Tsiamis v Comcare

REASONS FOR JUDGMENT 1 The Applicant, Ms Marina Tsiamis, was employed as a clerical assistant by a Commonwealth Government Office between 1977 and 1983. 2 In June 2011 she lodged an application with the Respondent, Comcare, for compensation for bipolar disorder, paranoid schizophrenia and post-traumatic stress disorder. Her psychiatric illnesses were said to have been suffered as a result of witnessing the accidental death of one of two workers who were carrying out work on a lift in a government building in Woden in the Australian Capital Territory on 14 December 1981. Ms Tsiamis was then aged 21 years. 3 In October 2011, a delegate sent a letter to Ms Tsiamis stating that her claim had been "disallowed". The attached Statement of Reasons concluded that the delegate was satisfied that Ms Tsiamis was suffering a psychiatric illness but was further "not satisfied that this condition was contributed to a material degree by your employment". 4 Ms Tsiamis then sought review by the Administrative Appeals Tribunal. The form of Application for Review completed by Ms Tsiamis identified the reasons for her application as follows (without alteration): I believe the decision is wrong & a different decision should be made. Firstly, no 'incident report' was available from the elevator fatality. Secondly, the individual involved, Mr Robert O'Shea (Otis Lifts) gave false evidence at the Coroners inquiry. Thirdly, there was a breach of OH&S/ SRC policy, protocol & procedures. Fourthly, the incorrect legislation was used as a reference to my case (they used 1987 law instead of 1982 legislation). Fifthly, the government psychologist drew the wrong conclusions regarding my disability. And also, they referred to section 14 of the SRC act only, whereas there are many more pieces of legislation which pertain more appropriately to my case. Therefore, I have many more points of contention, to add weight to my claim, and I believe I am entitled to an objective opinion, and an arbitrater / mediator. There is so much more information I need to present to you, but I never seem to have the chance. I have already liased with so many departments and Government officials, but so far cannot reach a conclusion. I would really appreciate the forum to do so. On 20 May 2013 the Tribunal affirmed the decision under review: Re Tsiamis and Comcare [2013] AATA 319. The Tribunal rejected Ms Tsiamis' account of her being present on the lift shaft when the accident occurred and relevantly further concluded that: Ms Tsiamis' account of what occurred at the scene of the accident was found to be inconsistent with the Coroner's report in respect to the accident and statements from police officers who attended the accident; nothing in the clinical notes or medical reports supported a finding that Ms Tsiamis suffered from post-traumatic stress disorder; Ms Tsiamis had not suffered a "mental injury" for the purposes of s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and on the balance of probabilities there was no causal connection between Ms Tsiamis' mental illness and her employment. 5 On 28 May 2013 Ms Tsiamis filed a Notice of Appeal in this Court. 6 An appeal to this Court from a decision of the Tribunal is confined to a "question of law": Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). Although expressed as an "appeal", the jurisdiction of this Court when exercising such an "appeal" is the Court's original jurisdiction and not its appellate jurisdiction: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J. "The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it": Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. 7 The "question of law" as set forth in the Notice of Appeal was expressed in the following terms: Incorrect and insufficient evidence, supplied by primary material witness, Mr Robert O'Shea. [A]lso incorrect evidence supplied by Mr O'Shea to Police and Coroner's Court. Dispute with govt. psychiatrists reports & incorrect transcripts of my evidence. The Notice of Appeal also set forth as follows the findings of fact which the Court is asked to make: 1. Dispute of evidence by primary witness, Mr O'Shea. 2. Dispute of psychiatrists reports & also medical reports from Sutherland hospital. Dispute of Snr. Member Tooheys' argument discrediting my character. The deficiencies in the Notice of Appeal and, in particular, the manner in which the purported "question of law" was expressed were raised with Ms Tsiamis when the matter first came before the Court on 25 June 2013. Directions were then made for the Respondent to prepare a compilation of those documents as were before the Tribunal in order to facilitate the expeditious resolution of the appeal. Ms Tsiamis was anxious for her appeal to be heard as quickly as possible. An early hearing date was fixed to suit both the convenience of Ms Tsiamis and the same Counsel for Comcare who had appeared before the Tribunal. 8 On 3 July 2013, an Amended Notice of Appeal was filed. This set forth the "question of law" as the following (without alteration): Can the legislation that applies to this case, be reconsidered on account of the fact that some incorrect and incomplete evidence and testimony were put forward at the last AAtribunal hearing? Is Mr O'Shea, the primary witness, required by law, if issued with a subpoena, to provide the correct evidence regarding the fatality to the court? (withholding evidence) The "findings of fact" which the Court was asked to make were (again without alteration): The fact is, that I was present in the elevator at the time of the fatality, and suffered permanent psychological impairment, which the AAtribunal did not manage to validate. New evidence has come to light, which was not available from the archives at the time of the last hearing and consequently resulted in the denial of my compensation claim. 9 As is readily apparent from the manner in which the "question of law" is expressed and the "findings of fact" are expressed in both the original Notice of Appeal and the Amended Notice of Appeal, a matter of fundamental concern to Ms Tsiamis is the Tribunal's finding that it was not satisfied that she was present at the scene of the accident when it occurred. She maintains that she was and that the worker who was present, Mr O'Shea, when his co-worker was killed had given false evidence as to who was present at the time. 10 It is not considered that any "question of law" arises in respect to the decision of the Tribunal - either by reference to the terms of the Notice of Appeal or the Amended Notice of Appeal or by reference to an independent review of the materials before the Tribunal. 11 The finding by the Tribunal that it could not "conclude with any reasonable degree of satisfaction that" Ms Tsiamis was present at the scene of the accident when the accident occurred was a finding of fact. More fully expressed, the Tribunal's conclusions were expressed as follows: [28] … the inconsistencies in Ms Tsiamis' account, and between her account and the Coroner's findings, together with the length of time before she made her claim for compensation and her intervening mental illness, raise real doubts that she was present on top of the lift at the time of the accident. As we have said, she may have reconstructed important details from the transcript of the Coroner's inquiry. Alternatively, it is possible that she has come to believe she was present. [29] Given the inconsistencies in her evidence, and the lack of any corroborating evidence, we cannot conclude with any reasonable degree of satisfaction that Ms Tsiamis was present on top of the lift at the time of the accident. However, even if we were satisfied that she was present, for the reasons that follow, we would not be satisfied that the respondent is liable to compensate her. These were findings of fact which were reasonably open to it. One matter (for example) which assumed some importance in the reasoning of the Tribunal was that the evidence before the Coroner was that the lift was travelling upwards when the accident occurred; Ms Tsiamis, to the contrary, said the lift was travelling downwards. It is the function of the Tribunal to resolve such questions of fact; that is not the function of this Court. 12 Nor does any "question of law" emerge from the manner in which the Tribunal arrived at those conclusions.