribunal in an earlier related matter is not binding on the Tribunal as later constituted, although the later Tribunal would only reconsider an earlier decision in limited circumstances. The principles to be applied were described in Rana v Military Rehabilitation and Compensation Commission, a decision of the Full Court of the Federal Court… [42] The circumstances in which a Tribunal may be inclined to reconsider a previous decision in the same matter are not exhaustive. Nonetheless, the Tribunal considers the list of factors in Rana to be a useful guide. It is noteworthy that Ms Clement was self-represented in both the previous and the current matter, so the factor of now being represented is not relevant. Ms Clement did not adduce any new evidence at the current hearing. The matters she raised in her statement of facts, issues and contentions and her submissions were thoroughly canvassed in the previous decision by the Tribunal. Nor does this Tribunal consider that any of the findings of fact made in the previous decision were wrong, or that the previous Tribunal decisions did not make the "correct or preferable" decision. [43] In these circumstances, the current Tribunal sees no need to make further or different findings of fact, nor to reconsider the decision made by the previous Tribunal. The legality of that decision has been upheld by the Federal Court and the Full Court of the Federal Court, and the Courts' decisions on the legal issues, to the extent that they are relevant to the matters before it, bind the Tribunal. This Tribunal has reconsidered the factual basis on which the previous Tribunal acted, and has found no need to reconsider any of those findings of fact. As a matter of comity, the Tribunal does not seek to reopen the matters decided in that case. [44] The consequence is that the finding that Ms Clement's injury is not related to her employment by the ABS and that she has not suffered an "injury" for the purposes of the Act stands. Accordingly she is not entitled to a rehabilitation program under the Act. Therefore Ms Clement has no right to seek the reinstatement of any RTWP. The decision under review relating to the closure of her earlier RTWP is affirmed. The Tribunal correctly recognised that it was not bound by the prior conclusions of the earlier Tribunal decision. 27 In Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80, (2011) 55 AAR 300 Marshall, Tracey and Flick JJ observed: [26] The task of the Tribunal under the AAT Act is, albeit very generally expressed, to reach the correct or preferable decision on the merits (s 43) and in doing so to "ensure that every party…is given a reasonable opportunity to present his or her case…" (s 39). [27] In discharging those tasks, in an appropriate case, the Tribunal may have regard to findings of fact made between the same parties in earlier proceedings before the same or a differently constituted Tribunal. Although a Tribunal may not be bound to make the same findings of fact, findings previously made - especially after a contested hearing - may appropriately be adopted in subsequent proceedings. Its freedom to do so may well depend upon the facts and circumstances of each individual case. There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made. [28] But the obligation to "ensure that every party…is given a reasonable opportunity to present his or her case…", may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the "correct or preferable" finding is one different from that previously made. The conclusion that the Tribunal could inform itself by reference to earlier decisions was nothing new. In Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390 Black CJ, Burchett and Tamberlin JJ had earlier observed: In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge. The Tribunal has in other cases informed itself by reference to findings made in earlier Tribunal decisions: e.g. Re Shaeed and Tax Practitioners' Board [2011] AATA 938 at [18], (2011) 56 AAR 222 at 226. 28 The Statement of Real Issues in Dispute filed by Ms Clement in the present case asserted an "error of law in incorrectly applying the principle in Rana" and went on to supplement that asserted error by submitting that the Commonwealth should not be permitted to "benefit from its commission of illegalities". The Statement contended that "the interests of justice require either that the Tribunal be required to revisit its [earlier] decision … or order that the Respondent and the Rehabilitation Authority give due legal effect to the Applicant's Commonwealth employment". 29 This submission is, with respect, without substance. The Tribunal correctly rejected like submissions as to breaches of the Crimes Act 1914 (Cth) and "conspiracies" as "unsubstantiated": [2013] AATA 638 at [29]. The relevance of such submissions to the resolution of any "question of law" that may be identified in the present proceeding is, to say the least, elusive. It may further be noted that the Full Court in Clement v Comcare [2012] FCAFC 118 observed in respect to apparently comparable submissions: [28] Ms Clement's submissions canvass the subject matter of a number of proceedings that she has commenced in the court and in the AAT that are not the subject of this appeal. In particular, she addresses a number of matters in connection with her employment at the ABS, which she says are relevant to the motives of Comcare. She asserts that there was conduct in breach of the Crimes Act 1914 (Cth), in connection with a national security threat prior to and including 1991. Those concerns were the subject of Clement v Comcare [2011] FCA 404, a decision of Cowdroy J and are not properly before this court. The relevant findings of fact as made by the Tribunal in its April 2010 decision as to absence of any "compensable injury" under the Safety, Rehabilitation and Compensation Act ([2010] AATA 296 at [39]) stand, in any event, separate from any submissions as to criminal conduct or "conspiracies" advanced by Ms Clement. 30 Just as the Full Court in Rana, supra, concluded that the circumstances there presented "did not bring any of these considerations into play" ([2011] FCAFC 80 at [29]; (2011) 55 AAR 300 at 306), the same conclusion applies equally to the facts of the present appeal. Although Ms Clement was self-represented in both the earlier Tribunal proceeding and the current proceeding, she did not introduce any "new evidence at the current hearing". Although it is by now far too late to seek to impugn the conclusions reached in the April 2010 Tribunal decision, its analysis of the facts and its reasons for decision appear comprehensive. An appeal was, in any event, dismissed. In the absence of any reason to question the findings then made, and in the absence of any new evidence, the Tribunal was correct in deciding not to "reopen the matters decided in that case": [2013] AATA 638 at [43].

The evidence presented & procedural fairness 31 The final two issues addressed in Ms Clement's Statement of Real Issues in Dispute focus attention upon: evidence she maintains "disproves the medical diagnoses relied on by the Tribunal in 2010"; and the erroneous application by the Tribunal of "the principle in Hannaford". There is no substance in either submission. 32 The evidence referred to is not identified. In any event, the submission has all the hallmarks of an attempt to impermissibly challenge the factual merits of the April 2010 Tribunal decision. 33 The error in the application of "the principle in Hannaford" is a reference to Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, (2006) 151 FCR 253. The difficulty in the path of Ms Clement now raising that submission is that it has previously been concluded that the reasoning of the Tribunal in its earlier decision was "consistent with the approach in Hannaford … and gives effect to the statutory scheme": Clement v Comcare [2012] FCA 166 at [9]. On appeal, it was further concluded that there was "no error" in this conclusion: Clement v Comcare [2012] FCAFC 118 at [42]. 34 Both of these further arguments are, accordingly, rejected. 35 The Notice of Appeal, it may finally be noted, contained an assertion that the Tribunal "denied procedural fairness to the Applicant". When appealing from the April 2010 decision of the Tribunal, Ms Clement - it may be noted - also argued that both the primary Judge and the Tribunal had denied her procedural fairness and a reasonable opportunity to present her case as set forth in s 39 of the Administrative Appeals Tribunal Act. With respect to the challenge to the decision of the Tribunal, the primary Judge concluded that "the numerous claims of bias and procedural unfairness find no support in the available material": [2012] FCA 166 at [28]. On appeal, the Full Court summarised the arguments there advanced as follows: [49] Ms Clement raised a number of procedural fairness arguments which she claims involve an error of law by the primary judge, some of which are also said to demonstrate bias. These arguments generally include: • the way in which her case was listed and managed involved procedural unfairness; • the procedure by which the court dealt with the interlocutory applications was improper; • documents were relied upon by the court that should not properly have been before the court; • not giving Ms Clement a reasonable opportunity to submit all the material she considered relevant to the issues to be addressed; • providing "biased transcript extracts" to Drs Skinner, Saboisky and Tym and "tampering" with witnesses; • the publication of the AAT decision was a violation of her privacy; and • The AAT's refusal to accept certain documents into evidence. The arguments were rejected by the Full Court. That Court concluded that "[n]o error is demonstrated in the conclusions of the primary judge" and that "Ms Clement has not demonstrated a denial of procedural fairness nor provided a proper basis, or any basis, for findings of bias": [2012] FCAFC 118 at [57]. 36 The present challenge to the decision of the Tribunal now under appeal equally fails. There is no basis for any argument that the Tribunal denied Ms Clement procedural fairness or denied her a reasonable opportunity to present her case. With specific reference to the adverse findings of fact made by the April 2010 decision of the Tribunal and the approach that the Tribunal should pursue when conducting its review in July 2013, Comcare had filed with the Tribunal on 28 June 2013: a "Supplementary Statement of Facts, Issues and Contentions" which submitted that the Tribunal should adopt the findings of fact previously made and should decline to proceed on the assumption that there was a compensable injury. Ms Clement, thereafter, filed with the Tribunal on 9 July 2013: a "Response to the Respondent's Supplementary Statement of Facts, Issues and Contentions" which detailed the case which she wished to advance. The reasons for the 2013 decision of the Tribunal detail consideration being given to the submissions advanced. Any suggestion of a lack of procedural fairness on the part of the Tribunal whose decision is now under appeal is, with respect, misplaced.

CONCLUSIONS 37 Some difficulty has been experienced in ascertaining the facts of relevance to the claims being made by Ms Clement and the manner in which they were resolved by Comcare. To a large extent the facts have been ascertained from the reasons for decision of either the Tribunal itself or from the decisions of this Court when resolving the earlier appeals filed by Ms Clement. 38 Each of the five "questions of law" identified in the Notice of Appeal filed on 4 October 2013 are without substance. Nor does any viable error emerge from Ms Clement's Statement of Real Issues. 39 In large part the present appeal seeks to re-canvas findings of fact which have been adverse to the interests of Ms Clement. In large part, the appeal also involves the repetition of a series of "unsubstantiated" allegations. Such issues do not give rise to any "question of law" for the purposes of s 44(1) of the Administrative Appeals Tribunal Act. Irrespective of the form in which the Notice of Appeal is presently expressed, it is respectfully considered that no "question of law" could be formulated which would give rise to any success on the part of Ms Clement. 40 The simple fact is that a finding has been made that she suffers from no "compensable injury" arising under the Safety, Rehabilitation and Compensation Act. Her present psychological problems do not fall within the reach of that Act. 41 It is unnecessary to resolve many of the other arguments advanced by Ms Clement which do not seek to address the findings made by the Tribunal and which are adverse to her interests. Those arguments, included, for example, a submission that s 44 of the Administrative Appeals Tribunal Act is contrary to s 77 of the Constitution. 42 The appeal should be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.