Comcare appeals ABC staffer's bullying case to sixth court in long-running battle
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Comcare appeals ABC staffer's bullying case to sixth court in long-running battle

Comcare is taking an ABC staffer to the Federal Court for a third time, making it the sixth court or tribunal to hear the case, in a bid to reject her bullying compensation claim.

Peta Martin's six-year fight against the government insurer looks set to continue after Comcare decided to appeal an Administrative Appeals Tribunal decision in her favour last month.

The case has been running since 2012, when Ms Martin said she experienced a "breakdown" after more than a year of alleged bullying at the broadcaster's studios in Renmark, South Australia.

The ABC producer gave evidence that her manager Bruce Mellett acted aggressively towards her and failed to prevent other colleagues from shouting at and unfairly criticising her, which was accepted by Deputy President James Constance in the most recent tribunal decision.

Ms Martin was diagnosed with adjustment disorder and depression after she failed to secure a permanent job with the broadcaster as a cross media reporter, away from Mr Mellett, who she said was bullying her. Mr Mellett sat on the selection panel for the new role.

Mr Mellett denied acting inappropriately and an internal ABC investigation found no issue with his behaviour.

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Comcare said the ABC had taken "reasonable administrative action" in rejecting Ms Martin for the role, meaning it did not owe her compensation.

The case has already been heard by the Administrative Appeals Tribunal before, which found in Ms Martin's favour after her original application was rejected by Comcare.

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The insurer then appealed the decision to the Federal Court, where a judge overturned the decision in 2015. That decision was also appealed to the full bench of the Federal Court, when Ms Martin won in a split decision.

That decision was also appealed by Comcare, to the nation's highest court. In 2016 the High Court sent the decision back to the Administrative Appeals Tribunal to consider whether the decision not to hire Ms Martin for the cross media reporter role was "taken in a reasonable manner".

The grounds for the latest appeal are on a legal technicality, with Comcare claiming Deputy President James Constance found that the insurer conceded that Ms Martin suffered an injury, which they deny.

Comcare's grounds for appeal also claim the decision from the tribunal did not determine whether the injury resulted in "death, incapacity for work or impairment".

Senior associate at Maurice Blackburn Lawyers Georgia Plunkett-Scott, who is representing Ms Martin, said this means the Federal Court will be considering different legal issues to those previously considered by the court.

Ms Plunkett-Scott said Maurice Blackburn were at a loss to explain why the insurer was fighting the case so aggressively, and that they would be defending against the appeal vigorously.

"In our view Comcare are taking extreme lengths to exclude her from an accepted workers compensation claim," Ms Plunkett-Scott said.

The case could provide precedent for other similar claims.

"Ms Martin's case will provide some clarity for how to interpret the Comcare legislation in similar matters, but those matters would need to have similar factual circumstances in order for it to cast a wide precedent," Ms Plunkett-Scott said.

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In a statement released through her lawyer, Ms Martin said the latest appeal was a cruel way to treat a worker asking for a supported return to work.

"I am disappointed that Comcare and the ABC have chosen to use public funds to pursue me yet again through a legal process," Ms Martin said.

"On balance one would think the cost of supporting me to return to work would have at any stage been more cost-effective than this protracted process, which now spans six years and counting. The delay in a supported return to work and the adversarial nature of this process has very real and harmful implications on my life."

Ms Plunkett-Scott said the case showed there was a need for reform of the Comcare scheme.

"If the Comcare scheme is so complex that it's taken in excess of eight judges and tribunal members to interpret the law, surely that demonstrates that reform of the Comcare scheme is required."

Eighteen months ago Comcare told The Daily Telegraph it had spent more than $300,000 on the case already, with that number set to climb further with the new appeal. A Comcare spokesman refused to comment on how much the agency had spent more than a year later, or why Comcare continued to pursue the case.

Sally Whyte is a reporter for The Canberra Times covering the public service.