Gaffey v Comcare

Relevant facts as Found 19 The following summary of the relevant facts is taken largely from the findings of the Tribunal. 20 At the time Ms Gaffey suffered the injury that formed the basis of her compensation claim, she worked as an Executive Level 1 (EL1) in the Department. Ms Gaffey had worked in the Australian Public Service for twenty years and had been an EL1 for around ten years. 21 In 2009, Ms Gaffey suffered a physical injury at work. That injury developed into a chronic pain condition with secondary depression and anxiety. Comcare accepted that this was an injury under the Act. As of 2012, Ms Gaffey was on a return to work program, with her hours progressively increasing. 22 It would appear that at some time in 2011, Ms Gaffey entered into some form of voluntary or informal arrangement whereby another senior officer of the Department, Ms Pieta Laut, would act as her informal mentor. 23 In February 2012, Ms Gaffey moved to a new work area in the Department. Her supervisor in that area was Ms Joanne Nathan. 24 In July 2012, Ms Gaffey attended a meeting with Ms Nathan in respect of a mid-year performance assessment. Ms Nathan rated Ms Gaffey's performance as a level 3 - satisfactory. At this meeting, a further meeting was scheduled to discuss a work plan for the following twelve months, this being a standard element of the assessment process. 25 The further meeting occurred on 20 August 2012. Ms Gaffey's compensation claim hinged to a large extent on the events that occurred at this meeting, as well as the effect those events had on her mental state. The events that occurred at the 20 August 2012 meeting were the subject of dispute and contested evidence in the Tribunal. The Tribunal essentially accepted Ms Gaffey's account of what was said and done at the meeting. 26 In addition to Ms Gaffey and Ms Nathan, the 20 August meeting was attended by Ms Laut in her capacity as Ms Gaffey's mentor. There appears to have been no dispute that Ms Gaffey agreed to Ms Laut attending the meeting. Indeed, it appears Ms Gaffey invited Ms Laut to attend. Ms Nathan said that the meeting was to clarify Ms Gaffey's understanding of the requirements of the work plan and tasks for the next financial year, including the expected standard of performance for each task. It would appear that, during the meeting, Ms Laut recorded the proposed work plan on a whiteboard. A copy of that plan was printed and attached to Ms Gaffey's performance development program. 27 The Tribunal found that, during the meeting, Ms Laut made the following remarks to Ms Gaffey (reasons at [56]): 'you look as though you have no energy', 'your [sic] look tired', 'you look in pain', 'you look like you have no vigour', 'you look as though you have no passion for the work', 'you don't look like you are interested', 'you look as though you have no interest in driving the program', 'I think you don't handle stress', 'I don't think you have any passion for the work' and 'I think you like to be comfortable'. 28 There is no evidence of what triggered these comments, though the Tribunal found that they were made in the context of discussions about future work performance. 29 Whatever may have triggered the comments, there is little doubt that Ms Laut's comments had an adverse impact on Ms Gaffey. Three days after the 20 August meeting, Ms Gaffey attended her general practitioner Dr Liz Fraser, who noted in her clinical notes: Some stress at work - new job, feeling some pressure to perform from woman she has asked to mentor her - the latter is high performing - although current boss is supportive 30 Dr Fraser discussed antidepressants with Ms Gaffey, but, for various reasons, Ms Gaffey was reluctant to take antidepressants. 31 Ms Gaffey attended another meeting with Ms Laut about a week later, on 30 August 2012. This was apparently a scheduled mentoring meeting. The Tribunal accepted that, at this meeting, Ms Laut again made negative remarks about Ms Gaffey's physical appearance and the impression it created in relation to Ms Gaffey's work attitude and ability. 32 Ms Gaffey subsequently discussed her concerns about these two meetings with her rehabilitation case manager, Ms Chi Chu. Ms Chu advised Ms Gaffey to talk to Ms Nathan about her concerns. Ms Gaffey appears to have accepted this advice. She met with Ms Nathan on 17 October 2012. At that meeting, Ms Gaffey asked Ms Nathan if Ms Nathan wanted to talk about any of the issues that Ms Laut had raised at the 20 August meeting. Ms Nathan's response led Ms Gaffey to believe that Ms Nathan had no issues with Ms Gaffey and was happy with her work. 33 A few days after her 17 October meeting with Ms Nathan, Ms Gaffey again consulted Dr Fraser. Dr Fraser's clinical notes record as follows: Difficult issues at work - net result she feels stuck and quite depressed again - mentor gave her a very negative assessment, clearly lacked understanding of chronic pain and implying that Prue lacked passion for her work, or that because of her posture, Prue is not performing - Prue says this woman is highly influential with her boss - inc[reasing] demands with this position which consists of roles that used to be done by more than 1 person 34 Ms Gaffey was on leave throughout much of November 2012. On 3 December 2012, shortly after her return to work, Ms Gaffey again met with Ms Nathan. At that meeting, there was a further discussion about Ms Gaffey's performance rating. Ms Nathan indicated that she was considering giving Ms Gaffey a level 2 rating, this being a lower rating than that originally discussed at the July 2012 meeting. Ms Nathan said, however, that she would consult and seek advice about the appropriate scale. 35 Just over a week later, Ms Gaffey again consulted Dr Fraser. Dr Fraser's clinical notes again record that Ms Gaffey was stressed, worried about work and having difficulty sleeping. 36 On 19 December 2012, Ms Gaffey was advised that, following her receipt of advice, Ms Nathan rated Ms Gaffey as level 1 - not performing. 37 Ms Gaffey next consulted Dr Fraser on 31 January 2013. During this consultation, Ms Gaffey again discussed the difficulties she believed she was facing at work. Dr Fraser's notes record that Ms Gaffey was very stressed at work. 38 Ms Nathan was on leave from late December 2012 to early February 2013. On her return to work, Ms Nathan emailed Ms Gaffey asking her to process the paperwork in respect of her performance assessment. Ms Gaffey replied that she wished to respond to the assessment but she needed more time because of her medical condition. Notwithstanding this, shortly thereafter Ms Nathan asked Ms Gaffey in person to process the performance assessment paperwork. Ms Gaffey did so. 39 On the same day, 6 February 2013, Ms Gaffey consulted Dr Fraser. Dr Fraser certified Ms Gaffey as being unfit for work from 6 February to 18 February 2013. She later extended that certification. Ms Gaffey was subsequently certified as unfit for work and has not returned to the workplace. 40 Dr Fraser diagnosed Ms Gaffey as suffering a generalised anxiety disorder and major depression. Ms Gaffey's treating psychologist, Ms Marion Swetenham, and her consultant psychiatrist, Dr John Saboisky, likewise diagnosed Ms Gaffey as suffering a major depressive disorder and generalised anxiety. 41 The Tribunal accepted the medical evidence that Ms Gaffey suffered from a major depressive disorder and generalised anxiety. It found that this condition was an aggravation of a secondary psychiatric condition, which had been accepted by Comcare in 2010.

The Tribunal's decision 42 The Tribunal considered that Ms Gaffey's review application raised four issues (reasons at [27]). They were: first, what is the diagnosis of the claimed psychiatric condition; second, what is the deemed date of injury of the condition; third, did Ms Gaffey's employment contribute to the condition to a significant degree; and fourth, is any compensation excluded because the condition was "suffered as a result of reasonable administrative action taken in a reasonable manner". 43 In relation to the first issue, as already indicated, the Tribunal accepted that Ms Gaffey suffered from a major depressive disorder and generalised anxiety, and that this was an aggravation of a previously diagnosed condition. The Tribunal found that Ms Gaffey's psychiatric condition was a "disease" for the purposes of the Act. 44 The Tribunal's finding that Ms Gaffey's condition constituted a disease is perhaps not surprising. Given the definition of "disease" in s 5B of the Act, the finding was open on the evidence. Since "disease" is defined in s 5B in terms of an "ailment", and "ailment" is defined in terms that include any "mental ailment, disorder, defect or morbid condition", Ms Gaffey's psychiatric condition could accurately be considered to be a disease. 45 That said, the Tribunal appeared to proceed on the basis that it was somehow compelled by s 5B to classify Ms Gaffey's condition as a disease, as opposed to, for example, a "mental injury" or an "aggravation of a … mental injury" within s 5A(1)(b) or (c) of the Act. This issue will be considered further below in the context of one of Ms Gaffey's appeal grounds. 46 The Tribunal's findings in relation to the second issue, the date of injury, are, it must be said, somewhat confused and confusing. That is so, for at least two reasons. First, given that the Tribunal ultimately found that Ms Gaffey's injury fell within the exclusion in s 5A(1) of the Act, it is unclear why the Tribunal considered that the date of the injury was an issue that it was required to decide. Second, in working out the date of Ms Gaffey's injury, the Tribunal appears to have confused and conflated the concepts of "incapacity for work" and "impairment" and applied an incorrect test. 47 So far as the Tribunal's reasons are able to be understood, it appears that the Tribunal accepted, based on the evidence of Dr Saboisky, that Ms Gaffey was suffering an impairment by December 2012. The Tribunal found, however, that because Ms Gaffey's condition did not incapacitate her for work until 6 February 2013, the date of the injury was found to be 6 February 2013. The Tribunal's conclusion was expressed in the following terms (reasons at [43]): Although Ms Gaffey may have suffered cognitive difficulties in the latter part of 2012, that impairment did not incapacitate her for work until February 2013. For that reason the Tribunal finds that the 6 February 2013 is the date of injury. 48 There are a number of difficulties with this conclusion. First, it conflates the concept of "incapacity for work" with "impairment". It is clear from the terms of s 14 that "incapacity for work" and "impairment" are separate and alternative concepts. Second, having found that Ms Gaffey's condition was a disease, if it was necessary to work out the date on which she sustained that injury, the Tribunal should have applied s 7(4) of the Act. Subsection 7(4) of the Act provides as follows: 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; whichever happens first. 49 The terms of s 7(4) again make it clear that "incapacity for work" and "impairment" are separate and alternative concepts. The subsection provides, in terms, that if the employee sought medical treatment for the disease or aggravation before the date of incapacity for work or impairment, the date of injury is the date on which the employee sought that medical treatment. In Ms Gaffey's case, the uncontradicted evidence suggested that the date that Ms Gaffey first sought medical treatment was perhaps as early as 23 August 2012. It was almost certainly before 6 February 2013, the date of injury as found by the Tribunal. 50 The difficulty for Ms Gaffey, however, is that this apparent error of law by the Tribunal was ultimately immaterial to the Tribunal's operative or determinative finding and conclusion in relation to her review application. This issue is addressed in more detail later in the context of consideration of Ms Gaffey's specific appeal grounds and submissions. 51 The third issue identified by the Tribunal was directed at the second limb of the definition of "disease" in s 5B(1) of the Act: that the ailment or aggravation of the ailment "was contributed to, to a significant degree, by the employee's employment by the Commonwealth". The Tribunal found, in effect, that Ms Gaffey's circumstances did satisfy the second limb of the s 5B(1) definition because the events in her workplace in late 2012 and early 2013 exacerbated her underlying or pre-existing anxiety and depression arising from the chronic pain she suffered as a result of the injury in 2010. 52 As this finding was favourable to Ms Gaffey, it is unnecessary to give detailed consideration to the Tribunal's reasoning. Ms Gaffey's appeal grounds and submissions also do not directly challenge this finding. That said, it must again be noted that the Tribunal's reasoning in relation to this issue is somewhat confused. In particular, the Tribunal appeared to suggest that the question whether Ms Gaffey's ailment, or the aggravation of that ailment, was contributed to, to a significant degree, by her employment, turned in some way on the date that she became incapacitated for work. 53 In any event, it was open to the Tribunal to conclude that Ms Gaffey's condition satisfied the second limb of the definition of disease in s 5B(1) of the Act. 54 It was the Tribunal's findings in relation to the fourth issue that ultimately led it to affirm the decision to refuse Ms Gaffey's claim for compensation under s 14 of the Act. The fourth issue was whether Ms Gaffey's disease was "suffered as a result of reasonable administrative action taken in a reasonable manner" in respect of her employment. The Tribunal found that it was. 55 The Tribunal found that the actions of Ms Nathan and Ms Laut at the meetings of 20 August 2012, 3 December 2012 and 19 December 2012, and the actions of Ms Nathan in early 2013, all related to Ms Gaffey's "performance development" and employment. They were therefore administrative actions in respect of Ms Gaffey's employment. 56 The Tribunal also found that the relevant administrative actions of Ms Nathan and Ms Laut were reasonable. The Tribunal in this regard dealt separately with, and made factual findings concerning, each of the relevant meetings. Perhaps most contentiously, the Tribunal found that the comments made by Ms Laut at the meeting of 20 August 2012 were not unreasonable. The Tribunal reasoned as follows (at [69]): It is not known what triggered Ms Laut's comments at that meeting. This did not emerge during the hearing, nor is it apparent from statements made by any of the participants. As discussed earlier, however, the comments are precisely the kinds of comments which could be expected by a mentor in response to discussion about barriers to, and improvements which could be made to, the performance of a person being mentored. So in that context and in the context of discussions about performance issues the remarks were not unreasonable. 57 The Tribunal concluded that it was not satisfied that the administrative actions that contributed to Ms Gaffey's condition were unreasonable or undertaken in an unreasonable manner. It followed, so the Tribunal found, that the "exclusionary provisions" applied. By "exclusionary provisions", the Tribunal plainly meant that part of s 5A(1) which excluded from the definition of "injury" 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. 58 It followed that Ms Gaffey's disease was not an injury for the purposes of the Act, and Comcare was therefore not liable to pay compensation to Ms Gaffey under s 14 of the Act.

Appeal GROUNds and submissions 59 The Full Court recently considered the Court's jurisdiction under s 44 of the AAT Act: Haritos v Commissioner of Taxation [2015] FCAFC 92 (Haritos). The Court's legal conclusions in relation to s 44 of the AAT Act were summarised by the Full Court in the following terms (at [62]): (1) The subject-matter of the Court's jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law. (2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal. (3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44. (4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction. (5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal. (6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. (7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law. (8) The expression "may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal" in s 44 should not be read as if the words "pure" or "only" qualified "question of law". Not all so-called "mixed questions of fact and law" stand outside an appeal on a question of law. (9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court's discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an "error of law" in the failure in the Tribunal to make a finding first urged in this Court. (10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241. 60 Ms Gaffey's further amended notice of appeal lists the following eleven questions of law: 1. Whether the Tribunal misconstrued the definition of 'injury' in section 5A Safety Rehabilitation and Compensation Act (SRCA) and the definition of 'disease' in section 5B SRCA, in coming to a finding that any mental condition suffered by an applicant must be characterised as a 'disease' and cannot be an 'injury' within the meaning of section 5A (common called an 'injury simpliciter'); 2. Whether the Tribunal failed to undertake the factual inquiry necessary to determine the proper characterisation of the Applicant's major depressive disorder, as either an injury simpliciter or a disease; 3. Whether, as a consequence of 1 and 2 above, the Tribunal came to a finding of fact for which there was no evidence, namely that the major depressive disorder was a disease; 4. Whether the Tribunal misconstrued section 14 SRCA in finding within section 14 a prescription for determining the date of injury of the Applicant; 5. Whether, as a consequence of 4, the Tribunal wrongly determined the date of injury, namely that of 6 February 2013; 6. Whether the Tribunal failed to apply, or wrongly applied, the test arising from Comcare v Mooi (1996) 69 FCR 439 in coming to a wrong date of injury of 6 February 2013; 7. Whether, in coming to its findings at paragraph 79 the Tribunal has failed to have regard to or address, the substance of a submission advanced by the Applicant, namely that the Applicant was denied procedural fairness in the manner in which the downgrading to grade 1 occurred; 8. Whether, in coming to its findings at paragraph 79 the Tribunal has come to a finding for which there is no evidence, namely that it was reasonable for Ms Nathan to act on the advice of Human Resources concerning the downgrading to grade 1, in circumstances where there was no evidence before the Tribunal of the content of the advice given by Human Resources; 9. Whether, as a consequence of 7 and 8 above, the findings of the Tribunal at paragraph 79 are unreasonable at law; 10. Whether, as a consequence of 7 and 8, in coming to its findings at paragraph 79 the Tribunal has failed to provide an adequate statement of reasons that is required of it by law. 11. Whether, in coming to its findings at paragraph 59, 68, 69 and 72 to the effect that the critical comments made by Ms Laut concerning the personal appearance of the Applicant at the meetings on 20 August 2012 and 30 August 2012, were reasonable administrative action of the kind expected of a 'mentor', the Tribunal made a finding: (a) for which there was no evidence; and (b) was contrary to such evidence on the point as existed; and (c) involved a misunderstanding of the evidence by the Tribunal; and (d) involved a denial of procedural fairness in that this issue was not put the Applicant at any time and not raised with the Applicant's counsel as being a relevant consideration that may affect the outcome of the decision. 61 It is doubtful that these questions of law are stated with sufficient precision to ensure the efficient and effective determination of the appeal. Nevertheless, in accordance with Haritos, these questions will be approached in a common sense way and as a matter of substance rather than form. 62 Of perhaps more concern is the fact that Ms Gaffey's further amended notice of appeal sets out fifty-two supposed grounds, though the grounds are not clearly linked to either the questions of law or the relief sought. It is accordingly doubtful that Ms Gaffey properly complied with r 33.12 of the Federal Court Rules 2011 (Cth) in relation to the content of notices of appeal. Nevertheless, the grounds set out at length in Ms Gaffey's notice of appeal will be approached in a common sense way as amounting, in effect, to submissions. 63 It is possible to group the eleven questions of law into three broad groups. The first group of questions (questions 1, 2 and 3) all relate to the Tribunal's finding that Ms Gaffey's major depressive disorder was a disease, or an aggravation of a disease, for the purposes of the Act. The second group (questions 4, 5 and 6) relate to the Tribunal's finding concerning the date of Ms Gaffey's disease or the aggravation of her disease. The third group (questions 7, 8, 9, 10 and 11) relate to the Tribunal's finding that Ms Gaffey's disease, or the aggravation of it, was a result of reasonable administrative action taken in a reasonable manner in respect of Ms Gaffey's employment. 64 Ms Gaffey's contention in relation to the first group of questions is that the Tribunal erred in law in the approach it took in determining whether Ms Gaffey's major depressive disorder was an injury for the purposes of the Act. Ms Gaffey submitted, in effect, that the Tribunal misconstrued ss 5A and 5B of the Act because the Tribunal did not first consider whether Ms Gaffey's condition was an "injury simpliciter", which in Ms Gaffey's submission is the primary characterisation of a physical and mental condition. Ms Gaffey contended that the Tribunal should only have considered whether Ms Gaffey's condition was a disease, within s 5B of the Act, if it first found that the condition was not an "injury simpliciter". 65 Ms Gaffey's main contention in relation to the second group of questions was, broadly speaking, that the Tribunal erred in law in determining the date of Ms Gaffey's injury. The error was said to be that the Tribunal "extracted" the test for the date of the injury from s 14 of the Act instead of applying the test in s 7(4) of the Act. The s 7(4) test was applicable given the Tribunal's finding that Ms Gaffey's condition was a "disease". Ms Gaffey also submitted that the Tribunal did not correctly apply the test for determining the time when a mental injury has occurred as set out in Comcare v Mooi (1996) 69 FCR 439. That test was said to be when symptoms are "outside the boundaries of normal mental functioning". 66 In relation to the third group of questions, Ms Gaffey attacked the Tribunal's findings in relation to the reasonableness of the actions of Ms Nathan and Ms Laut in a number of different ways. In broad terms, Ms Gaffey submitted that the Tribunal's finding in this regard was unsupported by, or contrary to, the evidence, was unreasonable, or involved a denial of procedural fairness. The denial of procedural fairness was said to arise from two matters: first, Ms Gaffey alleged that the Tribunal failed to address a submission put to it by Ms Gaffey's counsel; and second, Ms Gaffey contended that the Tribunal failed to raise with Ms Gaffey's counsel the fact that Ms Laut's comments might be considered to be a reasonable action of the kind expected of a mentor.

consideration of Questions 1, 2, 3 - the disease finding 67 The fundamental difficulty for Ms Gaffey in relation to questions 1, 2 and 3 (and related grounds), which concern the Tribunal's finding that Ms Gaffey's condition was a disease, or an aggravation of a disease, is that even if the Tribunal erred in law as alleged, Ms Gaffey would not be entitled to the relief she seeks. Nor would she necessarily be entitled to any other relief. That is because, even if the Tribunal had found, as Ms Gaffey submits it should have, that her condition was a "mental injury (other than a disease)" or an aggravation of a mental injury, rather than a disease, the outcome in the Tribunal would unquestionably have been the same. 68 The Tribunal's finding that Ms Gaffey's diagnosed major depressive disorder and generalised anxiety was a disease, or an aggravation of a disease, meant that, but for the Tribunal's finding that the disease or aggravation was suffered as a result of reasonable administrative action, Ms Gaffey's condition was an "injury" for the purposes of s 14 of the Act. It was the finding of reasonable administrative action alone that led the Tribunal to affirm the decision under review. There is nothing to suggest that, had the Tribunal found that Ms Gaffey's condition was a mental injury or an aggravation of a mental injury (within s 5A(1)(b) or (c) of the Act), as opposed to a disease (within s 5A(1)(a) of the Act), this would have altered in any way the Tribunal's finding concerning the reasonableness of the actions of Ms Nathan and Ms Laut. The result would accordingly have been the same. 69 Ms Gaffey submitted that the Tribunal's finding of disease rather than "injury simpliciter" did alter, or have an effect on, the Tribunal's finding of reasonable administrative action. Her arguments in this regard turned on the fact that the required "work nexus" for an injury is lower than the work nexus for a disease. For a mental injury to be an injury for the purposes of s 5A(1) of the Act, it must arise out of, or in the course of, the employee's employment. A disease, on the other hand, must have been contributed to, to a significant degree, by the employee's employment for it to be a disease for the purposes of s 5B(1) of the Act. 70 Even if that be so, it makes no difference to Ms Gaffey's case. That is because the Tribunal was satisfied that the relevant work nexus for Ms Gaffey's disease was satisfied in any event. The Tribunal found that Ms Gaffey's disease, or the aggravation of it, was contributed to, to a significant degree, by the remarks made by Ms Laut and the events that occurred at the various meetings Ms Gaffey had with Ms Nathan and Ms Laut in late 2012 and early 2013. 71 In any event, there is no merit in any of Ms Gaffey's submissions concerning the Tribunal's interpretation of s 5A of the Act, or its finding that Ms Gaffey's condition was a disease. The Tribunal did not misconstrue the definition of "injury" in s 5A of the Act, or the definition of "disease" in s 5B of the Act. Nor did it fail to undertake the necessary factual inquiry to determine the proper characterisation of Ms Gaffey's condition, or make a finding that was unsupported by the evidence. 72 Contrary to Ms Gaffey's submissions, the Act does not import any notion of an "injury simpliciter". Nor does s 5A(1), upon its proper construction, require the Tribunal to first determine if the employee's condition should be characterised as an "injury simpliciter", before considering whether it can or should be characterised as a "disease". 73 It appears that Ms Gaffey's submissions were based on observations made by the High Court in the context of workers' compensation legislation that differs in important respects from the relevant provisions of the Act: see Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 (Zickar); Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 (Petkoska). The legislation in issue in those cases defined an injury as meaning "personal injury arising out of or in the course of employment" and, importantly, as including "a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor". The majority in both Zickar and Petkoska found, in effect, that if an employee's condition could be characterised as an injury in the primary sense, being a "kind of sudden physiological change or disturbance of the normal physiological state", it was unnecessary to consider the additional or alternative disease provisions in the definitions: Petkoska at [40]. The word "injury" was not to be read down because of the existence of the alternative and additional definition of compensable disease conditions. 74 Nothing said in either Zickar or Petkoska suggests that the differently structured and worded s 5A of the Act should be construed as requiring the decision-maker to first determine whether the employee's condition satisfies either s 5A(1)(b) or (c) of the Act and only consider s 5A(1)(a) if satisfied that it does not fall within either s 5A(1)(b) or (c) of the Act. Unlike the provisions considered in Zickar and Petkoska, the disease provision in s 5A(1)(a) (incorporating s 5B) is a true alternative to the provisions in s 5A(1)(b) and (c), and not a mere inclusion in a broader definition. If a decision-maker finds that the employee's condition is a disease, as defined, it cannot, by reason of the inclusion of the words "other than a disease" in parentheses in both s 5A(1)(b) and (c), be an injury of the sort referred to in those paragraphs. Likewise, if the employee's condition is found to satisfy either s 5A(1)(b) or (c), it cannot, by definition, be a disease. Importantly, however, the decision-maker is not required to address the alternatives in any particular order. 75 It was open to the Tribunal to find, on the material before it, that Ms Gaffey's condition was a disease for the purposes of s 5A(1)(a) of the Act because the evidence suggested that it was an ailment (which includes, by definition, any mental ailment, disorder, defect or morbid condition) or an aggravation of such an ailment. Whilst, as already observed, the Tribunal's reasoning is somewhat problematic insofar as it seems to suggest that a psychiatric condition is necessarily "classified" by s 5B of the Act as being a disease, it does not follow that the Tribunal erred in law, as Ms Gaffey submits, in not finding that her condition fell within s 5A(1)(b) or (c) of the Act. And in any event, for the reasons already given, any error in the Tribunal's reasoning in that regard was essentially immaterial and had no impact on the ultimate decision. 76 It should also be noted, in this context, that Ms Gaffey did not put to the Tribunal that her condition was not a disease, or an aggravation of a disease, but rather was a mental injury or an aggravation of a mental injury within s 5A(1)(b) or (c) of the Act. Indeed, in her Statement of Facts, Issues and Contentions filed in the Tribunal, Ms Gaffey contended only that her psychological condition was "significantly contributed to" by her employment. Thus, Ms Gaffey used language consistent with the s 5B definition of disease. It is difficult to see, in those circumstances, how the Tribunal made an error of law in failing to make a finding that was not urged before it: Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262; 19 ALD 726; Haritos at [62(9)]. Given that there is no merit in Ms Gaffey's submissions in relation to these three questions of law, it is unnecessary to decide these questions on this narrower basis.

conSIDERATION of QuestIons 4, 5 and 6 - date of injury 77 For the reasons already given, there are problems with the Tribunal's findings in relation to the date of Ms Gaffey's injury. There is merit in Ms Gaffey's submission that the Tribunal erred in law in its approach to the date of the injury. 78 Having found that Ms Gaffey's condition was a disease or an aggravation of a disease, if it was necessary for the Tribunal to determine the date that Ms Gaffey sustained that injury for the purposes of the Act, the Tribunal was required to apply s 7(4) of the Act. The Tribunal did not apply s 7(4) of the Act. Rather, in a somewhat confused and ultimately erroneous way, the Tribunal dated the injury from the day Ms Gaffey became incapacitated for work. There is much to be said for Ms Gaffey's case that the Tribunal erred in law in the way identified in questions 4, 5 and 6. 79 The difficulty for Ms Gaffey, however, is that having found that Ms Gaffey's condition was not an injury within s 5A of the Act because it was the result of reasonable administrative action, it was unnecessary for the Tribunal to consider the date that Ms Gaffey suffered her injury. It is only when liability under s 14 of the Act is established that attention needs to be given to s 7(4) of the Act: Smith v Comcare (2013) 212 FCR 335 at [34] (Buchanan J, Greenwood J agreeing at [1]) and [54] (Bromberg J). The Tribunal's findings concerning the date of the injury were unnecessary and ultimately immaterial to the Tribunal's decision and the outcome of the review. 80 Ms Gaffey endeavoured to get around this difficulty by submitting that the Tribunal's finding in relation to the date of the injury somehow infected the Tribunal's finding that the injury resulted from reasonable administrative action. She submitted that, having found that the injury dated from 6 February 2013, the Tribunal ignored or gave no weight to the incidents that occurred in the critical meetings in the latter part of 2012, because they occurred before the date of the injury. That submission has no merit and is rejected. 81 It is clear from the Tribunal's reasons that it considered the reasonableness of the actions of Ms Nathan and Ms Laut at all the relevant meetings. The Tribunal's findings concerning timing had no bearing at all on the Tribunal's consideration of whether Ms Gaffey's case failed because her condition was the result of reasonable administrative action and was therefore not an injury within s 5A of the Act.

consideration of Questions 7, 8, 9, 10, and 11 - Reasonable administrative action 82 Questions 7 to 11 are all directed to the Tribunal's finding, in terms of s 5A of the Act, that Ms Gaffey's condition was a result of reasonable administrative action taken in a reasonable manner in respect of her employment. The questions are all framed in terms of questions or errors of law. Ultimately, however, in reality they are all fairly thinly veiled attacks on the merits of the Tribunal's findings of fact in relation to this issue. They can accordingly be dealt with shortly. 83 Question 7 (and associated grounds and submissions) involves the contention that the Tribunal ignored Ms Gaffey's claim that the actions of Ms Nathan were not reasonable because she was denied procedural fairness by Ms Nathan in the downgrading of her assessment. It is doubtful that Ms Gaffey's case was put precisely in these terms before the Tribunal. Her case was primarily based on the statements made by Ms Laut. Nevertheless, the Tribunal clearly addressed the possible suggestion that Ms Nathan had not put Ms Gaffey on notice that her assessment might be downgraded. The Tribunal found, at [73] of its reasons, that Ms Gaffey was notified in advance of Ms Nathan's thinking about a possible downgrading of her assessment. The Tribunal also found that Ms Gaffey was well aware that there were concerns about her performance: see the Tribunal's reasons at [74]-[76]. 84 Question 8 concerns the Tribunal's finding (at [79] of its reasons) that Ms Nathan's actions on 19 December 2012, when she notified Ms Gaffey that her final performance rating was level 1 - not performing, were not unreasonable because, in part, Ms Nathan was acting on advice from the human resources section of the Department. Ms Gaffey contended that this finding was unsupported by evidence because there was no evidence before the Tribunal of the content of the advice. 85 Whilst it may be correct that there was no evidence of the content of the advice given to Ms Nathan, that does not provide a proper basis to challenge the Tribunal's findings concerning the reasonableness of Ms Nathan's actions. It was open to the Tribunal to conclude that Ms Nathan's actions were reasonable, even if there was no evidence of the content of the advice Ms Nathan had received. The fact that Ms Nathan was acting on advice was enough to make her actions reasonable. It does not appear that, in her case before the Tribunal, Ms Gaffey considered that the content of the advice from human resources was material. She did not cross-examine Ms Nathan on this point, or otherwise endeavour to discover the content of the advice. Nor was this issue the subject of any meaningful submissions in the Tribunal. 86 Question 9 concerns the proposition that the Tribunal's finding that Ms Nathan's actions were reasonable was unreasonable in law because of the alleged deficiencies that are the subject of questions 7 and 8. For the reasons already given, the contentions advanced by Ms Gaffey in the context of questions 7 and 8 have no merit. The Tribunal did address the substance of all of Ms Gaffey's submissions concerning the reasonableness of the administrative actions of Ms Nathan and Ms Laut. The Tribunal's findings in that regard were supported by and open on the evidence before it. There is no basis for the contention that the finding was unreasonable. 87 Question 10 also hinges on Ms Gaffey's contentions relating to questions 7 and 8. It involves the contention that the Tribunal did not provide an adequate statement of reasons concerning its finding of reasonable administrative action. Ms Gaffey did not advance any submission, written or oral, in support of this question. That is perhaps because it has no merit. The Tribunal provided adequate reasons for its factual findings concerning the reasonableness of the administrative actions that resulted in the aggravation of Ms Gaffey's injury. 88 Question 11 is a new question that Ms Gaffey was given leave to include in her notice of appeal following an application made on the day of the hearing of her appeal. It concerns the Tribunal's findings that the remarks made to Ms Gaffey by Ms Laut were not unreasonable and were consistent with her role as a mentor. At [59] of its reasons, the Tribunal made the following observations about the comments made by Ms Laut: The Tribunal also notes that, objectively, the remarks recorded by Ms Gaffey are the kind of remarks which a mentor would make to a person being mentored. They can be interpreted as feedback designed to assist someone to project themselves better so as to improve the perceptions others have of the person. Accordingly the Tribunal accepts that the remarks were made by Ms Laut. 89 Likewise, at [69] of its reasons, the Tribunal said: It is not known what triggered Ms Laut's comments at that meeting. This did not emerge during the hearing, nor is it apparent from statements made by any of the participants. As discussed earlier, however, the comments are precisely the kinds of comments which could be expected by a mentor in response to discussion about barriers to, and improvements which could be made to, the performance of a person being mentored. So in that context and in the context of discussions about performance issues the remarks were not unreasonable. 90 Ms Gaffey advanced two broad contentions concerning these findings. First, she submitted that these findings were either made in the absence of evidence, or were contrary to the evidence, or involved a misunderstanding of the evidence. Second, she contended that in making these findings the Tribunal denied her procedural fairness because the Tribunal did not raise the fact that this "issue" might be a relevant consideration with her counsel during the hearing. 91 The Court's consideration of these contentions was initially significantly hampered by the fact that Ms Gaffey did not file proper appeal books that complied with the Federal Court Rules. Given that Ms Gaffey was advancing a "no evidence" contention, it was incumbent on her to file appeal books that included all the evidence that was before the Tribunal. That was not done. Eventually (but only upon request), the Court was provided with a copy of the hearing transcript and some witness statements and other documents. It is by no means clear, however, that the Court was provided with all of the evidence. Nonetheless, Ms Gaffey's contentions are able to be disposed of on the basis of the material that was ultimately provided. 92 The first of the contentions put forward by Ms Gaffey, whilst couched in terms of a potential error of law, in reality essentially amounts to no more than a challenge to the merits of the Tribunal's factual findings on this point. 93 There was evidence that Ms Laut was Ms Gaffey's informal mentor, that she attended Ms Gaffey's meeting with Ms Nathan on 20 August 2012 at Ms Gaffey's request, and that the meeting concerned, in broad terms, Ms Gaffey's work performance and standards. 94 Ms Gaffey relied, in support of her argument that the Tribunal's findings were unsupported by, or contrary to, the evidence, on some small portions of Ms Laut's oral evidence. In answer to some questions put to Ms Laut, she appeared to agree that her mentoring role was related to a particular project in which Ms Gaffey was involved at the time, and was not, at least in any formal sense, concerned with the personal development or performance of Ms Gaffey. 95 The difficulty for Ms Gaffey's argument, however, is that the small snippets of evidence she relied upon are not the entirety of the evidence. Ms Laut made a statement which was tendered in the Tribunal. She was also questioned at length by Ms Gaffey's counsel. Ms Gaffey also gave evidence on this topic. The evidence in its entirety does not support Ms Gaffey's submission that her interactions with Ms Laut as her mentor were narrowly confined to the one program. Ms Gaffey characterised the genesis's of the mentoring relationship between her and Ms Laut in the following terms (at T14): From my perspective it was an informal arrangement as it appeared to be, and I expected to benefit from discussions on a one-on-one basis with Ms Laut because I had been impressed by her speaking. 96 Ms Laut's statement tendered in the Tribunal also suggested that the mentoring relationship was broader than what is now suggested by Ms Gaffey. Ms Laut stated that on one occasion she told Ms Gaffey to "keep on smiling" to keep herself feeling good and to give people a reason to engage with her. That alone suggested that Ms Gaffey's informal mentoring relationship was not as limited as Ms Gaffey now suggests. 97 It was, at the very least, open to the Tribunal to find that the comments made by Ms Laut that appeared to have aggravated Ms Gaffey's mental condition were made in the context of discussions concerning her work performance. It was also open to the Tribunal to find that, in this context, the comments were reasonable. Whilst Ms Gaffey is, no doubt, aggrieved by these findings of fact and believes that they are erroneous, it nonetheless cannot be concluded that they were entirely unsupported by evidence. Ms Gaffey's submissions to the effect that these factual findings were against the weight of the evidence, or involved a misunderstanding of the evidence, even if correct, rise no higher than alleging an error of fact or a complaint about the merits of the decision. 98 As for the second contention, there is no doubt that the Tribunal was obliged to afford Ms Gaffey procedural fairness. The issue is what procedural fairness required in this particular context. 99 Whilst Comcare's primary case in the Tribunal was that Ms Laut did not make the impugned statements, it is equally clear from Comcare's Statement of Facts, Issues and Contentions in the Tribunal that Comcare also contended that if the comments were made, they were made as part of Ms Gaffey's performance development process and were, in that context, reasonable administrative actions taken in a reasonable manner. It follows that Ms Gaffey was aware that the reasonableness of Ms Laut's conduct was, at least, a potential issue and consideration for the Tribunal. 100 Ms Gaffey's submission is, in effect, that in the circumstances the Tribunal was required to notify her that it might find that Ms Laut's comments were made in the context of her mentoring relationship with Ms Gaffey and, in that context, were not unreasonable. For that submission to be accepted, it would be necessary to find not only that the Tribunal had reached that conclusion during the hearing, but also that the conclusion was not one that would be obviously open on the known material. 101 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Court summarised the relevant principles in relation to the notice requirements of procedural fairness in the following terms (at 591-592): Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 102 In light of these principles, there are at least three difficulties that Ms Gaffey faces in relation to her procedural fairness argument. First, it cannot be concluded that the Tribunal had reached a concluded view during the hearing in relation to the reasonableness of Ms Laut's actions. Procedural fairness did not oblige the Tribunal to expose its mental processes or provisional views on that issue. 103 Second, a finding of reasonable administrative action on the part of Ms Laut was at least open on the known materials. Comcare's alternative case was that if Ms Laut made the comments, they were made in the context of meetings concerning Ms Gaffey's work performance and were not unreasonable. Ms Gaffey was represented by counsel at the Tribunal hearing. It is difficult to see how her counsel could not have seen that this was an issue that may have needed to be addressed in submissions. 104 Third, in any event, the Tribunal did reveal the possibility of a finding that Ms Laut's remarks might have been reasonable in the context of her informal mentoring role. In an exchange with Comcare's counsel, during submissions in the Tribunal, the Tribunal said (at T162): Do you not think it would have been possible for somebody who was a mentor to in fact have regarded as part of her mentoring role, not only the professional but also the personal assistance, as I would, and that those sorts of remarks would have been made with a view to helpfulness on the part of Ms Laut? 105 This observation was made in the context of Comcare's submission that Ms Laut did not make the comments. Perhaps for that reason, counsel for Comcare did not embrace the proposition put to her by the Tribunal. Nevertheless, this exchange did expose the Tribunal's mental processes or provisional views in relation to the context in which Ms Laut made the relevant remarks. It would have been apparent to Ms Gaffey, or her counsel, in light of this exchange, that this was an issue that might need to be addressed in submissions. 106 For these reasons, Ms Gaffey was not denied procedural fairness by the Tribunal.

Conclusion and disposition 107 Ms Gaffey has failed to demonstrate any material error of law on the part of the Tribunal in conducting its review of Ms Gaffey's compensation case. Whilst the Tribunal may have erred in its approach to determining the date of Ms Gaffey's injury, that error was ultimately immaterial and had no impact on the Tribunal's ultimate findings and conclusion. 108 Ms Gaffey's appeal must accordingly be dismissed with costs. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.