Stateships v Lawson [2009] FCA 59

FEDERAL COURT OF AUSTRALIA Stateships v Lawson [2009] FCA 59

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – whether there was evidence before the Tribunal to support a finding that the respondent suffered a psychiatric disorder – no probative evidence – appeal allowed. Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 24 and 26(1) Administrative Appeals Tribunal Act 1975 (Cth)s 44(1) Federal Court of Australia Act 1976 (Cth) s 28 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55 cited Collector of Customs (Tas) v Flinders Island Community Association (1985) 8 ALN N102 cited Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 cited Repatriation Commission v Nation (1995) 57 FCR 2538 AAR 55 cited Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 cited Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 cited Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, (2008) 249 ALR 762 cited STATESHIPS v BARRY LAWSON

WAD 175 of 2008

GILMOUR J

09 FEBRUARY 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 175 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP, DR D WEERASOORIYA, MEMBER

BETWEEN: STATESHIPS

Applicant

AND: BARRY LAWSON

Respondent

JUDGE: GILMOUR J

DATE OF ORDER: 09 FEBRUARY 2009

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal dated 23 July 2008 be set aside. 3. The matter be remitted to the Tribunal, differently constituted, for determination according to law. 4. The respondent pay the applicant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 175 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT SD HOTOP, DR D WEERASOORIYA, MEMBER

BETWEEN: STATESHIPS

Applicant

AND: BARRY LAWSON

Respondent

JUDGE: GILMOUR J

DATE: 09 February 2009

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant appeals from the decision or determination of the Administrative Appeals Tribunal ("Tribunal") given on 23 July 2008 at Perth by which the Tribunal decided or determined that the applicant is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Act"), to pay compensation, in accordance with the Act, to the respondent in respect of a psychiatric disorder which he contracted in or about June 2006. An appeal lies to this Court on a question of law, from any decision of the Tribunal: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth)("AAT Act").

Background 2 On 27 July 1991 the respondent, now aged 63, whilst working as a cook on a ship, the MV Roberta Jull, in the course of his employment with the applicant, slipped whilst carrying meat from the galley and badly twisted his right knee, causing the medial meniscus to tear. The respondent was medically assessed and declared unfit for sea duties. The respondent received worker's compensation until 24 September 1991 when he returned to work. 3 The respondent's right knee continued to deteriorate and on 9 June 1994 he was certified as unfit for further sea duties. On 10 June 1994 the respondent submitted a claim for worker's compensation to the applicant and he has been in receipt of ongoing compensation payments with effect from that date. 4 On27 February 2006, the respondent's treating orthopaedic surgeon, Dr Graham Forward stated that the respondent had a limited disability for heavy physical work but would be able to carry out a wide range of clerical duties and would be fit for light duties such as storeman or sedentary attendant. 5 The respondent's Progress Medical Certificate of 20 April 2006 stated that a vocational rehabilitation assessment was required. Such certificates had been issued in the past from 1991, but the respondent had not, between then and 2006, been requested by the applicant to attend a vocational assessment. 6 On 20 April 2006 the applicant requested the respondent to advise whether he was available to attend a vocational assessment. The respondent responded on 24 April 2006 to the effect that whilst he found it intriguing that in 15 years when some twenty medical certificates suggesting vocational assessment had never been actioned, nonetheless, provided the applicant agreed to pay all costs, he would attend such an assessment. On 28 April 2006, the applicant's solicitors informed the respondent that it had arranged for the respondent to attend at Herdsman for a vocational assessment. 7 There was then disagreement between the applicant and the respondent as to where his vocational assessment should be carried out. The respondent did not accept the applicant's choice of service provider, Mount Injury Management Service, he preferring the rehabilitation program to be conducted by the Commonwealth Rehabilitation Service at Fremantle believing that they had a greater knowledge of employment opportunities in the Fremantle area. 8 Nonetheless, the respondent did attend on Mount Injury Management Service on 9 May 2006 to discuss his medical and vocational situation, where he was interviewed by Ms Elaine Duncan, an Injury Management Consultant. Ms Duncan then provided an Initial Rehabilitation Assessment Report, dated 6 June 2006 to the respondent's solicitors in which she summarised the situation and made certain recommendations: Mr Lawson is a 60 year old Seaman/Cook who has been unable to return to any employment in the cooking/catering industry since 1996. He has sought alternative employment positions to no avail. His physical capacity has been significantly reduced as a result of his injury. Although he agrees he could undertake some form of work, he believes the odds are stacked against him as a result of his age and his lack of adequate training in other work areas. His medical practitioners are agreeable to an investigation into suitable work alternatives. As a result of the initial rehabilitation assessment, the following recommendations are made: 1. Mr Lawson to be offered two vocational counselling sessions in order to examine his transferable work skills and to generate and explore potentially suitable work options. 2. Upon consolidation of suitable alternative work options, medical opinion to be obtained regarding the viability of options generated. 3. Once a vocational direction has been consolidated, and dependent upon medical approval, Mr Lawson to be offered assistance in undertaking a period of training/work experience in order to commence vocational redirection. 9 The respondent's solicitors then requested the applicant to advise as to his available dates in the coming weeks, for the scheduling of two further vocational assessment meetings with Mount Injury Management. The applicant replied by facsimile dated 6 July 2006 stating that he was willing to attend with the understanding that it was for an assessment only and a decision was yet to be made as to the approved program provider. 10 The report refers to the respondent having experienced stress and anxiety, which he believes to have been brought about by the ongoing adversarial nature of his workers compensation claim. However the report did not contain any reference to him suffering from any psychiatric condition or mental injury, or that he had claimed to suffer from any such conditions. 11 By letter dated 4 July 2006 the respondent wrote to Elaine Duncan at Mount Injury Management stating that because of Stateships new initiative he had been placed under more than usual stress and his doctor had referred him for psychiatric assessment, which was to take place the next day. 12 On 12 July 2006 the respondent lodged a claim under the Act, the subject of the proceedings before the Tribunal and this appeal. 13 In answer to the question in the claim form, as to the nature of his claim, the respondent ticked the boxes "medical and related expenses" and "household and attendant care services". He described the nature of his injury or illness as "stress" and the part of his body as "mental". In answer to the question as to when he was first injured or noticed that he was ill, the respondent wrote "1995" but on 3 October 2006 wrote to the appellant changing the date from 1995 to April 2006. 14 In his claim for compensation the respondent described the events that led to his injury in the following terms: The continual legal litigation in respect to my compensation claim since 1994 and the fact that my employer refused to provide me with the opportunity to take part in any rehabilitation programme over the past twelve (12) years, effectively denying me the ability to rejoin the work force but are now demanding that I take part in a futile rehabilitation assessment. This whole process has put me under a lot of stress causing me to drink alcohol heavily and has threatened my ability to cope with every day life. Over the years I have received counselling from a psychologist but this latest initiative of Stateships has caused me to seek and receive psychiatric help from Dr Wu of WEIT Perth because I became frightened of the consequences of my state of mind. (sic) 15 Ms B Kordanovski, a psychologist with Mount Injury Management Service in a Vocational Assessment Report dated 24 July 2006 concerning the respondent, following two vocational assessment sessions attended by him on 18 and 20 August 2006 said: Mr Lawson engaged in the vocational assessment sessions. He was an active participant in the process and completed the administered questionnaires promptly. Mr Lawson expressed that he felt highly anxious regarding participating in vocational rehabilitation following such a long period since his injury. 16 Dr Knight, a general practitioner, had been treating the respondent for general medical problems since 2001. On 5 September 2007 she wrote in reply to a letter from Cocks Macnish, the applicant's solicitors, concerning the respondent. Its contents are set out in full at [33] of the reasons of the AAT. It included the following: 2. There are no other factors impacting on Mr Lawson's present psychological condition beside his worker's compensation process. 3. Mr Lawson receives counselling with a clinical psychologist and is on an antidepressant medication (lexapro). The medication was commenced shortly after he was urgently referred to a psychiatrist in June 2006. 4. Mr Lawson is aware that he can receive urgent outpatient or inpatient psychiatric care at any time if his depression and hopelessness deepens. He is also aware that more counselling of a CBT nature is accessible should he need it and that medications can be increased. He is aware of all his risk factors for an increase in his symptoms. He is currently not requiring that extra care. . . . 6. ... He is made totally incapable of working by the nature of his depressive illness. If he were no longer required to work it would reduce his immediate stressors and background risk of suicide, it would not however resolve his mental health issues. 7. Mr Lawson has seen a private psychiatrist once at my urging after I became fearful and aware of his suicide potential. He had been seeing a clinical psychologist Emilie Cattalini for some 12 years of his own volition and unbeknownst to myself, to cope with his distress regarding the legal battles concerning his injury claims. She wrote to me in mid June 2006, with Barry's knowledge after his mental health nosedived. This was at the time he was told he was going to be rehabilitated to be made work ready. … He saw Dr Raymond Wu in July 2006 once and continued counselling. Dr Wu offered him management options to call on if he needed them and assessed him at the time as not actively suicidal. He has follow-up available as needed. He opted to continue with his trusted counsellor and accepted a need for antidepressants. We commenced him on an antidepressant and monitored him closely to observe a gradual settling of his suicide potential. He remains very vulnerable. . . . 9. This gentleman has a long history of psychological assistance to help him cope with his protracted worker's compensation case. He has never sought to claim this or publically acknowledge this until pushed to the brink of claiming his own life to deal with his anger and despair at a system that spent 10 years offering him no rehabilitation and then forcing him to it this year, whilst indicating his age made him unemployable (as he is now within three years of retirement age). This seems from Mr Lawson's point of view to show a malicious disregard for his well-being. (Emphasis added) 17 By facsimile dated 25 September 2006 the applicant wrote to the respondent requesting to know what the applicant intended as it was more than sixty days since the report 24th July 2006 from Mount Injury Management in respect to his undertaking training/work experience in order for him to commence vocational redirection. 18 By facsimile dated 12 October 2006 the respondent advised the applicant that its insurers had "approved the use of Mount Injury Management as a programme provider". 19 By facsimile dated 12 October 2006 to the respondent, the applicant noted that: · he had not been consulted in relation to the selection of an approved program provider, as required by the Act; · Mount Injury Management Services was not included in the list of Western Australian Approved Rehabilitation Providers published by Comcare. 20 By facsimile dated 27 October 2006 the respondent's solicitors informed the applicant that it had, as requested by him, made arrangements to transfer his vocational rehabilitation from Mount Injury Management to a Seafarers Approved Rehabilitation Provider, namely CRS Australia Fremantle. 21 In a subsequent facsimile dated 30 October 2006 the respondent's solicitors informed the applicant that Mount Injury Management was in the process of becoming an Approved Rehabilitation Provider for seafarers but that nonetheless, in an effort to accommodate his request, the matter had been transferred to CRS Australia. 22 In December 2007 the applicant, by facsimile letter, advised the respondent that it would not progress efforts aimed at assisting him to return to work. This, in large part, it would appear was as a result of a letter to CRS from Dr Knight which included the statement that "Mr Lawson has been suffering both anxiety and depression, has undergone a psychiatric review and had been placed on Lexapro to assist with the management of his symptoms". Since then the respondent has not been subject to any further vocational rehabilitation programmes with a view to his entering the workforce. 23 Dr Knight provided a further report addressed "to whom it may concern" dated 3 December 2007 which is set out at [34] of the reasons of the AAT. It includes relevantly: I next saw him in June 2006 at the request of his longstanding Psychologist, Emilie Cattalini. He was no longer attending the gym. He was no longer doing voluntary community work. He was deeply distressed, depressed, angry and unable to handle any company. He was very afraid of his own potential to self-harm and harm others. He was urgently reviewed by psychiatrist Dr Wu, and commenced on an antidepressant, for major depression with high suicide risk. He currently still has a diagnosis of major depression, partly treated. He is no longer suicidal. He has been exercising at home with a physiotherapist friend mentoring him. He is still incapable of interacting in a normal capacity in the community. It seems the deterioration in Mr Lawson's mental state and development of depression lies with the handling of his compensation case and rehabilitation process since April 2006. (Emphasis added)

The Notice of Appeal 24 The amended notice of appeal contains the following questions of law: (a) whether there was any evidence before the Tribunal on which the Tribunal could find that the respondent contracted a psychiatric disorder in or about June 2006 and that he continued to suffer from a psychiatric disorder; (b) whether properly construed ss 24 and 26(1) of the Act in imposing liability on an employer to pay compensation to an employee in respect of an "injury" as defined in s 3 of the Act permits regard be had to whether the injury has "arisen out of" the employee's employment; (c) whether the definition of "disease" in s 3 of the Act encompasses a mental ailment in the absence of a close connection between the mental ailment and the employment in which the employee is engaged or whether any causal connection is sufficient; (d) whether an employee's subjective perception of an employer's conduct which precipitates a mental ailment can satisfy the definition of "disease" in s 3 of the Act, thereby enabling the payment of compensation pursuant to ss 24 and 26(1) of the Act without it first being evaluated and determined that there is a close connection between the employment and the subjective perception, and in the case of a mental ailment said to be consequent upon an initial injury, without first evaluating and determining whether there was a close connection between the initial injury and the mental ailment such that the mental ailment was not too remote.

The First Question 25 The first question of law is supported by a ground of appeal in terms: (a) the Tribunal held that the respondent suffers from a mental ailment being a psychiatric disorder which he contracted in or about June 2006 when there was no evidence that the respondent contracted a psychiatric disorder in or about June 2006 or that he continued to suffer from a psychiatric disorder.

The decision of the AAT 26 The relevant findings of the AAT contained in its reasons are as follows: Does the applicant suffer from a mental ailment? 43. The medical evidence before the Tribunal supports the proposition that the applicant has been suffering from a mental ailment since June 2006, or, alternatively, that he has been suffering from a mental ailment since 1996 which was aggravated in June 2006. There is no medical evidence before the Tribunal which is inconsistent with either of those alternative propositions. Accordingly, the Tribunal finds, on the basis of the medical evidence before it, that the applicant suffers from a mental ailment and has been so suffering since at least June 2006. 44. As regards the nature and character of the mental ailment suffered by the applicant, the Tribunal finds, on the basis of the evidence of Dr Knight, that in or about June 2006 the applicant's existing mental condition substantially deteriorated to the extent that he then contracted a psychiatric disorder. It is not necessary for the Tribunal to make a finding as to the precise diagnosis of that psychiatric disorder but the Tribunal is satisfied, on the basis of Dr Knight's evidence (which included a reference to a provisional diagnosis of adjustment disorder with anxious/depressed mood made by Dr Wu, Psychiatrist, on 5 July 2006 and his suggesting anti-depressant medication for the applicant), that the applicant's ongoing psychiatric disorder, which he contracted in or about June 2006, involves depression. 27 In short the Tribunal was satisfied that the respondent suffered a "substantial deterioration in his mental health in or about June 2006 which … involved the contraction of a psychiatric disorder involving depression": at [46] 28 The applicant submits that not only is there no evidence to support this but that the relevant evidence contradicts such a conclusion.

Evidence as to injury 29 Dr Knight, the respondent's general practitioner since 2001, referred the respondent to a psychiatrist, Dr Wu. Dr Wu saw the respondent on 26 June 2006 and prepared a report dated 5 July 2006. Dr Knight said that one of the main focuses of sending the respondent to Dr Wu was to assess the respondent's likely suicide potential. She did not state what, if any, were the other reasons. Dr Wu's report was not provided by Dr Knight to the Tribunal although she had it with her whilst giving evidence. The Tribunal did not require that it be produced because it did not want her to feel "uncomfortable" about doing so. The appellant's solicitors requested a copy of Dr Wu's report from the respondent however the respondent was unable to obtain a copy from Dr Knight and for that reason did not provide a copy to the applicant. 30 The examination of Dr Knight included the following: That would be the first one presumably. Let's say it would be shortly after --- ?---Yes, there was only the one visit that I'm aware of at that stage and as a result of that visit Mr Lawson started on some anti-depressant medication. All right, so you have a report of Dr Wu, have you, dated the 5tbof July 2006?---Ido. Is it a very lengthy report?---A four page report. Right, so it is a very, well fairly lengthy report. Are you able to tell us what Dr Wu concluded, regarding say a diagnosis of Mr Lawson's mental condition?---Yes, his main problem was that he stated he's not able to make a definitive diagnosis at that stage because there had only been the one visit so he definitely felt that Mr Lawson had been suffering from an - well he stated just from the one-off visit an adjustment disorder with anxious depressed mood was the diagnosis that was made but he also documented in the letter that a one-off visit was not enough really for him to make a conclusive diagnosis. All right, and did he express any view about the causation of that condition?---Let's have a read for you. I've obviously sent him along because I was concerned about his risk of suicide so I - one of the main focuses of the visit with Dr Wu was to assess how likely he felt that suicide potential was. Yes, well it may well be that Dr Wu wasn't asked to express any opinion regarding the cause of this, I'm not sure?---Well he might have, it was more that my concernwas do I have a gentleman that is going to - that is actually suicidal and needing some care or not and Mr Lawson had been a referral back to me from his clinical psychologist who he'd been seeing, the clinical psychologist was concerned, I was definitely concerned with the information that Mr Lawson discussed with me and that's why he had an appointment within a week to see the psychiatrist, Dr Wu. Right, but no follow up--- ?---Dr Wu's concern was that he felt Mr Lawson was insightful and he did not feel at the time that he was seen that he was actually suicidal but certainly felt that he was at risk. But there were no follow up visits?---They were offered but Mr Lawson declined at that time. And are you aware of Dr Wu prescribing any medication for Mr Lawson?---That was he suggested to him commencing Lexapro and Mr Lawson and I followed up on that and we discussed the medication and commenced him on it and he remains on it to this day. Right, all right. Is there anything else in Dr Wu's report that you think is worthy of mention or not? For example, anything there that you have particularly followed upon yourself in your treatment of Mr Lawson apart from I suppose the prescribing of Lexapro?---It was I guess a number of things more trying to provide an environment of calm for Mr Lawson because we had a very angry and potentially suicidal man, very distressed and it was trying – my follow up afterwards was trying to create an environment in which he could be in this state. 31 The effect of this hearsay opinion evidence attributed by Dr Knight to Dr Wu was: · The respondent may have been suffering from an adjustment disorder with anxious depressed mood but that, because he had only seen the respondent once, such a diagnosis could not be conclusive. · The applicant was "insightful". · The applicant was not actually suicidal but there was some unspecified "risk". 32 Dr Wu, according to Dr Knight "suggested" that the respondent commence on medication known as Lexapro. He did not however prescribe it. It was Dr Knight who did so. There was no evidence as to the basis for this prescription or the period in respect of which it was prescribed. In any event, it is by no means clear in the evidence that it is prescribed only for depression. It seems likely that this is not the case as Dr Wu was unable to conclusively diagnose that the respondent was suffering from depression. I cannot think that in those circumstances he would suggest a drug if it were apt only for the treatment of depression. 33 The respondent, as Dr Knight stated in evidence, declined further follow-up with Dr Wu. 34 In contrast to the statements attributed to Dr Wu, Dr Knight's report prepared on 3 December 2007 had stated that "He was urgently reviewed by psychiatrist Dr Wu, and commenced on an anti-depressant for major depression with high suicide risk". 35 This advice, whether intended or not, wrongly conveyed the impression that the respondent had been diagnosed by a specialist psychiatrist, Dr Wu, as suffering from major depression attended by a high suicide risk. 36 Likewise, in her letter to Cocks Mcnish dated 5 September 2007 to which I have referred, Dr Knight stated at para 3: Mr Lawson receives counselling with a clinical psychologist and is on antidepressant medication (lexapro). The medication was commenced shortly after he was urgently referred to a psychiatrist in June 2006." 37 As with Dr Knight's other advice, the correlation between the medication and the review of the respondent by Dr Wu may well have given the impression that he had diagnosed the respondent as suffering from depression. Dr Wu, in fact, had done no such thing. 38 Dr Knight was cross-examined as to her evidence concerning depression. The following are relevant extracts from the transcript: Well when we say someone is suffering from depression we, as lay people, we tend to bandy that around quite willy-nilly I suppose in many respects, someone is always depressed or they've had a bad day but it has a distinct medical meaning, doesn't it rather than what we lay people would often call depression?---Yes, it does, yes. And as a GP or as I understand it you didn't conduct any testing to formulate if I can call it the technical meaning of depression?---Have I done a formal - other than what I can work from the DSM sort of classification of depression? That's so, yes. As I understand it, you really took - you looked at - or gave a general view of Mr Lawson but it wasn't the same sort of test that say a psychiatrist or a psychologist would do. You didn't perform those sorts of tests?--- No, I didn't do anything in depth like that, that's something that takes a process of considerable time which is not available to me in general practice. I have to do things in short bites. 39 Dr D Weerasooriya, a member of the Tribunal questioned Dr Knight in terms: In WA: thank you for that. Doctor, as a vocationally registered GP aren't you – isn't it a part of your training that you're trained to diagnose, not so much diagnose, at least to realise that somebody that comes to you in your practice could be depressed to use a technique of interrogating them such that you get to the root of that if you suspect it, isn't that a part of your training and aren't you doing that consciously in many other cases apart from cases like this?---Yes. If a new patient were to come to you isn't it a part of your history taking, a part of your training to pick out those nuances, body language, the way they say things to come to a conclusion and are you quite adept at that after so many years with experience?--- I … patients with psychological issues. I am a person who spends some time with people so yes, that's something that I don't sit and tick the boxes and dot the Is but have developed knowledge over the years and hence my concern and hence my rapid referral. 40 The effect of her evidence was that she had not performed tests for depression as she did not have time as a general practitioner to do so, but that she was trained to realise that a patient could be depressed occasioning a referral of the patient to a specialist psychiatrist. That was, in the case of the respondent, precisely what Dr Knight did. 41 Emilie Cattalini, a registered psychologist gave evidence. She practised at the Mary MacKillop Centre. The respondent had done voluntary work there for her over a period of about two years around 2000-2003. She had in the past provided counselling to the respondent. 42 Her witness statement, which was reproduced at [38] of the Tribunal's reasons stated the following: "I am a registered Psychologist and have been in practice since 1991. In 1996 Mr Barry Lawson requested counselling because, being engaged in a legal battle concerning injury claims, he was under extreme stress. He had frequent thoughts of suicide and of inflicting harm on others. He also experienced sleeplessness, increased use of alcohol and growing dependency on medication. He was reclusive, short-tempered, and his personal care and family relationships had deteriorated. Over the ensuing years, while the legal battle continued, Mr Lawson has continued to seek help and has engaged in learning several stress management and stress reduction techniques. From time to time, when his progress towards a resolution of his dispute seems to be deliberately blocked, his mental state becomes fragile. Recognising the signs he seeks help immediately. Also, requests for help have been deliberately delayed or refused. One such example is the delaying of authorization for home help after surgery till due time had elapsed. Help was rightfully available for six weeks after surgery but authorization for the help was delayed beyond six weeks by which time his right to the help had expired. This occurred even though the request for help had been granted in court. If is difficult to perceive such delays as anything but deliberate actions on the part of the respondent. They are, consequently, stress producing for Mr Lawson. The most recent severe deterioration in mental health suffered by Mr Lawson was around June 2006 due to the stress incurred after a request by the respondent that he undergo vocational assessment and this by an unapproved provider. It was not the request in itself that caused stress. Firstly, it was the fact that Mr Lawson's Doctor has asked that such assessment take place many times over the years and was constantly refused. Secondly, subsequent to the request for vocational assessment, Mr Lawson was again subjected to inconsistencies by the respondent, being asked to go to an approved provider being a case in point. Thirdly, it became obvious that there was no real intention of finding him employment because of the delay – 60 days after receiving the report no progress had been made. At this time Mr Lawson again experienced severe reclusive behaviour and thoughts of suicide and harm to others returned. Not being engaged in meaningful employment has been a major factor in Mr Lawson's deterioration. After his most recent deterioration, Mr Lawson began a personal programme of physical exercises and continued his previous mental therapies. At this time he was also placed on medication for depression by Dr Wu, Psychiatrist. Mr Lawson has undoubtedly sustained extreme mental pressure, exacerbated by delays and inconsistencies. Because Mr Lawson has become most proficient in, and very faithful to, his stress management techniques my role in his mental health care is now as Mentor rather than Counsellor." 43 In cross-examination she said: Now, can I ask you, did you undertake any formal testing of Mr Lawson in the sense of a DSM test or anything similar?---No. Could I ask you whether you would agree or disagree with the proposition that the stress that Mr Lawson has been under since 1991, caused by the litigation process, is the source of his present mental state, to use neutral terms?---Not completely in the sense that there was a lot dealt with previous to around – you know, when all this other business started. You know, sort of around probably about two years ago, you know, like he was proceeding very well, and then there was a deterioration about two years ago. 44 In its Reasons at [40]-[41] the Tribunal stated: 40. Sister Cattalini, when asked for her opinion regarding the effect on the applicant's mental health of the respondent's now terminating the vocational rehabilitation process in his case, said that it "would certainly relieve his stress". 41. Sister Cattalini said that the applicant's present mental state is better than it was in 1996 when he first sought counselling. She said that, prior to 2006, his mental state fluctuated but that in 2006 it deteriorated almost to the 1996 level. She added: "... but it wasn't as prolonged, and I would imagine that that was because Mr Lawson had built up his practices of being able to then self-monitor himself and do the work, and also kept in contact, with the counselling and monitoring. So he was better able to handle it because he had the techniques and the tools to handle it. But it was – he did – well, he went back into thoughts of suicide, he went back into reclusiveness, he went back into personal health deterioration, personal appearance deterioration, so all those indicators were there again." 45 The effect of Ms Cattalini's evidence was that: · The respondent suffered a severe non-specific deterioration in his mental health around June 2006 due to the stress incurred after a request by the applicant to undergo vocational assessment. · This deterioration wasn't as prolonged as it had been in 1996. · Her role (as at the date of the hearing before the AAT) in the respondent's mental health care was, by reason of the respondent's proficiency in stress management techniques only as a "Mentor" rather than a "Counsellor". 46 In the circumstances where there is positive evidence that Dr Wu did not diagnose depression in the case of the respondent the hearsay evidence of Ms Cattalini that Dr Wu prescribed medication for depression carries no weight. 47 In my opinion, the finding by the Tribunal that the respondent contracted a psychiatric disorder involving depression in or about June 2006 and which continued to the date of the hearing in May 2008 was not founded on probative evidence. Indeed it was contrary to the evidence which was probative. The evidence of Dr Knight concerning the question whether the respondent suffered depression or any injury involving depression was, with due respect to her, overstated and her reports misstated the involvement and diagnosis of Dr Wu. Her evidence in this respect was at odds with what Dr Wu had stated even on her account. It was not probative of the existence of a psychiatric disorder involving depression either as at or about June 2006 or since then. 48 Dr Wu, a specialist psychiatrist was not prepared to conclude that the respondent was depressed. He positively concluded that the respondent was not actually suicidal. It is regrettable that the Tribunal did not insist on Dr Wu's report being produced by Dr Knight. Any confidentiality could only have been for the benefit of the respondent who, in any event, was plainly relying upon its contents. 49 Ms Cattalini, a psychologist, was prepared to say no more than that the respondent's mental health suffered a severe deterioration in 2006 but only for some unspecified period when it seems it resolved. 50 Finally the respondent did not, in his application under the Act, say that he was depressed. At its highest he said that the events concerning the vocational reassessment in about June 2006 had caused him a lot of stress and threatened his ability to cope with daily life. He did not tell Ms Kordanovski, the psychologist, that he was depressed but said that he felt highly anxious about participating in vocational rehabilitation as at 2006. 51 The question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55 at [29]; Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, (2008) 249 ALR 762 at [99]. 52 The fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association (1985) 8 ALN N102; Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 at [25]; Wecker at [96]. 53 In my opinion there was no probative evidence that the respondent contracted a psychiatric disorder involving depression. 54 There is however evidence that is probative, emanating from Ms Cattalini, that the respondent, for an unspecified period in or about 1996 and again in 2006 suffered severe deterioration in his mental health as a result of stress. Whether or not those episodes constituted relevantly an "injury" under the Act, I cannot say. This ought be considered by the Tribunal. 55 Pursuant to ss 44(4) and (5) of the AAT Act and s 28 of the Federal Court of Australia Act 1976 (Cth) the Court has power to remit the case for re-hearing by the Tribunal, which may be confined or at large: Repatriation Commission v Nation (1995) 57 FCR 25. I consider that the matter as a whole ought be remitted to the Tribunal differently constituted for determination according to law. It is unnecessary, given this conclusion, to consider the other questions of law raised in the application. 56 The application will accordingly be allowed. I will hear the parties on the question of costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 09 February 2009 Counsel for the Applicant: Mr L A Tsaknis

Solicitor for the Applicant: Cocks Macnish

Counsel for the Respondent: The Respondent appeared in person

Date of Hearing: 15 December 2008

Date of Judgment: 09 February 2009