Rand v Comcare

The issues as posed by the Applicant for resolution 7 When addressing an argument that the Tribunal has failed to resolve a submission which had been previously advanced by a party, it is necessary to identify at the outset the submissions in fact advanced and to thereafter identify from the reasons given by the Tribunal the submissions in fact resolved. 8 In the present proceeding it was common ground between the parties, on the hearing of the appeal, that before the Tribunal Ms Rand was claiming compensation either: because she suffered an "aggravation" of her pre-existing injury whilst working at the National Blood Authority or because that employment had "contributed" to her condition; or because her pre-existing condition suffered whilst at the Department of Health and Ageing - and in respect to which liability had been accepted in 2002 - continued. Comcare did not dispute that these claims were being made before the Tribunal. But what was submitted on behalf of Comcare was that the "central contention" as identified in the Applicant's Outline of Submissions had not previously been advanced with that same precision when the parties were before the Tribunal. It was submitted, on behalf of Comcare, that the claim had not previously been "pleaded" with that degree of precision. 9 Comcare, it is respectfully considered, properly conceded that one manner in which Ms Rand advanced her claim before the Tribunal was a claim founded upon the continuation of Ms Rand's pre-existing injury, irrespective of anything that had happened at the National Blood Authority. Such a concession was properly made given that such a claim had been identified in: the form of claim made in April 2011 and as supplemented in the letter dated 29 April 2011; the statement of Contentions filed on behalf of Ms Rand and dated 25 July 2012; and submissions made on behalf of Ms Rand at both the outset of the hearing before the Tribunal and in closing submissions. Thus, for example, in the closing submissions as made before the Tribunal, Counsel for Ms Rand submitted as follows: … Even if there's no aggravation, then we say the applicant is entitled to compensation on the strength of the fact that their employment with the Department of Health and Aging produced a worsening or produced a psychiatric condition, being that described by Dr Phillips, which remained an effective and operative cause of her need for treatment, her impairment, her incapacity. And I rely on the decision in - again, you're familiar with this case, I think, Ilsley v Wattyl Australia… The decision there referred to is a reference to the decision of the Full Court in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1. Reliance was placed upon that decision on behalf of Ms Rand presumably because the worker in that case had suffered an injury both in 1981 whilst working for one employer and a further injury in 1995 whilst working for a different employer. The potential liability of different employers was the issue common to both the present claim to be resolved by the Tribunal and the issue presented for resolution before the Full Court.

The issues identified by the Tribunal 10 The "issues" to be resolved were identified by the Tribunal in its reasons for decision as follows: Issues [23] The issues are: • What is the appropriate diagnosis of Ms Rand's condition? • Does Ms Rand's condition fall within the meaning of "injury" in the Act? • Did Ms Rand suffer an aggravation of her condition while employed by the Authority? • If not, has the recurrence of Ms Rand's condition been contributed to, to a material degree/significant extent, by her employment by the Authority? The first two of these issues may presently be placed to one side. The last two "issues" focussed attention upon whether a claim for compensation could be founded upon whether Ms Rand suffered an "aggravation of her condition" whilst working at the National Blood Authority or whether her employment at the National Blood Authority "contributed" to her present condition. 11 So expressed, these "issues" did not identify what Counsel on behalf of Ms Rand now identified as her "central contention". But this alternative manner in which the claim was being advanced was identified by the Tribunal immediately thereafter in its reasons for decision when it said: Consideration [24] The Tribunal notes that the history of this claim has changed substantially during its history. Ms Rand initially made a claim for aggravation of PTSD. That was a new claim against the Authority for acceptance of liability for that condition. However, during the course of this matter it was accepted that the diagnosis of PTSD was not made out and both parties agreed at the hearing that a claim for PTSD was no longer being pursued. A consequence was that some of the evidence produced for the purpose of the original claim became of limited relevance. [25] A difficulty created by this change was to identify what was the substance of the claim. As counsel for Comcare contended if the claim was a claim for section 14 liability against the Authority, whatever the nature of the condition, if Ms Rand was to be successful, the Tribunal would need to find that there was an aggravation of Ms Rand's accepted condition of an adjustment disorder with anxious mood. However, as an alternative, he contended she was "entitled to compensation on the strength of the fact that … employment with the [agency] produced a worsening or produced a psychiatric condition, which remained an effective and operative cause of her need for treatment, her impairment, her incapacity". In other words, her claim had either to be a continuation of her previous claim or a fresh one. [26] Counsel acknowledged that if the Tribunal found that Ms Rand's conditions during her time at the Authority were in fact a continuation of her accepted condition there may have been no need to bring the application for review to the Tribunal. In effect, the most the claim could achieve would be that the claim be returned to Comcare to decide what level, if any, of compensation was attracted. If that was the case, the claim became a claim for compensation for medical treatment and for incapacity payments. Counsel for Comcare agreed with these alternatives except that he suggested there could also be a finding that the ongoing injury may not be related to employment by either agency. The Tribunal has considered these three alternatives in its reasons. The "alternative manner" in which the claim was being advanced was expressly adverted to at paragraph [25] of these reasons. The reference in those reasons to the "agency" is a reference to the Department of Health and Ageing. And the passage extracted in italicised type in those reasons is in recognition of the fact that that extract is the quotation of the submission made on behalf of Ms Rand in closing submissions. 12 Notwithstanding the recognition on the part of the Tribunal as to the "alternative" manner in which the claim for compensation was being advanced for resolution and its statement that it "considered" the "three alternatives" ([2013] AATA 580 at [26]), the reasons for decision thereafter provided by the Tribunal are confined to the four "issues" identified in paragraph [23]. 13 The Tribunal thus went on to address the first of the "issues" it had identified, namely the "appropriate diagnosis of Ms Rand's condition": at [27] to [39]. The Tribunal noted that Ms Rand had an accepted condition of "adjustment reaction with anxious mood": at [27]. It went on to address the competing psychiatric evidence and found that "Ms Rand has a recurring and chronic psychiatric condition which can be described as an adjustment disorder with mixed anxiety and depressed mood, symptoms of which have been present intermittently since at least 1987": at [34]. The Tribunal also accepted that "Ms Rand possibly has a personality disorder or at the least personality traits which 'lead to distress or impairment'": at [37]. 14 The Tribunal then addressed the second "issue", namely whether her condition fell within the meaning of "injury" in s 5A of the Safety, Rehabilitation and Compensation Act. 15 The Tribunal then proceeded to address the third of the "issues" it identified, namely whether Ms Rand "suffer[ed] an aggravation of her condition while employed by the Authority". In resolving this "issue" the Tribunal said that for "a condition to be aggravated it has to be made worse, not simply become worse": at [48]. The Tribunal resolved this "issue" adversely to Ms Rand. It found that "the disappearance of a condition when stressors are removed is not capable of being described as an aggravation": at [48]. On the facts, the Tribunal found that "she has had periods, as she concedes, when she has not needed to be on anti-depressants and when she has been functioning without being disabled by her depressive condition or her anxiety". The Tribunal concluded: [50] In these circumstances, the Tribunal is satisfied that both the nature of her accepted adjustment disorder condition and her history indicate that the reactivation of Ms Rand's condition is better described as a triggering or re-manifestation of the condition, rather than an "aggravation", for the purposes of the Act. 16 The Tribunal then went on to address the fourth "issue" it had identified, namely whether "the recurrence of Ms Rand's condition has been contributed to, to a material degree/significant extent by her employment by the Authority": at [51] to [88]. 17 Paragraphs [86] to [88] are perhaps susceptible of being directed to matters other than those of relevance to the third and/or fourth "issues" identified in paragraph [23]. Those paragraphs were expressed as follows: [86] In summary, the evidence of other medical specialists, and of those in her workplaces, satisfies the Tribunal that aside from a period in 2000 and 2002, a period which was then followed by one in which work concerns diminished, Ms Rand's employment by the Authority did not contribute to a material/significant degree to Ms Rand's condition, and we so find. [87] Rather, the Tribunal considers that the history of Ms Rand's predisposition to depressive disorders, and underlying personality traits, pressures from non-work-related health, family, and financial matters have been other activities and other health-related matters that have contributed significantly to the psychological distress she has experienced post 2002, and particularly while at the Authority. [88] In summary the Tribunal's finding is that Ms Rand has an adjustment disorder with mixed anxiety with depressed mood, the condition occurs periodically, but was not aggravated by her employment at the Authority. Her employment with the agency did make a material/significant contribution to her adjustment disorder. The Tribunal's findings are that after she left the agency her employment made some contribution to her condition, however, the contribution did not reach the evaluative threshold necessary for liability to arise. Even if attention is directed to these paragraphs, it is respectfully concluded that the Tribunal was still directing its attention to the third and fourth "issues" it had previously identified. In summarising its conclusions, it was addressing attention to the question as to whether Ms Rand's employment at the National Blood Authority had "contributed" to or "aggravated" her condition. 18 The Tribunal's reasons for decision thus record the reasons for its conclusions in respect to each of the four "issues" it identified in paragraph [23]; those reasons do not disclose any elaboration or resolution of the "alternative" submission it identified in paragraph [25] or as now formulated as Ms Rand's "central contention".

The case that was not resolved? 19 On no reading of the Tribunal's reasons for decision can it be concluded that the Tribunal expressly addressed the "alternative" claim for compensation or what was identified in this Court as Ms Rand's "central contention". 20 Whether or not the Tribunal was required, however, to expressly deal with that claim, be it described as an "alternative" claim or as a "central contention", is not resolved by either: seeking to characterise the submission as now formulated as a claim that was not previously specifically "pleaded" - as was the contention advanced on behalf of Comcare; or by: seeking to now characterise that "alternative" claim in this Court as a "central contention" - as was the contention advanced on behalf of Ms Rand. 21 Any unquestioning attempt to transpose the common law concept of "pleadings" to the procedures employed by the Administrative Appeals Tribunal in all of its decision-making functions is to be approached with considerable caution and, generally, should be resisted. Long before the administrative law reforms in Australia in the mid-1970s, Lord Shaw cautioned in Local Government Board v Arlidge [1915] AC 120 at 138: The words "natural justice" occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term "natural justice" means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous. Much has changed in the administrative law context over the last century. Much has changed in Australia, in particular, since the mid-1970s. 22 With specific reference to the Administrative Appeals Tribunal, the Commonwealth Legislature has given detailed consideration to the jurisdiction to be entrusted to that Tribunal, the tasks to be undertaken when jurisdiction has been conferred and the procedures to be followed in the discharge of its review function. Jurisdiction has been conferred upon that Tribunal to review a myriad of Commonwealth administrative decision-making, varying from those statutory contexts in which applicants are frequently unrepresented and where the legal issues are the entitlements of applicants to social security benefits, to those where applicants are invariably represented and where the legal issues are inherently commercial rights of considerable monetary value. 23 The task of that Tribunal in those circumstances where jurisdiction has been conferred upon it, in contrast to superior courts of record, is to reach the "correct or preferable decision": Administrative Appeals Tribunal Act 19745 s 43 (Cth). Within that fundamental constraint, the procedure of the Tribunal is "within the discretion of the Tribunal" (s 33(1)(a)) and the Tribunal is further directed that its proceedings are to be "conducted with as little formality and technicality, and with as much expedition as … a proper consideration of the matter before the Tribunal permit" (s 33(1)(b)). 24 In reaching the "correct or preferable" decision, prescriptive analogies with the procedures followed by superior courts of record have - as a general proposition - been shunned. With particular reference to the submission advanced on behalf of Comcare in the present proceeding, the Tribunal is not constrained by the common law rules of "pleadings". And the words of caution expressed by Lord Shaw assume particular relevance in the context of proceedings before the Administrative Appeals Tribunal and have been given a more modern voice. Northrop J, for example, in Saunders v Federal Commissioner of Taxation (Cth) (1985) 15 ALD 353 at 358 has observed in respect to proceedings before the Tribunal: Viewed in this light, it is not surprising that the procedures of the Tribunal differ greatly from court proceedings. For example, there is no provision for the filing of pleadings nor for discovery or inspection of documents. Nor is the Tribunal bound by the rules of evidence. Provision is made for there to be "parties" to the proceedings (s 30) but in a reference such as this the parties are not adversaries in the strict sense, and any argument they present constitutes material which assists the Tribunal in deciding what decision should be made. The decision of the Tribunal is not in the nature of a judgment for or against a particular party… See also: Australian Guarantee Corporation Ltd v Levine (1989) ASC 55-934 per McDonald J; Watson v Federal Commissioner of Taxation [1999] FCA 1796 at [32], (1999) 96 FCR 48 at 53-54 per Heerey J. The task entrusted to the Tribunal and the manner in which it proceeds stand in stark contrast to the task entrusted to a superior court of record to resolve a dispute between the parties "in accordance with law" and, in a largely adversarial context, where the material facts relied upon by a plaintiff are pleaded in a statement of claim and where the response of the defendant is crystallised by the filing of a defence. In further contrast to that approach, the Tribunal is not bound by the rules of evidence and is expressly given the power to "inform itself on any matter in such manner as it thinks appropriate": s 33(1)(c). The manner in which the Tribunal proceeds in any given case will obviously depend upon the facts and circumstances of each individual case and the statutory context conferring jurisdiction upon the Tribunal. 25 The reforms to administrative law have not, of course, been confined to the Commonwealth. The Victorian Civil and Administrative Tribunal Act 1998 (Vic) establishes the Tribunal of that name and s 98 is the counterpart to s 33 of its Commonwealth Act. Section 98(1)(a) provides that the Tribunal "is bound by the rules of natural justice" and s 98(1)(b) provides that the Tribunal "is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures". Within that statutory context, as with the Commonwealth experience, it has been said that the common law rules of pleadings are generally inapplicable: State of Victoria v Turner [2009] VSC 66, (2009) 23 VR 110. Kyrou J there observed: [57] The Tribunal is not a court. Section 97 of the VCAT Act requires the Tribunal to act fairly and according to the substantial merits of the case in all proceedings. Section 98(1)(d) requires the Tribunal to conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment (in this case, the EO Act) and a proper consideration of the matters before it permit. While the Tribunal often orders parties to provide particulars of claims before the Tribunal so that the parties and the Tribunal are aware of the parties' cases, and in order to ensure the rules of natural justice are complied with, pleadings are not a feature of proceedings before the Tribunal. Section 98(1)(b) of the VCAT Act makes it clear that pleading rules do not apply to the Tribunal unless it chooses to adopt them. Determination of claims on their merits is a key feature of proceedings before the Tribunal and it would undermine this key feature if a party with a good claim on the merits were to fail before the Tribunal on the basis of a technical "pleading" point where there is no breach of the rules of natural justice: (2009) 23 VR 110 at 125. 26 To universally confine the Administrative Appeals Tribunal to a resolution of the "correct or preferable decision" by reference to pleadings would be (inter alia) inconsistent with the powers vested in that Tribunal by, in particular, s 33(1). 27 But the facts and legal issues to be considered by the Administrative Appeals Tribunal are not "at large". The parties themselves may identify those issues which are considered to be relevant to the claims being advanced and resisted. And the Tribunal itself may "require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing": s 33(2A)(c). There also remains the requirement that a party to a proceeding be given a "reasonable opportunity" to advance his or her case: s 39. Some clarification of facts and legal issues may be necessary to ensure that a party is afforded that opportunity: cf. Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 454 - 457. 28 Analogies with common law procedures (or guidance from the principles which underpin those procedures) may, on occasions, inform the manner in which the Tribunal may proceed in a particular case. Although an administrative tribunal may not be bound by the common law rules of evidence, it has (for example) been recognised that there is a "danger of injustice" if those rules are "ignored as of no account": R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. So, too, may the concept of "pleadings" inform the manner in which the Administrative Appeals Tribunal may proceed in a particular case or inform the Tribunal as to the issues in need of resolution. It is the unquestioning attempt to transpose common law rules of procedure or evidence which is to be resisted. 29 No reason was advanced in the present proceeding as to why the concept of "pleadings" should have been followed by the Tribunal or why "pleadings" would have better assisted in the identification of an issue in need of resolution and (indeed) is identified by the Tribunal itself. 30 As in a judicial context, not every submission advanced by a party in a proceeding before the Administrative Appeals Tribunal need be resolved: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267. A submission had there been advanced but not referred to in the reasons for decision. Jenkinson J concluded: …Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing … In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law…: (1988) 79 ALR at 276-277. Woodward and Foster JJ agreed with Jenkinson J. This decision has been cited and relied upon in reaching a conclusion that in the circumstances of individual cases the Tribunal has in fact erred in not resolving a submission which was "worthy of serious consideration" and which has been "seriously advanced": e.g., Secretary, Department of Prime Minister and Cabinet v Haneet [2010] FCA 928 at [24] per Dowsett J; Kennedy v Comcare [2014] FCA 82 at [38] to [39] per Katzmann J. It has been a proposition which has been accepted by other Judges of this Court and by other Courts: Leduca Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 at [33] to [34] per Garling J; Aitken v Victoria [2013] VSCA 28 at [37] per Neave and Priest JJA; Minister for Immigration and Citizenship v Shea [2011] FCA 37 at [34] per Cowdroy J; Sent v Commissioner of Taxation [2012] FCA 382 at [129] to [141], (2012) 128 ALD 34 at 61 to 64 per Murphy J. 31 Nothing, it should be noted, turns upon whether a particular submission can properly be described as one being "worthy of serious consideration" or as one which was "seriously advanced". The language of Jenkinson J should be understood as simply an attempt to ensure that not every submission which has not been expressly addressed, no matter how trivial or inconsequential, can give rise to a "question of law". Neither the function of the Tribunal in reaching the "correct or preferable" decision, nor the obligations imposed by s 43(2B) of the Administrative Appeals Tribunal Act, impose upon it the duty to address and resolve - and to provide reasons and findings - for every submission which may be canvassed during the course of the hearing. 32 A party cannot, obviously enough, seek to transform a submission which was perhaps only obliquely or inferentially advanced into a submission as one being "worthy of serious consideration" or as one which was "seriously advanced" by seeking to characterise it on appeal from the Tribunal as a "central contention". 33 Notwithstanding the fact that in the present proceeding the "central contention" as now formulated was not previously identified in the same terms in either the Contentions filed on 25 July 2012 or in oral submissions to the Tribunal, it is respectfully concluded that the "alternative" claim was identified in sufficiently precise terms and was indeed relied upon in oral submissions. Indeed, paragraph [25] of the reasons for decision of the Tribunal clearly identifies it as a submission which was advanced. It is, accordingly, a submission "worthy of serious consideration". No common law concept of "pleadings" should be applied such that any relevant distinction should be drawn between the manner in which the submission was previously advanced before the Tribunal and as now formulated in this Court. 34 Either as identified as an "alternative" claim in paragraph [25] - or as now formulated in the Applicant's Outline of Submissions as a "central contention" - that submission ought to have been addressed and resolved by the Tribunal. It was after all, a basis upon which continuing entitlements under the Safety Rehabilitation and Compensation Act 1988 (Cth) was being advanced. But this submission simply was not addressed. 35 No conclusion is open that the Tribunal made sufficient findings of fact to warrant a conclusion that the "alternative" claim was impliedly addressed and resolved or to warrant a conclusion that the Tribunal made sufficient findings of fact to warrant an order being made in favour of either Comcare or Ms Rand. 36 The Tribunal was required by s 43(2B) of the Administrative Appeals Tribunal Act to provide a statement in writing which included "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". The Tribunal has done so in respect to the four "issues" it identified in paragraph [23] of its reasons. Such findings of fact, as are elsewhere set forth in its reasons, are findings "material" to those four "issues". Other than in the clearest of cases, caution should be exercised before invoking findings of fact which have been made for one purpose in support of a conclusion on an "issue" otherwise not expressly addressed. The reasons of the Tribunal, including those provided at paragraphs [86] to [88], cannot be construed as a finding on a "material question of fact" necessary for the resolution of the "central contention" - namely a finding as to whether or not "the psychological condition arising from her employment with [the Department] for which liability had been accepted in 2002 …, remained an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards". 37 Nor, it should be noted, has the Tribunal expressly addressed Comcare's submission that "the ongoing injury may not be related to employment by either agency", presumably a reference to employment whilst either at the Department of Health and Ageing or the National Blood Authority: [2013] AATA 580 at [26]. 38 It remains a matter for the Tribunal to resolve the outstanding "central contention" relied upon by Ms Rand. The manner in which it resolves that outstanding submission is a matter for the Tribunal itself to determine.

CONCLUSIONS 39 In the hearing before the Tribunal the case advanced on behalf of Ms Rand included a claim that whilst employed at the National Blood Authority she had either: suffered an aggravation of her condition which had been initially suffered whilst employed at the Department of Health and Ageing; or there had been a recurrence of her condition which had been contributed to by that employment. These were included in the "issues" identified by the Tribunal: [2013] AATA 580 at [23]. These issues were resolved by the Tribunal. 40 In addition to these "issues", a further claim advanced on behalf of Ms Rand was that her employment with the Department of Health and Ageing "for which liability had been accepted in 2002 … remained an effective and operative cause of incapacity for work and need for treatment from 15 March 2005 onwards". This was the "alternative" claim, also identified by the Tribunal: [2013] AATA 580 at [25]. But this claim, it is concluded, was never resolved. It was a submission which ought to have been resolved. 41 This conclusion has been reached with considerable reservation - especially bearing in mind the careful manner in which the Tribunal has expressed its reasons for decision and its express statement that it "has considered these three alternatives in its reasons": [2013] AATA 580 at [26]. 42 The appeal is to be allowed with costs.

THE ORDERS OF THE COURT ARE:

1. The appeal is allowed.
2. The matter is remitted to the Administrative Appeals Tribunal to be reconsidered in accordance with these reasons.
3. The Respondent is to pay the costs of the Appellant. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.