Candlish and Comcare - [2007] AATA 1795

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1795
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: W 200600216

General Administrative Division )

Re:GARRETH DOUGLAS CANDLISH
Applicant

And:COMCARE
Respondent

DECISION
Tribunal: Mr S Penglis, Senior Member
Dr P A Staer, Member

Date: 2 August 2007
Place: Perth
Decision: Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

................[Sdg Mr S Penglis]…........
Senior Member

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) W200600216

GENERAL ADMINISTRATIVE DIVISION )

Re GARRETH DOUGLAS CANDLISH

Applicant

And

COMCARE

Respondent

REASONS FOR DECISION [2007] AATA 1795

Tribunal   Mr S Penglis, Senior Member
  Dr P A Staer, Member
Date of Decision                2 August 2007
Date of Written Reasons 21 September2007
Place  Perth

1.    At the conclusion of the hearing of this application, the terms of the decision intended to be made and the reasons for that decision were stated orally.
2.    The applicant has requested the Tribunal furnish him with a statement in writing of the Tribunal’s reasons for its decision.
3.    The oral reasons for decision have been transcribed by Auscript Australasia Pty Ltd, the Commonwealth reporting service.
4.    An edited copy of the transcript of those oral reasons is attached and is provided as a statement in writing of the Tribunal’s reasons for its decision.
................[Sdg Mr S Penglis]…........
Senior Member

I certify that the 4 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ………..[Sgd Ms C Skinner].................
Associate

Date of Hearing  30 and 31 July and 1 August 2007
Date of Decision  2 August 2007
Date of Written Reasons                21 September 2007
Representative for the Applicant    In person
Counsel for the Respondent          Mr B Morgan
Solicitor for the Respondent          Australian Government Solicitor

ORAL REASONS FOR DECISION (edited)
ADMINISTRATIVE APPEALS TRIBUNAL
MR S PENGLIS, SENIOR MEMBER and DR P A STAER, MEMBER
Re GARRETH DOUGLAS CANDLISH and COMCARE - Matter No W200600216
PERTH, THURSDAY, 2 AUGUST 2007
MR PENGLIS: This matter comes before the Tribunal by application dated 24 July 2006. The matter was heard on 30 and 31 July and 1 August. The applicant appeared in person and the respondent was represented by Mr Morgan of counsel. The application stems from an initial claim on the part of the applicant for worker’s compensation. On 7 February 2006, the applicant completed what is called a CSA Occupational Health and Safety Accident / Incident Report Form. I pause to note that CSA is of course a reference to the Child Support Agency. In that form, signed by the applicant and dated 7 February 2006, in response to the address of incident, the applicant wrote, “my desk,” and when asked to describe the incident including a description of any injuries and part of the body injured, the applicant wrote, “work related stress caused by the Child Support Agencies.”
A formal claim for worker’s compensation was completed by the applicant, signed by him and dated 14 February 2006. In the description of his illness in the applicant’s handwriting he wrote, “Depression and anxiety caused by the workplace, created by the CSA executive.” As to the part of the body injured the applicant wrote “mind”. As to when he was injured or first noticed that he was ill, the applicant wrote, “Last instance, 7 February 2006, time 15:42pm.” The relevance of that date and time will become apparent in due course.
As to the question of when he first sought treatment for the injury, the applicant wrote, “approximately three years, unsure of exact date.” He gave the name of the doctor as Dr Van Dort, and noted that he had since retired. The applicant stated that he had been referred by his employer to a specialist, Dr Lawrence Blumberg of William Street, Perth. As to the question, “What started the chain of events that led to your injury or illness?”, the applicant wrote, “Disagreement with work.” When asked, “What action, exposure or event happened to cause your injury or illness?”, The applicant wrote, “Email received advising of lack of action CSA have and will take to my claim of discrimination.” When asked, “What actually injured you or made you ill?”, the response was “Attitude and response of CSA executive.”
By letter dated 26 April 2006, the respondent informed the applicant that his claim for compensation had been rejected and gave reasons for that decision. On 4 May 2006, the applicant sought a reconsideration of that decision. By decision dated 24 July 2006, the respondent informed the applicant that the prior decision to reject his claim had been confirmed. That is the reviewable decision which is presently before the Tribunal.
In the reasons given for that decision, the respondent noted that it primarily based its decision on what is conveniently referred to as the exclusionary provisions of the Safety, Rehabilitation and Compensation Act, 1988 (the Act), in particular, the respondent advised that it was satisfied that the applicant had failed to disclose a history of pre-existing psychiatric difficulties to the Agency on employment, moreover, that the psychiatric condition of which the applicant complained was the result of his failure to obtain a benefit in connection with his employment.
The applicant’s contention before the Tribunal is that he has suffered from depression and anxiety, that mental condition was caused by his workplace and that it was aggravated on 7 February 2006 when he received an email from one of his superiors on that date. To use the applicant’s own words, “the failure to obtain a transfer in connection with my employment is incorrect”, that being a reference to the respondent’s decision, and that:
“The tone of the responses and by who responded to my queries and the continual inability of the CSA executives to answer my queries satisfactorily is what caused me distress.”

The respondent’s contentions were conveniently set out in its Statement of Facts and Contentions filed prior to the hearing and provided to both the Tribunal and the applicant. Numerous matters were raised by the respondent, but the three primary contentions were as follows.
First, it was contended that the specialist medical evidence, namely that of Dr Lawrence Terace, was that the applicant did not suffer psychiatric injury or any condition outside the bounds of normal functioning.
Secondly, if the applicant did suffer a psychiatric condition in February 2006, the applicant made a wilful and false representation by failing to disclose that he suffered or had suffered previous psychiatric injury, and is therefore disentitled by virtue of section 7(7) of the Act from recovering for the consequences of such a condition.
Thirdly, the respondent contended that if the applicant did suffer a psychiatric condition in February 2006, the applicant’s condition was not compensable as it was as a result of a failure to obtain a transfer in connection with his employment, being a failure to obtain a benefit and therefore excluded under section 4(1) of the Act.
Before proceeding to consider the evidence received by the Tribunal and then the Tribunal’s reasons in respect of the matters raised, the course of the hearing was one that requires some comment by the Tribunal in its reasons for decision.
As I have indicated, the hearing commenced on 30 July. When the Tribunal adjourned at the conclusion of the hearing on that day, the applicant was still under cross‑examination. The matter was adjourned until 10 am on Tuesday 31 July. At that time the applicant did not appear. The applicant was ultimately contacted by telephone and informed that the Tribunal wished to hear from him personally as to why he was not present. That occurred and the applicant indicated that he had no desire to return to the Tribunal to be cross-examined further or to, in effect, partake in any way in the proceedings in person.
Mr Morgan, counsel for the respondent, then made an application pursuant to the Administrative Appeals Tribunal Act to have the application summarily dismissed by reason of the applicant’s failure to attend in person at the hearing of the matter. After hearing submissions by both parties, the Tribunal gave a direction to the applicant, namely, that the applicant attend either by person or by telephone for cross‑examination at 2 pm on that day, making it clear to the applicant that if he failed to comply with that direction, the Tribunal intended to accede to the respondent’s application and would dismiss the matter.
I note that during the course of those submissions and the exchange that passed between the party and the Tribunal, Mr Morgan, did not indicate any opposition to what the Tribunal proposed, but clarified his position shortly upon the resumption of the hearing at 2 pm to indicate that the respondent did not consent to what had transpired and, in particular, that part of the direction that allowed the applicant to attend by telephone. The Tribunal made it clear at 2 pm when the applicant informed the Tribunal that he wished to participate by telephone, that in the event that Mr Morgan considered it was appropriate he could renew his application to have the proceedings dismissed in the event that the applicant did not attend in person for a continuation of his cross-examination.
The Tribunal notes that the measures which it has adopted are very unusual and certainly should not be considered by anyone to set any form of precedent for the manner in which proceedings before it ought be held. The unusual state of affairs arises from the fact that in this case the Tribunal had the benefit of observing a considerable part of Mr Morgan’s cross-examination of the applicant and had the benefit of making its own observations as to the applicant’s candour as a witness. Indeed it was the Tribunal’s apprehension at the time that it did not appear that credit loom large as a major issue in these proceedings. Indeed, as things transpired, that is so. Nevertheless, as I have indicated, it was made very clear to Mr Morgan that if he considered himself in any way disadvantaged it was open to him to renew his application. He did not do so.
Moreover, when the applicant completed his evidence and had adduced all further evidence that he wished to adduce before the Tribunal, he indicated that he did not wish to further participate in these proceedings by telephone or in person. The Tribunal indicated that it was a matter for the applicant but made it clear to him that he may be at a disadvantage if he was not available to answer the contentions that would be raised by the respondent in its submissions. Indeed, Mr Morgan quite rightly indicated that the applicant ought be informed that he may well be at a disadvantage by not being in the position to challenge the medical evidence of Dr Terace, which quite clearly the respondent was to rely upon to a significant degree in these proceedings. Those observations were endorsed by the Tribunal.
Notwithstanding, the applicant indicated that he did not wish to further participate in person or by telephone. The Tribunal accommodated the applicant’s wishes, but made it clear that if at any stage the applicant changed he mind he should inform the Tribunal and he could re-appear. Indeed, he was asked specifically whether he wished to be present for the delivery of any oral decision should an oral decision be delivered and he indicated he did not wish to be in attendance. Notwithstanding, I note that the Tribunal have today contacted the applicant to inform him that the Tribunal’s decision was to be delivered at 12 pm or 2 August 2007. The applicant indicated that he was not certain whether or not he would attend and subsequent efforts to elicit a response from him have resulted in nothing more than an engaged telephone signal. It is for that reason that these oral reasons for decision are more expansive than they otherwise might have been.
I now turn to summarise the applicant’s evidence. The applicant’s evidence was comprised of oral evidence that he gave as well as documentary evidence that he tendered and relied upon. The applicant’s evidence suffice to say that his evidence was to the effect that his employment with the Child Support Agency commenced in December 1999 and was not a happy one. It is not necessary for the Tribunal to enter into the detail of that unhappiness. It is important, however, for the Tribunal to note in the course of these reasons, that it attributes no blame to either party as to the cause of that unhappiness. It is simply not necessary for the Tribunal to make any decision in that regard for the purpose of the matter before it.
Suffice to say that the applicant’s evidence was that, primarily as a result of the introduction of a new computer system called CUBA in early 2002, problems started. There were problems with the computer system. The applicant found himself having to deal with more problems that he was otherwise accustomed to and on his evidence with little support from his superiors. He says that as a consequence of those difficulties he commenced to suffer from anxiety stress reaction and depression and consulted a Dr Van Dort in that regard. The applicant’s evidence was that he was prescribed a daily dosage of Zoloft, initially 50 mgs per day. Other problems arose between the applicant and the Child Support Agency. They resulted in various claims being made by the applicant against the agency including claims of harassment and discrimination.
It became clear that the applicant’s position was that he wished to move away from the employ of the Child Support Agency to another department of the Commonwealth, and it is in that regard that an exchange of emails is an important part of the evidence that the applicant provided to the Tribunal. It is incumbent upon the Tribunal to set out fully that exchange so that it can be put in proper perspective, particularly given that it is the email of 7 February 2006, which on the applicant’s evidence – and to use the expression that he used in his meeting with Dr Terace which he did not demur from – caused him to “blow up”.
The emails are also relevant because they give a flavour to the background to the email that caused the applicant to “blow up”, and for the reasons which I will expand upon in due course, are relevant to one of the grounds of opposition by the respondent, namely whether or not, if any anxiety was caused to the applicant, it was caused by reference to his failure to obtain a transfer out of the Child Support Agency.
The first email to which the Tribunal refers is an email dated 24 June 2005 from the applicant to one Ross Morrison. Ross Morrison was a personal contact of the applicant working in the Australian Taxation Office. The email reads as follows:
“Hi Ross, I have just been offered a position at the ATO as an APS3 enforcement officer. I am unsure if I should accept this offer of employment as it is a reduction in level and salary, and my preference is to transfer to my current classification (APS5). To assist me with my decision I was trying to gauge if Christine or any other managers at the ATO have shown any interest in considering my request to transfer at level. Another avenue I have been pursuing is to ask Peter Heslewood to assist me with a permanent transfer at level, but he is unsure how far / fast he can assist me. So I will have to make my mind up this weekend, I was hoping you could provide me with any update on my transfer request. Thanks again, Ross, for your help.”

I should note that the evidence received indicates that Peter Heslewood was the Regional Human Resource Manager of the Child Support Agency.
In response to the email which I have referred to, on the same day, 24 June 2005, the applicant received the following email from Ross Morrison:
“Hi Garreth, just spoke to Christine Loundes. She is sending your application around to other sections but noted that most of these have already been involved in relatively recent APS5 selections and thus have existing orders of merit to draw on. There has been some significant union / management scrutiny of these and it would be unlikely that you could be brought in ahead of anyone who actually applied and was on these OOMS.”

The email continues as follows:
“As mentioned before, the best thing they could do with this offer is to bring you in at the top CSO3 increment. Your mention of asking Peter for assistance may still be worthwhile. Perhaps he has or can find a contact at the relevant level who can help further. Thanks.”

On the same day, the applicant responded to Ross Morrison by email as follows:
“Hi Ross, thanks for your effort and update of my transfer. I called up the contact officer Ann Potter, about the APS3 position and was advised that if I accepted the job offer, it would be paid at the lowest increment. So based on this information, I don’t think I will be able to accept the position, but I will discuss this with Ronnie further before making my final decision. It looks I might have to sit tight at the CSA until either I receive an offer from the ATO manager, Peter’s assistance is successful or future positions are advertised in the gazette. Thanks again.”

I should note further that, to put in context, on 16 June, that is before the emails I have just read, the applicant did in fact send an email to Peter Heslewood. The subject was Transfer Request, and it reads as follows:
“Hi Peter, I would like to request a transfer at level to another government organisation, preferably the ATO. Would you please assist me with this request, I have included my last two employee portfolios and my current resume to indicate what skills and attributes I would be able to any prospective employer. Thank you in advance, Garreth.”

On the same day as the other emails, that is 24 June 2005, the applicant emailed Peter Heslewood under the subject heading Resume, as follows:
“Hi Peter, I know that you are currently in Canberra and may not respond to this email until you return to Perth, but on the chance that you are checking your emails, I was hoping you could provide some advice if my transfer request at level is possible. This will assist me in making my decision on whether to accept the employment offer from the ATO at the AP3 level. I have included the relevant emails that I have received about my transfer request to Ross Morrison, the ATO employment offer, and yourself. Thanking you for your assistance.”

The next email is dated 11 July 2005, again from the applicant to Peter Heslewood. It reads as follows:
“Hi Peter, would you be able to forward the results from the My Say at the CSA so I can pursue this information before the scheduled information sessions that are due to run this week. Also, if you could spare some time today to discuss the option of transferring to another department, it would be appreciated.”

On 9 August 2005, the applicant sent an email to one Matt Miller, General Manager of the CSA. It dealt with the applicant’s discrimination claim. It resulted in a further response from Trevor Sutton to the applicant dated 12 August 2005. He indicated that he acknowledged the email of 9 August, and indicated that the applicant was responding on behalf of Matt Miller who was currently overseas. Mr Sutton wrote:
“As acting general manager, I referred the matter for investigation to Alison Millett, assistant general manager, corporate governance. You will be contacted soon regarding this matter.”

The reference to Alison Millett will come clear shortly.
On 16 January 2006, the applicant emailed Matt Miller in the following terms. Again, the subject was Transfer Request:

“As you may be aware, my discrimination claim that I emailed to you last year was unable to be proven. Though I dispute the findings of national office to my claim based on the external investigation completed by HBA Consulting, this is not the reason I am contacting you today. Due to the level of people that I have claimed have discriminated against me in this region, I can effectively consider my career advancement as being non-existent. I also feel that it would be a fair assumption that if I were to continue my career at the CSA, I would enjoy an increased amount of scrutiny to my work and duties by certain managers. This is something I do not want to endure. After working at this agency for over six years, I have developed an extremely cynical view of the workings of this region, and in particular, to the blatant breaches of the code of conduct by certain managers.
Unfortunately I do not find his behaviours acceptable, nor do I feel it is my responsibility to ensure that such managers are investigating the sanction. I have got to the point where the Child Support Agency is prepared to allow certain regional managers to behave this way, who am I –”

he has missed the word “to”
“question this practice, and I am happy to let them to continue to work in their own filth. I no longer wish to be involved with an agency that allows this region to operate with such a toxic work environment towards its staff. Unfortunately I have financial and family commitments which makes me unable to resign, and as I’ve not been able to secure another position in the public service that would accommodate these commitments. I will still be trying to gain employment in another department for positions advertised in the gazette but when and where I will be successful in gaining employment is unknown. As the agency head of the Child Support Agency, I am requesting that I be transferred to another department which you are able to organise as described in section 26 of the Public Service Act 1999. The departments that I would be interested in transferring to would be the ATO or DIMIA. I hope you can accommodate my request as I do feel that it would be in the CSA’s for my best interests (health, career, enjoyment or satisfaction) to refuse such a transfer. After I have left this agency I wish you the best of success in changing the culture of this region as the term that I have heard team leaders and stream leaders use about the staff attrition rate is just a matter of trimming off the deadwood. I prefer that you, as the agency head, you realise that you need to cut off the rotten core of the trunk, as nothing grows where the tree is dead on the inside. Good luck, I’m thanking you.”

Less than 24 hours later, on the next day, the applicant sent a further email to Matt Miller in the following terms:
“Dear Matt, when will you respond to this email, as I am extremely keen to pursue my transfer request as quickly as it can be organised. Immediately if possible. Thank you.”

On 30 January 2006, Alison Millett, to whom I previously referred, sent an email to the applicant, and the subject heading was Transfer Request, and it reads as follows:
“Hello Garreth, further to my phone call last week, I apologise that I was not able to respond to your request at that time. As we discussed earlier, CSA cannot require other agencies to accept staff on transfer. However, to support you in your efforts to find another position, CSA can forward your request for transfer onto the agencies you’ve mentioned (The Australian Taxation Office and the Department of Immigration and Multicultural Affairs). Please send a current CV and the names of two referees to Matt Madin, and Matt will arrange to send these on. I wish you well in your efforts to find a new job.”

That was sent at 11am. At 11.36am on the same day, the applicant emailed Matt Madin in the following terms, headed Transfer Request:
“Dear Matt, as requested, here is my CV along with four referees. I have also included my last EP. Thanks.”

On 2 February, in the morning, the applicant emailed Matt Madin, subject Request for Further Information, in the following terms:
“I will make my intentions clear again, that I am ready to be transferred immediately if the ATO or DIMIA will take me. Have these departments been receptive of my request to be employed by them? In advance, I will thank you for your prompt responses.”

On 3 February, Matt Madin emailed the applicant and provided certain information requested by the applicant in the applicant’s email of 2 February (to which I have not referred). But relevantly on 3 February, the applicant emailed Matt Madin and said:
“Thank you, Matt, for the attached responses. How about DIMIA and the ATO, have they shown any interest in me as a potential employee?”

On 3 February, Matt Madin responded by email to the applicant:
“As you will be aware, ATO and DIMIA are very large organisations, I would not expect a response in the short term.”

On 7 February, at 12.13pm, the applicant emailed Matt Madin, copied to numerous people, including Alison Millett, in the following terms:
“Thank you for your response below, would you be able to forward a copy of the emails or documents that you have sent to the HR areas of DIMIA and the ATO, the requests that I be transferred to these departments. Also when you stated no answer is expected in the short term, what timeframe are you expecting some type of response from these departments? As you rightly pointed out, these are large government departments that have large human resources areas that would be able to handle such requests. If you do not have the influence or persuasive skills to successfully liaise with these departments, maybe it would be better handled by the original person I addressed this request to, the general manager, Matt Miller. Thanking you.”

That elicited the following email from Alison Millett, and this is the email that is the subject of the application: that is, the email which the applicant described as causing him to “blow up”. On 7 February 2006, Alison Millett sent the following email to the applicant with a copy both to Matt Madin and Matt Miller. It reads as follows:
“Hello Garreth, I have advised Matt Madin that I will respond to some issues you raised, in particular you are querying why CSA has not or cannot “influence or persuade” other departments to accept your request for transfer. As I advised you previously, my earlier email is attached, CSA cannot require other agencies to accept your application for transfer. Also, as we discussed by phone, I strongly encourage you to continue your efforts to secure another position through applying for positions advertised in the gazette. As I expect, this will be your best chance of finding a new job. CSA has sought to assist you by forwarding your details onto the departments you have named, and those departments will contact you if they are interested in following up your interest. Alison Millet, Deputy General Manager, Corporate Services, Child Support Agency.”

This email is marked as having been sent at 15:42, and that of course is the time that the applicant stated in his claim for compensation as being the time at which he suffered the alleged condition to which he now seeks compensation.
Later that day at 5.14pm Perth time, the applicant sent to Alison Millet, with a copy to Matt Madin and Matt Miller, the following email:
“Hello Alison, there is no misunderstanding from me that the CSA cannot require other agencies to accept me as an employee. Obviously I have read more into your message that you will forward my details onto these departments that was intended. Unfortunately I assumed that when you asked Matt to forward these details, there would have been some effort exerted to really assist me in getting out of this shit hole. When I use the words “persuasive and influence” I thought these are communication skills that can be used to effectively communicate my desire that I want to be transferred. Obviously the method of just forwarding CV documents along with two referee names must be a lot more effective than what I thought would have occurred, such as actually talking and sending a letter asking that these departments accept me as an employee. I feel that this would have been a more successful process to try and accommodate my request. I commend you for organising such a streamlined process. I now fully understand what I have been requesting is reasonable to me but not so in the unique environment of the CSA. I feel I can no longer continue dealing with those continued pressures that are caused from the shit hole, I will be lodging the appropriate compensation forms, I hope you can understand how I feel even if you do not agree with me. Thank you for your correspondence.”

The applicant tendered numerous documents which he referred to in his witness statement. I note that the Tribunal has read those documents, but does not find them of any real assistance in the determination of the true issues which are before the Tribunal.
I also note that one of the documents tendered on the application of the applicant was a document headed, “The Report on Management Review of Western Australia Office Child Support Agency”. The title page of this document describes it as:
“A report prepared for the Deputy General Manager Service Delivery.”

It is dated September 2006 and it was undertaken by Yellow Edge Performance Architects. The purpose of the applicant seeking to tender this document, in respect of which an order of confidentiality has been made and will continue, was to seek to shore up his views about the Child Support Agency. The Tribunal makes no findings in respect to whether or not the report does so. The Tribunal does not consider it is necessary for the Tribunal to make any findings with respect to the applicant’s assertions for this reason: the manner in which the matter has proceeded has not sought to throw into doubt, for the purpose of these proceedings, the veracity of the applicant’s evidence as to what his perceptions where of what occurred within the Child Support Agency.
That is not, of course, tantamount to any finding by this Tribunal that his perceptions are facts. Nevertheless, for the purpose of these proceedings, the Tribunal will proceed on the basis that the matters about which the applicant has given evidence ought be accepted and are accepted. Indeed, Mr Morgan did not invite the Tribunal to deal with the manner in any different way.
Before noting further evidence relied upon on behalf of the applicant, I pause to note that the Tribunal found the applicant to be clearly a witness of truth: his evidence was clear and forthright. Save to separately consider one matter to which I shall refer later, the Tribunal finds no reason why it ought not accept the applicant’s evidence and indeed we were not invited by Mr Morgan to do otherwise. Accordingly, save for the matter which I will deal with separately in due course, the Tribunal accepts unreservedly the applicant’s evidence in all respects.
In addition to what I have referred to, the applicant relied upon various medical reports that were amongst the section 37 documents. First, was a medical certificate issued by Dr Gordon Milne. Dr Milne was the applicant’s medical practitioner.
This certificate was signed by Dr Milne and it is, to the best of the Tribunal’s ability to ascertain a date, dated 10 February 2006; that is the date on which the applicant appears to have signed the document and the Tribunal simply notes that there is no indication as to when Dr Milne signed the certificate. Nevertheless, there is a receipt stamp by the Child Support Agency dated 14 February 2006 and for the purpose of these proceedings it matters not exactly when it was signed by Dr Milne: it is sufficient to note that it seems to have been in or about 10 February 2006. The details of the certificate are as follows.

in regard to the injury/disease the words appear:
“After the last two months.”

in respect to the item: “Worker’s description of the injury” the following words appear:

“Chronic stress anxiety and depression.”

in the medical assessment box, the following words appear:

“Increase in anxiety and depression not fully controlled by medication.”

under the injury management section, whether the person is fit for restricted return to work, the following appears:

“Four hours work per day on rostered days ie seven days per fortnight.”

Another document upon which the applicant relies is a medical report by Dr Blumberg. That was a report provided by Dr Blumberg to Ms Melanie Hoare, the Rehabilitation Case Manager of the Child Support Agency and is dated 27 February 2006. The Tribunal has had careful regard to the entirety of this report. For the purpose of these reasons it is sufficient to simply note the following extracts:

under the heading, “Medications”, it was noted that the applicant was on Zoloft 200 mgs daily.

under the heading, “Current Psychiatric Symptoms” the following appears:
“Mr Candlish described his mood as “angry and agitated”. He disclosed his mood fluctuates and was “okay today”. There was no diurnal mood variation but he did on occasion experience early morning wakening. He described a disturbed sleep pattern and had difficulties initiating and staying asleep. He disclosed experiencing intrusive thoughts whilst lying in bed at night which impacted on his ability to sleep. He described a normal appetite and stable weight. He described fluctuating energy pattern with normal libido. He described being motivated and there was no evidence of any anhedonia. He described being motivated and there was no evidence anhedonia. Mr Candlish described normal concentration and memory functioning and was socialising and getting out with the family. He denied any current suicidal or self-harm thoughts. He did disclose having angry and violent thought towards his employees –”

now, I note for the purpose of these proceedings that that seems to be universally accepted as a typographical error and ought to read “employers” –

“but stated that he would not act on these thoughts. Mr Candlish also described a number of anxiety and panic related symptoms but did not experience any panic attacks. He was anxious and concerned about his current financial position, his job and his future. There was no evidence of any manic symptoms, obsessive control disorder symptoms, phobias psychotic phenology or perceptual disturbances.”

under the heading “Current Functioning” Dr Blumberg wrote:

“Mr Candlish described his current function as “good”. He is able to attend to his activities of daily living and is able to drive. He helps with the domestic duties around the home such as cooking, cleaning and gardening and spends quality time with his wife and son. Enjoys reading, movies and on occasion works on the computer he disclosed functioning well and was find when at home with his family.”

under the heading “Mental State Condition” the doctor wrote as follows:

“Mr Candlish presented as casually dressed, well presented young man with short hair and glasses. He initially presented “angry and frustrated” but displayed good eye contact and a good rapport was established as the interview progressed. He was pleasant throughout the interview process and no abnormal movements were noted. His speech was normal in rate, volume, rhythm and syntax. There was no formal thought disorder. He described his mood “agitated but okay today” and his effect was reactive and congruent with his mood. There was no evidence of any major mood disorder. There was no evidence of any psychotic phenomenology or perceptual disturbances (auditory or visual hallucinations).
He denied any current suicidal or self‑harm thoughts. He denied any homicidal or violent thoughts although disclosed being extremely angry about how he was being treated by the regional executive. His thought content was preoccupied with his current work issues, ongoing disputes and internal problems at work. His cognition was grossly intact and his general vocabulary and comprehension suggested a man with a good average intelligence and reasonable attention, concentration and memory function. He had reasonable insight into realising the ongoing work stress was impacting on his mental state which needed addressing.”

under the heading “Diagnosis”, the doctor wrote as follows:

“Mr Candlish’s symptoms fulfil the DSM-IV-TR criteria of chronic adjustment disorder with ..... anxiety and depressed mood. He developed emotional and behavioural symptoms in response to the ongoing work stress and has been managed over the past few years by the general practitioner, after presenting with depressive and anxiety symptoms. His symptoms have caused marked distress that is excess of what would be expected from exposure to the ongoing work environment and causes significant impairment in both his social and occupational functioning. The predominant manifestation of his symptoms are a combination of depressive and anxiety symptoms.
Mr Candlish, however, does not fulfil the DSM-IV-TR diagnosis of a major depressive disorder or generalised anxiety disorder. Mr Candlish’s psychiatric condition can be considered in view of predisposing, precipitating and perpetuating factors. There is no evidence of any family history suggestive of a specific biological disposition. Mr Candlish did disclose having psychological intervention at the age of 18 in the form of counselling. He was not medicated at the time. From the history provided, Mr Candlish’s depressive and anxiety symptoms have resulted from “ongoing work stresses” and issues related to his work environment.
He disclosed being first treated with anti-depressant medication four years ago and stated his anti-depressant had been increased as a result of ongoing psycho-social stressors in the work environment. Mr Candlish disclosed that he has had issues with the regional executive over the past few years and it seems the ongoing concerns of his discrimination claim in conjunction with his compensation claim of Comcare is perpetuating his anxiety and depressive symptoms.
From the history obtained from Mr Candlish there did not seem to be any other ‘relevant stressors’ in Mr Candlish’s life and I have not identified any specific psychological factors relating to personality disorder which may have contributed to his condition. My finding on mental state examination are consistent with his presentation and although at times he presents as an arrogant individual with a sense of entitlement, he generally feels he “has been mistreated and discriminated against.”

A further report upon which the applicant relies is a report by Dr Milne in the form of a letter dated 14 March 2006 to June Randall of Comcare. This was in response to various questions which had been put to him by Comcare. I will read the question and then read the response.

Question 1

“Please advise the history provided during consultations including the first statements that Candlish consulted you in relation to his claim.”
The answer:

“Increasing work related situations and anxiety from 6 October 2005 when he wanted medical support for a larger VDU/LCD screen. Ongoing dissatisfaction with managerial responses to perceived reasonable requests/complaints. Desire for transfer to a different workplace. Increase in agitation regarding perceived lack of progress in above and various requests.”

Question 2:

“What was the precipitating factor event which resulted in Mr Candlish consulting you? What were the symptoms Mr Candlish presented with?”
The answer:

“As above and ongoing. Presentation was agitation and depressive symptoms with preoccupation of thought on work related pressures.”

Question 3:

“Please provide details of any relevant medical history to the current claim including dates and whether Mr Candlish continued to experience symptoms of that condition at the date of the first consultation relating to this claim.”

The answer:

“Garreth has had past history of depressive symptomology but there was substantial aggravation of his symptoms with the workplace situation.”

Question 4:

“In your opinion, what is the specific diagnosis of the condition that Mr Candlish suffers? Please advise the diagnostic criteria you have applied and relevant symptoms noted which assisted you diagnose this condition.”
The answer:

“Depression of mild to moderate severity.”

Question 5:

“Please advise whether this condition meets the diagnostic criteria to be classified a mental disorder and if not which elements of that criteria do not exist in relation to Mr Candlish?”
The answer:

“I refer you to Dr Blumberg’s report re mental health classification criteria.”

Question 6:

“Do you consider the condition suffered by Mr Candlish is due to an underlying or pre-existing condition? If so, in your opinion has the condition been worsened in a manner that affects Mr Candlish’s normal mental function or capacity for employment?”
The answer:

“Mr Candlish is fit to work in the public service with his condition but transfer as he requests would seem to me to be reasonable in that it would support his medically controlled recovery.”

Question 7:

“In your opinion and having regard to the information supplied, what are the relevant circumstances that have resulted in Mr Candlish suffering from his condition?”
The answer:

“Again significantly covered by Dr Blumberg’s report. Suffice to say ongoing disagreements and dissatisfaction in the present workplace. With present conflict parties are aggravating his medical condition and curtailing his recovery.”

Question 8:

“In your opinion does this condition require Mr Candlish to have time off work or further treatment? Please advise of any treatment or management plan you have recommended for this condition in order to return Mr Candlish to his employment.”
The answer:

“(a) assessment of a change of workplace;
(b) supportive psychotherapy with a clinical psychologist;
(c) ongoing medical and pharmaceutical support.”

A matter to which I will return is the fact that Dr Milne, Dr Blumberg and the medical practitioner who the applicant consulted prior to consulting Dr Milne, namely Dr Van Dort, were not presented to the Tribunal by either party for the purpose of eliciting viva voce evidence or giving any party or the Tribunal an opportunity to question the doctors in regard to their reports.
The respondent’s evidence comprised almost exclusively of the evidence of Dr Lawrence Dominic Terace. Dr Terace provided a written report which was received into evidence and which was dated 1 June 2007. In addition, the doctor was made available to the Tribunal and supplementary questions were asked of him by the respondent and questions were asked of him by members of the Tribunal.
Dr Terace was awarded the Bachelor of Medicine and Bachelor of Surgery as of 1986/87 and subsequently conferred and became a Fellow of the Royal Australia and New Zealand College of Physicians as of 1993/early 1994. Since that time he has practised as a consultant psychiatrist, initially at Hollywood Repatriation Hospital as a consultant therein and subsequently in private practice where he remains.
As to his experience, Dr Terace initially served as principal consultant to Veterans’ Affairs at Hollywood Repatriation Hospital and for two years provided all the services, inpatient, outpatient and day patient services to Veterans’ Affairs where his particular interest was the manifestation of military experience and psychiatric disorders. He also provided a liaison service to medical wards in relation to the interface between medical and psychological illnesses. Since that time, the doctor’s practice has consisted of a broad range of patients without restriction from managing acute inpatient services to long term psychotherapy, medical legal services and he has also continued in the process of teaching. He presently has practices both in Western Australia and New South Wales.
The doctor had two interviews with the applicant, first on 17 April 2007 and the second being on 4 May 2007. I pause to note here that a large part of the doctor’s report constitutes of a detailed summary of those interviews, almost verbatim in some cases. In this regard, I note that it was common cause before the Tribunal that the applicant, with the doctor’s permission, tape recorded his interviews and confirmed that he still has those tape recordings. He was given an opportunity by Mr Morgan and then the Tribunal to carefully consider the doctor’s report and to indicate to the Tribunal, the next morning, those parts of the doctor’s report of what is recorded as having been said by him to the doctor with which he took issue.
It is noted that the applicant therefore had the ability to do so by reference to his tape recording of the interview. Whether or not he did so was entirely a matter for the applicant. Save for some minor respects and one more significant respect, the applicant did not take issue with anything in sections 1 through to and including 13 of the report. The principal dispute related to the words “pre-existing condition” in paragraph 2.16. With the exception of the words “pre-existing condition” in paragraph 2.16, and in 2.1, changing the reference of two years ago to three years ago, the Tribunal finds as facts each of the matters set out in those sections of the doctor’s report.
The doctor’s report is extensive, and I do not propose to read it extensively. However, and conveniently, the doctor does set out his conclusions and it is from those that I seek to read. His conclusions included the following:
“1. The psychiatric history and examination led me to the conclusion that Mr Candlish has never met criteria for a recognisable psychiatric condition in relation to this claim, regardless of whether he did or did not, since 2002, prior to the circumstance of this claim. I refer to the latter because of the prescription of the antidepressant Zoloft since 2002. I can only assume that he might have suffered a pre-existing psychiatric condition based solely on the evidence that he was prescribed an antidepressant since 2002, although this in itself is not sufficient evidence to prove that he had ever suffered from a true psychiatric condition, in effect, his descriptions are of intermittent upset, frustration, anger and demoralisation over time in relation to his workplace claim, but, in themselves, these psychological experiences are within the bounds of normal mental function and are not sufficient to make the diagnosis of a true morbid recognisable psychiatric condition.
In other words, frustration, anger, disappointment and intermittent upset are parts of normal human experience and should not, under most circumstances, be described as a psychiatric condition. Nor did I find any clear evidence to lead me to conclude on the balance of probabilities that he ever sustained a true recognisable psychiatric condition in relation to this claim. For example, I note Dr Blumberg’s use of the term “chronic adjustment disorder”, however, I respectfully disagree with Dr Blumberg’s application of this term on the following basis.
1.1. To use a term on this occasion implies that a person can never be angry, frustrated or demoralised about anything without having a psychiatric condition which is an intellectual absurdity.

1.2. The term adjustment disorder, acute or chronic, was described in the DSM IV nomenclature in its use as a research criteria to enable one psychiatrist in one country speaking one language to understand the nature of such experiences in another.
The term was never designed to imply that all such experiences are a morbid psychiatric condition. In any event, such terms were designed to be reserved for more severe cases of sustained distress in relation to an external stressor, when such terms as major depression or major anxiety disorder are inappropriate. It was never designed to describe the general unhappiness, disappointment, frustration and intermittent anger of individuals about matters of life.
2. The history and examination I conducted clearly shows that Mr Candlish was angry towards his employer, and acutely angry on or about the date of 7 February 2006, which was the incident that led to his later submission of a worker’s compensation claim. However, a very clear examination of the events and his experiences at that time shows that he was simply acutely angry, and in my opinion, it is an intellectual and clinical error to consider simple human anger to be a symptom or equivalent of a psychiatric condition.”

In numbered paragraph 4 of his conclusion, the doctor says this:
“Since 2002, and despite the prescription of the anti-depressant Zoloft, my findings at the interview did not enable me sufficient evidence to conclude that he ever met criteria for a true major depressive illness, or a more appropriate indication for the prescription of anti-depressants since 2002. It is more likely than not that he was demoralised rather than clinically depressed, and in my opinion, anti-depressants are over-prescribed in the community on the basis of demoralisation and normal human experiences, rather than clinical evidence for a true depressive illness. In other words, in my opinion, there has not been a recent or contextual psychiatric condition to relate to a pre-existing or previous condition in this case.”

The doctor also says in paragraph 6 of his conclusion, of which I will read in part:
“Therefore, on the balance of probabilities, as opposed to the realm of possibilities, I found Mr Candlish to have been angry, frustrated, disappointed and intermittently upset, complicated by transient periods of sleep disturbance and increase in alcohol consumption in relation to his perception of workplace events culminating in an acute episode of anger from which emerged his conscious decision to leave the workplace, take leave and pursue a worker’s compensation claim, I did not find such experiences to be outside the bounds of a normal mental function, nor to be symptoms or evidence of a true psychotic incapacity.”

Dr Staer asked Dr Terace to comment upon whether or not the applicant was still on Zoloft when the doctor saw him, and to comment upon Dr Staer’s observation that 200 milligrams seemed to have been a fairly significant dose. Dr Terace confirmed from his notes that the applicant was on 200 milligrams per day, and agreed with Dr Staer’s observation that that was a fairly significant dose.
Dr Staer then asked Dr Terace whether he saw sufficient psychiatric factors to warrant that level of Zoloft. The doctor responded as follows:
“In my opinion, no. In my opinion, the tendency to treat the anti-depressant Zoloft by increasing the dose in response to this patient’s expression of upset and frustration was an error, based on the premise that anger, frustration, irritability and unpleasant emotional symptoms, in response to one or more external events will respond clinically to an anti-depressant. But the reality is that, even in the most severe depressive illnesses, the placebo rate of an anti-depressant is 50 per cent. The true effect size is only about 10 per cent, perhaps 15 per cent at the most, which means that even in most depressive illnesses, spontaneous recovery is probably of greater statistical importance than introducing the drug, although introducing the drug itself increases the effect size. The danger though in the general community is to respond to symptoms of the stress or in relation to external stressors with anti-depressants.
Part of that is the very nature of the medical paradigm. First, we encourage people who are in distress to present to general practitioners as counsellor and as a method of intervention. Very often a medical practitioner can’t provide the vehicle of recovery. The person needs, for example, if the distress is caused by a particular psychosocial problems, such as financial constraint, in the absence of psychiatric disorder, then the most appropriate – the best thing to do would be for that person to seek financial advice and/or counsel elsewhere.
In this case, this gentleman presented with a set of industrial grievances which were clearly just generally distressing to him. In my opinion, his frustration, demoralisation, upset over time were probably generally experienced and were not contrived or malingered. However, there was a direct relationship between his needs in the workplace and the onset of that distress all the time. There was a one-on-one correlation and that in itself is what we would expect as an emotional response to a perceived stressor, such that an unpleasant event will most likely trigger an unpleasant psychological emotion in anyone, either acutely and/or over time. That itself is still within the realms of normal mental function and there is no evidence to show that that will respond clinically to the introduction of an antidepressant.”

Dr Staer then said:
“What I am finding a little difficult is that we are talking about his anger and frustration. We are talking about depression. To me, they are really quite different things.”

Dr Terace replied:
“They are, although in fairness sometimes anger can lead to depression and sometimes depression can be an internalised state of anger, and that anger that would normally be focused outwards becomes internalised and gives rise to the depressive process. In this case the anger is not. It’s clearly blamed on one or more set of individuals and Mr Candlish has avidly and actively pursued his sentence of injustice. That is not a depressive process. A person with a true severe depressive process would not have the physical and/or cognitive capacity to take on such a pursuit. Furthermore, they would have had characterised symptoms and signs which, even in Dr Blumberg’s report, this gentleman does not have.”

Dr Terace then dealt with specific parts of Dr Blumberg’s report. He noted that Dr Blumberg wrote:
“He disclosed being very angry and irritated about the outcome and brought in materials to the interview…
Such events made me angry and set me off, pushing me out but I can’t prove it. He stated he does not enjoy the work he is doing and hates the environment with a passion.”

To this Dr Terace said:
“So what Dr Blumberg has described is the characteristic emergence of acute anger and distress in an individual who finds that his needs are not met. That in itself is not a symptom or syndrome of a depressive illness. It’s simply an emotional response to a given stressor. At that time he did not describe the sufficient psychological or cognitive symptoms to meet criteria for a depressive illness. For example, subsequently later he was able to return to work part time and then proceed to examine documents with some zealousness, and he’d not had the cognitive impairment that one would normally see in more significant depressive illness.
True depressive illness is qualified by some degree of psychomotor retardation. There are in the present persistent changes in physiology and cognition which accompany a pervasive and gross disturbance of mood which is associated with a pathological sense of helplessness and hopelessness and often inappropriate guilt. Depressive illnesses do not consist of anger that blames another individual. It’s simply not a symptom of a depressive process.”

The doctor then referred to the note in Dr Blumberg’s report that it described the applicant’s mood as angry and agitated and:
“He discloses his mood fluctuation was okay today.”

To that, Dr Terace said:
“Firstly, again, the dominant mood here is anger and its expression is agitation. That is not a symptom of depressive illness. Mood that fluctuates in the early phase of a depressive illness is not characteristic of a depressive illness. In the early more significant phases of a depressive illness, the predominant mood disturbance tends to be relatively stable. A person stays depressed although the reality is that as they recover, perhaps two years later, mood may well fluctuate. The very fact that he describes him as, “okay today” implies that there is some reactivity of his mood to the immediate circumstance. So Mr Candlish clearly felt comfortable with Dr Blumberg and was able to divorce him at that time from the ruminations about the workplace. That is not a symptom or sign of a depressive illness either. True depressive illnesses are more protracted and the mood state dominates the waking stage in a more persistent way.”

Dr Staer then asked the doctor:
“So you would agree that he genuinely believes what he’s presenting. There’s no sense that he’s making this up or gilding the lily, that he has a genuine perception that he has been discriminated against –”

to which Dr Terace said:
“The evidence I have leads me to conclude that he probably does genuinely believe it and that’s a reflection of his own socio-political views. Such views differ from person to person and aren’t necessarily a statement of character or of psychopathology but, rather, usually an expression of one person’s position on the political line from left to right.”

I then took the doctor to page 60 of Dr Blumberg’s report and said that:
“Dr Blumberg himself formed a view and expressed a view that Mr Candlish does not fulfil the criteria for major depressive disorder or generalised anxiety disorder.”

I made the observation that, therefore, Dr Blumberg and Dr Terace seemed to be ad idem. I pointed out, however, that Dr Blumberg did express the view that the applicant did fulfil the criteria of chronic adjustment disorder with mixed anxiety and depressive mood. I indicated to Dr Terace that he had touched on that but sought for him to summarise for the Tribunal his reasons why he concludes that the applicant does not fulfil the criteria for chronic adjustment disorder. To that Dr Terace gave the following evidence:
“Firstly, the term ‘Adjustment Disorder’, regardless of whether it is acute, less than six months, or chronic, greater than six months, was first construed by a psychiatrist and specifically within the DSM-IV to enable psychiatrists to describe a set of symptoms that fall short of most of the other major psychiatric disorders, such as depressive illnesses or major anxiety disorders, but barely fall short. It was never intended to describe the ordinary experiences of life in response to acute and chronic stressors. We always argued both within the European, American and even Australian research literature that it was normal for human beings to be unhappy and have unpleasant physical and psychological experiences in response to one or more stressors across time.

That in itself is not proof of psychiatric disorder including Adjustment Disorder. In order to meet the criteria for Adjustment Disorder there needs to be an identifiable stressor which he –”

-and that I take to be a reference to the applicant –

“does fulfil but if you can refer to page 27 of my report and in particular point B.”

The doctor then read from his report:
“The symptoms or behaviours are clinically significant as evidence by either of the following. (1) marked distress is in excess of what would be expected from exposures of the stressor either meaning or significant impairment –”

-I presume that should be meaningful –

“or significant impairment in social and occupational including academic functioning.”

The doctor then continued to give the following evidence:
“I think I’ve already clearly established that there was no significant impairment in social or occupational functioning by Dr Blumberg’s own observations let alone his reasoning. In relation to B(1), if one examines the nature of this patient’s personality and his sense of entitlement, in relation to the industrial issues and the premise of the industrial problems that he believes he has had overcome, his symptoms are not in excess of what one would expect from exposure to the stressor; they in fact are relatively mild and I can prove that. One might argue that I have a retrospective account although that’s not correct, I have an account from the patient himself and also from Dr Blumberg’s own observations where as I clearly, specifically detailed that his symptoms, his experiences could not have been severe that they were not associated with cognitive impairment, they were not socially impairing, his mood was reactive and responsive to the stressors and it was little more than I would except from a person who was distressed by a circumstance say perceived outside their control.”

The doctor continued to give further evidence in the same vein which I do not need to read into these reasons. It culminated in me putting to the doctor my understanding of the doctor’s evidence in this way. I said:
“In conclusion as I understand it, if I may put these words to you to see whether or not you agree with them, your view is that whatever Mr Candlish is displaying is not outside the boundaries of the normal mental function and behaviour.”

To which the doctor responded:
“That’s correct.”

He continued with these words:
“Otherwise, sir, I would be required to argue that most human experiences and behaviour is a psychiatric disorder. I think we would all appreciate that would be absurd.”

I now turn to the three contentions advanced on the behalf of the respondent. The first is that the specialist medical evidence, namely that of Dr Terace, was that the applicant did not suffer a psychiatric injury or any condition outside the bounds of normal function. In this regard, the Tribunal refers to the decision of Drummond J in Comcare v Mooi (1996) 69 FCR 439. The effect of Drummond J’s decision is:
“That in order to be an injury for the purposes of the Act it mattered not whether or not any mental ailment, disorder, defect or morbid condition was one that could be identified with a label of a recognised medical condition.”

The material presented to the Tribunal did not support a finding being made that the applicant suffered from a major depressive disorder or generalised anxiety disorder; even Dr Blumberg did not suggest that. The question for the Tribunal is whether or not on the evidence established that the applicant suffered from a chronic adjustment disorder or, to use the reference back to Drummond J, whatever it be called whether he suffers from something that was outside the boundaries of normal mental function and behaviour.
I should note for the purpose of completeness that in the decision of Hart v Comcare (2005) 145 FCR 29, the Full Court of the Federal Court disagreed with a portion of the decision of Drummond J in Comcare v Mooi, but not this part. I therefore consider the relevant portion of Mooi’s Case to which I have referred to represent the law today.
The question therefore is whether or not the Tribunal should find that the applicant suffers from a chronic adjustment disorder (or however it be called, something outside the boundaries of normal mental function and behaviour).
In this regard it is to be noted that in the reviewable decision the respondent accepted and indeed found that that was so. However, it is a trite proposition that when a matter comes to this Tribunal for review the entire decision is up for review. No party is bound by the position it took below. Moreover, the Tribunal is to determine the matter by reference to the evidence before it and on many occasions, in fact almost invariably and this is no exception, that material is different from the material upon which the initial decision was based. Both as a matter of law and a matter of fact, therefore, the fact that the reviewable decision accepted that the applicant suffers from a condition outside the bounds of normal functioning is no bar to the respondent adopting the position it has before the Tribunal, or to the Tribunal upholding the respondent’s submissions in that regard.
The Tribunal sees no reason why it ought not accept the evidence of Dr Terace, and it does so. Dr Terace came across as a compelling witness. His reasoning was in the Tribunal’s view without flaw. Moreover, it would present the Tribunal great difficulty to reach a different conclusion when confronted with a medical practitioner who gives such compelling evidence in person solely by referring to and relying upon written medical opinions of other medical practitioners presented to the Tribunal where the authors of those opinions are not made available to the Tribunal for questioning during the course of the Tribunal hearing.
In this regard I note that, at the conclusion of the first day of hearing, I inquired of the applicant whether he intended to call any medical evidence in support of his case. He indicated that he did not intend to do so. I made clear to the applicant the difficulties that may confront him by way of what weight the Tribunal may place on the written medical reports in the event that he did not present the medical practitioners to the Tribunal. The applicant indicated he understood the point. I inquired of the applicant on the second day whether or not he intended to call any medical evidence – it may have been the third day, I am not sure – but in any event, before the applicant concluded his case, whether he intended to call any medical evidence and he said he did not.
In those circumstances, whilst the applicant genuinely believes he suffers from a condition outside the bounds of normal functioning, the Tribunal finds as a matter of fact (on the evidence before us), that the applicant does not suffer from a psychiatric injury or any condition outside the bounds of normal functioning.
It therefore follows that the applicant has failed to establish that he suffers an injury within the meaning of the Act and for that reason alone the application must fail and the reviewable decision be affirmed.
Although it is therefore unnecessary for the Tribunal to deal with the other two matters raised, in the circumstances of this case the Tribunal intends nevertheless to express its views on those matters.
The respondent’s alternate submission was that, if the Tribunal had reached a finding different from that which it has found in regards to whether or not the applicant suffered a psychiatric injury or any condition outside the bounds of normal functioning, that it was not one that was compensable as it fell within the exclusion section 4(1) of the Act.
That section relevantly defines “injury” to mean amongst other things:
“A disease suffered by an employee but does not include such disease suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

The decision of the Federal Court in Hart v Comcare, for which I have already given the citation, makes it clear that if a disease or injury which would otherwise fall within the definition of injury in section 4(1) of the Act is suffered as a result of a failure to obtain a promotion, it is not a disease or an injury as defined and it is immaterial that other employment related causes may have also contributed to the claimed injury.
The applicant, as I have already noted, gave evidence which was consistent with the position he adopted in these proceedings as follows:
“The failure to obtain a transfer in connection with my employment is incorrect and that the tone of the responses and by who responded to my queries and the continual inability of the CSA executives to answer my queries satisfactory is what caused me distress.”

The Tribunal finds that it may well have been the tone and manner of the response that the applicant received in regard to the subject matter of his dialogue with his superiors that caused him the distress: indeed consistent with what I have said previously the Tribunal so finds. Nevertheless the irresistible conclusion from the entirety of the email trail to which I have referred at length in these reasons is that the subject matter of the communication was his wish to obtain a transfer out of the Agency with which he was employed, and the fact that he felt his superiors were not properly assisting his endeavours in that regard.
The Tribunal finds that the distinction which the applicant seeks to draw is of a nature which the Federal Court in Hart v Comcare has warned ought not be drawn. Accordingly, even if the Tribunal had found on the evidence that the applicant had suffered a psychiatric injury or a condition outside the bounds of normal functioning, the Tribunal would have concluded it was not an injury within the meaning of section 4(1) of the Act, by reason of the fact that, to use the words of the legislation:
“It was suffered as a result of failure by the employee to obtain a transfer or benefit in connection with his employment.”

The Tribunal finally turns to the third matter upon which the respondent relied to resist this application, namely that if the applicant had suffered a psychiatric condition in February 2006, the applicant made a wilful and false representation by failing to disclose that he suffered or had suffered previous psychiatric injury and is therefore disentitled by virtue of section 7(7) of the Act from recovering the consequences of such a condition.
The relevant representations upon which the respondent relies are contained in a form completed by the applicant, dated 21 December 1999. Relevantly it is the answers the applicant gave to the following questions which the respondent relies upon:

Question:

“Do you or have you ever had a nervous or mental condition?”

Question:

“Do you or have you ever had anxiety or stress reaction or depression?”

Question:

“Do you or have you ever had any other health complaints?”

Those three questions were each answered in the negative by the applicant in his own handwriting.
It was common cause before the Tribunal that, at the age of 18, the applicant attended a psychiatrist. This was, amongst other things, clearly noted in Dr Blumberg’s report where he states:
“Mr Candlish did disclose having psychological intervention at the age of 18 in the form of counselling. He was not medicated at the time.”

Reference is also noted in a similar vein in the report produced by Dr Terace. In cross-examination, the applicant gave evidence to the effect that his attendance upon a psychiatrist was related to work counselling, in essence, assisting the applicant to determine what he may want to do in the future. Mr Morgan cross-examined the applicant in that regard, and essentially put to him that that was an unlikely thing to occur, putting to the applicant, which the applicant accepted, that in order for him to see a psychiatrist, he would have needed a referral, and it was unlikely that any medical general practitioner would refer someone to a psychiatrist for the purpose indicated by the applicant.
Mr Morgan put to the applicant that the reason he saw a psychiatrist was because it was the early onset of the psychological disorder which the applicant now claims to suffer, a proposition which the applicant disagreed with.
The evidence in this regard has caused the Tribunal to pause and carefully reflect. However, in all the circumstances, the Tribunal is not prepared to find as a matter of fact that which counsel for the respondent urges the Tribunal to find. Having regard to the totality of the evidence given by the applicant and his general
demeanour, the Tribunal is prepared to give the applicant the benefit of the doubt, particularly in the absence of any positive evidence to the contrary. The Tribunal therefore find as a fact that Mr Candlish consulted a psychiatrist at the age 18 for the reasons that he stated in his evidence.

Moreover, even if the Tribunal was to accept the submissions by counsel for the respondent that the applicant saw a psychiatrist for reasons other than those advanced by the applicant, the evidence goes no further than the fact that he consulted a psychiatrist. The mere consultation of a psychiatrist is not sufficient evidence from which this Tribunal could properly conclude that the applicant suffered or then had a psychiatric injury. For all those reasons, the Tribunal does not uphold this particular contention advanced on behalf of the respondent.
The Tribunal’s mandate is to determine the matters before it in accordance with law. The applicant needs to understand that. The Tribunal notes, and has been at pains to note in the course of these reasons for decision, that it accepts the integrity of the applicant without reservation. The Tribunal notes that the applicant has, or appears to have obtained the transfer that he has been long requesting. The Tribunal wishes the applicant well in his future in that regard.
All that remains therefore to be done is this: first, to pronounce the formal decision, which is that the Tribunal affirms the reviewable decision; and second to thank counsel and his instructors for their assistance in this matter.

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARRETH DOUGLAS CANDLISH