Case: Comcare v Mooi (1996) 69 FCR 439
Outcome: distinguished
The third ground is that the Tribunal failed to complete the exercise of its jurisdiction. This is related to the second ground and is said to arise because, having found that Ms Coe suffers from a psychiatric illness, the Tribunal should have asked itself whether the condition was contributed to by her employment: see Comcare v Mooi (1996) 69 FCR 439 9 Ms Coe brought a separate proceeding, NSD 577 of 2007, by way of an appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (' AAT Act '). That step was taken because the Registry had, several days earlier, rejected the filing of an application for judicial review. Counsel for Ms Coe accepts that the appeal does not raise a question of law, so that proceeding NSD 577 of 2007 must be dismissed. 10 The Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act ") makes provision for payment of compensation by Comcare to Commonwealth employees in respect of an injury that results, inter alia , in the employee's incapacity for work: see s 14 of the SRC Act . 36 The Tribunal concluded its analysis of the psychiatric evidence with the following observations: "[49] Finally, Mr Vincent who appeared for Ms Coe emphasised that it did not matter whose diagnosis we found (for example that of Dr Dinnen, Dr Barrett, or Ms Clark), it was a question of the connection with her work which was important. As set out above, we are not satisfied on the evidence that her psychiatric condition is relevantly caused by her employment." [50] He also argued that we could make a finding that Ms Coe satisfied the test set out in Comcare v Mooi (1996) 69 FCR 439. However, as we are satisfied that Ms Coe suffers from a psychiatric illness, it is not necessary to address that matter." 37 The Tribunal's description at [43] of Dr Skinner's diagnosis was taken from her report. There, Dr Skinner stated that Ms Coe suffers from an anxiety disorder with agoraphobia which was probably present prior to the explosion. 38 However, it is clear from cross-examination of Dr Skinner before the Tribunal, that she did not consider that the pre-1979 anxiety disorder was a clinical condition. This is to be seen from the following passages of the transcript:- "MS KELLY: Dr Skinner, I'm just curious I don't quite follow in your report at page 11 you say that she has an underlying condition and dependent personality. I understand the dependent personality, but you're saying there that she has an underlying anxiety condition. The way I read that, you're saying that she had that prior to 1979? --- Yes, I'm not saying a disorder but it seemed that she was a rather shy, nervous sort of person. I'm not saying it's everybody has anxiety and I thought she's a bit more anxious than most people. ... MR VINCENT: Senior Member Kelly was asking you about your diagnosis on page 11 and specifically where you say, 'Has an underlying anxiety condition'. As I've got your answer, you said, 'Not an anxiety disorder'? --- Yes. Not an underlying anxiety disorder? --- Yes. Is that right? --- Yes. Well, isn't what you actually said in the previous paragraph 'Ms Coe suffers from an anxiety disorder'? --- Well, I was talking about presently, you know, in the answer to --- This was probably sorry. This was probably present prior to the 1979 accident? --- Yes, I probably should have said that it was yes, I probably should have said the tendency was there, rather than it being present. I don't think it was a disorder. I'm sorry, I don't think it was a disorder prior to 2002. She describes being more functioning better before that." 66 The Tribunal recorded Mr Vincent's submission at [50] that it could make a finding that Ms Coe's condition satisfied the test stated in Comcare v Mooi . 67 In that case, Drummond J said at 443 that the expressions used in the SRC Act to define the various forms of mental conditions that can amount to compensable injuries do not appear to be used in a technical medical sense. 68 His Honour was of the view, at 443-444, that it is unnecessary for a worker's condition to be identified with the label of a recognised mental condition. However, he went on to say at 444: "But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour." 69 The Tribunal's reasons for coming to the view that it was not necessary to deal with Comcare v Mooi are perhaps elliptical. 70 However, I see no error of law in its failure to address this question. This is because the evidence of Dr Skinner, which the Tribunal accepted, was inconsistent with a finding that Ms Coe's condition prior to 2002 was outside the boundaries of normal functioning and behaviour as stated in Comcare v Mooi . 71 Even if it did satisfy that test, it was unnecessary for the Tribunal to consider it further because of its finding that Ms Coe's psychiatric condition was not "relevantly caused" by her employment. 72 I propose to order that the application be dismissed with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 11 October 2007 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Stacks/Forster Counsel for the Respondent: Mr B Kelly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 27 June 2007 Date of Judgment: 11 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1564.html