Curle and Asciano Services Pty Ltd (Compensation)

[2017] AATA 732

Curle and Asciano Services Pty Ltd (Compensation) [2017] AATA 732 (19 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2650

Re:Wayne Curle

APPLICANT

AndAsciano Services Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:19 May 2017

Place:Sydney

The decision under review made 13 May 2016, being the decision of Asciano Services Pty Ltd to reject Mr Curle's claim for compensation for an Adjustment Disorder, is affirmed. 

........................[sgd]...................................

J W Constance, Deputy President

CATCHWORDS

WORKERS' COMPENSATION – whether decision was reasonable administrative action – whether action taken in a reasonable manner – disease – injury – Adjustment Disorder – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14(1)

CASES

Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42

Lim v Comcare [2017] FCAFC 64
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No.2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463; [2012] FCAFC 21

REASONS FOR DECISION

Deputy President J W Constance

19 May 2017

INTRODUCTION

1. There is only one main issue between the parties in this application. It has arisen in the following circumstances.

2. From late 2003 until May 2016, Mr Curle was employed by the Respondent Company at its Moss Vale depot. From 2010 onwards, he was employed as Shift Manager.  Mr Curle is seeking compensation for an Adjustment Disorder which he suffered as a result of action taken by his employer during 2015. His claim has been made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

3. The Company accepts that it would be liable to compensate Mr Curle in respect of the disorder (which the parties agree is a “disease” within the meaning of the Act) but for section 5A which defines “injury” for the purposes of the Act.  Subsection 5A(1) excludes from the definition of injury “a disease …suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

4. The Company has identified the making of a particular decision by it and the notification of that decision to Mr Curle in December 2015 which it says was reasonable administrative action taken in a reasonable manner in respect of his employment. The Company argues that the Adjustment Disorder suffered by Mr Curle was suffered as a result of this administrative action.

5. For the reasons which follow, the decision under review will be affirmed

   BACKGROUND

6. Unless stated otherwise, the findings of fact made in these reasons are based on the evidence of Mr Curle.

7. Mr Curle commenced working for the Company as a Terminal Operator at its Moss Vale depot in 2003.  He later worked as a train driver. The Company operates rolling stock at the Moss Vale site and at other sites in New South Wales.

8. In September 2012, Mr Curle was promoted to the position of Shift Manager.  Although his duty statement for this position did not refer to train control, 50-60% of his time was spent on that task.  It required him to work at his computer and to pay very careful attention to the task at hand.  He described the work as follows:

   The train control duties performed by the Moss Vale shift managers were safe working duties which had to be carried out in strict accordance with the Australian Transport Safety Bureau regulations. Unlike a shift manager who tells a crew where to place a wagon for repairs in their own yard, we were responsible for the running of numerous trains into and out of several locations. We had been handed a large job that had previously been the responsibility of the Australian Rail and Track Corporation. We were accountable for the safety of trains, infrastructure and people and were certified as Train Controllers. [1]

   [1] Exhibit A2, pp 4.

9. In 2015, partly as a result of a staff survey, the Company decided to restructure the front line management at Moss Vale.  The six Shift Manager positions were made redundant and five new Shift Leader positions were created. The train control duties were centralised and were not part of the duties of the Shift Leaders.  Along with the other Shift Managers, Mr Curle was told that he could apply for a Shift Leader position.  Applications were sought from both within and outside the Company.

10. Mr Curle applied for one of the new positions.  He was interviewed and took part in other activities as part of the recruitment process.  At the end of this process, the Company decided not to offer a Shift Leader position to Mr Curle.  He was advised of this on 23 December 2015.  It was this decision and the action in advising Mr Curle of it, which the Company says was the reasonable administrative action, which excludes the Adjustment Disorder from the definition of an “injury” for which compensation would otherwise be payable under the Act.

11. The parties agree that Mr Curle's condition was contributed to, to a significant degree by his being informed that he was unsuccessful in obtaining one of the Shift Leader positions.  On the basis of the reports of Dr Allnutt,[2] Dr Brown[3] and Ms Griffin[4] I am satisfied that this is an appropriate agreement.

    THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)

    [2] Exhibit A3

    [3] Exhibit R6

    [4] Exhibit A5

12. Subsection 14(1) of the Act provides:

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

13. “Injury” is defined in subsection 5A(1) to mean:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

14. Subsection 5A(2) provides:

    (2)  For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)a reasonable appraisal of the employee’s performance;

    (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c)a reasonable suspension action in respect of the employee’s employment;

    (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

15. “Disease” is defined in section 5B:

    (1)     In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)     In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)     In this Act:

    significant degree means a degree that is substantially more than material.

16. “Ailment” is also defined:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).[5]

    [5] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1).

    THE ISSUES

17. To decide the question of whether Mr Curle’s Adjustment Disorder is excluded from the definition of injury by section 5A, it is necessary to determine the following questions.

    (1)  Was the decision not to offer Mr Curle a position as a Shift Leader and the notification of him of this decision on 23 December 2015, “administrative action taken in respect of [Mr Curle’s] employment”?

    (2)  If so, was the administrative action “reasonable”?

    (3)  If so, was the action “taken in a reasonable manner”?

    (4)  If so, was the Adjustment Disorder suffered “as a result of” the administrative action?

    REASONING

    Issue 1:         Was the decision not to offer Mr Curle a position as a Shift Leader and the notification of him of this decision on 23 December 2015, “administrative action taken in respect of [Mr Curle’s] employment”?

18. In Commonwealth Bank of Australia v Reeve and Another[6], the majority of the Full Court of the Federal Court said:

    The ordinary and natural meaning of “administrative” concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management.[7]

    …

    The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment… Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.[8]

    [6] (2012) 199 FCR 463; [2012] FCAFC 21.

    [7] Ibid 52.

    [8] Ibid 60.

19. Clearly, the decision of the management of the Company not to offer Mr Curle one of the newly created positions and its action in informing him of this decision, concerned the management of the company’s business rather than the tasks allocated to Mr Curle.  For this reason, the “actions” were “administrative”.

20. The actions referred to related directly to the terms of Mr Curle's engagement and the duties he was to perform.  On this basis, the administrative actions were taken “in respect of” his employment.  By way of example, these actions are to be contrasted with the conduct of the employee survey which, in part, gave rise to the decision to restructure the front-line management and therefore, the Shift Manager positions.  The conduct of the survey may be properly classified as “administrative action”.  However, it was not “in respect of” Mr Curle's employment.                  

    Issue 2:          Was the administrative action taken in respect of Mr Curle’s employment “reasonable”?

21. Evidence of Mr CurleMr Curle provided two statements[9] and gave evidence.

    [9] Exhibits A1 (filed 30 August 2016) and A2 (made 10 December 2016).

22. In his first statement, Mr Curle said, in part:

    In the latter part of 2015, I was advised of a restructure within the organisation and particularly a change to my role. After a meeting in September 2015, the shift managers were requested to stay behind. We were advised by Phil Mullard, manager, that a restructure was happening. Phil said words to the effect of “we can see that there is a need for change. We are going to restructure the jobs and re split the roles. It will mean that you will have to reapply for your jobs.” A couple of questions were asked which mostly concerned salary maintenance. Someone asked whether or not our salary would be maintained if we were to change jobs. We were told that this would be the case. However, this did not seem right in the circumstances because the only other position open to me was that of a train driver. As this is not a salaried position, I would potentially lose a significant amount of money or conditions if I had to take this job. It was indicated that some of the additional duties we had been performing, being duties including the control of train movements within the Boral sites would be taken out of our role and would be allocated to designated train controllers. This was put forward as the main reason for the restructure.

    I found this unusual, because our ordinary duties as a shift manager did not actually require us to do these duties in any event. The duties of train control we had been performing were additional duties which we had subsequently been performing….Accordingly, when we were advised at the meeting in September 2015 that the train controller duties in relation to the Boral sites would be taken from us, this did not appear to be a sufficient basis to proceed with a restructure of our roles. The removal of the train controlling duties was well overdue and would allow us to actually do the shift manager duties as they should have been done, noting that train control took up a large portion of our time.

    This proposed change did not seem to necessitate a restructure of our role and I was concerned by this.

    We were advised that we would need to re-apply for our new roles which would be as a shift leader.[10]

    [10] Exhibit A1.

23. On or about 2013, when the Company acquired new quarries, the time spent by Mr Curle on train control duties increased from 40% to approximately 60%.  He described undertaking other duties, which included the management of staff, as “pretty much a juggling act”. [11] The Moss Vale depot was the only depot at which Shift Managers performed train control duties.

    [11] Transcript of 1 May 2017.

24. Mr Curle had an excellent employment record with the Company from the time he started work in December 2003.  He received “glowing reports”[12] regarding his work and good performance appraisals by his superintendent.  He received a performance bonus in 2005 and in each of the subsequent years until his employment by the Company came to an end.

    [12] Transcript of 1 May 2017.

    Evidence of Mr Arscott, Human Resources Business Partner

25. Mr Arscott provided statements dated 23 November 2016[13] and 27 April 2016[14] and gave evidence.

    [13] Exhibit R4.

    [14] Exhibit R5.

26. In September 2017, Mr Arscott joined the Project Team working on the restructure.

27. The research into the front-line management at the depot indicated that the Company needed the employees in leadership positions to be more focused on staff management.  The structure in place at the time required the Shift Managers to monitor train movements from computers which restricted the time available to effectively manage staff.

28. The new role of Shift Leader required a greater people management role than that of Shift Manager, involving performance management, incident management, safety issues and interaction with train crews.  The stronger focus on people management made the new role “very different” [15] to the Shift Manager role, and performance of the earlier role did not necessarily equip an incumbent for the new role.

    [15] Transcript of 1 May 2017.

29. In September 2015, along with all other affected staff, Mr Curle was advised in writing that a review of the management structure was being undertaken. On or about 23 November 2015, a further memorandum was issued notifying the staff that it had been decided to centralize the train control functions  and outlining the new management structure  and implementation plan.

30. On 26 November 2015, Mr Arscott met with Mr Curle and Mr Curle’s superintendent, Mr Beddow.  During this meeting, Mr Curle’s options were discussed.  These included his applying for a Shift Leader position, possible redeployment and redundancy.

31. The recruitment process started on 26 November 2015. The new positions were advertised both internally and externally.  Candidates were required to answer questions online and selected candidates engaged in group activities and individual interviews.  Mr Curle proceeded to the final interview stage

    Evidence of Mr Beddow, Superintendent

32. Mr Beddow provided a statement dated 21 November 2016[16]  and gave evidence.

    [16] Exhibit R2.

33. Mr Beddow has been employed as the superintendent of the Moss Vale depot since May 2015.  He was Mr Curle’s direct supervisor.

34. On 23 December 2015, Mr Beddow telephoned Mr Curle and informed him that he had not been successful in obtaining a Shift Leader role as there were applicants who were better suited to the role.  They spoke generally about the recruitment process.  During a later conversation, Mr Curle advised Mr Beddow that he did not wish to take alternative employment as a train driver with the Company.

    Discussion

35. In Comcare v Martinez (No.2)[17]  Robertson J said, in part:

    … the word “reasonable” allows the possibility that that there may be more than on way of doing things “reasonably”, and the judgement required is not whether the thing could have been done more reasonably.  I also agree, with respect, that the word imports an objective judgement.

    [17] [2013] FCA 439, 82.

36. In Keen v Workers Rehabilitation & Compensation Corporation,[18] Bleby J said:

    Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.

    [18] (1998) 71 SASR 42, 63.

37. Clearly, the Company faced a situation in its Moss Vale depot which justified a re-organisation of the manner in which the necessary management duties were performed.  Mr Curle said that the performance of his duties other than train management was a “juggling act” and that train management had taken up increasing amounts of his time.  In addition, the practice which had developed in the Moss Vale depot differed from that adopted at other sites.

38. That part of the administrative action, being the decision not to offer Mr Curle one of the Shift Leader positions, was taken after a comprehensive recruitment process in which he participated.  In addition, I am satisfied that the Company kept him informed of the nature of the recruitment process and ensured that he had the opportunity to engage in it.  I accept the evidence of Mr Arscott that the role of the Shift Leader is different to that of the Shift Manager and I am satisfied that it was reasonable for the Company to take the opportunity to recruit for the new roles rather than to simply remove the train management duties from the incumbents of the Shift Manager positions. 

39. Unfortunately for Mr Curle, he was not successful in obtaining one of the new positions, However, I accept the evidence of Mr Arscott that applicants other than Mr Curle were more suited to the job. Mr Curle gave evidence that some of the candidates were known to Mr Arscott and implied that they were given preference.  I do not accept this evidence.  I am satisfied that the recruitment process was conducted properly and fairly.

40. Recognising that use of the adjective “reasonable” meant that there may have been more than one appropriate way of taking the action which the Company did, I am satisfied that the decision not to offer a Shift Leader position to Mr Curle was reasonable action in all of the circumstances.  In reaching this conclusion, I have taken into account that that the decision was made after a comprehensive and fairly conducted recruitment process.

    Issue 3:          Was the administrative action taken in a “reasonable manner”?

41. There is no evidence as to who made the decision not to offer Mr Curle a position.  However, the decision was made after a consideration of the results of the recruitment process and there is nothing to suggest that there was anything inappropriate in the final decision-making process.

1. It was put on behalf of Mr Curle that advising him of his failure to gain a Shift Leader position by telephone, rather than face-to-face, was not a reasonable manner of taking the administrative action of informing him of the Company’s decision.  I do not accept this argument.

2. I accept the evidence of Mr Beddow that he was on leave at the time the decision was to be communicated to Mr Curle and that he considered it important to communicate with him as soon as possible.  Mr Beddow was Mr Curle’s immediate supervisor and it was appropriate that he was the person to advise him of the decision.  I note that when Mr Beddow spoke with Mr Curle, he also discussed the recruitment process and Mr Curle's opportunities for other employment within the Company.

3. For these reasons, I am satisfied that both aspects of the administrative action in question were taken in a “reasonable manner”.  I have reached this conclusion bearing in mind that there were other methods by which the information could have been conveyed to Mr Curle.

   Issue 4:  Was the Adjustment Disorder suffered by Mr Curle “as a result of” the administrative action?

4. In Comcare v Martin [19] the High Court said that, in the statutory context of sections 5A and 5B,  the words “as a result of” do not impose a separate causation test but refer to the test of causation set out in subsection 5B(1).  The Court continued:

   [44] The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee “as a result of” reasonable administrative action taken in a reasonable manner in respect of the employee’s employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee’s employment which answers that description of reasonable administrative action.

   [45] When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. 

   What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.  [Emphasis added].

   [19] [2016] HCA 43, 44-45.

5. In Lim v Comcare[20], the Full Court of the Federal Court applied the test, as explained by the High Court in Comcare v Martin[21].  The Federal Court concluded:

   … in Dr Lim’s case, there was no dispute that the relevant adjustment disorder (being an ailment is defined in s 5B(1)(a) was contributed to, to a significant degree, by Dr Lim’s employment by ACMA.  Put another way, as in Ms Martin’s case, only employment-related factors were identified as contributing to Dr Lim’s ailment. In this circumstance, applying Comcare v Martin, to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that Dr Lim would not have suffered an ailment (or aggravation of an ailment) if the performance appraisal had not been taken.

   …

   In Dr Lim’s case, the Tribunal found simply that the performance appraisal contributed to the development of Dr Lim’s psychological condition. It is clear from the Tribunal’s reasons (see [8] above) that the Tribunal statement that the performance appraisal was “a cause” of Dr Lim’s ailment and that Dr Lim suffered the adjustment order “as a result of” the performance appraisal are supported by the finding and no other finding. The Tribunal did not address the question of whether or not Dr Lim would have suffered the adjustment disorder if the performance appraisal on 31 January 2011 had not been made. Failure to do so was an error of law.

   [20] [2017] FCAFC 64, 41-42.

   [21] [2016] HCA 43, 44-45

   Evidence of Mr Curle

6. After being told on 23 December 2015 that he was unsuccessful in obtaining a Shift Leader position, Mr Curle struggled with continuing his shifts, but did so until 31 December 2015. Previously, he had been confident and cheerful and had not suffered from depression, anxiety or changes in mood.[22]  However, on 5 January 2016, Mr Curle consulted his General Practitioner, Dr Padala, as he was feeling anxious and suffering insomnia, irritability and decreased appetite.

   Dr Padala’s clinical notes[23]

   [22] Exhibit A1.

   [23] Exhibit R7.

7. On 5 January 2016, Dr Padala noted that Mr Curle presented with severe stress after losing his job and that he was made to re-apply for the same job in which he had been working.  This was the first entry in the medical practice notes relating to Mr Curle presenting with a psychological condition.[24]

   [24] This was conceded by the Respondent and confirmed in the report of Dr Allnutt who reviewed the medical records.

8. On 12 January 2016, Mr Curle again consulted Dr Padala.  On that occasion, Dr Padala noted that he was suffering extremely severe depression, extremely severe stress and mild anxiety.

9. Following a further consultation on 19 January 2016, Dr Padala noted that Mr Curle’s reason for contact was anxiety/depression. On this occasion, Mr Curle was prescribed an anti-depressant medication.

   Report of Ms Griffin, Consultant Psychologist[25]

   [25] Exhibit A5.

10. Mr Curle was referred to Ms Griffin by his General Practitioner; he first consulted Ms Griffin on 10 February 2016.

11. Ms Griffin diagnosed Mr Curle as suffering from severe Major Depressive Disorder, Single Episode and Panic Attacks. In her opinion both disorders were a result of “a severe reaction Mr Curle had after being made redundant at work.”

    Report of Dr Allnutt, Senior Consultant Forensic Psychiatrist [26]

    [26] Exhibit A3, pp 3.

12. Mr Curle was assessed by Dr Allnutt in October 2016 at the request of his Solicitors. He provided a report dated 21 October 2016.

13. Dr Allnutt reported that Mr Curle had “first noticed a change in his mental state around 23 December 2015 when he was informed of the outcome of his application.” [27]  Further, he reported that Mr Curle’s “experience of being informed that he was unsuccessful in his position was to some degree made more difficult by being replaced by younger employees, whom he perceived as having less experience on him, and also been kept uninformed about the process.”[28]

    Report of Dr Brown, Consultant Psychiatrist & Psychologist[29]

    [27] Ibid pp 3.

    [28] Ibid pp 6.

    [29] Exhibit R6.

14. Dr Brown assessed Mr Curle on 25 October 2016 at the request of the Company’s Solicitors. He provided a report dated 25 October 2016.

15. In the opinion of Dr Brown, the cause of Mr Curle’s Adjustment Disorder was his belief that he lost his job for no justifiable reason.

    Discussion

16. Although Mr Curle has expressed some concern about the recruitment process itself, I am satisfied that prior to 23 December 2015, he was continuing to perform at work without any difficulty and did not need to seek medical assistance in relation to his mental state.  He said that he thought that his interview, one of the later steps in the process, went well.

17. On the basis of the evidence of the General Practitioner’s clinical notes  and the report of Ms Griffin, I am satisfied that Mr Curle would not have suffered the Adjustment Disorder if it had not been decided that he not be offered one of the Shift Leader positions and had he not been informed of this.  This conclusion is supported by the opinion of Dr Allnutt although he does not go so far as saying that Mr Curle would not have suffered the condition had Mr Curle not lost his job.  Dr Allnutt did report that Mr Curle first noticed a change in his mental state when informed on 23 December 2015 that he had not been appointed to a new position.

18. It follows that I am satisfied that the Adjustment Disorder suffered by Mr Curle was suffered “as a result of” the administrative action to which I have referred.

    CONCLUSION

19. I am satisfied that the decision not to offer Mr Curle a position as a shift leader and to notify him of this decision in the manner in which it was done, was reasonable administrative action taken in a reasonable manner in respect of his employment. Further, I have found that the Adjustment Disorder suffered by Mr Curle was suffered as a result of that action. Consequently, Mr Curle's condition is not included in the definition of “injury” and he is not entitled to be compensated for it under the provisions of the Act.

    The decision under review made 13 May 2016, being the decision of Asciano Services Pty Ltd to reject Mr Curle's claim for compensation for an Adjustment Disorder, will be affirmed. 

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

............................[sgd].......................................

Associate

Dated: 19 May 2017

Date(s) of hearing:	1-2 May 2017
Counsel for the Applicant:	Mr J Mrsic, Fourth Floor Selborne Chambers
Solicitors for the Applicant:	Mr S Dougall, Carroll & O’Dea Lawyers
Counsel for the Respondent:	Mr A Berger, Australian Government Solicitor
Solicitors for the Respondent:	Mr D Clarke, Clarke Legal