Case: Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316
Outcome: applied
Two of the relevant events which were found by the Tribunal to have contributed in a material degree to Mr Wiegand's disease were (i) a failure to be promoted in 1989 and (ii) a failure to obtain compassionate leave in 1997. In arriving at this conclusion the Tribunal appears to have applied unexceptionably the decision of the Full Court in Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316 at 323 in determining whether the above two events contributed in "a material degree" to his disease. 8 The Tribunal dealt with such evidence as related to the former of these at [69]-[74] of its reasons. These paragraphs (other than par [74]) refer to evidence which suggested the promotion matter "aggrieved", or had a "significant impact" on, Mr Wiegand, or else reflected conduct of the ATO that concerned him. More significant is the following passage in the oral evidence of Dr Coyte on which the Tribunal relied in par [74]. It is as follows: "THE D.PRESIDENT: Doctor, I wonder if you would look at the report of the decision of the Federal Court in Mr Wiegand's appeal to the Federal Court [in 2002]. Do you have that there? It was part of exhibit 24 tendered this morning, I think. I wonder if you would go to paragraph 10 of that report and you will see a series of dot points within paragraph 10?---Yes. I wonder if you would just take a moment to read through those particular dot points?---How far would you like me to go with this? I think continue to the end of paragraph 10?---Okay. I didn't realise there were so many pages but if I just ask you a general question perhaps to the end of paragraph 10 and then paragraph 11 which is very brief. That. Thank you. Now, you understand from having read that, that that is a summary prepared by the Federal Court Judge of the concerns which Mr Wiegand had about events that had happened in the course of his employment?---Yes. And which he thought contributed to his ill health. Paragraph 10 contains what are described as the major events, but not necessarily all of the events. The question is, in the course of his consultations with you has he mentioned those events to you?---I could say, yes, he has. Not in as much detail as some of these. No. Certainly, apart from matters of detail, there is nothing new in there that you haven't heard about before?---No, there is nothing new. Did all of those matters appear to be of concern to Mr Wiegand?---When he related them to me? Yes?---Yes. Do you consider that all of those matters contributed to the onset of his depression, or alternatively, to the aggravation of his depression?---Yes, I do." (TR22.3.05 at pp 39-40) 9 I should interpolate that the 1989 failure to be promoted and its aftermath was one of the events referred to in par 10. The Tribunal (in par [75]) went on to conclude: "Whilst (as I have already found) there was a combination of many events that caused Mr Wiegand's depressive condition, it appears from the evidence before me that this first failure to be promoted marked the beginning of Mr Wiegand's psychological concerns. I find from the above evidence that this event was one of the causative factors for his developing major depression and that it was not an insignificant factor. This factor was an excluded event within the proviso to the definition of 'injury' ." 20 Mr Wiegand's complaint in relation to the promotion incident centred in large measure on the fact that it was only towards the very end of a protracted hearing in the Tribunal that Hart's case became an issue (it having just been decided by the Full Court). Up until then the case had been run by him on grounds suggested by the earlier decision of von Doussa J which related to the reality of his "perceptions". For this reason little attention was given to the 1989 promotion in the course of the proceedings. He contends that his psychiatrist, Dr Coyte, was reluctant to assign diagnostic significance to individual past events such as the 1989 promotion event. Equally Mr Wiegand sought to explain away the significance of the transcript referred to above by saying that, while Dr Coyte agreed that the factors referred to by von Doussa J, including the failure to be promoted, contributed to the onset of his depression, Dr Coyte did not agree that they contributed in a material degree. Given the decision of the Full Court in Treloar's case on the significance of the word "material" in this context, I do not consider there is any substance in this supposed difference. As the Full Court observed in Treloar at 323, once a causal connection is established between an employment event and the ailment suffered "it matters not that the contribution be large or small". 21 Given Dr Coyte's evidence, there was some evidentiary basis for the Tribunal making the finding that it did. Whether that finding was in fact erroneous or not is not a matter of present relevance. I have referred above to the threshold posed by a no-evidence case. Mr Wiegand in the circumstances is unable to cross it. This conclusion of itself would be sufficient to dismiss the application. 22 I should add for the sake of completeness that I have reached a like view on the compassionate leave question. The evidence of its contributing effect might be considered slight but there nonetheless was evidence of such a contribution before the Tribunal.