Consideration
32 There are a number of observations to be made about the applicant's submissions.
33 First, the submissions now advanced as to aggravation, which are said to be obvious based on the medical records from the Mater Hospital, were not advanced by the applicant before the Tribunal. I do not accept the applicant's submission that the primary case run below was that the applicant had suffered an injury, and that as a secondary position, the issue of aggravation was raised. No transcript references, or references to any submission to that effect were identified by the applicant. I do not accept that the extracts of the transcript referred to by the applicant include any such submission. Nor was it advanced in the applicant's Statement of Facts, Issues and Contentions or his closing submissions in the Tribunal. Although I note that: in the respondent's Statement of Facts, Issues and Contentions filed before the hearing, "[w]hether the applicant's ailment or an aggravation of an ailment" was significantly contributed to by his employment was referred to as an issue, and answered in the negative without further expansion; and the reviewable decision dated 8 February 2021 listed as an issue whether the applicant had "sustained a condition, or an aggravation of a condition", although aggravation was not subsequently addressed.
34 There was an alternate case advanced by the applicant in closing submissions before the Tribunal, that "years and years of work stress, work pressure, difficulties with design, constant deadlines and conflict between, on one hand deadlines and on the other hand quality" and stress from having a heavy workload and working long hours were a significant cause of his injury. That was not a case of aggravation, but a case where the nature of the applicant's employment was advanced as an issue at a factually lesser level than that originally claimed. It covered the same period as the allegations as to bullying and harassment, that is "years and years" of such stress. However, this case as advanced, was inconsistent with the history the applicant gave to each of the medico-legal doctors and his claim, which was based on alleged bullying and harassment. It could only arise for consideration if the applicant's primary case was not accepted. Nonetheless, the Tribunal considered and rejected this alternate claim: see, for example, Tribunal's reasons at [209] and [212].
35 Second, it follows that the submissions now advanced are a different case to that put before the Tribunal. That, of itself, may not necessarily be fatal to this appeal. In Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 (Benjamin) at [47] the Full Court (Moore, Emmett and Allsop JJ) stated:
[47] Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. Each of the commission, the board and the tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1 at [17]-[18] and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287.
36 That said, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration: Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17]; Benjamin at [48]. As Gummow and Hayne JJ stated in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]:
[187] … Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
37 Moreover, the nature of the case that a party chooses to run may impact on the evidence before the Tribunal. That case may also be reflective of the evidence chosen to be led before the Tribunal.
38 As to the nature of the proceedings before the Tribunal, the applicant relied on, inter alia, Ellison at [5] and [103]-[106], and Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Hannaford) at [57].
39 Ellison supports the conclusion that the nature of the proceedings is inquisitorial. There, the claimant had an accepted claim termed as a "lumbar sprain" which was referrable to a specific work event in 2009. In 2018, Comcare ceased compensation entitlements to the claimant because it said that any ongoing back symptoms suffered were not work related, but degenerative changes: see Ellison at [35]. On appeal, the claimant alleged that the Tribunal made an error of law in concluding that it did not have jurisdiction to decide whether he was entitled to workers' compensation in respect of degenerative disease in his lower back which was contributed to, to a significant degree, by his physically demanding work for the Australian Customs Service (Customs) from 2002 to 2009, as distinct from the lower back injury he suffered in 2009: see Ellison at [4]. In that context, in the reconsideration application before Comcare and at the review level before the Tribunal, the claimant sought to submit that not only was his present back condition the result of the earlier accepted 2009 event, but additionally the nature and conditions of his physically demanding work from 2002 until 2009: see Ellison at [6].
40 Murphy J held that the Tribunal's jurisdiction was not limited to only the injury notified in the claim form: see Ellison at [120].
41 His Honour concluded at [142]:
[142] Taking those matters into account, in undertaking a review of the reconsideration decision and in exercising its inquisitorial role, I consider the Tribunal had jurisdiction to decide a claim that Mr Ellison was entitled to compensation for the Underlying Degenerative Disease which was contributed to, to a significant degree, by the work he performed for Customs between 2002 and 2009. The Tribunal's approach does not show a broad, generous and practical approach to construing Mr Ellison's notice of injury; nor does it take it account of the fact that medical diagnoses as to the nature and aetiology of Mr Ellison's injury evolved over time, and the statutory scheme allows for progressive decision-making.
42 In doing so, His Honour observed at [143]-[144]:
[143] The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it. That it had notice of the claim is plain when one considers that, after Comcare gave notice of its intention to cease compensation payments and provided Mr Ellison with an opportunity to provide further medical evidence, Dr Sewell provided his December 2017 report to Comcare. That report expressly informed Comcare of Dr Sewell's opinion that Mr Ellison was incapacitated for work by reason of spinal degeneration in his low back which was related both to the 2009 Workplace Incident and to his employment with Customs from 2002 to 2009. That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.
[144] Treating the broader claim as being properly before the Tribunal does no harm to the "orderly process of administration contemplated by the Act" (Abrahams at [16]). The orderly process of administration contemplates "progressive and evolving decision-making" in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison's condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing.
43 Although, as explained above, a review before the Tribunal is an inquisitorial proceeding, the factual context in which Ellison arose is different from this case. Not the least because in Ellison, it was the claimant's case, as he advanced through the evidence presented, that medical opinions relating to his condition evolved over time. Further, there Comcare was on notice at the time it made the reconsideration decision that the claims were based on the workplace incident in 2009 and the physically demanding work the claimant undertook in the course of his employment with Customs from 2002 to 2009. In Ellison, the issue arose because the Tribunal had confined its consideration to what was in the claim form for compensation, being the incident in 2009. This is to be contrasted to this case. Here, it was not the applicant's case in the Tribunal that medical opinions evolved over time. Nor was the case advanced on the appeal that which was contended below. There is no basis to contend, given the evidence relied on by the applicant, that the respondent was on notice of the case now advanced by the applicant. Nor did the approach of the Tribunal confine its consideration to the terms in the claim for compensation (namely, that the condition was depression caused by systemic bullying over five years). Indeed, the Tribunal considered the alternate case advanced in closing submissions by the applicant (that is, work stress and pressure) and a diagnosis of a condition different from that in the claim. This reflects that the Tribunal was cognisant of the nature of its role in the determining the issues before it.
44 The applicant also relied on Hannaford at [57] for the proposition that the SRC Act allows for progressive and evolving decision-making, which provides for adjustment or change in light of events or circumstances which may subsequently happen. In that paragraph, Conti J (Heerey and Dowsett JJ agreeing) stated:
[57] … The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers' compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability …
45 This was said to reinforce the point that the Tribunal should have been flexible enough to consider the alternative definitions of "injury" depending on the factual findings it made and the obvious legal consequences flowing from them. However, the context in which the statement in Hannaford was made is different to that before the Tribunal in this case. There was no change in light of events and circumstances which subsequently happened, as in Hannaford. Each case must turn on its facts. Indeed, the applicant's submissions are premised on there being findings of the Tribunal and material before it which required it to consider the question of aggravation. Although the existence of such findings and material is in issue.
46 Third, the applicant's written submissions challenge factual findings made by the Tribunal. This is an appeal on a question of law. There is no longer any ground of appeal challenging any of the Tribunal's factual findings, or alleging that the findings were made with no evidentiary basis. Accordingly, the applicant's submissions in support of the grounds of appeal must be considered in the context of the findings made by the Tribunal.
47 Those findings include that:
(a) the Tribunal preferred the evidence of the Mater Hospital records and Dr Lee (see Tribunal's reasons at [194]);
(b) the Mater Hospital records represented the only reliable assessment of the applicant's mental health during the time of his employment (see Tribunal's reasons at [195]);
(c) Dr Lee's evidence provided a comprehensive and persuasive assessment of the applicant's mental health issues (see Tribunal's reasons at [196]);
(d) in November 2018, the applicant suffered an adjustment disorder, which is an ailment for the purposes of the SRC Act (see Tribunal's reasons at [193]);
(e) the Tribunal was not persuaded that during his employment and in January 2020, the applicant suffered from a major depressive and generalised anxiety disorder (see Tribunal's reasons at [192]);
(f) the Mater Hospital records clearly identified personal and family issues as the predominant stressors which led to the applicant's hospital admission (see Tribunal's reasons at [208]);
(g) persistent workplace bullying and harassment were not mentioned in the Mater Hospital records (see Tribunal's reasons at [208]); and
(h) occasions of differences of opinions, disagreements, "some behaviour" that caused the applicant "to experience some stress" and "periods of stress because of work pressure and working long hours", did not contribute to his ailment to a significant degree (see Tribunal's reasons at [211]-[213]).
48 I note also that, as referred to above, the Tribunal recorded at [178] of its reasons, that the applicant submitted:
…that his injury is "a mental disorder of gradual development" that began in 2015 but became symptomatic in April 2017 when he first attended his general practitioner for treatment of "low mood anxiety". Alternatively, he submits that the "date of injury" is 25 November 2018 when he was admitted to the Mater Hospital Mental Health Unit.
49 The applicant did not take issue with the accuracy of that summary. As to the date of the ailment, the Tribunal concluded that it was suffered by the applicant "in November 2018": see Tribunal's reasons at [193]. I note that when asked during oral submissions on the appeal, the applicant submitted that the aggravation occurred "somewhere around 2018 and before his hospital admission".
50 Fourth, there was no expert evidence before the Tribunal which opined that the applicant was suffering from an aggravation of a pre-existing injury or ailment. The applicant submitted on the appeal that: aspects of Dr Lee's evidence gave rise to an "acknowledgement … of an underlying condition"; and the issue of aggravation was dealt with in an exchange during the cross-examination of Dr Saker. I do not accept those submissions as they are not based on an ordinary reading of the report and the transcript respectively. Rather, the applicant did not examine, or cross-examine any medical expert to suggest that he was suffering from an aggravation of a pre-existing injury or ailment. To the contrary, the evidence relied on by the applicant was that the injury or disease was 100 percent as a result of the workplace bullying and harassment which had been occurring for five years.
51 Fifth, the applicant's submission as articulated at [27] above, which identifies four reasons that there was evidence of an aggravation of an injury, is not supported by a proper consideration of the evidence.
52 For example, the fourth proposition that since "all of the medical evidence generally supported the claim", it follows that some sort of "underlying psychological injury in the difficult family situation may well have been aggravated" by various work stresses other than bullying and harassment. To the word "claim" is the footnote recited above at [25(d)] which excludes and criticises Dr Lee's evidence. However, the Tribunal did accept the evidence of Dr Lee, and that is the basis on which this submission must be determined: see Tribunal's reasons at [194], see also its summary of his evidence at [128]-[152]. Moreover, the Tribunal rejected the evidence of Drs Takyar and Saker on the basis of concerns with the applicant's credit and reliability. Their opinions were expressed on the basis of the acceptance of the history provided by the applicant, and that was not accepted: see Tribunal's reasons at [182]. I also note that, for example, Dr Saker gave evidence that the applicant's condition was 100 percent attributable to workplace bullying and harassment: see Tribunal's reasons at [173]. Accordingly, it is incorrect to characterise the medical evidence as generally supporting the applicant's claim. Rather, the applicant's submission does not address the evidence. Nor does the submission grapple with the Tribunal's findings: see, for example, [47] above. Moreover, as explained above, no doctor who gave evidence before the Tribunal opined that there was an aggravation of a pre-existing injury or ailment. The proposition that "underlying psychological injury in the difficult family situation may well have been aggravated" by various work stresses other than bullying and harassment does not follow or arise from the evidence that was accepted by the Tribunal, and the findings it made.
53 As to the propositions at [25(b)] and [2725(c)] above, the Tribunal addressed these issues and made findings at [211]-[212] of its reasons, which are not challenged. Those findings do not support any suggestion of an aggravation of an injury or ailment.
54 Similarly, in respect to the proposition at [27(a)], the Mater Hospital records do not suggest an aggravation. The Tribunal found from them, that at the time the applicant suffered an adjustment disorder: see Tribunal's reasons at [126], [187] and [193] (noting that it also relied on the evidence of Dr Lee). As previously explained, the Mater Hospital records do include a reference to work stress, pressure and long hours in the list of chronic stressors: see Tribunal's reasons at [124]. However, as the Tribunal found at [208], "personal and family issues were clearly identified as the predominant stressors that led" to the applicant's hospital admission. Further, the Tribunal concluded at [211]-[212] of its reasons that occasions of differences of opinions, disagreements and some behaviour that caused the applicant distress did not contribute to a significant degree to his ailment, nor did periods of stress because of work pressure and working long hours. The factual premises underlying the applicant's submission, in the context of the unchallenged factual findings, are not established.
55 As noted above at [30], the respondent submitted that the applicant's submissions fail to make clear how the elements essential to establishing liability for an "aggravation" can be established upon the evidence which was put before the Tribunal. In response, the applicant contended that: first, there was undeniable evidence of an underlying condition in the clinical records; second, the Tribunal found workplace stress; and third, the clinical records demonstrated aggravation of the applicant's problems due to workplace stress, and there was expert evidence that workplace incidents (howsoever characterised) caused psychological upset. The bases identified in that submission suffer from the flaws identified in the preceding paragraphs. They also pay no attention to the factual findings of the Tribunal.