Wonson v Comcare

• Jurisdiction: Australia Federal only
• Judgment Date: 05 May 2020
• Neutral Citation: [2020] FCAFC 76
• Date: 05 May 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Wonson v Comcare [2020] FCAFC 76

Appeal from:	Wonson v Comcare [2019] AATA 2779
File number:	NSD 1497 of 2019
Judges:	KATZMANN, ANASTASSIOU AND ABRAHAM JJ
Date of judgment:	5 May 2020
Catchwords:	WORKERS’ COMPENSATION — Commonwealth employees — appeal from decision of Administrative Appeals Tribunal to affirm determination by Comcare to refuse claim for compensation for injury allegedly due to bullying and harassment at work over five-year period — where claimed condition found to be adjustment disorder with depressed and anxious mood — where employee’s incapacity for work followed refusal of her request to reclassify sick leave already taken — where Administrative Appeals Tribunal found that the process of decision-making and the communication of the decision constituted reasonable administrative action taken in a reasonable manner with respect to the employee’s employment and found that the employee would not have suffered from the disorder had it not been for that action and was not therefore an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1998 (Cth) — whether notice of appeal raised questions of law — whether Tribunal erred by failing to fix earliest date disorder was diagnosable — whether Tribunal conflated incapacity with impairment — whether Tribunal failed to correctly apply Comcare v Martin (2016) 258 CLR 467 — whether Tribunal failed to comply with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) by providing inadequate reasons for three of its findings
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Federal Court Rules 2011 (Cth) r 33.30(2) Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 5A(1), 5B(1), 7(4), 14(1), 43(2), 44, 53
Cases cited:	Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; 253 ALR 263; 108 ALD 329 Comcare Australia v Mathieson [2004] FCA 212; 39 AAR 450; 79 ALD 518 Comcare v Davies [2008] FCA 393; 48 AAR 291; 173 IR 294 Comcare v Martin (2016) 258 CLR 467 Comcare v Mooi (1996) 69 FCR 439 Comcare v Wiggins [2019] FCA 1465 Dornan v Riordan (1990) 24 FCR 564 Drenth v Comcare [2012] FCAFC 86; 128 ALD 1 Gaffey v Comcare (2015) 239 FCR 76 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 Hart v Comcare (2005) 145 FCR 29 Karabolovska v Comcare [2019] FCA 2153 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343; 35 ALR 186 Lim v Comcare (2017) 250 FCR 298 May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 Peters v Comcare [2013] FCA 1361; 137 ALD 375 Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448 Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD 103 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; 62 AAR 77; 138 ALD 600 Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24; 126 ALD 48 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 Westrupp v BIS Industries Limited (2015) 238 FCR 354 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Date of hearing:	5 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	133
Counsel for the Applicant:	Mr L Grey
Counsel for the Applicant:	Kells the Lawyers
Counsel for the Respondent:	Mr A Berger with Ms S Wright
Solicitor for the Respondent:	Comcare

Table of Corrections
12 February 2021	At paragraph [99], “on” has been inserted immediately before “8 December 2015”.
12 February 2021	At paragraph [104], “the Minister” has been replaced with “Comcare”

ORDERS

		NSD 1497 of 2019
BETWEEN:	SUE WONSON Applicant
AND:	COMCARE Respondent

JUDGES:	KATZMANN, ANASTASSIOU AND ABRAHAM JJ
DATE OF ORDER:	5 MAY 2020

THE COURT ORDERS THAT:

1. The objection to the competency of the appeal be dismissed.

2. The appeal be allowed in part.

3. The decision of the Tribunal be set aside.

4. The application for review be remitted to the Administrative Appeals Tribunal to hear and determine according to law the question whether the applicant would not have suffered an adjustment disorder had it not been for her employer’s refusal to agree to her request to reclassify her leave in September 2015 and any further questions that may arise from the redetermination.

5. The parties confer on the appropriate costs order.

6. In the event that the parties are unable to agree:

   1. within 14 days of these orders, the applicant file and serve submissions on costs, not exceeding five (5) pages;

   2. the respondent file and serve submissions in response within 14 days thereafter, not exceeding five (5) pages;

   3. the applicant file and serve submissions in reply within 7 days thereafter, not exceeding three (3) pages; and

   4. the question of costs be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The applicant, Sue Wonson, is employed by the Commonwealth of Australia as a case officer in the Child Support Agency, an agency operated by the Department of Human Services. She is aggrieved by a decision of the respondent, Comcare, to affirm its determination to decline to pay her workers’ compensation under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act) with respect to an injury she claims to have sustained as a result of five years of “bullying and harassment” by her supervisors. This proceeding is an appeal from a decision by the Administrative Appeals Tribunal to affirm Comcare’s determination. The Tribunal, in this case constituted by one of its Deputy Presidents, found that Ms Wonson suffered from “an adjustment disorder with depressed and anxious mood” and accepted that her employment with the Department made a significant contribution to it, but determined that the disorder was not an injury within the meaning of the SRC Act because it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment.

2. Appeals from the Tribunal are limited by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to questions of law. Several questions are identified in the notice of appeal. In...