Dunkerley v Comcare

II. Facts 3 Ms Dunkerley was born in 1959. She joined the former Department of Education, Science and Training ('DEST') as a project officer at the APS6 level in March 2007. Whilst employed with DEST she suffered an injury which was ultimately accepted by Comcare to have been contributed to by her employment with DEST to a significant degree (one of the statutory requirements). That injury consisted of a psychiatric condition referred to as an adjustment disorder with anxious mood. Comcare accepted that this was a compensable ailment under the Act from 24 October 2007. 4 Whilst the factual record is not entirely clear about this, it appears that Ms Dunkerley's adjustment disorder came about in circumstances relating to her perception that she was being bullied at DEST. This was what she told me during the course of the hearing. I should say, out of fairness to Comcare, that its counsel submitted that the original claim arose not from actual bullying but from Ms Dunkerley's perception that she was being bullied: cf. Wiegand v Comcare Australia [2002] FCA 1464 per Von Doussa J. It is not necessary for the purposes of these reasons to determine whether the bullying was actual or merely genuinely perceived. The important aspect of the matter is that Comcare accepted that it had given rise to a genuine ailment which was compensable under the Act. 5 It then appears that Ms Dunkerley was deemed fit by her treating general practitioner to return to work in a different area of DEST on around 4 December 2007. However, it was not possible to find such a position and unfortunately she remained off work until May 2008 when she was transferred from DEST to the Department of Industry, Innovation, Science, Research and Tertiary Education ('DIISR'). After several months in a temporary role she began working there in a full-time APS6 position on 22 January 2009. 6 Around a month later, Ms Dunkerley was seen by a psychiatrist, Dr George, and his report of that consultation refers to Ms Dunkerley as being very happy in her work environment. He found that she presented with no psychiatric diagnosis. He concluded that she had a full capacity to work. This statement by Dr George would later be used by Comcare as evidence that her earlier adjustment disorder with anxious mood had resolved by March 2009. 7 Dr George had previously diagnosed Ms Dunkerley as suffering from the adjustment disorder which had felled her following the events at DEST in October 2007. In the Tribunal below, Ms Dunkerley disputed Dr George's conclusions maintaining that when she saw him in March 2009 she was not completely well and that the adjustment disorder was affecting her then just as surely as it was affecting her now. I will return a little later in these reasons to the way in which the Tribunal resolved that issue. 8 It is now necessary to note a matter of chronology. Although it is true that Comcare eventually accepted liability for the adjustment disorder Ms Dunkerley had suffered around 24 October 2007 at DEST, it did not do so until 16 June 2009; that is to say, not until after she had started in her new position at DIISR (on 22 January 2009) and not until after she had seen Dr George on 2 March 2009 when he diagnosed her as suffering from no psychiatric condition. Thus at the time that she saw Dr George, Comcare was still disputing its liability for the events which had occurred at DEST in October 2007. 9 It was during this period that Ms Dunkerley was persuaded by one of her superiors at DIISR, Mr Schwager, to apply for one of several executive level 1 positions which were then available within DIISR. Mr Schwager had formed a favourable view of her abilities as a result of work she had done in relation to a summit involving the Prime Minister. Ms Dunkerley in due course applied and was short listed for an interview. She was unsuccessful. Mr Schwager had been the chair of the selection committee and he gave her feedback after the interview. At some point during this feedback process, Ms Dunkerley received the impression that Mr Schwager had told her that she had only been short listed for an interview 'out of charity'. To be fair to Mr Schwager, the Tribunal which examined the precise circumstances of this interview accepted (Dunkerley and Comcare [2010] AATA 915 at [56]) that he was not trying to be patronising but was simply conveying that he had given her the benefit of the doubt because of her good qualities exhibited when she had worked for him beforehand. 10 This occurred on or about 15 July 2009, about a month after Comcare had decided to accept liability for the adjustment disorder suffered by Ms Dunkerley at DEST in 2007. Without dwelling on the detail, Ms Dunkerley thereafter claimed to have suffered an exacerbation of her earlier adjustment disorder as a result of her perception of Mr Schwager's remarks. 11 On 1 September 2009 she made a further claim for compensation based now on the conversation of 15 July 2009 with Mr Schwager The diagnosed condition for which she sought compensation was 'aggravation to adjustment disorder with anxious mood', i.e., an aggravation of her earlier condition. 12 It is plain that not only was her claim one for aggravation of her pre-existing condition but also that it was treated that way by all concerned. Although Comcare (and afterwards the Tribunal) concluded that the claim had to fail because Mr Schwager's actions in speaking to Ms Dunkerley had been 'reasonable administrative action' within the meaning of s 5A(2) of the Act, it was accepted by Comcare that her ailment was an aggravation of her pre-existing condition. 13 Although Comcare's decision to accept liability for the adjustment disorder arising from the events at DEST in October 2007 meant that she was entitled to have her compensation assessed after this conclusion was reached on 16 June 2009, it does not appear that any such assessment was carried out. The reasons for this were not before me and are not material. They may relate, however, to the fact that Ms Dunkerley's second claim for exacerbation complicated the picture. 14 Although Ms Dunkerley challenged the Tribunal's conclusion that Mr Schwager's actions were reasonable administrative action, first before me and then before the Full Court, this argument was, on each occasion, rejected. Ultimately, it was concluded that she was not entitled to compensation under the Act in respect of Mr Schwager's actions on 15 July 2009. 15 Not long after the incident with Mr Schwager, on 21 July 2009, Ms Dunkerley was off work. She returned to full-time work on 17 January 2011. On this day, Ms Dunkerley discovered that Mr Schwager was now her divisional head. This was unsatisfactory to her. At some point during February 2012 Ms Dunkerley stopped attending work, claiming that her workplace was unsafe because of the presence of Mr Schwager. On 20 April 2012 and 7 May 2012, she was formally directed to return to work which she declined to do on that basis. On 20 June 2012, her employment was terminated for failure to comply with that direction. 16 In the meantime, her proceedings in this Court were making their way to final resolution. On 3 February 2012, I had dismissed her appeal from the Tribunal's conclusion that the incident with Mr Schwager had been reasonable administrative action. On 13 September 2012 the Full Court dismissed Ms Dunkerley's appeal from my decision. 17 Undeterred, Ms Dunkerley commenced an application for reinstatement on the basis of unfair dismissal pursuant to s 394 of the Fair Work Act 2009 (Cth) in the Fair Work Commission. On 4 December 2012 the Fair Work Commission dismissed the claim, concluding that the dismissal was not harsh, unjust or unreasonable. It observed at [82] that: 'Every opportunity was given to the applicant to arrange a proper return to work program but she refused to take part in the process. She made unreasonable demands of the Department and put as many obstacles in the way of her return to work as she could muster. The Department acted properly in all its dealing with the applicant, who was clearly a difficult employee who necessitated the application of a disproportionate amount of Departmental resources.' 18 As will be seen in due course, this is a sentiment with which, with respect, I agree. At this point the avenues relating to the events concerning Mr Schwager were all turning into cul-de-sacs. The Fair Work Commission was not satisfied that anyone apart from Ms Dunkerley had acted unreasonably in relation to her refusal to work. The Federal Court was unpersuaded that what had occurred with Mr Schwager was anything other than reasonable administrative action. 19 She then sought, in 2013, to re-agitate the original injury which had occurred in October 2007. At some stage in 2010, it appears likely that Comcare had concluded that the 2007 events no longer gave rise to any right to compensation. Ms Dunkerley sought an internal review of this decision on 3 May 2013. On 20 May 2013 Comcare decided that Ms Dunkerley had recovered from the 2007 events by no later than 2 March 2009 and cited Dr George's report based on an assessment of that date and his upbeat opinion of her psychological state at that time. A further independent review dated 28 June 2013 reached the same conclusion. It was from that decision which Ms Dunkerley then appealed to the Tribunal. 20 The Tribunal concluded that Ms Dunkerley no longer suffered any ailment as a result of the 2007 DEST incident and that all of her problems related to the events with Mr Schwager in 2009. It is from that conclusion that Ms Dunkerley now appeals to this Court.

III. The issues which arise 21 Ms Dunkerley's contentions were as follows: (a) the medical certificates she had obtained at the time of the incident with Mr Schwager had all referred to the condition she had as an exacerbation of the pre-existing 2007 adjustment disorder. Once those certificates were provided to Comcare neither it nor, subsequently, the Tribunal were permitted to approach the matter on the basis that the earlier 2007 injury was not relevant; (b) the Tribunal had used the opinion of doctors other than those who had issued the certificates attached to her claim form, and in particular that of Dr George of 10 March 2009, to arrive at the view that the 2007 injury was not causing any ongoing disability. This, according to Ms Dunkerley, was not permitted under the Act; and (c) the hearing before the Tribunal had involved a miscarriage of justice, in that Comcare had failed to clarify for the Tribunal what her case was. This was said to be a breach of Comcare's obligations as a model litigant.

IV. Consideration 22 This appeal is devoid of merit. As to contention (a), the idea that Comcare and, thereafter, the Tribunal are bound by the medical certificates she obtained on the occurrence of the events involving Mr Schwager is without substance. True it is that most claims under the Act must be accompanied by a certificate issued by a medical practitioner. Section 54 says this. But nowhere does the Act say that Comcare must accept the views expressed in that certificate. Indeed, the power of Comcare to require a claimant to be assessed by another medical practitioner under s 57 shows this contention is hopeless. 23 During the hearing of the appeal I was briefly troubled by the Tribunal's finding that the injury caused by the events surrounding Mr Schwager in 2009 had simply supplanted the relevance of the 2007 injury and its earlier conclusion in the first proceeding that that injury was an exacerbation of the 2007 injury. These appeared to be inconsistent conclusions. However, a review of the full record shows that Comcare was concerned, in light of Dr George's report of 10 March 2009, that Ms Dunkerley's condition no longer existed. There is no doubt Comcare is entitled to take the course of reassessing a claim if fresh evidence suggests the injury is no longer extant: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at 273-274 [57] and [59] (FC). I do not accept Comcare's submission that there was no inconsistency but, in light of Telstra v Hannaford, this does not matter. 24 As to contention (b), in effect two propositions are involved. The first is that the Tribunal had to accept her medical evidence as a matter of law. The second is that the Tribunal's finding of fact, that the 2007 injury no longer existed, should be reviewed. The first point is effectively the same as the argument which I have rejected above. The second would only be available as a ground of review if there had been no evidence to support the Tribunal's finding about the ongoing role of the 2007 injury in Ms Dunkerley's problems because, as has often enough been remarked, this Court has no jurisdiction to review the Tribunal's findings of fact. 25 In this case, the Tribunal had before it the opinion of Dr George that Ms Dunkerley was not suffering from any psychiatric condition as at 2 March 2009. It was entitled to infer from that that the 2007 injury was no longer generating symptoms and it was equally entitled to form the view that her present problems flowed from the non-compensable circumstances surrounding her dealings with Mr Schwager. No error of law is disclosed in the Tribunal's treatment of the evidence. 26 As to contention (c), I do not accept either that Comcare has behaved in any way inappropriately or that, even if it had, that this would be relevant in this proceeding. As with several features of this litigation, there is a gulf separating Ms Dunkerley's perceptions of reality and reality itself. In any event, a breach of the model litigant requirements has no consequences in terms of civil litigation. Such a breach may be relevant to other inquiries, such as discipline, but it is not relevant to the case in which the breach is said to arise: Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 at 357 [110] (FC); Croker v Commonwealth [2011] FCAFC 25 at [19]. 27 There were other matters raised in the notice of appeal but these were not pursued in writing or orally and I did not apprehend that they were pursued. 28 The appeal will be dismissed with costs. It is not necessary in those circumstances to deal with Comcare's notice of objection to competency. I should say that Ms Dunkerley's various cases have now occupied many days of hearing time before the Tribunal, this Court and the Fair Work Commission. The litigation presented thus far has been without substance. Although I do not propose to do anything about it at this stage, it is important that I record my view that the proceedings are beginning to border on the vexatious. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.