Clement v Comcare

REASONS FOR JUDGMENT 1 The facts of the present case go back some years. 2 It would appear that in the early 1990s the Applicant, Ms Kristine Clement, was employed by the Australian Bureau of Statistics. She reported on data security issues and, in the course of that employment, maintains she discovered data security problems in the Foreign Trade Section. In January 1991 she presented a paper outlining those concerns. She maintains that she was thereafter treated badly. 3 That led her to lodge a claim with Comcare claiming a psychological injury. That claim was accepted and compensation was paid. 4 In September 1994 her employment came to an end and compensation payments ceased. Thereafter she made a series of further claims for compensation. All of them were rejected. She sought review by the Administrative Appeals Tribunal. That Tribunal in April 2010 affirmed the decision under review: Re Clement and Comcare [2010] AATA 296. That Tribunal in the course of its reasons found as follows: [17] … we are reasonably satisfied that Ms Clement is not entitled to compensation for incapacity and she is not entitled to payment of medical treatment costs during any of the periods under claim. As it appears to us on the present evidence, Ms Clement either did not suffer an injury in 1991 as she alleges, or, if she did, it was in the form of a temporary aggravation that soon came to an end. The Tribunal ultimately concluded: [39] This is a very sad and difficult case. But, unfortunately for Ms Clement, we are not able to find any work-caused injury or incapacity at any time from 1994. Even though it can be accepted that Ms Clement may from time to time have suffered from incapacity for work in some degree, and she requires medical treatment for her Delusional Disorder, we are reasonably satisfied that her incapacity and the requirement for medical treatment does not arise from a compensable injury under the Act. It follows that the decisions under review must be affirmed. [40] Finally, in closing, it is appropriate to observe that Ms Clement raised issues concerning her rehabilitation program; she asserted that the program remained in force as it had been closed prematurely and illegally. It is not necessary for us to decide the first question concerning the consequential effects of any premature closure. In the absence of injury, there can be no entitlement to rehabilitation under the Act. Clearly enough Ms Clement objected to the service provider and sought reconsideration of that aspect of the determinations relating to her rehabilitation program. It appears that no such reconsideration eventuated. That matter is not on foot in these proceedings and the Tribunal has no jurisdiction in relation to it; it has not been raised or considered in any decision-making process at the primary or reconsideration stages in any of the matters Ms Clement has placed before the Tribunal. An appeal from that decision was dismissed in March 2012: Clement v Comcare [2012] FCA 166. A further appeal to the Full Court of this Court was dismissed in August 2012: Clement v Comcare [2012] FCAFC 118. 5 The current proceeding involves the resolution of the matters said to have been left outstanding from the earlier Tribunal decision. The Tribunal whose decision is now under appeal identified the issues to be resolved as follows: Issues [23] The issues in the matters under review are: • whether the choice of rehabilitation provider was reasonable; and • whether it was reasonable to close Ms Clement's return to work plan. The Tribunal proceeded to resolve these issues adversely to Ms Clement: Re Clement and Comcare [2013] AATA 638. 6 Ms Clement now appeals. 7 A Notice of Appeal was filed on 4 October 2013. It identifies the purported "questions of law" as follows: 1. The Tribunal incorrectly applied the relevant law 2. The Tribunal applied the wrong law 3. The Tribunal denied procedural fairness to the Applicant 4. The Tribunal made jurisdictional errors of law 5. The Tribunal failed to take relevant considerations into account. Expressed in that manner, it may be noted that the Notice of Appeal fails to identify any "question of law" as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("Administrative Appeals Tribunal Act"). The Notice of Appeal also fails to comply with r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) in that it fails to identify "the precise question or questions of law to be raised on appeal". The Notice of Appeal simply fails to identify any "pure question of law": Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18], (2003) 38 AAR 55 at 60 per Branson and Stone JJ (Marshall J agreeing); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [46] to [47], (2003) 133 FCR 290 at 301 per Branson J; [2003] FCAFC 244 at [107], (2003) 133 FCR at 313 per Jacobson and Bennett JJ. 8 Such difficulties, it is nevertheless considered, should be placed to one side. She appeared before this Court on the hearing of the appeal unrepresented. Moreover, her psychological condition is such that it may impact upon her ability to identify with the requisite degree of precision any "question of law" which may lead to her having any greater success than she has to-date experienced. A statement filed by Ms Clement on 29 November 2013, being a Statement of Real Issues in Dispute more helpfully than her Notice of Appeal states (without alteration): The issues identified by the Applicant are: 1. The Tribunal made an error of law in upholding the decisions the subject of review because Health Access Pty Ltd was not an approved rehabilitation provider, pursuant to section 34 of the then Commonwealth Employees (Rehabilitation and Compensation) Act 1988 (Cth) (CERC Act), so was not validly appointed by the Rehabilitation Authority, the Australian Bureau of Statistics, and no valid rehabilitation plan was established. 2. The Tribunal made an error of law in incorrectly applying the principles in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC. There then follows a series of twenty-two "contentions". There then appears the following (again without alteration): 2.i The Respondent provided evidence, not before the Tribunal in Clement v Comcare [2014] AATA, pursuant to section 37 of the Administrative Appeals Tribunal Act 1976 (Cth) which disproves the medical diagnoses relied on by the Tribunal in 2010 to deny liability on behalf of the Respondent, establishing cogent grounds for the application of the principle in Rana. ii The principle in Hannaford was misapplied by the Tribunal in Clement v Comcare [2010] AATA, in that the Full Court overturned the decisions in which the mandatory elements for the existence of liability were overturned, finding that all components need not be present, "undercutting" the previous authorities as the Full Court was effectively statute-barred from reviewing decisions not the subject of application to the Tribunal or the Court and did not do so. The Tribunal's error in the Applicant's case in 2010, required, in the interests of justice, remediation by the Tribunal. The reasons for decision of the Tribunal have been scrutinised by reference to both the Notice of Appeal and the Statement of Real Issues in Dispute, and have also been scrutinised afresh with a view to determining whether the Tribunal may have committed error. Each of the detailed written submissions filed by Ms Clement has also been considered. Any lack of legal representation, especially by a litigant having accepted psychological problems, should in such circumstances not be a barrier to a "pure question of law" being resolved - provided one presents itself - irrespective of any deficiencies in the manner in which it may be expressed. But no such error emerges. 9 The Notice of Appeal, it should be further noted, sets forth a wide variety of contentions which have no apparent relevance to the decisions made by the Tribunal. Each of the contentions has, nevertheless, been considered with a view to determining whether they may have some relevance which has been overlooked by the Tribunal or not given proper attention. That task has not proved easy. The materials presented to the Court for consideration by Ms Clement were not ideal. But, with the assistance of Comcare, a bundle of materials has been prepared to give content to the reasons and findings of the Tribunal. 10 The appeal is to be dismissed with costs.

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].

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