A "wilful and false representation"
35 Separate and distinct from any inadequacy in the Tribunal's decision in respect to its conclusion that the "disease" referred to in s 7(7) was the same "disease" throughout, the Tribunal's conclusion in respect to the representation being "wilful" also failed to comply with s 43(2B).
36 In circumstances where the making of a "wilful and false representation" acts to disentitle a claimant to compensation, compliance with s 43(2B) requires there to be express findings as to the facts upon which s 7(7) operates. Deficiencies in compliance with s 43(2B), in such circumstances, are not to be satisfied by an uncertain process of implication.
37 The Tribunal's findings and reasons in respect to this issue are as follows:
Wilful and false
[17] Ms Griffiths' claims that she had not previously suffered from an illness similar to anxiety, or anxiety and depression, are evidently false. Even excluding those episodes where the parties are in dispute as to the presence of mental illness, there are several instances in Ms Griffiths' life where the evidence is plain that she did suffer from conditions of anxiety or depression. Insubstantial variations in the way her condition is described from time to time in the medical record does not detract from this fact. The history of her previous encounters with anxiety and depression is so pronounced, indeed, that [it] is difficult to avoid the conclusion that her claims not to have previously suffered from them were deliberately untrue.
[18] To have once ticked the wrong box in a long government form might be said to fall short of wilful misrepresentation, and might be excused as inadvertent mistake; to do so twice - on separate occasions a year apart - is less easy to characterise in this benign way. This hesitancy is reinforced by evidence of a lack of candour about her medical record in other contexts. Counsel for Australia Post put to the Tribunal that Ms Griffiths had omitted significant details of her psychiatric history when providing histories to Dr Allnutt, Dr Roldan and Dr Champion, and the Tribunal accepts that the evidence for this is strong.
[19] It was put by Ms Griffiths' counsel that the forms' questions about previous illness lacked clarity and purpose. No guidance was offered to a claimant as to the meaning of the word similar, nor was a timescale suggested in which to itemise previous illness. No reference to the consequences of false answers was offered at this point in the forms (though it certainly was at the end of the forms), nor did anyone apparently issue an oral warning at the time she completed them about the dangers of falsehood. It was further suggested that an employee might reasonably think that the questions were about previous workplace-related illness. The absence of such protections or clarifications should lead, I infer the argument to be, to support for the conclusion that Ms Griffiths did not intend to wilfully mislead her employer.
[20] These arguments are unpersuasive. The purpose and requirements that the questions demanded of Ms Griffiths are reasonably clear, in my opinion. They sought to discover whether previous illness of this type had occurred, so that the employer could explore whether that previous illness, and not the present asserted injury, was responsible for the employee's condition. An employee failing to acknowledge previous illness in these circumstances would, in my opinion, knowingly be skating on very thin ice.
38 Again there was no disagreement between the parties as to what was meant by the phrase "wilful and false". The divergence between the parties was as to whether the reasons and findings provided by the Tribunal were adequate to justify its conclusion that the conduct of Ms Griffiths fell within that phrase.
39 Section 7(7), it should be noted at the outset, does not operate by reference to a "representation" that is merely factually incorrect. Section 7(7) thus does not preclude a "disease" suffered by an employee from being an "injury" merely because an employee has provided information that - for whatever reason - turns out to be factually incorrect. Section 7(7) is confined to a representation that is "wilful and false". Albeit confined to such a representation, s 7(7), where its terms are satisfied, may have draconian consequences: Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 at [53]. Madgwick J there envisaged (at [54]), by way of example, the suppressing of information "about an embarrassing condition" which was nevertheless "quite extraneous" to the claim being made. The sub-section may also, for example, operate where an employee has made "a wilful and false representation" even though that representation may not have impacted upon the decision made. The representation may later be withdrawn or corrected by later information.
40 What triggers the operation of s 7(7), accordingly, is not the provision of incorrect information but the making of "a wilful and false representation". It may be that the more confined circumstance in which such a requirement is satisfied has been perceived by the Legislature as warranting what may otherwise have been seen as a potentially draconian operation of the provision. But that matter may presently be left to one side.
41 Whatever may be the consequences of its operation, a "wilful and false representation" for the purposes of s 7(7), it is considered, requires "that the representation be made without any belief that it is true": Comcare Australia v Porter (1996) 70 FCR 139 at 150. Jenkinson J, in tracing the evolution of s 7(7), there concluded (at 149 to 150):
It was submitted for the applicant that the construction adopted by the tribunal treated s 7(7) as if in lieu of the words "wilful and false" the phrase "wilfully false" had been substituted. I see no distinction of meaning between the two. Nor does it appear from the history of the legislation that a distinction was intended by the legislature. In the Commonwealth Employees Compensation Act 1930 (Cth), s 10(2) provided:
"If the Commissioner is satisfied that the employee, at the time of entering the employment of the Commonwealth, wilfully and falsely represented himself as not having previously suffered from the disease, compensation shall not be payable."
When that Act was repealed and the 1971 Act was enacted in its place, s 29(3) provided:
"The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease."
(If the "last preceding sub-section" did not apply, no benefit under the Act was available.) There is nothing in explanatory memoranda or parliamentary debates to suggest that the change from "wilfully false" to "wilful and false" was significant.
Barwick CJ observed in Iannella v French (1968) 119 CLR 84 at 94-95:
"It is thus appropriate to consider the meaning and application of the word 'wilful' in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word 'wilful' is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, 'wilful' connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful."
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word "false", and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word "fraudulent". (Halsbury's Laws of England (4th ed, 1980), Vol 31, pars 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-57.) The clause "if the employee has … made a … false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
42 Tested by reference to such a standard, the findings and reasons of the Tribunal in the present case may meet the requirements of s 43(2B) in respect to the representations made by Ms Griffiths being "false" - but fail to satisfy the requirements of that provision in respect to the conclusion that the representations were "wilful".
43 Missing from the findings made by the Tribunal are any findings:
which clearly distinguish between the objective falsity of the representations made and Ms Griffiths' "knowledge of the falsity".
44 Notwithstanding the emphatic manner in which the Tribunal expressed its conclusion (e.g. at paras [17] and [20]), no satisfactory conclusion can be reached that the Tribunal in fact directed its attention to the legal requirements to be satisfied before any finding could be made that a representation was "wilful[ly]" untrue. No satisfactory conclusion can be reached that findings of fact were made which would satisfy such a requirement.