Did the Tribunal fail to give adequate reasons (ground 5)?
86 Section 43(2) of the AAT Act imposes a duty on the Tribunal to give reasons for its decision. Where, as here, the Tribunal gives its reasons in writing s 43(2B) provides that:
[T]hose reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
87 Ground 5 reads as follows (without alteration):
The reasons given by the Tribunal for finding that sub-section 5A(1), on its proper construction, operated to exclude the Applicant's entitlement to compensation In respect of the claimed psychological condition, did not comply with the requirements of ss.43(2) and (2B) of the AAT Act, because, having given reasons in writing, those reasons did not include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based, In particular in relation to
(a) the finding that the Applicant was suffering from the claimed ailment by "no later than 11 November 2015", rather than at a date prior to 30 September 2015, having regard to the Applicant's evidence, the Applicant's medical treatment records, and the evidence of Dr Smith;
(b) the finding that the Applicant would not have suffered from the claimed psychological condition but for the refusal of the Applicant's employer to reclassify certain leave as requested by the Applicant, having regard to the Applicant's evidence, the Applicant's medical treatment records, and the evidence of Dr Smith;
(c) the finding that it was unnecessary to consider all four of the factors alleged to have been covered by the reasonable administrative action exclusion, having regard to the causation test formulated by the High Court in Comcare v Martin.
88 Without complaint from Comcare, however, the argument strayed beyond the terms of ground 5, although no application was made to amend the notice of appeal. The argument largely turned on the paucity of the reasoning to support the Tribunal's finding in [137] that the adjustment disorder would not have occurred had it not been for the Department's conduct in September 2015 relating to the refusal to reclassify Ms Wonson's leave.
89 As pleaded, ground 5 makes little sense. It is well-established that the obligation imposed by s 43(2B) only extends to the findings the Tribunal has actually made and not to findings the Court considers it ought to have made. In V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8], for example, Hill and Allsop JJ made the following observations:
The terms of the provision are clear. It is necessary for the Tribunal to record its findings of the facts that it considers to be material. That proposition was also made plain by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in considering the similarly worded s 430 of the Migration Act. There are differences between s 430 and s 43(2B), but these differences only reinforce the proposition that s 43(2B) only requires that it is the findings of fact which, in the opinion of the Tribunal, are material that need to be set out in the reasons. Merely because the Court is of the view that the matter should have been approached in a different way or that important factual questions have not been addressed does not lead to the conclusion that there has been a failure to comply with s 43(2B). Nevertheless, as was pointed out in Yusuf at [31], [74], [75] and [82], the absence of findings by the Tribunal on certain matters or the nature of the findings actually made may disclose that the Tribunal has failed to attend to the task given to it by the statute. The findings, including the absence of findings, may, in that way, disclose jurisdictional error.
90 The Tribunal's duty to give reasons, however, is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved "an unwarranted finding of fact, or an error of law, which is worth challenging": Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 at 507 (Woodward J). Woodward J said in Wraith that the decision-maker must set out his or her understanding of the relevant law, the findings of fact on which his or her conclusions depend, especially if the facts were disputed, and the reasoning processes which led to those conclusions. His Honour also said that that should be done "in clear and unambiguous language, not in vague generalities or the formal language of legislation". That case was concerned with a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 13 of which requires a relevant decision-maker to furnish on request to a person aggrieved by a decision to which the Act applies "a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". The use of the conjunction "and" in s 13(1) of the ADJR Act instead of the enunciation of the duties in separate subsections is an immaterial difference. The Tribunal, no less than a decision-maker whose decisions are covered by the ADJR Act, is required to set out its findings on material questions of fact, the evidence or other material on which those findings are based, and the reasons it had for reaching its decision: Comcare Australia v Mathieson [2004] FCA 212; 39 AAR 450; 79 ALD 518 at [63] (Weinberg J).
91 As French J explained in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD 103 at [40]:
The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. There will always be some legal rule or principle or discretion to apply. It may be that a rule or principle, like the major premise of a syllogism, will embody the factual circumstance necessary to give rise to a right or liability. Then it may be sufficient to state that rule or principle in the reasons, the facts found as the minor premise, the evidence on which they are based and, the result which follows. Not all, and perhaps not many results are so easily explained. Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.
92 Speaking of the duty imposed by s 68(2) of the Accident Compensation Act 1985 (Vic) on a medical panel to provide a written statement of reasons for its opinion on a medical question referred to it, the High Court said in Wingfoot at [55] that the statement must set out "the actual path of reasoning" by which the panel arrived at its opinion and explain that path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. The Court went on to say that "[i]f a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion ....".
93 The Tribunal's duty to give reasons in conformity with s 43(2) similarly requires the Tribunal to disclose its path or process of reasoning in sufficient detail to enable a court to see whether it has made an error of law. That will necessarily involve making reference to the findings on material questions of fact and the evidence or other material on which those findings were based, but the duty is not discharged merely by including those references.
94 Ms Wonson alleges that the reasons given for three of the Tribunal's findings were inadequate. Those findings were:
(1) the finding (at [31]) that Ms Wonson was suffering from an ailment, namely an adjustment disorder with depressed and anxious mood, by no later than 11 November 2015, "having regard to [Ms Wonson's] evidence, Ms Wonson's medical treatment records, and the evidence of Dr Smith";
(2) the finding (at [137]) that Ms Wonson would not have suffered from the ailment had it not been for the refusal of her employer to accede to her request to reclassify her sick leave, "having regard to [Ms Wonson's] evidence, [Ms Wonson's] medical treatment records, and the evidence of Dr Smith"; and
(3) the finding at [139] that it was unnecessary to consider all four of the factors alleged to have been covered by the reasonable administrative action exclusion, having regard to the causation test formulated by the High Court in Comcare v Martin.
95 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 McHugh JA stated:
In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.
96 As we explained above, the challenge to the finding at [139] is based on a misunderstanding of the High Court's decision in Comcare v Martin. We see no reason why it was incumbent on the Tribunal to explain why it was unnecessary to consider the other three matters upon which Comcare relied in the light of its conclusion that Ms Wonson would not have suffered from the adjustment disorder but for the administrative action taken by the Department in September 2015.
97 The challenge to the adequacy of the reasons for the finding at [31] has no merit.
98 The issue the Tribunal was addressing in [31] was whether Ms Wonson suffered an ailment or an aggravation of an ailment within the meaning of the SRC Act.
99 Before stating its finding at [31], the Tribunal referred to the medical evidence, noting the various diagnoses. As we mentioned earlier, all three psychiatrists from whom evidence was elicited initially diagnosed Ms Wonson with an adjustment disorder, although at this point in its reasons, the Tribunal only referred to Dr Chow's revised diagnosis of a major depressive disorder. The Tribunal then briefly summarised the opinions of Dr Smith and Dr McDonald, each of whom diagnosed Ms Wonson with an adjustment disorder. It will be recalled that Dr McDonald's diagnosis, following his examination 8 December 2015, was of an adjustment disorder with a depressed and anxious mood. Dr Smith's was of an adjustment disorder with mixed depression and anxious mood. Dr Smith's diagnosis is not appreciably different from the Tribunal's finding. It is readily apparent from the Tribunal's reasons that the finding was based on Dr McDonald's diagnosis, with which Dr Smith agreed. The progress notes from the Rao practice do not indicate that Ms Wonson had been diagnosed with an adjustment disorder before December 2015 when she was seen by Dr McDonald but that she had had episodes of depression and anxiety. But it is clear from what the Tribunal said at [70] of its reasons that it regarded the condition described in Dr Rao's certificate of 11 November 2015 to be the same condition later diagnosed as an adjustment disorder.
100 That leaves the complaint about the alleged inadequacy of the reasons for the finding at [137].
101 The reasons for the finding commence at [129] with a reference to Comcare v Martin, followed by an extract from [47] of the judgment before moving on in [131] to Ms Wonson's evidence set out at [94]-[95], the assessment of that evidence at [132], and references to select parts of certain medical reports.
102 Ms Wonson submitted that the Tribunal's reasons at [129]-[136], supported by other evidence she gave, as well as the evidence of the GPs and Dr Smith, were "consistent with a person who is suffering a psychological 'impairment', but not yet completely incapacitated for work". She argued that the reasons do not expose "the logical process by which [the Tribunal] moved from those findings to the result in the case" and that "reasoning relating to the 'logical process' is missing in this instance". In particular, Ms Wonson submitted:
[T]he Tribunal has failed to provide any reasoning for ruling out the explanation that the Applicant was already psychologically ill, but not yet totally incapacitated for work, towards the end of September 2015. Indeed, the very subject matter of the meeting in September 2015 which was said to give rise to the "last straw" (in relation to capacity to continue at work) requires consideration of an alternative scenario that (a) the Applicant was already struggling to stay at work, and (b) was already exhibiting psychological symptomatology involving worsening depression on top of her fibromyalgia, before the meeting of 30 September 2015. The Tribunal had nothing to say about that. The Tribunal also failed to provide any reasoning that reconciled its apparent acceptance of the opinions of Dr Selwyn Smith, concerning the history of the Applicant's psychological condition, with the conclusion that the Applicant did not suffer from a psychological condition until possibly as late as 11 November 2015, six weeks after the meeting on 30 September. Further, the Tribunal said it was relying, inter alia, on the opinions of Dr Chow and Dr McDonald, doctors qualified by the Respondent, but it is submitted that those reports do not illuminate the logical process leading to the Tribunal's conclusion either. The same comment can be made about the reports of Dr J. Rao, also relied on by the Tribunal. While the Applicant accepts that the law requires only that the Tribunal set out the reasons it had for reaching its decision, there must be a logical process which leads from the evidence the Tribunal accepted to the conclusion it reached about causation.
103 There are some problems with this submission. The Tribunal did not rule out the notion that Ms Wonson was "psychologically ill" towards the end of September 2015, before the meeting on 30 September. The Tribunal decided that she would not have suffered from the adjustment disorder if the Department had not refused to reclassify her leave, a decision first made and conveyed to her on 18 September 2015. Nor did the Tribunal conclude that Ms Wonson did not suffer from a psychological condition "until possibly as late as 11 November 2015". It is obvious from the Tribunal's remarks at [131]-[132] that it accepted that Ms Wonson was suffering "very significant distress" at least by late September 2015.
104 Moreover, as Comcare submitted, on a fair reading of the Tribunal's reasons, the evidence of Drs J Rao, McDonald and Chow to which the Tribunal referred at [137] is a reference to the evidence cited in the preceding four paragraphs. That evidence included the fact that Ms Wonson consulted Dr Rao on the day of the meeting; Dr McDonald's evidence about her condition on 8 December 2015 and the history he recorded in his first report; Dr Chow's assessment of Ms Wonson on 16 December 2015; Ms Wonson's statements to him about the effect of the meeting; and the diagnoses made by Drs McDonald and Chow at their consultations in December 2015.
105 There is, however, force in the argument that the reasons are inadequate. The reasons explain why Ms Wonson stopped work on 30 September 2015 and refer to evidence to support the conclusion that she was incapacitated for work from that time. But they do not explain why she would not have suffered from an adjustment disorder had the Department not refused to reclassify her leave. Counsel for Ms Wonson correctly described the Tribunal's finding as amounting to nothing more than an ipse dixit. When one asks oneself how the Tribunal came to the conclusion that Ms Wonson would not have suffered from the adjustment disorder had it not been for the Department's refusal to reclassify her leave, one struggles to come up with an answer. The evidence to which the Tribunal referred in the preceding paragraphs does not provide it. For the most part that evidence consists of Ms Wonson's own account of the events of September 2015 and her response to them, whether given in her statement to the Tribunal, under cross-examination, or in histories to some of the doctors and ignores her other evidence.
106 The Tribunal made scant reference to the medical opinions. None of the references it made to the medical reports was to an opinion concerning the effect of the Department's refusal to reclassify her leave. In fact, none of the reports of any of the medical practitioners included an opinion that the adjustment disorder would not have arisen but for the Department's refusal to reclassify Ms Wonson's leave. And the Court was not taken to any oral evidence to that effect. One is driven to speculate about what might have been in the Deputy President's mind.
107 This is a matter of particular significance in a case such as this where a clearly articulated argument to the contrary had been put.
108 In her Statement of Facts, Issues and Contentions dated 14 September 2017 signed by her solicitor, Ms Wonson contended that:
If the items of alleged "administrative action" in paragraph 4.12 had not occurred, the Applicant would (on the balance of probabilities) still have suffered her psychological condition, as a result of work-related stress, and the Applicant's perceptions of being bullied and harassed in the workplace over a period of years.
A submission to like effect was made during oral argument before the Tribunal (ts 468/40-45).
109 The Tribunal did not refer to this contention and its reasons were inadequate to dispose of it.
110 Ms Wonson gave an account of psychological ill-health which she attributed to certain conduct at her workplace over a number of years and there was evidence of psychological ill-health before 17 September 2015 which had been attributed by experts to that conduct.
111 It might have been open to the Tribunal to come to the conclusion it did. It was no part of Ms Wonson's appeal that it was not. But the Tribunal was in breach of s 43(2) of the AAT Act to do so without explaining whether and, if so why, it rejected Ms Wonson's contention. While the Tribunal was not required to provide a line-by-line refutation of Ms Wonson's case or her evidence, it was required to do that. As Jagot J observed in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; 62 AAR 77; 138 ALD 600 at [42], "[t]he duty to give adequate reasons, even in the context of the limits on the duty of the Tribunal under s 43(2B) of the Administrative Appeals Tribunal Act, is shaped by the contentions which the parties put". While conclusions on primary facts which were not in dispute are unlikely to require explanation, since a person aggrieved by the decision would readily understand how they were reached, "[c]onclusions as to significant facts in dispute are likely to require explanation, if persons affected by the decision are to be given an understanding of the basis for the decision" for, without one, they are unlikely to understand why they lost: Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 at [78] (Bromberg J).
112 In oral argument, Comcare sought to justify the Tribunal's decision by the Tribunal's reference 50 paragraphs earlier (at [87]) and in a different context (that part of its reasons in which it determined the nature of Ms Wonson's ailment) to one diagnostic criterion for an adjustment disorder listed in the 5th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders:
The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
113 But this reference takes the matter no further. First, it was not a reason the Tribunal gave for concluding that the adjustment disorder would not have developed had it not been for the Department's refusal to reclassify Ms Wonson's leave. Second, Ms Wonson had a history of developing emotional or behavioural symptoms in response to identifiable stressors during her employment in the Department within three months of the onset of the stressor.
114 In her report to Comcare on 7 December 2015, Dr J Rao said that Ms Wonson first presented to her regarding her work injuries on 12 July 2012 at which time she gave a history of "severe work related stress since 6/7/2012". The progress notes disclose that on examination she was noted to be "weepy" with "anxious effect". In her 7 December 2015 report Dr Rao expressed the view that "alleged bullying and harassment" was the cause of "her current aggravation of symptoms" (emphasis added). In her subsequent report, dated 4 April 2016, Dr Rao said that at her consultations on 12 July 2012 and 30 September 2015 she appeared to be extremely distressed, weeping throughout, with an anxious affect and that assessment of her psychological state revealed that she had severe anxiety, stress and depression. She also disclosed that, "at several unrelated consultations over the years" Ms Wonson had complained of feeling "anxious and panicky", especially at the thought of going to work, and that over this period of time her symptoms of anxiety persisted "all day", affecting her ability to take care of her family and disturbing her sleep. To the question whether Ms Wonson's employment with the Department of Human Services was a substantial contributing factor to her injury, Dr Rao replied (without alteration):
Mrs Wonson gives a history of allegedly being bullied at work place which is said to have been going on for several years. Her current symptoms are consistent with psychological injuries suffered as a result of this. It would appear that her employment with department of human services is a substantial contributing factor for this psychological injury.
115 It is true that Dr Rao did not diagnose Ms Wonson with an adjustment disorder in 2012, but neither did she in 2015.
116 At [137] the Tribunal said that it based its decision on the evidence of Ms Wonson recounted at [94] and [95] and the evidence of Drs J Rao, McDonald and Chow. Yet none of these doctors or, for that matter, Dr Smith (to whose evidence the Tribunal did not refer in this context) expressed the opinion that Ms Wonson would not have suffered from the adjustment disorder they diagnosed had it not been for the Department's refusal to reclassify her leave. Dr McDonald and Dr Chow, who appear to be the only doctors who were directly asked the question, both ruled it out. If Ms Wonson's evidence of five years of bullying and harassment were accepted, the development of the adjustment disorder might well have been inevitable. In his first report, Dr Chow said that it was likely that clinically identifiable symptoms of her condition, which he diagnosed as an adjustment disorder with anxiety, "occurred since 2012 due to ongoing workplace difficulties ...". In his second report, Dr Chow wrote that the decision not to reclassify Ms Wonson's leave was "the main trigger that led to her leaving work" but said that "without that incident, she would have developed her claimed condition anyway". The Tribunal said that Ms Wonson told Dr Chow that the meeting on 30 September 2015 was the "trigger for her ceasing work", which broadly reflects the first part of Dr Chow's opinion. But it made no reference to the second part of the opinion, which was completely at odds with its finding. The Tribunal did not accept the evidence of Dr Chow and Dr McDonald about the relationship between Ms Wonson's psychological ill-health at the time of their examinations and her history of depression before 2010, but it accepted their initial diagnoses and did not reject their initial opinions.
117 A summary of Dr Smith's evidence on the cause of Ms Wonson's adjustment disorder, taken from his second report, appears at [61]-[62] of the Tribunal's reasons:
61 On 19 May 2017, Dr Smith reported, in part:
In regard to the notations made by Dr Rao related to the stressors she had experienced in her personal life these are in my opinion quite separate from the untoward events she experienced at her place of work. Having experienced a pre-existent Postnatal Depression, that had fully resolved as well as multiple psychosocial stressors, she was coping quite well and was free of a psychiatric disorder up until she experienced the untoward events at her place of work. While she may have been rendered more likely to have experienced a psychiatric disorder in response to significant psychosocial stressors given her history it is my opinion that the substantial contributor to the development of her Adjustment Disorder with mixed Depressed and Anxious Mood was the untoward events she experienced at her place of work.
I respectfully disagree with the conclusion that there is "a high probability that Ms Wonson had continued to suffer from situational stressors at various levels and the incidents/situations at work and her perceptions of being bullied and harassed, caused a reaction effect to her underlying condition". The history in my opinion is not consistent with such a conclusion.
62 In his report, Dr Smith also expressed his opinion that:
• Ms Wonson has remained under the care of a competent clinical psychiatrist and has received appropriate pharmacotherapy;
• in many ways her mood had deteriorated since his earlier examination;
• Ms Wonson had substantially recovered from any pre-existent psychopathology by the time she commenced work at the Agency;
• she had fully recovered from any untoward events prior to 2010;
• the condition from which Ms Wonson was suffering at the time she claimed compensation was not a continuation of the conditions from which she suffered before 2010;
• the symptoms suffered by Ms Wonson from the beginning of 2010 are a completely new psychological condition that is not an aggravation of her earlier condition;
• there was no competing cause for the emergence of her psychiatric disorder between 2010 and 2015;
• "it is significant to note that there is consistency across the board in regard to the diagnosis made by [Ms Wonson's] treating clinicians as well as independent examiners Dr Chow and Dr McDonald".
(Emphasis added.)
118 The reference to the "untoward events" Ms Wonson experienced at her place of work in the passage from Dr Smith's 2017 report (extracted by the Tribunal at [61]) was not, or at least not exclusively, a reference to the events of September 2015. That is plain from Dr Smith's reports. It is also clear from what the Tribunal said (without alteration) at [68]:
When cross-examined at the hearing, Dr Smith expressed the view that the real difficulties Ms Wonson began to experience in her work environment started when she was working with Mr Cartledge. This was in 2008 [scil. 2010]. Dr Smith stated:
... I got a different perspective that irrespective of her untoward background history she had commenced working and was coping well up until the appointment of a superior to whom she felt quite intimidated and had difficulty relating to. She also had difficulty in relating to other superiors and against that background she also developed depressive symptoms of significance of these depressive symptoms, in my view, were quite significant to the point that she decompensated.
(Emphasis added.)
119 At [70] the Tribunal appears to have accepted Dr Smith's opinion that "the toxic environment" to which Ms Wonson was exposed while working for the Department was "a substantial contributor that caused her to decompensate" in 2015. On the history, her psychological reaction to that environment did not begin in September 2015 and the Tribunal did not find that the history was untruthful or otherwise unreliable.
120 The effect of the evidence of Dr Smith mentioned in the third last dot point of [62] of the Tribunal's reasons is that the symptoms of Ms Wonson's adjustment disorder first appeared in 2010, not 2015. It appears from the reasons that the Tribunal accepted this evidence. It certainly did not reject it. Nor did it reject Ms Wonson's evidence about the effect of the alleged bullying and harassment that preceded the events of September 2015. Indeed, it made no findings one way or another as to what occurred at that time. It merely summarised Ms Wonson's evidence.
121 It is difficult to reconcile those parts of Dr Smith's evidence, which the Tribunal apparently accepted earlier in its reasons, with its finding at [137] that Ms Wonson would not have suffered from the adjustment disorder had it not been for the Department's refusal to reclassify her leave in September 2015. Again, while it might have been open to the Tribunal to so find, the decision does not disclose its reasoning process. Having regard to the substantial contention, clearly advanced by Ms Wonson, that she would still have suffered her psychological condition regardless of any of the administrative actions upon which Comcare relied ("as a result of work-related stress" and her "perceptions of being bullied and harassed in the workplace over a period of years"), the Tribunal should have provided an "explanation of the basis upon which it was satisfied as to the ultimate fact, with particular emphasis on the significant issues which were raised": Alexander at [82].
122 For all these reasons we uphold Ms Wonson's complaint that the Tribunal erred in law by failing to give adequate reasons for its finding at [137] that she would not have suffered from the ailment she did had it not been for the Department's refusal to reclassify her leave, but not otherwise.