Peters v Comcare

the explanation for the delay 9 The delay in question is a delay of some six and a half months. 10 Since early 2010, Ms Peters has been treated by Dr Ian Katz, Consultant Psychiatrist. Dr Katz describes Ms Peters as suffering from a significant depressive illness. Ms Peters' illness has been treated through counselling and by anti-depressant drugs. 11 In the hearing before the Tribunal on 13-15 February 2012, Ms Peters represented herself. She deposed that this left her completely exhausted and when followed by the unfavourable decision of the Tribunal, she experienced a deterioration of her depression which led to her inability to give appropriate consideration to the question of an appeal. 12 In a letter dated 29 March 2013, Dr Katz opined that the combination of Ms Peters' depressive illness and the negative psychological impact of the Tribunal's decision, led to Ms Peters not being in a position to lodge an appeal within the 28 days allowed. Dr Katz further stated that any further court appearance is likely to be detrimental to the health of Ms Peters. 13 Counsel for Comcare tendered evidence of comments made on various social media sites by Ms Peters. It was submitted that these comments showed Ms Peters' capacity to engage with the decision of the Tribunal in the period since the Tribunal handed down its reasons. It was suggested that the material relied on undermined the opinion proferred by Dr Katz. 14 In my view, the capacity of Ms Peters to engage with the decision of the Tribunal on social media does not say a great deal about her capacity to engage, as the self-represented litigant which she was until very recently, with the institution of complicated proceedings in a superior court. There is no proper basis before me to question the opinion of Dr Katz. 15 There is some force in Comcare's submission that Dr Katz's opinion does not cover the entirety of the period in question because it was given about a month and a half prior to the making of the application for an extension of time. Whilst I have taken that into account, I would give Ms Peters the benefit of the doubt given the long-standing nature of her illness. Her explanation is not strong but tends to support the grant of an extension of time.

Prejudice to Comcare 16 Comcare did not assert that it would suffer any prejudice by reason of the delay should an extension of time to institute an appeal be granted. The absence of any prejudice at all favours the grant of the extension sought although, as the authorities make clear, a mere absence of prejudice is not sufficient of itself to justify the grant of an extension of time.

The merits of the proposed appeal 17 Ms Peters was not legally represented at the time that she filed her application including the draft notice of appeal which accompanied it. She has very recently obtained legal representation and it may be expected that on the grant of leave to institute an appeal some attention will be given to the questions of law and the grounds relied upon by Ms Peters identified in the draft notice of appeal. 18 There is at least one matter identified as a question of law in Ms Peters' draft notice of appeal which, in my view, raises an arguable case sufficient for me to arrive at the conclusion that, if leave is granted, the appeal instituted would raise an arguable case of legal error in the decision of the Tribunal. 19 Ms Peters contended that the Tribunal erred in law by misdirecting itself in relation to the proper construction of an exclusion found in the definition of "injury" provided in s 5A(1) of the Act. The relevant exclusion contains the phrase "reasonable administrative action taken in a reasonable manner in respect of the employee's employment". 20 To explain the relevance of the phrase, how it was construed by the Tribunal and its importance to the outcome of the Tribunal's decision, it is necessary for me to set out in summary form, some of the relevant background. 21 The decision of the Tribunal was based on Comcare's acceptance that Ms Peters suffered a psychological injury to which her employment significantly contributed. However, Comcare contended before the Tribunal that Ms Peters' entitlement to compensation was negated by the exclusion in s 5A(1) of the Act. 22 Section 5A(1) provides that "injury" means either "a disease suffered by an employee" or an "injury…suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment": …but does not include 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. ("the exclusion") 23 Section 5A(2) provides a non-exhaustive list of circumstances that are "taken" to constitute "reasonable administrative action" as follows: (a) a reasonable appraisal of the employee's performance; (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; (c) a reasonable suspension action in respect of the employee's employment; (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d); (f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. 24 By its decision, the Tribunal stated that the focus of its review was whether the injury suffered by Ms Peters was covered by the exclusion. The Tribunal found that it was and for that reason affirmed the decision made by Comcare to reject Ms Peters' claim. 25 The Tribunal identified the injury suffered by Ms Peters as resulting from "the perceived mismanagement of her return to work following her toe fracture, the decision not to place her on an on-call roster and refusing her request for a transfer to the WTC" (at [141]). Each of those factual matters requires a short explanation. 26 On 29 June 2009, Ms Peters fractured her right little toe at home. She was incapacitated for approximately three weeks and returned to work on 20 July 2009. Whilst at work she raised a range of complaints about the way in which her return to work was managed, including as to the nature and extent of the duties that she was required to perform given the injury to her toe. The extent of walking that would be required of her in the performance of those duties was a matter at issue between her and those officers responsible for managing her return to the performance of her ordinary duties. A decision was made not to place Ms Peters on an on-call roster. That decision was also connected with the issue of Ms Peters' fitness to undertake work in view of the injury to her toe. Ms Peters made a request for a temporary transfer to another position ("the WTC position") on the basis that the WTC position would involve her in less walking. Her request was denied. The incapacity claim made by Ms Peters was based on the stress and anxiety she claims she experienced as a result of the manner in which her return to work was managed including the denial of the on-call position and the refusal of the temporary transfer sought by her. 27 The Tribunal accepted Comcare's contention that the conduct of the officers concerned in managing Ms Peter's return to work and in not placing Ms Peters on the on-call roster and in refusing her request for a transfer, was reasonable administrative action taken in a reasonable manner in respect of Ms Peters' employment and was therefore action covered by the exclusion. 28 It is apparent that whether an injury has been suffered as a result of "reasonable administrative action taken in a reasonable manner in respect of an employee's employment", involves two questions. The first is whether the action which led to the injury being suffered was "reasonable administrative action taken…in respect of the employee's employment". The second question is whether the action was taken in "a reasonable manner". 29 At [115] of its decision, the Tribunal came to the view that the action taken in the management of Ms Peters' return to work was reasonable administrative action which was taken in a reasonable manner in respect of her employment. However, the reasoning which preceded that finding appears to deal only with the second question and not the first. The finding that the denial to Ms Peters of a position on the on-call roster was action which constituted reasonable administrative action taken in a reasonable manner in respect of her employment appears at [126] of the Tribunal's decision. The reasoning which precedes that finding appears to deal only with the second question and not the first. 30 Similarly, the decision to refuse Ms Peters a temporary transfer, was found at [132] to be action taken by the officers involved which was reasonable administrative action taken in a reasonable manner. The reasoning which precedes that finding likewise appears to be directed to the second question and not the first. 31 There is no doubt that the Tribunal was satisfied as to the first question, although the basis upon which it was so satisfied is somewhat unclear from its decision. As best as I can tell, it appears that the first question, that is whether the actions taken which led to the injury being suffered was "reasonable administrative action…taken in respect of the employee's employment" was only dealt with in the following paragraphs of the Tribunal's decision: [142] The decisions made by relevant ATO officers, acting within the scope and authority of their employment are captured by s 5A of the SRC Act if those decisions affected an individual employee, in this case, the applicant. [143] The relevant conduct of those officers (which gave rise to the applicant's complaints) and the relationship between them and the applicant in respect of her employment falls squarely within the analysis of s 5A in the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 125 ALD 181. Gray J decided at [33]: In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making a claim, in his or her capacity as employee, and the employer in its capacity as employer... As the tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of "injury," unless the action taken was not reasonable, or was not unreasonably [sic] taken (followed also in National Australia Bank Ltd v KRDV [2012] FCA 543 at [35] and Buck and Comcare [2012] AATA 327 at [45]). 32 The content of paragraph [142] suggests that the Tribunal construed the phrase "reasonable administrative action…in respect of the employee's employment" as meaning action taken within the scope and authority of those officers who took it, if that action affected an individual employee. 33 It is arguable that by adopting such a construction, the Tribunal misconstrued what the Act means by the phrase "reasonable administrative action taken…in respect of the employee's employment". Such a construction is arguably contrary to that adopted by the Full Court in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463. At [60], Rares and Tracey JJ said: The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken "in respect of the employee's employment". That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee's employment. This suggests that the parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be "in respect of" something that exists - the person's employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided "the nature of, and particular tasks involved in, the employment". [Emphasis added.] 34 The dichotomy drawn by Rares and Tracey JJ between action directed at the employment itself and action touching upon the duties and incidents of that employment is arguably a matter which the Tribunal failed to engage with as a result of the construction of the exclusion which it adopted. 35 For those reasons, I am satisfied that there is an arguable case that the Tribunal misconstrued the exclusion in s 5A(1) and that as a result the decision is tainted by legal error. 36 Ms Peters also relied on a number of other grounds to support her contention that there was merit in her proposed appeal. Having come to the view that I have arrived at, it is not necessary that I deal with those other grounds, although I doubt that an arguable case could have been established on the basis of the other grounds raised.

conclusion and costs 37 Having regard to each of the above factors in combination, I consider that this case is an appropriate case for the grant of an extension of time in which to institute an appeal. I will make an order to that effect. 38 Comcare seeks an order for its costs. Ms Peters made no submission on the question of costs. In my view, although Ms Peters has succeeded, she should nevertheless pay the costs incurred by Comcare in relation to her application. 39 The Court has a wide discretion as to costs. The discretion must be exercised judicially. Ordinarily, a successful party will be entitled to its costs, however it is entirely consistent with the relevant principles to order costs against a successful party "for some reason connected with the case": Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17 at [21] (Marshall, Edmonds and Greenwood JJ); and see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9] (Black CJ, Beaumont and French JJ). 40 For the successful applicant to be ordered to pay the respondent's costs, I must be satisfied that there is good reason to depart from the ordinary rule. In this case I am satisfied that good reason to depart from the ordinary rule arises. But for Ms Peters' delay, the application would not have been necessary and the costs which Comcare has incurred would not have been incurred. It was not unreasonable for Comcare to resist the application made by Ms Peters. There is therefore no basis for concluding that the costs incurred by Comcare arose as a result of anything other than the failure by Ms Peters to have instituted her appeal within the 28 day period provided for. In those circumstances, it follows that Ms Peters should pay Comcare's costs of the application for an extension of time. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.